|ARCHIVE -- SEPT. 1999
September 30 --
Power attracts power. With billions flowing
into its coffers and its new semiofficial status as a fourth branch of
government, the entrepreneurial plaintiff's bar is fast becoming a magnet
for celebrity litigators. This morning's papers announce that Johnnie
Cochran Jr., best known for his criminal defense work on the O.J. Simpson
case, is moving to New York where he'll merge his practice with that of
one of Gotham's largest plaintiff firms, Schneider,
Kleinick, Weitz, Damashek & Shoot. Meanwhile, attorney David
Boies, famed for representing the U.S. Justice Department in its antitrust
case against Microsoft, is teaming
up with a prominent Washington, D.C. plaintiff's firm, Cohen,
Milstein, Hausfeld & Toll, to prepare a class-action
assault against managed care.
Cohen, Milstein is known for, among many
other cases, class action suits against German companies over World
War II claims and against Texaco
over allegations of racial discrimination.
In truth, neither move is an especially surprising or
radical departure. Cochran's Los Angeles legal practice has long
leaned heavily on injury suits, and both the
Schneider firm and his have made a particular specialty of police-misconduct
suits, the lucrative cousin of criminal defense law (the name of the game
being in both instances to get people mad at the police, but with a lot
bigger paydays to be had working the civil side). Boies has also
taken part in class-action plaintiff's work in the past, and one of the
underpublicized aspects of the Microsoft war is the likelihood that a government
victory in the suit will be followed by a barrage of copycat/piggyback
suits by private class action lawyers (though presumably not by Boies himself),
the heavy lifting on the development of legal theories having been done
at taxpayer expense thanks to the U.S. Department of Justice. (Laurie
McGinley and Milo Geyelin, "Attorneys Prepare Suits Against HMOs," Wall
Street Journal, Sept. 30; Katherine E. Finkelstein, "Johnnie Cochran
Quits TV Job to Join Manhattan Law Firm," New York Times, Sept.
September 30 --
Impending assault on HMOs. More details
in today's news-side Wall Street Journal on how trial lawyer troops are
massing on the border for an all-out attack on managed
care. Among those involved is Pascagoula, Mississippi's Richard
Scruggs, who is reaping hundreds of millions of dollars from tobacco suits
and who also happens to be the brother-in-law of Senate Majority Leader
Trent Lott. Attorneys "generally declined to identify the companies
they plan to name as defendants, in part to preserve the element of surprise".
Class-actioners Cohen, Milstein,
Hausfeld & Toll "are preparing a national class-action
suit against a leading managed-care provider on behalf of eight million
members" which could be filed within days as soon as they finish their
process of shopping for favorable jurisdictions: "We haven't decided which
forum yet," says spokesman Joseph Sellers. (Laurie McGinley and Milo
Geyelin, "Attorneys Prepare Suits Against HMOs," Wall Street Journal,
September 30 --Overlawyered.com
now three months old; 45,000 pages served.
Monday set a new daily hit record for us, and then we promptly broke it
on Tuesday. Thanks for your support!
September 29 --
ADA protection for boozing student athletes.
How very foolish of Warren Township High School in suburban Chicago to
think it could get away with its rule saying you'd be kicked off its varsity
basketball squad if you were caught driving under the influence.
Didn't it know federal law now defines alcoholism as a disability?
"The boy has a recognized medical condition for which he has sought treatment,"
said an attorney for 17-year-old Rickey Higgins, who filed suit earlier
this month under the Americans with Disabilities Act (ADA) seeking $100,000
in compensation and reinstatement to the team. (Amanda Vogt, "Ineligible
Athlete Sues High School", Chicago Tribune, Sept. 9; "Teen alcoholic
sues to get back on basketball team", CNN, Sept.
September 29 --
Employment-law retaliation: real frogs from "totally bogus" gardens. One
quarter of cases filed with the Equal Employment Opportunity Commission
now charge "retaliation": the employee's working conditions deteriorated
in some way after he or she filed a legal complaint or testified regarding
someone else's. "Many managers 'may not realize that retaliation
does not require a valid underlying claim,' said John D. Canoni, a partner
at the Nixon Peabody law firm in New York. 'You can have a complaint that's
totally bogus, unfounded and unrealistic, but if someone reacts against
you because of that claim, even if it was bogus,' you can win a retaliation
suit, he said."
Particularly dangerous is for companies to take action
against employees based on admissions of misconduct that emerge in their
sworn testimony; to do so is seen as punishing them for participating in
legal proceedings. The 11th Circuit gave a green light for
trial to a wrongful termination suit by a Birmingham, Ala. manager fired
after he admitted sexually harassing
a receptionist in testimony arising from her suit. In another
recent case, a jury found against employee Oliver Medlock on every other
count, but decided it was retaliation for Ortho Bio-Tech Inc. to have suspended
him based on revelations in his deposition; the 10th Circuit in Denver
upheld its $460,000 award.
"So what are the lessons for employers?"
asks the New York Times' Richard A. Oppel Jr. "In a nutshell:
get rid of problem employees quickly. Be aware that some employees might
file discrimination claims or lawsuits in an effort to protect their jobs.
If they do, and if you dismiss or discipline them later, be sure to base
your decision on facts collected independently by you and be sure not to
cite depositions or anything else connected with their lawsuits."
("Managing: Retaliation Lawsuits are a Treacherous Slope", New York Times,
Sept. 29 -- full
story) (free, but registration required).
September 29 --
Feds' tobacco shakedown: "A case of fraud". "In
April 1997, Attorney General Janet Reno told the Senate Judiciary Committee
that 'the federal government does not have an independent cause of action'
against the tobacco companies. The
law has not changed in the meantime, but the Justice Department has filed
suit anyway..." (Jacob Sullum, National Review Online "NR
Wire", Sept. 24).
