ARCHIVE -- NOVEMBER 2001
November 19-20 --
New frontiers in discrimination law: Harleys among the cyclamens.
Lawmakers in Ohio, South Carolina and several other states are pushing
legislation that would prohibit businesses from turning away customers
on motorcycles. Georgia state Sen. Joey Brush, who rides a Harley-Davidson,
"introduced the legislation because of a long-running dispute with Calloway
Gardens, a private, nonprofit horticultural garden that doesn't allow bikers
to drive onto the grounds. The ban, in place for the garden's entire 49-year
existence, is meant to protect the serenity and peace for which the grounds
are known, said spokeswoman Rachel Crumbley. 'We feel it's not a
civil right to ride a motorcycle wherever you please,' Crumbley said."
An Ohio rider who supports such legislation "said a waitress at a restaurant
near Cincinnati once placed him and his wife in a corner away from other
patrons when the couple pulled up wearing leather boots, chaps and vests."
But the biker community, which in the past has often sided with libertarian
causes such as opposition to mandatory helmet laws, is far from unanimous
on this one: "As a business owner, they should have right to decide who
they want,'' says spokesman Steve Zimmer of Ohio's pro-biker ABATE group
-- clearly someone who hasn't forgotten that biking is supposed to be about
freedom. (Andrew Welsh-Huggins, "Laws Seek to Protect U.S. Bikers",
14). (& letters to the editor, Feb.
28) (DURABLE LINK)
November 19-20 --
Can't find the arsonist? Sue the sofa-maker.
"With the two-year statute of limitations almost up, lawyers representing
victims of New Jersey's Seton Hall University dormitory fire are working
frantically to find parties to sue.
"The fire, which authorities believe was intentionally started, broke
out in the Boland Hall dormitory on Jan. 19, 2000, killing three students
and injuring 58 others. Seton Hall, which enjoys charitable immunity
from suit, has settled out of court with some of the plaintiffs.
Still, lawyers contemplate suits against other people who may have contributed
to the conflagration -- the arsonists, the maker
of the sofa that ignited and any other potentially responsible parties."
(Charles Toutant, "Seton Hall Fire Victims' Lawyers Still Scrambling to
Identify Defendants", New Jersey Law Journal, Nov.
14) (see June 1, 2000). (DURABLE
November 19-20 --
By reader acclaim: football's substance abuse policy challenged.
"New England wide receiver Terry Glenn has sued the NFL, claiming a disability
makes it difficult for him to adhere to certain rules in the league's substance
abuse policy. ... Glenn filed the complaint under the Americans
with Disabilities Act, but it did not specify what disability Glenn
suffers. Glenn claims he should not have been suspended by the NFL
for the first four games of the season for violation of the substance abuse
policy." ("Glenn's suit doesn't specify disabilities", AP/ESPN, Nov.
4). Plus: reader Rick Derer, outraged
by the Casey Martin episode, has put up an ADA
horror stories website to call attention to what he terms "the worst
law ever foisted on the American people".
November 19-20 --
Municipal gun suits on the run. Cause for thanksgiving
indeed: the lawless and extortionate municipal gun-suit
campaign has been encountering one setback after another. "In a major
victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on
[Nov. 16] upheld the dismissal of a suit brought by Camden County, New
Jersey, that accused gun makers of creating a 'public nuisance' and sought
to recoup the governmental costs associated with gun-related crimes."
Arguing the losing side were radical law prof David Kairys and class-action
firm Berger & Montague. The three-judge panel was unanimous.
(Shannon P. Duffy, "3rd Circuit Shoots Down Gun Suit Theory", The Legal
19). The city of Atlanta is desperately trying to keep its anti-gun
suit alive in the face of legislation enacted by its parent state of Georgia
making it as explicit as humanly possible that the city has no authority
to press such a suit (Richmond Eustis, "Atlanta Asks State Appeals Court
to Keep Alive Suit Against Gun Makers", Fulton County Daily Report,
Yale law professor Peter Schuck describes the gun lawsuits as based
on the "most tenuous" theories yet of government rights of recoupment ("subrogation")
and tort law as "one of the last places" we should look to resolve the
policy issues of gun control ("Smoking Gun Lawsuits", American Lawyer,
And Bridgeport, Conn. mayor Joseph Ganim, who had taken perhaps the highest
profile among Northeastern mayors in support of the gun suits, is likely
to be less heard from for a while given his indictment last month on two
dozen felony counts including extortion, bribery and mail fraud.
(He denies everything.) (John Christoffersen, "In Connecticut, a
growing and unwelcome reputation for corruption", AP/Charleston (W.V.)
