…setting the stage for appeal. For our coverage of this Beaumont/John O’Quinn case, see Apr. 28. (Dale Lezon, “Judge supports $1 billion verdict in drug suit”, Houston Chronicle, May 18).
Archive for May, 2004
A 7 percent chance of winning
The New York Sun, on a roll recently, digs deeper into that controversial cosmetics-giveaway class action settlement being aired before an Oakland federal judge (see Apr. 14 of this year and Jul. 21, 2003). According to a declaration filed last week by San Francisco attorney Francis Scarpulla, “Plaintiffs’ counsel consulted with a litigation-risk expert, who, after carefully reviewing all aspects of this case, opined that if plaintiffs’ counsel tried the case 100 times, they would win only seven times”. Harvard law prof David Rosenberg describes the case as having “little merit”. (Josh Gerstein, “The Case of the Cosmetics Giveaway”, New York Sun, May 17). Update Dec. 3: settlement OK’d; Mar. 14, 2005: judge approves settlement.
Court: States not immune to ADA damage claims
“The Supreme Court upheld the right of disabled people to sue state governments that fail to provide ramps, elevators or other forms of access to their courthouses yesterday — a clear but limited victory for the disability rights movement that blunts a trend at the court in favor of states’ rights.” The case of Tennessee v. Lane split the Court 5-4, with Sandra Day O’Connor swinging over to join the liberal wing. (Charles Lane, “Disabled Win Right to Sue States Over Court Access “, Washington Post, May 18)(opinion). Public radio’s “Marketplace” business show interviewed me about the case Monday afternoon in a segment that can be heard online (May 17, audio clip — first item in broadcast). More: Brian Doherty at Reason discusses the case (“A Nation of Vague Laws”, May 20) and makes kind mention of our work. Even more: see Marcia Coyle, “Watching Out for ‘Lane’ Changes”, National Law Journal, May 28.
Parked outside the emergency room…
…and in the physician-only parking area, no less, this lawyer’s van seen at Brooklyn’s Maimonides Medical Center. (Pics #1 and #2 at EMedConcepts, May 6) (via Gross Anatomy). We wonder about that hydrant in pic #1, too. More: a reader directs our attention to the website maintained by the van’s owner, the Law Office of John Dearie & Associates, which includes a page on the “mobile law office” and a reprint of a Dec. 26, 2001 New York Times article about it. Further: welcome Fark visitors (see May 20); and one observer speculates that the lawyer might have scheduled a deposition at the hospital, a theory about which we are skeptical (see Yclipse, May 18, with comment from me); see also Chris Rangel, May 19. More: Jan. 21, 2005 (TV show adapts idea), Jun. 5, 2005 (law firm’s side of story).
Lie to your company’s lawyer, go to jail
“Until last month, lying to your own company’s lawyers was not a crime. Now it is. Defense lawyers and civil libertarians are expressing alarm at the government’s aggressive use of obstruction of justice laws in its investigation of accounting improprieties at Computer Associates, the giant software company.” Among sources of the pressure to cut a deal with prosecutors rather than fight: in March Jamie Olis, a mid-level executive at natural gas firm Dynegy, was found guilty of accounting fraud in a scheme to please Wall Street by hyping earnings and sentenced to 24 years in prison. The guy would have been a lot better off to have gunned down someone on the street instead, or even tried to grow psychedelic mushrooms (see Dec. 6). (Alex Berenson, “Case Expands Type of Lies Prosecutors Will Pursue”, New York Times, May 17)(& letter to the editor, Jun. 22).
A 1-in-a-googol claim
In the late 1930s, Edward Kasner was asked to come up with the name for a large number; as legend has it, he asked his nine-year old nephew, who said “googol,” and Kasner’s 1940 book “Mathematics and the Imagination” popularized the term for the number 1 followed by a hundred zeroes. Over a half century later, a variation of that word was used to name a popular search engine, which you may have heard is going public in an e billion dollar offering.
Now Kasner’s great-niece, Peri Fleisher, is going public herself, complaining that her family hasn’t been compensated for Google’s choice of a name, and “exploring” the possibility of legal action. Fleisher has said that she would settle for being allowed to participate as an “insider” in the IPO; the interviewer, either out of ignorance or charity, doesn’t point out that because the Google IPO is a “Dutch auction,” Fleisher already has the right to participate as an “insider” (presuming she means a “friends and family offering”), which is merely the right to buy shares in an IPO at the issuing price. (Gerald P. Merrell, “Have your Google people talk to my ‘googol’ people”, Baltimore Sun, May 16).
Law firm sues client
Cynthia Allen Mann retained the Dweck Law Firm on a contingency basis to represent her in an employment discrimination claim. Mann turned down a $1,035,000 settlement offer, so Dweck went back to the table, and negotiated a 30% larger $1.35 million settlement offer. But when Mann turned down this offer after (it claims and Mann disputes) Dweck refused to reduce its fee to increase her take-home amount, Dweck sued her.
The court dismissed a 2002 complaint for breach of contract, so the law firm amended the complaint to allege bad faith, and Southern District of New York federal Judge Shira Scheindlin recently ruled that the suit could go forward. “Where a client refuses a settlement offer because she believes her claim is worth more, and that her attorney has not effectively advocated on her behalf, she is not acting in bad faith,” the court said. “If, on the other hand, the client believes the settlement offer is satisfactory, but refuses it because she does not want to forfeit any recovery to her attorney, her actions may constitute bad faith.” (“Law Firm Has Claim Against Former Client For Rejecting Settlement Offer in Bad Faith”, ABA/BNA Lawyers’ Manual on Professional Conduct, May 19).
It remains unclear how one is to determine this subjective state of mind except through litigation–if a plaintiff takes the position that she does not want to settle because she wants to have a greater recovery than the combination of settlement offer and contingent fee permits, is that good faith or “bad”? The court made no effort to consider the ex ante effect of allowing law firms to have a plausible threat of suing a client if the client refuses to accept a settlement of a contingent case, especially given lawyers’ ethical obligations to their clients. Of course, the problem is more often the converse case: a risk-averse client wants a settlement, while a plaintiffs’ lawyer, who spreads his or her risk over several cases, wants the chance of a big payday.
“Betting on the Pequots”
Yesterday’s New York Post published my favorable review of Brett Fromson’s book Hitting the Jackpot: The Inside Story of the Richest Indian Tribe in History about the machinations that resulted in the rise of the Mashantucket Pequot tribe in Connecticut and its fabulously successful casino, Foxwoods. The story is one replete with bald impostures facilitated by lawyers who, in a fine career arc, started out in the ever-so-idealistic legal services movement and gradually turned into well-compensated casino promoters, all on behalf of a crew of putative tribe members who “are about as authentically Indian as Camilla Parker Bowles.” (Walter Olson, “Betting on the Pequots”, May 16).
Oz: prisoner takes drug overdose, sues
Australia: 28-year-old James Samuel Steward, who “was serving a three-year sentence at Goulburn jail when he overdosed on illegally acquired methadone in May 1998”, is now “suing the state for more than $4 million. … His barrister, Barry Hall, QC, … argued that among the department’s breaches of duty of care was its failure to adequately manage the jail to prevent the entry of illegal drugs.” (Leonie Lamont, “Ex-prisoner sues over drug disablement”, Sydney Morning Herald, May 11). For a case in which a woman sued an American hospital for not preventing the smuggling of the illegal drugs on which she overdosed, see Jun. 27, 2003.