"Can you sue the government for fraud?" a Chicago Tribune
editorial wants to know. "Not only does this lawsuit, which was promised
by President Clinton in his State of the Union address, insult the intelligence
of any thinking person, but it also continues the corruptive practice of
using litigation to achieve ends that duly elected lawmakers have declined
to legislate....Congress can prevent this usurpation of its authority and
it ought to, by withholding money for the Justice Department to pursue
the case. If Congress declines to do that, then the tobacco companies ought
to refuse to settle, but should make the government prove and win its case.
It might be the one great public service they ever perform." ("How Not
To Regulate Tobacco", Sept. 24)
The editors of the New York Post call the suit
"the latest prosecutorial abuse of the Racketeer-Influenced and Corrupt
Organizations (RICO) law...the first time, however, that Washington has
targeted an entire industry as a racketeering enterprise ... profoundly
disingenuous" ("The Wrong Way on Tobacco", Sept. 24). "This administration
is using the court system to extract money from the industry that it couldn’t
obtain politically. Who are the real racketeers here?" asks a Detroit News
editorial. "If the government wants more revenue and tighter regulations
on the companies, it should try to get legislation passed -- not pervert
the justice system with a show trial." ("A Case of Fraud", Sept.
27). "There's a deeper, disturbing trend at work -- the notion that
because government pays for some people's health care, it is justified
in regulating risky behavior in order to control costs," notes the Savannah
News. "That's an invitation to totalitarianism." ("Reno butts in",
September 28 --
Drastic remedy for unruly classrooms. Theodore
Brown, a veteran math instructor at Savannah Technical Institute, is suing
students Amanda Glover and Rechon Ross for $100 million each in punitive
damages and court costs. Among allegations in his suit is that Glover
"refused to purchase a textbook and disrupted the learning process by borrowing
books from other students during class." He also says the two women
verbally abused and defamed him, resulting in embarrassment, humiliation
and trouble with his supervisors. Brown, who is representing himself
without a lawyer, was not forthcoming with specifics of the latter incidents,
not wishing to "give my case away".
Ross said that "[e]ven the sheriff's deputy who served
me with the paperwork was laughing," but that it was harder for her to
see the humor: she had been "working two jobs and I went back to school
to be able to do better for my kids," she said. "Then in my first semester
I ended up with this." In an interview with the Savannah Morning
News, Brown brushed off a suggestion that the vast sums he was demanding
might prove uncollectable should he win the case. "You heard about the
man that only had $23 in his bank account the morning he hit the lottery
for $187 million," he said. "You never know what people have." But,
asked the reporter, "is a $100 million lawsuit a reasonable way to teach
a student a lesson about proper classroom conduct?" "This is America,"
he replied. (Jenel Few, "Teacher sues students for $100 million each",
Savannah Morning News, Sept. 13)
September 28 --
$49 million lawyers' fee okayed in case where clients got nothing.
Dismissing all objections, the Florida Supreme Court has granted final
approval to settlement of the flight attendants' secondhand smoke class
action mentioned in passing in our July
8 commentary. The case induced a promise from the tobacco
industry to donate $300 million to charity; flight attendants can go ahead
and press individual claims if they want, but aren't guaranteed any results;
and husband-and-wife litigators Stanley and Susan Rosenblatt of Miami were
accorded (the technical term is "waltzed off with") $49 million in fees
(Jim Oliphant, "Lawyers in Fla.'s Big Tobacco Reap $50 Mil", Miami Daily
Business Review, Sept. 20)
September 28 --
Andrew Tobias's daily column. Our favorite
finance advisor and auto
insurance crusader devotes his online
column today to this site. If you're looking for the particular
items listed in his column, check these archives and those for the first
half of September (Sept. 11-20 dates inclusive).
September 28 --
New Overlawyered.com discussion forums. Today
marks the unveiling of our experimental bulletin boards which provide a
way for our visitors introduce themselves, discuss current headlines, and
generally hold forth. Subtopics open for discussion, with volunteer
moderators, include class actions, harassment law and family law, and more
volunteer moderators are encouraged to step forth. Being well behaved,
our visitors all realize the ground rules that prevail in these sorts of
forums (no personal attacks, copyright-trampling, undue commercialism,
etc.) and being public-spirited, they call instances of such postings to
the attention of moderators or other site management. Posting on
the forums requires prior registration and a valid email address.
Have fun. [forums now closed]
September 27 --
Seesaws as museum items. Three years ago
the Connecticut Supreme Court, in the case of Conway v. Wilton,
casually struck down the longstanding protection that the state's towns
and cities had enjoyed against being sued over free recreational use of
their facilities. Across the state, towns tore out seesaws and merry-go-rounds
and closed down hiking and bicycling trails; others turned down open-space
donations or gave up plans to acquire ponds and other presumed hazards.
Trial lawyers dismissed all this as overreaction, declaring that towns
that behaved carefully wouldn't face an undue burden, and their influence
easily blocked efforts in the state legislature to reverse the decision.
But now Dan Uhlinger in the Hartford Courant reports
that the fears are coming true: even towns that spent heavily on safety
precautions are being taken to court. South Windsor invested in a
"$50,000, supposedly injury-proof playscape" ordered to federal safety
specs but faces a suit anyway on behalf of a six-year-old who fell and
broke her wrist. "It's gotten to a point where everybody is suing
towns because that's where there's big pockets,'' said town manager Matthew
Galligan. "If this keeps going, people not taking responsibility for their
own kids, there won't be any more playgrounds.''
Other recent playground suits have targeted the towns of Ellington and
Winsted, the latter of which, as it happens, is the proposed site of hometown
lad Ralph Nader's Museum of American Tort Law. "You can't swing
a dead cat without being sued,'' said Meriden deputy city attorney Christopher
Hankins (who for that crack is going to have the Humane Society as well
as the trial lawyers on his back). "Municipalities try extremely hard to
make life better for citizens, but the courts strip away [liability protection].
It boggles the mind. It just goes to show no good deed goes unpunished.''