16; Chris Kanaracus et al, "Ganim on the Spot" (pre-indictment coverage),
Fairfield County Weekly, undated).
See also Kimberley A. Strassel, "Bummer for Sarah Brady", OpinionJournal.com,
15 (expressing optimistic view that municipal gun suits have been contained).
November 16-18 --
Profiling perfectly OK after all. "State highway
safety officials said they have received a $700,000 federal grant to help
them crack down on two groups of chronic violators of the state's seat
belt law: drivers and passengers of pick-up trucks, and all male drivers
and passengers between 18 and 55. ... [Louisiana Highway Safety Commission
Executive Director James] Champagne said state and federal studies have
consistently shown pickup drivers and all male drivers are less likely
to buckle up than any other groups of drivers or front-seat passengers.
State law requires both the driver and front-seat passengers of vans, sports
utility vehicles, cars and trucks to use seat belts. ... Asked if the targeting
of males and pickup drivers and passengers is profiling of a certain group,
Champagne said, 'Absolutely.'" To recap, then: the federal government strictly
bans giving extra attention to 25-year-old males from Saudi Arabia
at airport check-in. While they're driving to the airport, on the
other hand, it positively encourages them to be profiled. Perhaps
the explanation is that it's willing to swallow its scruples in order to
combat really antisocial behavior -- like failing to wear seat belts,
as opposed to hijacking planes into buildings. (Ed Anderson, "Police
to harness seat belt scofflaws", New Orleans Times-Picayune, Nov.
10 -- via InstaPundit).
Meanwhile, the American Civil Liberties Union is soliciting
racial-profiling plaintiffs in New Jersey. "The ACLU billboard, which
went up last month, shows a photograph of two minority men and between
them the words 'Stopped or searched by the New Jersey State Police?
They admit to racial profiling. You might win money damages,' the sign
reads. The ad includes the ACLU's toll-free number." ("Billboards
in New Jersey Ask for Trooper Praise, Not Profiling Complaints", FoxNews.com,
November 16-18 --
EEOC approves evacuation questions for disabled.
To the relief of many in the business community, the Equal Employment Opportunity
Commission has announced that it is not unlawful to ask workers about the
state of their health for the purpose of formulating plans for emergency
building evacuations. The September attacks called attention to the
difficulty experienced in disaster situations by evacuees with such
conditions as blindness, paraplegia, extreme obesity, and asthma.
While employers may ask about problems that might impede evacuation, they
should not insist on getting actual answers; EEOC officials recommend that
they let each worker elect whether to disclose the information.
The Americans with Disabilities Act has generally been interpreted as conferring
on employees a broad legal right to conceal health problems from their
employers. (Kirsten Downey Grimsley, "EEOC Approves Health Queries",
Washington Post, Nov.
November 16-18 --
Et tu, UT? Perhaps envying California its litigious
reputation, the Supreme Court of Utah has ruled that it will not enforce
releases in which parents
agree to waive their children's right to sue for negligence. The
case involved a child thrown from a rented horse; the mother had signed
a release before the accident, but then decided she wanted it invalidated
so she could sue anyway. Attorney James Jensen, who represented defendant
Navajo Trails, "listed many activities that now may be affected or curtailed,
including school field trips, religious organization youth activities,
scouting programs, amusement parks and ski resorts. 'Anybody that
provides recreational activities to minors,' he said." (Andrew Harris,
"Utah High Court Says No Release of Liability to Children", National
Law Journal, Nov.
November 15-- "Poor
work tolerated, employees say". We keep hearing
that if we were really serious about airport
security we'd kick out those ill-paid Argenbright bag screeners and swear
in a new 28,000-strong corps of federal employees to replace them.
But a "new study concludes that federal workers themselves view many of
their co-workers as poor performers who are rarely disciplined. The
survey of 1,051 federal workers, conducted for the Brookings Institution's
Center for Public Service prior to the Sept. 11 terrorist attacks, found
that on average federal employees believe 23.5 percent of their colleagues
are 'not up to par.' Meanwhile, only 30 percent believe their organization
does a very or somewhat good job of disciplining poor performers."
Those numbers are worse than the ones you get when you poll employees
of private firms. At least when Argenbright botches things you can
kick it out in favor of another contractor (Ben White, Washington Post,
30; Gregg Easterbrook, "Fighting the Wrong Fight", The New Republic
November 15 --
Lawyers' immunity confirmed. In a dispute arising
out of a developer's plan to buy Fisher Island, home to many celebrities
and wealthy persons, a Florida court has ruled that the developer cannot
pursue a countersuit for tortious
interference against residents who filed lawsuits aimed at derailing the
deal, even if it can show they knew the suits to be unmeritorious.
