Even in California, you may not be able to sustain a class action lawsuit against a product that worked fine and didn’t harm you [Cal Biz Lit, Drug & Device Law]
Archive for May, 2009
LawLine.com blog of the week
LawLine.com (“Celebrating 10 Years of Online CLE”) has begun a new weekly series that “will recognize some of the most notable legal blogs on the web”, and is kind enough to begin it with this one. Christie LaBarca says she enjoys running across “unique” and even sometimes “outlandish” stories that other law blogs don’t pick up on. She quotes me on a couple of theories that might explain the blog’s longevity (as I’ve mentioned, it’s coming up on its tenth anniversary in just a month and a half).
Speaking of kind things people say about us, I don’t think there’s any way I’m going to live up to the headline on Brandon Martin’s generous column at Daily Uprising.
The case for tissue-box lawyers
For reasons that should be fairly obvious, there’s quite a bit I disagree with in Eric Turkewitz’s impassioned defense (in the context of selecting potential judicial nominees) of injury and criminal-defense lawyers. But I’m still glad I read it.
Consolation prize: script rights?
Noting that a litigant’s choice of counsel is to be given weight in such matters, a court in Stamford, Ct. has ruled against a husband’s request to disqualify the opposing attorney on the grounds that that attorney “simultaneously represents the defendant’s first and second wives”. [“Motion To Disqualify Lawyer Representing Both Wives Denied,” Connecticut Law Tribune, May 11 (pay section of site)(Voruganti v. Voruganti, Malone, J.)]
Security guard who slept on job loses lawsuit
Night-shift security guard Theodore Rongers had argued that under the Americans with Disabilities Act, his hospital employer “had a duty to reasonably accommodate the side effect of his heart medication by permitting him to sleep during his shift”. [Ohio Employer’s Law Blog; Rongers v. University Hospitals of Cleveland, Cuyahoga County Ct. of Appeals, May 7 (PDF)] I discussed sleeping guards who were more successful in saving their jobs in my book The Excuse Factory (Google Books, limited search), published a decade ago and excerpted at the time in Washington Monthly (see also).
May 12 roundup
- Florida: “Law firm is found liable for injuries to client who fell off a chair” [WPBF via Bernabe]
- Monsanto, known for hardball litigation over its patented seeds, might regret taking on duPont [AmLaw Litigation Daily, earlier here and here]
- Kenyan man sues women’s rights activists for leading sex boycott that his wife joined [Daily Nation]
- Notice a “sign this EFCA petition” message in your Twitter stream, about the controversial card-check union bill? Better check out its bona fides [Point of Law]
- RIAA said it was going to stop filing new cases against music downloaders, but that might depend on what the definition of new cases is [Ars Technica, AmLaw Litigation Daily]
- EEOC guidance warns employers about violating ADA in trying to cope with H1N1 flu virus in workplace [Daniel Schwartz, Workplace Prof Blog; related, earlier]
- Cluelessness, more than censor’s urge, might explain that ghastly bill filed by Rep. Linda Sanchez to combat “cyberbullying” by throttling online speech [Jacob Sullum; earlier here, etc.]
- Buxom British gals claim victory after Marks & Spencer rescinds $3 surcharge on larger-size bras [AP/Idaho Statesman, The Sun via Amy Alkon]
Ninth Circuit panel upholds Protection of Lawful Commerce in Arms Act
And that includes Judge Reinhardt.
CPSIA chronicles, May 11
- At long last a House committee — the one on Small Business — has announced a hearing on CPSIA’s impact on small business, to take place Thursday. (I’m almost hesitant to report this as good news since the last time I did so it took only hours for the event to be called off). The Small Business panel does not have primary legislative authority in the area; that is vested in Rep. Henry Waxman’s Energy and Commerce Committee, whose CPSIA-overseeing subcommittee has chosen instead to hold hearings on that very urgent subject of public concern, college bowl championships. Rick Woldenberg recalls the fingers-in-ears techniques the House has used to shut out unwanted information up to now: first Waxman/Rush staffers prearranged “hearings” that heard nothing, after which they (successfully up to now) maneuvered to make sure critics of the law would not obtain any official Hill forum at which to air their grievances as public outrage built.