Uhlinger, "Towns' Worst Fears Realized: Suits Follow Playground Mishaps",
Hartford Courant, Sept. 24 -- link now dead)
September 27 --
More things you can't have. Unpasteurized
(i.e., real) apple cider from Connecticut farmer's markets in the fall.
"My insurance guy says don't even think about trying to carry it," said
the proprietor of one booth, "because people get sick all the time and
some of them are going to figure it was the cider whether it was or not."
Old-line cider presses have been closing down, he said, in favor of the
industrial operations. Community square and contra dances in New
England, long run by volunteers on a shoestring, are being smothered by
the liability insurance hassle more than by the cost of church or hall
space, callers and bands.
September 27 --
New page on Overlawyered.com: What
happened to personal responsibility? Eleventh
and latest in our series of topical
pages assembles cases in which complainants sue over risks that they or
their parents could have anticipated or avoided, like playground seesaws
and unpasteurized cider, and briefly explicates the slow decline of old
legal precepts like assumption of risk, waiver/disclaimer of liability
and contributory negligence. Definitely a page to read while nursing
your steaming McDonald's take-out coffee, if you can still find any.
September 27 --
"Objection, your honor! Here's a site you've got to love." Overlawyered.com
is picked as a "Planet Hot
Site" this week by PioneerPlanet.com,
the well-traveled website of the Twin Cities' St. Paul Pioneer Press,
a newspaper known for its leadership in covering the Net. Thanks!
September 25-26 --
Not just our imagination. Thanks to Steve Milloy
of the Junk Science Page for catching
these items: a San Jose Mercury-News letter to the editor in all
evident seriousness calls for a trial lawyer onslaught against "Big Fast
Food" along tobacco lines, while a veggie-oriented
group called the Physicians Committee for
Responsible Medicine urges a similar jihad against "Big Meat".
("Fast food ads take aim at kids", letter to the editor from Matt Mascovich,
Sept. 24, link now dead; "Physicians Advise Feds to Go After 'Big Meat'
Next", U.S. Newswire, Sept. 23).
September 25-26 --
We ourselves use "sue". So-called keyword
piracy is the practice of using your competitors' names as index terms
for your website on search engines,
so that people searching for your rivals' sites end up visiting yours instead.
Courts are quite likely to uphold the practice as lawful, which is lucky
for three well-known presidential candidates whose websites use the technique
(Tech Law Journal, Sept.
September 25-26 --
Give, and receive. Webzine Capitol Hill Blue
says trial lawyers have nearly doubled the pace of their political contributions
from the same period four years ago, dispensing $4.1 million in political
contributions in first six months of 1999. "We continue to urge our whole
law firm to be active in the political scene," said prominent plaintiff's
lawyer Joseph Rice of Charleston, S. C.'s Ness, Motley, Loadholt, Richardson
& Poole, which gave $303,000 in the first half of 1999, up from $248,650
during all of 1995-96. All these sums appear relatively small, however,
considering that Rice's firm alone has
been estimated to be in for somewhere between $1 billion and $10 billion
in tobacco fees courtesy of these
same politicians, with billions going to other law firms as well.
Is someone being ungrateful here? ("Trial lawyers use campaign contributions
to save their bacon", Sept. 12)
September 25-26 --
Weekend reading: evergreens. Pixels to catch
up with on the houseboat or hammock, if you missed them the first time
* Jonathan Rauch, "Tunnel Vision", National Journal,
Sept. 19, 1998 (welcome to the era of "micro-government": "rights-based
lawsuits [are] nothing less than America's third and most extraordinary
wave of regulation") (link now dead).
* Classic, colorful accounts of lawyer-abetted accident
fraud: Ashley Craddock and Mordecai Lawrence, "Swoop and squats", Mother
Jones, Sept./Oct. 1993; Alan Prendergast, "The Fall Guy" Westword
(Denver), Dec. 5, 1996.
* Stephen Baskerville, "Why Is Daddy in Jail?", The
Women's Quarterly, Winter 1999 (Independent Women's Forum), reprinted
the crime of wanting to see his child.")
September 25-26 --
Correction: name of magazine whose clips feds consider it an act of racketeering
to circulate. We've spent so much time staring
at the screen our eyesight is beginning to blur. In the Sept.
23 item below ("Feds: dissent = racketeering") we reported in error
that the charge of "Racketeering Act #18" against cigarette
companies was of their circulation of a clip from Time magazine.
In fact, it was a clip from the now-defunct True magazine.
Correction is incorporated below. Sorry!
September 24 --
Murderers' rights. Gerald Turner has won
a settlement, its amount held confidential, of his discrimination
complaint against Waste Management Inc., which had declined to hire him
to work at its recycling center in Madison, Wisconsin. Turner was
nicknamed the "Halloween Killer" because of his 1973 rape-murder of 9-year-old
Lisa Ann French, who disappeared while trick-or-treating in Fond du Lac.
He was released last year as required by law, despite a psychiatrist's
warning that he was still dangerous and despite an unsuccessful attempt
by the state to revoke his parole, saying he'd waved a butcher knife at
a caseworker at his Madison halfway house.
On his release Turner applied for a job with Waste Management
sorting recyclables, but the company said it did not want to employ him
because of his record, though it frequently hired persons released after
serving time on less serious counts. He proceeded to file a complaint
under the Wisconsin Fair Employment Act, one of only a few state employment
discrimination statutes that establish convicted criminals as a protected
class. Under the terms of the act, employers
may not turn away convicts unless they are prepared to show in court, on
pain of back pay and other penalties, that the job is "substantially" related
to the record of criminality. Waste Management officials said the
recycling job would give a worker access to various dangerous materials
that frequently turn up in bins, including "weapons, used hypodermic needles,
and BB guns." They also said scout troops and school field trips regularly
toured the facility, more than a dozen having visited during the past school
year. However, the state Department of Workforce Development found
evidence that in its view Turner had been discriminated against and said
his complaint could proceed.