The court relied on a 1994 case in which the Florida Supreme Court ruled
that an attorney's acts in the course of litigation are subject to an "absolute"
privilege: "We find that absolute immunity must be afforded to any act
occurring during the course of a judicial proceeding, regardless of whether
the act involves a defamatory statement or other tortious behavior such
as the alleged misconduct at issue, so long as the act has some relation
to the proceeding." Or, as the Miami legal paper puts it, "litigation
itself is immune from litigation". Put differently, people engaged
in litigation boast an "absolute immunity" to engage in injurious behavior
that would have a remedy at law if you or I tried it (Julie Kay, "Lawsuits
of the Rich and Famous -- and Their Two Dozen Law Firms", Miami Daily
Business Review, Nov.
November 15 --
Exxon Brockovich vs. Erin Valdez. The Ninth Circuit
has struck down as excessive an Alaska jury's $5 billion punitive award
against Exxon over the Valdez oil spill, sending the case back for further
litigation; compensatory damages are unaffected by the ruling (Henry Weinstein
& Kim Murphy, "Court Overturns $5-Billion Judgment Against Exxon in
'89 Alaska Oil Spill", L.A. Times, Nov.
Full Coverage)(update Dec. 30,
2002: judge cuts award to $4 billion). Meanwhile, toxic-tort
celebrity Erin Brockovich is
helping spearhead a new effort to recruit plaintiffs from among the more
than 15,000 workers who took part in the cleanup effort a dozen years ago,
some of whom believe that it caused their health to take a turn for the
worse. A Los Angeles Times account, after sympathetically
relaying what would seem to be the most striking such cases the plaintiff's
team could come up with, concedes that "most health officials remain unconvinced
that the cleanup left anyone sick". (Nick Schulz, "Busy Bee Brockovich
Looking to Sting Again", TechCentralStation, Nov.
9; Kim Murphy, "Exxon Oil Spill's Cleanup Crews Share Years of Illness",
L.A. Times, Nov.
5; Mary Pemberton, "Erin Brockovich probes Exxon complaints", AP/ Anchorage
Daily News, Nov.
November 14 --
"Rejoice, rejoice". "[Y]esterday's liberation of
Kabul and much of the rest of Afghanistan is a great victory. ... The moving
scenes from the Afghan capital remind us ... that most believing Muslims
reject the rigorist insanity that bin Laden and the Taliban promote in
their name, and are happy to worship God without having to wear a beard
or a burqa. They can sing
and dance again; women can work, and children can learn. The
Taliban's scorched-earth devastation of so many Afghan villages reveals
their contempt for their own people, and their desertion of so many of
their own Arab and Pakistani jihadis shows their capacity to betray. ...
Today, though, everyone who cast doubt on the possibilities of success
and everyone who sneered at American 'gung-ho' should observe a period
of silence. The rest of us should, to use a famous phrase from another
war, 'just rejoice rejoice'". ((editorial), Daily Telegraph, Nov.
14; Paul Watson, "Taliban torturers on the run", L.A. Times,
14; Christopher Hitchens, "Ha ha ha to the pacifists", The Guardian,
14; Dexter Filkins, "In Fallen Taliban City, a Busy, Busy Barber",
New York Times, Nov.
November 14 --
Insurance market was in trouble before 9/11. With
alarms being heard about an impending crisis in the availability of commercial
insurance, it's worth noting for the record that conditions were deteriorating
rapidly in that market even before Sept. 11, mostly because insurers were
pulling back from liability exposures: "Among the lines tightening the
most are products liability, umbrella liability, contractor liability and
nursing home liability, insurers and brokers say," reported the July 2
issue of the trade publication Business Insurance. Also in
scarce supply was coverage for "anything with an occupational disease exposure,
like insulation and cell phones," said one industry observer, Tom Nazar
of Near North. "Generally, premiums for most liability lines are
increasing anywhere from 25% to 60%," with transportation risks seeing
rate hikes of 100-200 percent and nursing homes 150 percent, said another
insurance exec -- all this well before the WTC attacks hit carriers with
the largest losses from a single insured event in history. (Joanne
Wojcik, "Transportation takes biggest hit in hardening market", Business
Insurance, July 2 (online
subscribers only), and other contemporaneous coverage in the same publication).
Directors' and officers' liability was another big problem area, especially
for companies in fields such as high tech and telecom, financial services
and health care. "The risks facing the steepest premium increases
are pharmaceutical companies, nursing homes and contractors, especially
organizations located in the litigious markets of California, Illinois
and New York, insurance executives said." In workers' comp, "loss
severity continues to deteriorate".
