In the old days, when lawyers representing the U.S. Department of Justice were found to have lied, an Attorney General might have ended their service. We’re not in the old days any more [Michael Greve] As related in an earlier post, Judge Andrew Hanen of the Southern District of Texas federal court, after concluding that federal lawyers had chosen to hide relevant facts in litigation challenging President Obama’s DAPA immigration initiative, ordered them to take ethics classes in a scathing opinion; his order has variously been criticized for possibly exceeding his jurisdiction, and for being insufficiently stringent to deter future misconduct by the Department’s lawyers.
A federal judge has handed down one of the most spectacular rebukes in memory to the courtroom conduct of the U.S. Department of Justice [DOJ], for hiding the ball in a challenge to the administration’s DAPA immigration initiative. Writes Ilya Shapiro:
[Judge] Hanen’s remedy consists of five components:
(1) all the lawyers at DOJ headquarters who litigate in the 26 states that challenged DAPA (most of them) have to go back to school for an annual ethics course taught by an outside expert;
(2) DOJ has to certify annually for five years that these lawyers are indeed going to school;
(3) the attorney general must report within 60 days “a comprehensive plan to prevent this unethical conduct from ever occurring again,” and “what steps she is taking to ensure that . . . the Justice Department trial lawyers tell the truth — the entire truth.”; …
Declaring that the lawyers had acted in “bad faith” and that their “conduct is certainly not worthy of any department whose name includes the word ‘Justice,'” Hanen added: “The court does not have the power to disbar the counsel in this case, but it does have the power to revoke the pro hac vice status of out-of-state lawyers who act unethically in court.” [Joel Gehrke, Washington Examiner; Josh Blackman, NRO] But see: Orin Kerr asks whether the order exceeds the court’s jurisdiction.
- For thee but not for me? Lawprof proposes immunizing mass tort litigators from RICO liability [Mass Tort Litigation Blog]
- Some reasons, even aside from PLCAA, the Sandy Hook lawsuit against gunmakers is so weak [Jacob Sullum]
- One welcome, overdue development that deserves more attention than we’ve given it: federal courts adopt rules curtailing pretrial discovery [Institute for Legal Reform interview with former Colorado justice Rebecca Love Kourlis; Joe Palazzolo and Jess Bravin, WSJ]
- Cloudy in Texas, with a chance of $1 million lawsuits blaming broken floor tiles on falling objects [Southeast Texas Record via Texans for Lawsuit Reform; Hidalgo County]
- Billboards hawked Kentucky disability practice: “the law has finally caught up with ‘Mr. Social Security.’” [Louisville Courier-Journal]
- Wall Street Journal covers trend of big plaintiff’s firms teaming up with more city governments to file “affirmative litigation” [WSJ] We were on this trend as early as the year 2000 [San Francisco and Philadelphia launch such operations in wake of tobacco settlement). On county governments as cat’s-paws for trial lawyers in lead paint, opioid, and other mass tort cases, see coverage of California’s Santa Clara County here, here, etc., and on Orange County here, here, etc.
Outfit that sued Pennsylvania photographer over a patent allegedly covering online photo contests must pay attorney fees after a pro bono defense by lawyers for the Electronic Frontier Foundation [ArsTechnica]
Last month we told the story of a Texas business that managed to clobber the U.S. Department of Labor in court over its challenge to the company’s use of independent contractors. The Fifth Circuit granted the company a substantial award in legal fees to punish the department for its bad faith in litigation.
Now, Coyote relates a personal encounter in which he runs into a man at a Houston steakhouse who turned out to be the owner of that company, Gate Guard:
I refused to believe him until he showed me a picture of him with the check. He had had it blown up into one of those huge golf tournament checks. I told him he was my hero and tried to buy him drinks the rest of the night, but when I got up to leave, I found he had actually paid my tab. I drank that evening on the Department of Labor’s dime, I guess.
As recently as two weeks ago we covered Republican front-runner Donald Trump’s pattern of suing his critics. But the report by Paul Farhi in yesterday’s Washington Post, recounting Trump’s long courtroom assault on reporter Tim O’Brien, contains a remarkable new passage:
Both courts [in ruling that Trump’s suit should be dismissed] cited a lack of “clear and convincing” evidence to satisfy the basic legal test for libeling someone as well known as Trump: willful disregard for the truth. The appeals court noted O’Brien’s diligent and extensive efforts to research Trump’s wealth.
Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
Paul Alan Levy, at Public Citizen, calls Trump’s explanation of his actions and motives “astonishing” and says the front-runner’s “admission of malicious reasons for suing a reporter reminds us why we need anti-SLAPP statutes.” For voters, it might also raise questions of what to expect should a candidate with this instrumental view of legal action gain control of the machinery of law enforcement in the United States.
Bonus: “Litigation and legal threats related to Donald Trump’s presidential campaign” [Ballotpedia catalogue]
- Nice work: how one lawyer cleans up filing piggyback class actions after the Federal Trade Commission and other enforcement agencies cite marketers for violations [Daniel Fisher, Forbes]
- Cites inmate’s 18-year history of frivolous complaints: “Prisoner can’t sue USA Today for not printing gambling odds, Pennsylvania court says” [PennLive]
- Canada’s pioneering cap on regulation could be a model for U.S. [Laura Jones, Mercatus via Tyler Cowen]
- “He had a right to shoot at this drone, and I’m going to dismiss this charge” [Eugene Volokh on Kentucky case noted in July]
- Dear John: Los Angeles may use license-plate readers to go after drivers who enter “wrong” neighborhoods [Brian Doherty]
- Asylum law (which differs in numerous ways from refugee law, among them that it typically addresses claims of persons already here) hasn’t quite solved its own vetting problem [flashback from last year, more]
- Georgia lawyer “sanctioned for ‘deploying boilerplate claims’ and ‘utterly frivolous’ arguments” [ABA Journal]
- Preview of testimony from Dr. Robert Taub, formerly of Columbia U., in upcoming asbestos-referral corruption trial of former New York assembly speaker Sheldon Silver [NY Post]
- Class action procedure: “Big Changes to Rule 23 in 2018? Be Sure to Weigh In Now” [Paul Karlsgodt, Andrew Trask]
- In case it wasn’t clear already — but Overlawyered readers knew, didn’t they? — the aunt who sued her nephew wasn’t really upset with her young relative, she was trying to get at insurance money [New Jersey Civil Justice Institute]
- “Judge’s Solution To Lead-Paint Problem May Be A Public Nuisance Itself” [Daniel Fisher]
- “Randy Maniloff: Lawyers want to force teams to use ‘foul pole to foul pole’ netting to protect fans from injury” [W$J, earlier]
- House passes bill to re-toughen Rule 11 sanctions, prospects for getting past White House uncertain [Rep. Lamar Smith press release, Texans for Lawsuit Reform on Lawsuit Abuse Reduction Act]
- Denver: “a case that lawyers say is the first product liability claim in the nation involving the legal marijuana industry” [Greenfield Reporter]
“A federal judge in Manhattan is ordering lawyers in a United Parcel Service lawsuit to file new pleadings that are short and plain, in keeping with Rule 8 of the Federal Rules of Civil Procedure. … UPS ‘launched its relatively straightforward claims with a sprawling 175-paragraph complaint, larded with more than 1,400 pages of exhibits,’ [U.S. District Judge William Pauley III] wrote. Lawyers for former franchisees responded with a 210-page answer with counterclaims and ‘voluminous exhibits,’ later expanded in an amended answer to a ‘breathtaking’ 303 pages that ‘brims with irrelevant and redundant allegations,’ Pauley said.” [ABA Journal]
Following up on our earlier reports here and here: a Pennsylvania appellate court “has temporarily halted the imposition of a $1 million fine against Philadelphia attorney Nancy Raynor, who received the sanction after one of her witnesses during a medical malpractice trial disclosed information that had been ruled inadmissible by Philadelphia Court of Common Pleas Judge Paul Panepinto.” [Penn Record] The judge “has defended his action in an opinion in which he accused Raynor of violating a court order as part of a trial strategy.” [Chris Mondics, Philadelphia Inquirer] Three witnesses — the most recent a trial technician who testified at a March 4 hearing — have now backed up Raynor’s account of not having sought to elicit the reference to a plaintiff’s smoking habit, which the judge had barred. “In addition to [Joseph] Chapman, two other witnesses, an emergency room doctor who is a client of Raynor’s and an insurance adjuster, have testified that they heard Raynor advising [Dr. John] Kelly that smoking testimony was precluded.” [Mondics/Inquirer, March 6, follow-up]