Thomas Snyder, the retired sheriff who'd served as special investigator
in the Lisa Ann French murder, said he was "damn upset" at the news that
Turner had obtained a settlement of his complaint. "[Turner] always made
sure he knew his rights. He could quote them to you." An editorial
in the Milwaukee Journal Sentinel calls the settlement a "travesty",
while a letter-writer from Johnson Creek called Turner a "de facto aristocrat,
with special powers, benefits and protections not allotted to mere commoners"
who would apparently be able to enlist "all the power and authority of
[the government] on his side and against us for the rest of his life, specifically
because he raped and murdered 9-year-old Lisa Ann French." However,
Jeff Hynes, co-chairman of the Wisconsin Employment Lawyers Association,
defended the law as one that "protects the rights of thousands of Wisconsin
workers" and said people should not "overreact to this case".
(Milwaukee Journal Sentinel coverage by Jessica
McBride and others: "Recycler's refusal to hire Gerald Turner is illegal,
agency finds," Aug.
25; "'Halloween Killer' ruling fuels convict-employment conflict",
25; "Company's refusal to hire Gerald Turner is illegal, agency says",
26; "State: Company may have discriminated against 'Halloween Killer'"
27; "Timeline of Gerald Turner case", Aug.
27; "Turner not entitled to job" (editorial), Aug.
29; letters to the editor, Aug.
31; "'Halloween killer' reaches settlement with waste company" (AP),
19; "Turner settles claim over recycling job", Sept.
20; "'Halloween Killer' reaches settlement with waste company" (AP),
21; "Turner exploits hiring law" (editorial), Sept.
September 24 --
Feds as tobacco pushers. Columnist Andrew
Glass recalls the days when "when my government superiors strongly urged
me to start smoking. 'Smoke 'em if you got 'em,' the drill sergeants would
tell us back in the 1950s at Fort Dix, N.J. Standing around without
a glowing butt in hand during that winter could lead to orders to do something
useful, like scrubbing pots....Any chance government's suit will take note
that from Civil War times until 1956, federal law required the military
to provide nearly free supplies of tobacco to enlisted personnel?"
"Nor will you see anything in the papers filed in the
courthouse about Clinton's move last year to strip $15 billion in medical
care and disability pay to veterans harmed by smoking....In a bid to pacify
the dying veterans whose care was cut off, a provision was put in that
huge highway bill that directed the Department of Veterans Affairs and
Justice Department to sue the tobacco
industry to pay for veterans' smoking-related illnesses." ("The evils
of a smoking government," Cox/Minneapolis Star-Tribune, Sept. 24).
September 24 --
Hurry up, before the spell breaks. "'A major
part of this lawsuit is public attitude and I can tell you, it's waning,"
said Ron Motley, a South Carolina trial lawyer who represented Texas and
30 other states in lawsuits against the industry." Motley complained that
the Department of Justice was not making enough haste in its filing.
(Mark Curriden, "Government to sue tobacco makers", Dallas Morning News,
September 23 --
Feds: dissent on smoking = racketeering.
Is it the most cynical act yet of the Clinton presidency, or the most incompetent
act yet of Janet Reno's tenure as Attorney General? You be the judge.
Yesterday, the ironically named Department of Justice -- which not long
ago was accurately warning higher-ups that there wasn't a strong enough
legal basis to file a federal lawsuit
against tobacco companies -- proceeded to file one anyway, arguing
that 1) the law should be changed by retroactive
judicial fiat to provide a federal right to recoup from cigarette-makers
moneys spent on smoker health; and that 2) a remarkably wide range of past
statements and actions by tobacco companies, aimed at defending their business
in public controversy, should now be redefined as instances of fraud and
racketeering and subject to civil punishment (complaint and appendix in
PDF format; links now dead).
The absurdity of the retroactive recoupment claims --
and the threat they pose to everyone else, from burger chains to the proprietors
of ski resorts, who could be charged with enabling risky consumer activities
that drive up health bills -- has by now been widely aired. Likewise
with the notions that the federal government was somehow deceived about
the risks of smoking, or that it was incapable of raising taxes at the
time, as opposed to retroactively, if it saw fit to change the rules of
Equally ominous, but less widely scrutinized, is the second
theme, that an industry's defense of its position in public controversy
can now be defined as fraud and racketeering for which it can be made to
pay damages. People in other lines of business should pay close attention,
since 1) all lines of business get caught up in public controversy from
time to time; 2) disputants in such controversies naturally tend to see
each others' assertions as false and misleading; and 3) there can scarcely
be a better way to silence one side than to concoct a theory that exposes
it to charges of "racketeering" for disseminating views its opponents consider
What kinds of acts, in particular, does the Clinton Justice
Department now define as "racketeering"? Scroll through the complaint's
which enumerates all 116 supposed acts of racketeering, and you find that
Acts # 2, 3, 5, 6, 7, 8, 10, 12, 21, 24, and a long list of others consist
of...[DRUM ROLL]...sending out
press releases. Act #18, committed in 1968, consists of the Tobacco
Institute's having sent around to civic leaders a copy of an article that
had appeared in the magazine
True, favorable to its point of view.
(We, too, have sometimes gotten really annoyed at magazine articles we
disagree with, but seldom to the point of branding their distribution an
act of racketeering.)
Act #31 consists of a 1973 move by the Council for Tobacco
Research to support the work of a researcher who'd worked on showing that
air pollution played a major role in pulmonary disease, while acts #15,
25, 194 and others consist of efforts to support research into possible
therapeutic benefits of smoking, such as the reduction of stress.
As it happens, neither of these research efforts proved to be an entirely
dry hole -- air pollution does play at least some role in pulmonary illness
(if anything, it's a role many public health activists have tended to overestimate),
while the uses of smoking in helping, e.g., mental patients gain better
control of their disorders are increasingly recognized.