And then there was asbestos:
an August Standard & Poor's report indicated that insurers were setting
aside an additional $5-10 billion this year for asbestos claims, above
earlier amounts reserved. "The implications to the insurance community
are potentially devastating," says the report. "Other analysts and
ratings agencies recently have estimated that the insurance industry would
need to put up as much as $20 billion to $40 billion more to cover their
asbestos exposure. In May, ratings firm A.M. Best Co. calculated
that insurers have set aside $10.3 billion to pay additional asbestos claims,
having already paid out $21.6 billion." A not-insubstantial portion
of those sums, as we know, will go to compensate persons who are not sick
from asbestos and never will be -- raising once again the question of why
we don't try harder as a society to reserve the limited pool represented
by insurance for situations where it's really needed (Christopher Oster,
"Insurers to Set Aside Additional Billions For Asbestos Claims", Wall
Street Journal, Aug. 1 (online subscribers
only)). On proposals to bail out insurance markets since the attacks,
see Scott Harrington and Tom Miller, "Insuring against terror", National
Review Online, Nov.
5. (DURABLE LINK)
November 14 --
"Diabetic German judge sues Coca-Cola for his health condition".
Why should American lawyers have all the fun? In a trial that began
Monday in Essen, Germany, Hans-Josef Brinkmann, 46, a judge in the east
German town of Neubrandenburg, says the beverage company is partly responsible
for his developing diabetes after drinking
two bottles of Coca-Cola a day for years. He further "disputes the
contention of the drinks company that Coca Cola is a 'flawless foodstuff'
... Brinkmann plans to bring a similar case against Masterfoods, manufacturers
of Mars Bars, Snickers and Milky Way chocolate candy, in January."
Whether Herr Brinkmann wins or loses these suits, we hope he'll come to
America -- we bet he'd have no trouble landing a job at one of our law
schools. (AFP/Times of India, Nov.
November 13 --
From the paint wars: a business's demise, a school district's hypocrisy.
"Sherwin-Williams Co. acquired Mautz
Paint Co. Thursday after the local company said it could no longer
afford facing a costly lawsuit filed by the city of Milwaukee. Bernhard
F. 'Biff' Mautz, the company's chairman of the board, said negotiations
to sell the [family-owned] firm intensified in April after the city of
Milwaukee filed suit seeking more than $100 million in damages over the
manufacture of lead-based paints
believe the city's case is meritless and Mautz will ultimately be absolved
of any responsibility, for the first time in our history we were faced
with years of litigation, which even if (the plaintiff was) unsuccessful,
would destroy our small company,' he said. ...
"The sale price was not released, but Mautz President Dan Drury said
it was discounted to reflect the costs of the lawsuit. Founded in
1892, Mautz employed 260 people at its 33 retail stores and manufacturing
plant. It had sales of $32 million last year. ...
"Wisconsin Manufacturers & Commerce said the sale of the one of
Madison's oldest businesses will make it more difficult for the state to
attract new businesses. 'This is a sad day in the state of Wisconsin,'
said James S. Haney, the organization's president. 'This is every business
person's worst nightmare. Mautz got in the gun sights of the contingency
fee trial lawyers and the bureaucrats and now another homegrown locally
owned business with strong ties to the community is gone.'" ("Mautz announces
acquisition by Sherwin-Williams", AP/Janesville (Wis.) Gazette,
Meanwhile: In Houston, where contingency-fee lawyers have been
recruiting local school districts to go after paint companies, the lawsuit
filed by the Spring Branch School District claims that residual paint from
decades past exposes students and teachers to "a substantial risk of lead
poisoning" -- a dramatic charge indeed. Which left Jon Opelt, executive
director of Citizens Against Lawsuit Abuse Houston and the parent of a
child in the district, wondering why "the school district has never notified
me, as a parent, of the presence of any health or safety risks related
to lead. No cautionary notes have been sent home with my children.
No alarming studies have been released discussing the severity of the problem
in our schools.'"
Which naturally raises the question: is there a genuine lead hazard,
which the district has been covering up from parents, or just a phony hazard,
which their lawyers are conjuring up in an effort to squeeze money from
manufacturers? Opelt: "Ron Scott, a lawyer for the school district,
is quoted in a Houston Chronicle article as saying: 'This isn't
a panic issue. People don't need to feel their schools are unsafe.'
Duncan Klussmann, a district administrator, told me, 'Your child is not
at risk.' These are the very same people who signed onto a lawsuit
that says there is a 'substantial risk of lead poisoning.' What are
we to believe? District officials are telling parents their schools
are safe but their lawsuit demands millions of dollars for addressing a
dangerous situation caused by lead paint. Both cannot be true."