- The Consumer Product Safety Commission has released new guidance (PDF) for thrift shops and other product resellers on compliance with CPSIA and other laws overseen by the agency. According to Ian at Musings at a Catholic Bookstore , the manual lays out policies that differ only slightly from what was known before, often by spelling out what will be made an enforcement priority, since the commission has no power to alter the law’s actual requirements. Thus it seems phthalates in older kids’ playthings, the kind unlikely to be placed in the mouth, are not going to be a high priority in reseller enforcement — which still doesn’t make it legal to resell those items. For many outside readers the biggest surprise seems to have been that the agency views its authority as extending to yard sales. As Ian notes, this isn’t actually news; it’s just that the new manual is spelling it out in a more visible way than it did at some earlier times.
- “Toy Story 3: Emperor Uncle Sam Puts You Out of Business” [Rep. Joe Barton (R-Tex.), The Hill]
- In the ongoing series of crises that is CPSIA, the next major crisis is due on or around August 14, as of which date newly made children’s goods must comply with new tracking and labeling requirements (touched on briefly in this space last month). The intent is to make it easier to trace and contain safety problems, enable recalls and so forth. For makers of children’s apparel, Kathleen Fasanella explains the complicated and sometimes expensive implications in posts here, here, and here. And apparel makers have it relatively easy, in part because they are already used to affixing permanent labels to most products, unlike many makers of items such as wooden toys and pencils, straw dolls, ceramic wall plaques, rubber spiders or bouncy balls, glass bead craft items, and so forth. Toy importer Rob Wilson writes, “this one clause will be enough to finish off a good majority of the companies that the other provisions of the law do not kill first. I personally know of many companies that are planning to close by August 15th if this provision is not amended.” The National Association of Manufacturers has requested (PDF) an emergency stay on the tracking and labeling rules; the CPSC has put off consideration of the request. Rick Woldenberg comments here and here. And tomorrow (Tues., May 12) at 1 p.m., the CPSC is holding a meeting, to which any interested member of the public is invited, to discuss the tracking and labeling rules. (Update: CPSC hearing is online as a webcast (h/t Woldenberg). Kathleen Fasanella has more, including links to more than 500 pages of protest letters, PDF, received by the CPSC on the issue).
- Cutting across multiple lines: per the Bulletin in Bend, Oregon, a local resident whose son got sick from salmonella (and recovered) appeared with Rep. Henry Waxman at a press conference to promote more effective federal food safety regulations; at the same time, though, “Christoferson said she can sympathize with the harm that poorly written rules can do to businesses” because her own resale store in the city of Bend, Stone Soup, has been harmed by CPSIA.
- Whimsical Walney, who has written with passion about the CPSIA fight, has announced that she is closing the doors of her children’s business.
Public domain paper doll images courtesy Karen’s Whimsy.
Taxes and structured settlements
In structured settlements, injury compensation is paid in installments over years rather than as a lump sum up front. It has long been argued that arrangements of this sort should be strongly favored by public policy: many accident settlements are premised on the need to cover years of needed therapy or future income lost through disability, and if it’s spent down too quickly through mishandling or “lottery winner syndrome”, the victim could wind up an expensive public charge. For reasons of this sort, structured settlements have been accorded highly favorable tax treatment.
Then an industry sprang up that offered to turn structured settlements into quick cash on the barrel, a choice that many lawsuit beneficiaries might be tempted to make (or might make after being leaned on by family members). Although laws often require that conversions of this sort be submitted for review to a court, judicial review may be cursory in the absence of adversary process to call attention to the potential drawbacks of a conversion. Not only has the structured-settlement-conversion industry managed to thrive, but somehow, as Shaun Martin notes, Congress has even been prevailed on to bestow favorable tax treatment on its doings — the same doings that tend to undermine the public benefits thought to arise from the original tax-favored structured settlement. More details are to be found in this decision, PDF, in which an appeals court recently sided with the factoring companies in a series of Fresno, California disputes (also discussed at this new blog on structured settlements, via Dan Schwartz).
Tax incentives that encourage lottery-winner syndrome? To paraphrase what Martin says, it’s almost as if someone was managing to work the system.
“90 grams of empty symbolism and 10 grams of needless duplication”
Steve Chapman on the “empty symbolism” of the federal hate crimes bill (via Sullivan).