Again and again, the complaint treats as acts of racketeering
any and all moves to dispute or cast doubt on the federal government's
own pronouncements on the subject. Thus Act #33 consisted of sending
out a 1974 press release which "attacked the 1964 U. S. Surgeon General's
Report on smoking and health". Any venturing of dissent from the
government's line -- however cautiously worded, even downright mealy-mouthed,
it might be -- seems to be judged worthy of a racketeering charge in the
complaint. Thus "Racketeering Act No. 116" reads -- in its entirety
-- as follows:
"Racketeering Act No. 116: During 1999, the exact dates
being unknown, defendant BROWN & WILLIAMSON did knowingly cause to
be posted on the Brown & Williamson Internet web site a document entitled
"Hot Topics: Smoking and Health Issues." Although Brown & Williamson
recognized "that, by some definitions, including that of the Surgeon General
in 1988, cigarette smoking would be classified as addictive," the company
stated: "Brown & Williamson believes that the relevant issue should
not be how or whether one chooses to define cigarette smoking as addictive
based on an analysis of all definitions available. Rather, the issue should
be whether consumers are aware that smoking may be difficult to quit (which
they are) and whether there is anything in cigarette smoke that impairs
smokers from reaching and implementing a decision to quit (which we believe
there is not)." All in violation of Title 18, United States Code,
Sections 1343 and 2."
Page 21 of the complaint says it all: it charges the defendants
with taking "false and misleading positions on issues". [emphasis
added] If such is now to constitute a legal offense, who will the
authorities charge next?
September 22 --
"Personally agree with" harassment policy -- or you're out the door.
In settling mass sexual-harassment complaints, the Equal Employment Opportunity
Commission increasingly demands that employers like Mitsubishi and Ford
agree to block the career advance of managers who've perpetrated no harassment
themselves, but are deemed insufficiently zealous about rooting it out
in others. The Christian Science Monitor reports that corporate
defendants are agreeing to hinge supervisors' evaluations in part on their
vigilance in implementing anti-harassment policy, and says one of the "details
still to be worked out" is the extent to which supervisors' performance
on the issue will be assessed by polling their subordinates.
Another detail "still to be worked out", according to
the Monitor report, is whether supervisors in future will "have
to be actively promoting the policy - or just not interfering with it".
"Salaried workers at all 23 U.S. Ford plants -- with a total of about 40,000
workers -- won't even be considered for a promotion for two years if they've
been disciplined for not supporting [emphasis added] the policy
against sexual and racial harassment." Chicago employment lawyer
Michael Karpeles says such policies will soon be "standard operating practice"
at U.S. companies. The most interesting element in the quoted sentence,
it would seem, is the phrase contemplating discipline of managers for the
offense of "not supporting the policy". What can this mean?
Are Ford managers henceforth to be denied promotion if they personally
think the EEOC-dictated policy goes overboard in regulating conversation
and other workplace interaction and wish it could be changed, though they're
willing to grit their teeth and enforce it?
We were reluctant to jump to such a conclusion -- but
then we saw the Monitor going on to quote another employment-law
expert, Jon Zimring of Duane, Morris & Heckscher in Chicago.
"In the end, says Mr. Zimring, managers will now have to 'communicate to
their employees that they agree with, personally believe in, and
will enforce the harassment policy.'" [emphasis added] Should this
view prevail, those who dissent from the official line, harbor doubts or
qualms about it, or for any other reason prove unwilling to announce their
enthusiasm for it, will sooner or later find themselves excluded from positions
of responsibility in the American corporation. The new harassment
law has drawn criticism
for the casual way it presumes to control speech as well as conduct in
the American workplace. Can we doubt that it's now headed toward
imposing an orthodoxy of opinion, as well? (Abraham McLaughlin, "When others
harass, now managers lose pay", Sept. 10 -- full
September 22 --
Effects of shareholder-suit reform. Four
years ago, alarmed at the prevalence of "strike suits", Congress passed
the Private Securities Litigation Reform Act of 1995, which raised the
standards for getting into court with class-action
lawsuits purporting to represent shareholders. It was one of
the very few liability reforms enacted at the national level in recent
years, and consumer advocates predicted doom. But surveys raise doubt
that the law has thus far greatly affected the volume of securities litigation;
indeed, the Stanford University
Securities Class Action Clearinghouse reports that the number of suits
filed against companies hit
another record last year, notwithstanding the buoyant stock market.
Recent stories in the legal press, however, suggest that
the law may have had a salutary effect by raising the average quality of
suits, with cases now more likely to be based on substance rather than
the mere hope that something will turn up in discovery. Philadelphia's
Intelligencer says litigators in that city are "as busy as ever" even
though the 1995 law "has caused plaintiffs to become more selective" about
what they file. Plaintiff's attorney Sherrie Savett of Berger & Montague
says that although judges are dismissing more suits, those that survive
are producing larger settlements. The Miami Daily Business Review
emphasizes plaintiffs'-side complaints about the higher rate of dismissals,
but concludes with a remarkable quote from "Michael Hanzman, a Miami lawyer
who has brought several investor suits," who "concedes that the law may
be working as intended. 'Good cases are still good cases,' Hanzman says.
"The act gave a way for a court to weed out the bad ones. I don't think
that was a bad thing.'" (Robert L. Sharpe, "Despite Reform, Shareholder
Suits Still Big in Philly," The Legal Intelligencer,
12; Jim Oliphant, "'Business' Law", Miami Daily Business Review,
September 22 --
35,000 pages served on Overlawyered.com.
The pace accelerates steadily, with 10,000 served just in the past two
weeks. Thanks for your support!
September 21 --
Skinny-dipping with killer whale: "incredibly bad judgment".
Florida's Sea World resort has been sued for "several million" dollars
by the surviving parents of 27-year-old drifter Daniel Dukes, who apparently
decided to take a dip after closing hours in the 7-million-gallon pool
of Tilikum, largest killer whale in captivity. Dukes's scratched
and bruised body, clad only in underwear, was found July 6. A medical
examiner said he died of hypothermia -- the pool was kept at a frigid 52
degrees -- and drowning.