(CALA Houston website, "Parent
Urges School District To "Get The Lead Out", "Contrary
to Other Reports", David Waddell, "Why
Should Safety Be a Secret?", Annette Baird, "District: Lead-paint concerns
in check", Houston Chronicle, Oct.
17). (DURABLE LINK)
November 13 --
Update: ousted quartet member wins damages. "A Pennsylvania
judge has ordered three members of the Audubon Quartet to pay their former
colleague David Ehrlich more than $600,000 in damages, adding yet another
dramatic twist to the legal battle that has largely silenced the internationally
acclaimed quartet since February 2000 and cost the group its home at Virginia
Tech." (Kevin Miller, "Ousted quartet member should receive damages, judge
rules", Roanoke Times, Oct.
16; "In Support of
the Audubon Quartet"; summary
of court opinion) (see June 5, 2000,
June 14, 2001). Update May
10-12, 2002: defendants could lose house.
November 13 --
Women's rights: British law, or Islamic? According
to columnist Theodore Dalrymple of The Spectator, a misguided multiculturalism
has led authorities in the United Kingdom to adopt a hands-off policy toward
some British Muslim families' trampling of their young daughters'
rights ("The abuse of women", Oct.
November 12 --
"Morales trying to 'clear the air' before campaign".
Many assumed the political career of former Texas attorney general Dan
Morales was dead, dead, dead after allegations began flying in the papers
about the circumstances under which he'd hired outside lawyers to represent
the state in the tobacco
affair and share one of the largest fee windfalls in history (see Sept.
1-3, 2000). But now Morales wants to run for the U.S. Senate
seat being vacated by Phil Gramm and is insisting with new vehemence that
he never acted improperly and that it's all been a misunderstanding.
Two of his lawyers have "asked a state district court in Austin to let
Morales lay the groundwork for a possible defamation suit by taking the
sworn testimony of four former associates. Morales wants to question
John Eddie Williams Jr. of Houston -- one of five trial lawyers who shared
$3.3 billion in legal fees from the tobacco case -- and three former assistants
in the attorney general's office -- Harry Potter of Austin and Jorge Vega
and Javier Aguilar of San Antonio. He indicated that Williams and
Potter, who was actively involved in the tobacco suit, could be targets
of any suit he may file." Pull up a chair, this promises to be interesting
(Clay Robison, Houston Chronicle, Nov.
7). Morales also continues to deny "allegations by Houston trial
lawyer Joe Jamail that Morales improperly solicited $1 million from each
of several lawyers he considered hiring for the tobacco suit."
November 12 --
Short-sellers had right to a drop in stock price.
At least that's the premise underlying this press release and lawsuit from
a class action law firm seeking
the right to sue on behalf of short-sellers who feel their speculative
bets against the stock of Intelli-Check Inc. were stymied by the company's
allegedly over-sunny fiscal projections. ("Speziali, Greenwald &
Hawkins, PC Announces the Filing of a Class Action Suit on Behalf of Short-Sellers
of Intelli-Check, Inc. (Amex: IDN) Securities", Yahoo/PR Newswire, Oct.
November 12 --
"U.S. Debates Info on Chemical Hazards". "Separate
hearings in the House and Senate [were] held this week to reassess the
safety of chemical and industrial facilities in the light of recent terrorist
attacks. A key policy at stake is the so-called 'right to know' law,
which requires the federal government to publicly disclose sensitive information
about facilities around the country that could be used by terrorists to
target the most dangerous locations." Jeremiah Baumann, a spokesman
for the Nader-empire U.S. Public Interest Research Group, called for preserving
public access to the sensitive information. "'Let's at least make
the bad guys work for it,' countered Amy E. Smithson, a chemical and biological
weapons analyst for the Henry L. Stimson Center think tank." Smithson said
"[t]he Clinton EPA's decision to
post those plans for some 15,000 plants on the Internet in August 2000
'wasn't just bad, it was colossally bad'." (John Heilprin, AP/Yahoo, Nov.
8) (see Oct. 1). More: Carol
D. Leonnig and Spencer S. Hsu, "Fearing Attack, Blue Plains Ceases Toxic
Chemical Use", Washington Post, Nov.
10 (chlorine use at Washington sewage treatment plant); Jonathan Adler,
"How the EPA Helps Terrorists", National Review Online, Sept.
27; "Environmental Danger", Oct.
11; Angela Logomarsini, "Laws that Make Terror Easy", New York Post,
12; "'Right To Know' Hearings – Taking Away Terrorist Tools",
Competitive Enterprise Institute press release, Nov.