A drifter who'd spent a decade in Austin before making
his way to Florida late last year, Dukes had been arrested in separate
incidents since then for shoplifting and marijuana possession, the Miami
reports. His last known address was a Hare Krishna temple in Coconut
Grove where he spent several weeks last spring; the Krishna followers described
him as likable but "prone to childish behavior and moods" and sometimes
refusing to talk for days. Evading security at the theme park, Dukes
spent a day or two in or around its bounds and even built a little camp
"complete with Krishna statues." No one knows how he ended up in
the pool, but the lawsuit filed by his surviving parents, who live in Columbia,
S.C., speculates that perhaps the whale pulled him in.
Plaintiff's lawyer Patricia Sigman of Altamonte Springs
said the park had been negligent in failing to post warnings that visitors
should not enter the water with the 5-ton killer whale, and in portraying
the sea creatures as "huggable" when in fact they are "extremely dangerous".
Sea World executive vice president and general manager Vic Abbey begged
to differ: "Not only was that incredibly bad judgment to try to take a
dip with a killer whale but remember, this water is 50 degrees, ice-cold
water." (Paul Lomartire, "Parents of drifter who died in whale tank sue
SeaWorld", Cox/Miami Herald, Sept. 20; CNN, Reuters/ABC).
(& see Oct. 7 update: case dropped).
September 21 --
Filing fees curb prisoner litigation. New York
state legislators and Republican Gov. George Pataki have approved a measure
aimed at discouraging excessive litigation by correctional inmates by requiring
them to fork over filing fees ranging from $15 to $50 per legal action
they commence, depending on their ability to pay. A spokesman for
Democratic state attorney general Eliot Spitzer calls the move "a step
in the right direction", saying a third to one-half of all the trial work
done by the attorney general's field offices arises from prisoner suits,
"most of which are found to be meritless and dismissed by judges."
About 1,000 suits are currently pending. Prisoner advocates agreed
to the concession in exchange for Pataki's agreement to restore $3.5 million
in annual funding for lawyers who sue on behalf of inmates. (Kyle
Hughes, "Prisoners must pay to sue", Rochester Democrat and Chronicle,
September 21 --
Disabled accommodation vs. testing fairness.
In a recent final exam given to Cornell undergrads, three of the 102 students
"took the exam down the hall from the rest of the class" in private or
semi-private rooms. "Both extra rooms had their own proctors, who
administered a special version of the test and answered the students' questions
about the definitions of words and the meaning of questions. The three
students also had extra time to complete the exam, ranging from one and
a half to two and a half times as long as for the rest of the class."
It was, of course, a case of legally entitled accommodation for learning
disability, and this insider's account by Cornell human development specialists
Wendy M. Williams and Stephen J. Ceci spells out in more detail than usual
how such legal demands work, their unfairness to other students, and the
harm they're doing to the struggle to keep up standards generally.
The accommodation demands -- which can include the right to consult reference
books during a test, or retake it if the first score is low -- sometimes
appear to represent little more than "a wish list made up by high-school
counselors or private doctors hired by upper-middle-class parents."
("Accommodating Learning Disabilities Can Bestow Unfair Advantages", Chronicle
of Higher Education, August 6 -- full
September 20 --
The lawyer spigot. Revealing chart
in Forbes on continued breakneck pace at which new lawyers are being
minted and sent into the world. Back in the early 1960s the flow
of new law degrees ran only modestly ahead (20 or 30 percent) of the pace
of medical degree issuance. Now it runs 160 percent higher -- that's
2.6 new lawyers for every new doctor. The truly huge boom came in
the 1970s, the period in which the concept of litigation as a way of solving
society's problems really established itself. Since then the trend
has continued steadily upward, if less precipitously. Meanwhile,
the flow of new dental degrees has actually declined significantly since
1980, reflecting genuine advances in prevention and dental care.
The article mentions this website and quotes
editor as saying that unlike dentists, lawyers tend to create work
for each other: "I can't help wondering what that dentist line would look
like if we gave dentists a license to knock out people's teeth." ("Charticle:
The lawyer spigot" by Peter Brimelow, research by Ed Rubinstein, Forbes,
Sept. 20 -- full article
September 20 --
"Black robes, back rooms". If you don't
play ball with the local machine you stand little chance of becoming a
judge on Long Island, reports Newsday as it kicks off a six-day
series on the politicized Nassau/Suffolk judiciary. The paper calls
the process of selecting candidates for elected judgeships "as political
as any backroom deal to fill a seat in the State Assembly or a top post
at Off-Track Betting," and says that "far from renouncing their political
ties once they take the bench, Long Island judges hire politically connected
applicants for key courthouse positions, give lucrative receiverships to
former campaign managers and politically active lawyers, and continue to
pay homage to their party leaders at public events." One "well-regarded
expert in matrimonial law" has found a niche as full-time clerk to a sitting
judge but has had to give up his "dream" of becoming one himself because
he declines to affiliate with either political party. Critics and
even some insiders say unqualified candidates are slipping through: "If
politicians selected their surgeons ... the way they do some of their judges,"
said former GOP county committeeman Victor Regan, "there would be a lot
of dead politicians." (series beginning Sept. 19)
September 20 --
Judge throws out four WWII reparations lawsuits.
You'd never guess from much of the recent coverage, but it wasn't this
generation of American litigators who came up with the idea of trying to
do something to help the victims of the Second World War. The issue
of reparations and of compensation more generally was taken up in much
detail during the war and its aftermath, and led to the adoption of comprehensive
treaties in the negotiation of which a leading role was played by the U.S.
State Department. Last week, in a 78-page opinion, federal judge
Dickinson R. Debevoise, Jr. dismissed four class
actions over Nazi-era atrocities, saying that to reopen (or, more bluntly,
breach) those treaties "would be to express the ultimate lack of respect"
for the work of Truman-generation U.S. policymakers -- aside from which
the Constitution clearly entrusts the conduct of these matters to the executive
rather than judicial branch. (AP/Court
TV, Fox News, Washington Post, Sept. 13; Henry Weinstein, L.A.
Sept. 14, all but first link now dead)
September 20 --
Massachusetts spanking cases. The state's
highest court heard arguments last week in the case of Woburn, Mass. minister
Donald Cobble, charged with child abuse for punishing his nine-year-old
son with the end of a leather belt while reading from the Bible; the state
Department of Social Services "considers spanking child abuse if it causes
tissue swelling" and Rev. Cobble had refused to promise not to do it again.
Last month demonstrators from three inner-city Boston churches protested
the conviction of Brenda Frazier of Roxbury for giving her 10-year-old
son a belt-stropping that left welts visible three days later; Ms. Frazier
received a suspended two-year prison sentence and was ordered to attend
classes. A prosecutor says one factor in deciding whether to press
charges is whether a parent is "remorseful and willing to work with authorities,"
but many of those charged believe the practice is required by their religious
tenets (Boston Globe, Aug. 26, Sept.
13; Fox News, Sept. 13)
September 17-19 --
Update: was it reasonable doubt, or was it the miles?
As trial begins in New York on murder-for-hire charges against erratic
tycoon Abe Hirschfeld, the presiding judge has ruled that Hirschfeld may
not give jurors money after the trial, which is what happened earlier this
month when he handed checks for $2,500 apiece to jurors who deadlocked
in his tax fraud trial (see Sept. 13
item). Although such gifts might not be illegal as a general
matter, declares judge Carol Berkman, they should be forbidden by court
order in this case because they "don't pass the smell test". But
Hirschfeld lawyer Arthur Aidala maintains that the court lacks authority
to control what either jurors or an acquitted private citizen do after
a trial is over: "You can't order people not to do something because it
smells bad,'' said Columbia law professor H. Richard Uviller. (Samuel Maull,
September 17-19 --
Update on dream verdict: tainted by "60 Minutes".
In Stanislaus County, California, Judge Roger Beauchesne has granted Ford
a new trial on a jury's July 12 award of $290 million in punitive damages
in the Romo Bronco-rollover case (see
Aug. 24 commentary), leaving mostly intact the $5 million compensatory-damages
portion of the verdict. The judge said the consideration of malice
and punitive damages had been tainted by inaccurate and prejudicial discussions
in the jury room of a CBS "60 Minutes II" segment which aired this May
19, which attacked Ford over alleged safety
problems in older Ford Mustangs. One juror (who may or may not
have been recounting the program's contents secondhand) said former Ford
president Lee Iacocca had appeared on screen in the "60 Minutes" episode
saying the firm would rather fend off lawsuits than fix safety defects
-- the only problem being that the program did not show Iacocca saying
anything of the sort. In addition, the judge cited affidavits indicating
one juror had told her colleagues about an "omen" that had come to her
in the form of a dream revealing Ford's malice and evil in the case, further
informing them that if there was a chance to save lives they did not need
to follow the law, and that what the plaintiff's lawyer said should be
considered as evidence.
Plaintiff's attorney Joseph Carcione Jr. said the dream-omen
episode could scarcely constitute juror misconduct because misconduct means
something deliberate, while a dream is "involuntary by its very nature".
Otherwise, the durable result of the case may be to stand as permanent
judicial notice of the way slanted TV journalism, and the misimpressions
it leaves, can seep into the workings of the court system and lead to miscarriages
of justice. (AP/Detroit News, Sept. 11). Update Aug.
27, 2002: appeals court reinstates verdict, Ford seeks review by California
high court. More
developments; further update Nov.
26, 2003 (appeals court reduces verdict in light of U.S. Supreme Court
September 17-19 --
Chicago's $4 million kid. How many 3-year-olds
become the subjects of custody battles that cost a reputed $4 million --
payable by the taxpayers of Illinois, no less? The Chicago Tribune
reports that litigation is heating up again in the case of Baby T, who's
been tugged-at for practically his whole life between his biological mother,
a former drug addict named Tina Olison who gave him up at birth, and foster
parents Edward and Anne Burke, who say he'll fare better under guardianship.
It's not unusual for ten lawyers to be seen in court at a time on the case,
and mutterings are heard that the Illinois Department of Children and Family
Services might not have invested so heavily in defending T against a change
in his situation had not his foster parents been persons with such political
clout: Edward Burke is an alderman and the Hon. Anne Burke a state appellate
judge. (Bonnie Miller Rubin and Robert Becker, "Burkes file their
own legal salvo in Baby T battle", Sept. 15 -- full
September 17-19 --
Personal responsibility wins a round. No,
you can't always get compensated for every scrape you get into, not even
if there are deep pockets on the scene and you sue in Philadelphia.
A federal judge turns back a suit by John Hansen, who got drunk at a nightclub
in Chester County, decided to climb a high voltage catenary on the railroad
tracks and found himself in a hospital 30,000 volts later. His lawyer
tried everything from the theory of "foreseeable trespassing" to the notion
that drunkenness should count as diminished mental capacity, but U.S. District
Judge Robert F. Kelly wasn't of a mind to give up the old doctrine of assumption
of risk: "Plaintiff did have a choice in this matter -- he should not have
climbed the structure." (Shannon P. Duffy, "Being Drunk Doesn't Excuse
Trespass", The Legal Intelligencer, Sept. 1 -- full
September 17-19 --
Plaudits keep rolling. "If you think America's
court system can be out of touch with reality, you'll find comfort in this
Web site. Begun last July, Overlawyered.com is a compilation of news stories
and legal writings that illustrate the need for civil justice reform. The
site, which is updated regularly, tackles a wide range of hot-button topics,
including flirting in the workplace, tobacco, product liability and gun
makers." Plus one more nice paragraph, all showcased as prominently
as we could wish in the high-tech-news section of the Sept. 16 Sacramento
(Eric Young, "High-tech: Site-seeing and tech tips" --
September 17-19 --
Massachusetts high court opens lawyer-ad floodgates.
Dramatizations? Celebrity testimonials? Sure, bring 'em
on! says the Bay State's Supreme Judicial Court, spelling an apparent end
to a six-year effort to curb misleading or just plain grotesque let's-you-and-him-fight
ad campaigns. Unsolicited letters from lawyers seeking business will
no longer have to be labeled as ads, either. (Steven Wilmsen, "SJC
eases lawyer advertising rules; state bar assails ruling", Boston Globe,
September 17-19 --
Slow down, it's just a fire. Canadian courts,
like American, now frequently strike down the use of strength tests in
hiring for police, firefighter and other physically demanding jobs,
their rationale being that the tests promote sex bias because women don't
perform as well on them on average as do men. In the latest case,
the Supreme Court of Canada ruled that Tawney Meiorin was discriminated
against by being told she wasn't suitable for a British Columbia firefighting
job after she repeatedly failed a test requiring her to run 2.5 km (slightly
over 1.5 miles) in 11 minutes.
Toronto Sun columnist George Jonas writes that
"the people most upset by the Supreme Court's decision" have been female
applicants who hadn't needed the rules bent. "Oh, that's disgusting,"
forestry worker Janet Rygnestad-Stahl's succinct reaction. "Women like
Marlene Morton and Andrea Camp were not amused either. Both passed regular
fitness tests, for B.C. firefighters and the RCMP [Royal Canadian Mounted
Police] respectively, one of them (Morton) after some extra training. In
a letter to the editor Morton wrote she felt 'disgusted' when later the
RCMP lowered the standard for women 'only to allow more to pass.'" ("Court
preaches equality, but means parity", Sept. 16) (see also Sept.
15 commentary on transit-police case, Lanning v. SEPTA)
(related article: firefighter
September 17-19 --
"Keep banks colorblind". If banks start
collecting racial data on loan applicants, warns Investors' Business
Daily, trial lawyers are going to have a field day combing through
the resulting statistics and using them as the basis for discrimination
suits (Sept. 17).
September 16 --
Michael and me: a sequel. In New York, filmmaker
Alan Edelstein may soon have to stand trial for criminal harassment, having
lost a recent bid before a judge to get the charges dismissed. Mr.
Edelstein stands accused of following a well-known businessman around with
a video camera demanding a meeting to discuss whether the businessman had
behaved harshly and arbitrarily in dumping employees from his payroll.
Specifically, court documents allege that Mr. Edelstein, who had formerly
worked for the businessman and was upset about his dismissal, had used
a video camera to record an appearance by his former employer in upper
Manhattan; that he placed about thirty phone calls and emails to the man's
office demanding attention for his grievance; and that, using a bullhorn,
he interrupted a speech the former employer was giving at the University
of Massachusetts. Though a court ruled that these activities did
not put the target of his stalking in reasonable fear as to his physical
safety, they were undoubtedly a vexing annoyance and an intrusion on his
privacy and quiet, and he's apparently pressing the criminal charges with
all due vigor.
What lends piquancy to this tale is that the businessman/target
insisting on invoking the law's severity is none other than Michael Moore,
the left-wing filmmaker. Mr. Moore made his reputation with a film
called "Roger and Me" in which he followed then-General Motors head Roger
Smith around with a video camera to garden parties and other social events,
loudly demanding that Smith answer questions about employee layoffs.
More recently, as a TV producer, Moore trained
a running video camera for weeks on the apartment of Zippergate figure
Goldberg, ignoring an outcry from those who found this a creepy invasion
of Ms. Goldberg's privacy (Ziff-Davis,
(link now dead)coverage). In the recent proceedings, criminal court judge
Arthur Schack indicated that if the charges were proven the law would be
enforced against Mr. Edelstein with all due severity, but noted the irony
of Mr. Moore's role as a complainant over "acts he once perpetuated".
As with many public figures, it would appear Mr. Moore's Department of
Dishing It Out is a lot bigger than his Bureau of Taking It. (Daniel
Wise, "Fired Employee of Director Faces Harassment Trial",
Law Journal, Aug. 30) Update June
26, 2000 -- John Tierney column provides new details.
September 16 --
More plaudits. National Review Online
has picked Overlawyered.com as today's "Cool Site of the Day".
The NR Online site far outpaces most political-magazine sites; along
with selections from the magazine's print version, including "Misanthrope's
Corner" columns by the formidable Florence
King, it adds plenty of web-exclusive content including political analysis
from the magazine's well-informed Washington bureau, outbound links to
major conservative columnists in "The Vibe", and the indispensable "Outrage
September 16 --
Y, oh Y2K? Here's a sector of Y2K
litigation that could spawn billions of dollars in legal expenses.
Its neatest feature from a litigator's perspective: the fighting can proceed
with full vigor even if nothing actually goes wrong with the computers
on 1/1/2000. It's insurance-coverage litigation invoking an old maritime
doctrine called "sue and labor" under which emergency measures aimed at
dodging disaster can be charged to one's insurer. Many corporate
policyholders are therefore hoping to complete the following trajectory:
1) upgrade their computer infrastructure, replacing all antiquated systems;
2) ride out the millennium date with no problems; and 3) send the bill
for the upgrade work to their insurers, and sue if they resist paying.
(Craig Bicknell, "'Y2K Iceberg Dead Ahead!'", Wired News, Sept.
14 -- full
story) (Update Dec. 26, 2000:
New York court rejects first such case)
September 16 --
Blind newsdealer charged with selling cigarettes to underage buyer.
Sorry, Mr. Noyes, but it says right here you have to check their photo
ID, announce triumphant authorities after a sting operation bags the sightless
proprietor of a sundries shop in Seattle's King County courthouse (Kimberly
A.C. Wilson, "Shop owner says he was targeted", Seattle Post-Intelligencer,
Sept. 10 -- full story).