Archive for 2013

Megan McArdle: “Lead paint verdict sets dangerous precedent”

The Bloomberg View columnist discusses the new ruling by a California state judge that companies that once made lead paint, and their successors, owe a billion dollars plus to California counties and cities over marketing of lead paint as long ago as the 1920s and earlier. I’m quoted:

As Walter Olson of the Cato Institute noted to me in an e-mail, “Many of the key business decisions being sued over took place closer to Abraham Lincoln’s time than to our own, and if the companies had gone to twenty leading lawyers of the day and asked, `could this ever lead to nuisance liability under such-and-such facts’ would have been told `of course not.'” Can you really sue a company for doing something that was well within the law? Or, as in one case, a company that bought a company that did something that was well within the law? As Olson points out, “when ConAgra bought Beatrice Foods, most business observers never even realized there was the tiny sliver of a paint company in there among the household food brands, but that one little sliver of successor liability could far exceed the then-value of all the rest.”

More from @Popehat on Twitter: “My wrongful death suit against Mongolia for Genghis Khan’s crimes against my ancestors moves forward!”

Finally! Serious movement for discovery reform

“Microsoft is legally obligated to store an average of 60 million pages of documents for every lawsuit brought against it, even though only 88 of those will end up being used in court.” [Jacob Kastrenakes, The Verge] The company is one of many that has announced its support for a change in the Federal Rules of Civil Procedure, proposed in August by the Committee on Rules of Practice and Procedure, which would narrow the scope of obligatory discovery. The burden of discovery “deters companies from defending themselves against meritless suits and slows the process of dispute resolution,” writes Jon Palmer, Microsoft’s assistant general counsel. The proposal would also lay forth clearer standards on document retention so as to curb proliferating litigation over charges of spoliation.

The Washington Legal Foundation likes the proposals too, as does James Beck at Drug and Device Law. Not happy about it: the litigation lobby and some Senate Democrats friendly to their cause. The Judicial Conference is holding hearings that are likely to be more balanced. Comments with the Advisory Committee are due by February 15, 2014.

More tales of bulk-call bounty hunting

Following up on yesterday’s item, the WSJ reported the other week about some of the lengths lawyers will go to sue under the TCPA (Telephone Consumer Protection Act) of 1991:

Many firms are being sued for contacting their own customers via cell.

In 2001, Ms. Wahlquist [defense lawyer Becca Wahlquist of Manatt, Phelps] was involved in a class-action fax-telemarketing case against DirecTV that awarded a year of free service as part of the settlement. In 2004, when the court-appointed class administrator sent fax notices about the award to the class, DirecTV was sued again on the ground those notices violated the TCPA as well.

DirecTV won the case, but Ms. Wahlquist was shocked. “Everyone is sitting ducks,” she said.

I wrote about the related cottage industry of junk-fax litigation some years ago. More: U.S. Chamber Institute for Legal Reform report on problem of near-limitless statutory damages under TCPA (PDF).

December 18 roundup

  • California judge tells three large companies to pay $1 billion to counties under highly novel nuisance theory of lead paint mostly sold long ago [Business Week, The Recorder, Legal NewsLine, IB Times]
  • Coincidence? California given number one “Judicial Hellhole” ranking in U.S. Chamber report, followed by Louisiana, NYC, West Virginia, Illinois’ Metro-East and South Florida [report in PDF; Daniel Fisher/Forbes (& thanks for mention of Overlawyered), Legal NewsLine]
  • Frivolous ethics charge filed by Rep. Louise Slaughter, Common Cause and Alliance for Justice against Judge Diane Sykes over Federalist Society appearance is quickly dismissed [Jonathan Adler]
  • On heels of San Antonio Four: “Texas pair released after serving 21 years for ‘satanic abuse'” [Guardian, Scott Greenfield]
  • White House delayed onerous regulations till after election; Washington Post indignant about the delay, not the regs [WaPo, Thomas Firey/Cato]
  • “GM vs Bankruptcy – How Autoworkers Became More Equal Than Others” [James Sherk, Bloomberg]
  • According to one study, North America’s economically freest state isn’t a state, but a Canadian province [Dan Mitchell]
  • “If you thought it wasn’t possible to lower the bar for lawyer advertising, of all things, you were wrong.” [Lowering the Bar, first and second round]

N.C. man files alienation of affection suit against online business

“A Charlotte man blames the breakup of his marriage not only on the other guy, but also on the online infidelity service that he says made it happen. … North Carolina remains one of only a half-dozen states that still awards punitive damages when a marriage fails and someone other than the husband and wife is to blame. The so-called alienation of affection/criminal conversation laws have survived numerous efforts by judges, lawyers and some legislators to repeal them, and in recent years they have led to million-dollar judgments for wronged spouses.” [Charlotte Observer]

Man facing draconian fines over fax wording deserves day in court

Douglas Walburg faces potential liability of $16-48 million. What heinous acts caused such astronomical damages? A violation of 47 C.F.R. § 16.1200(a)(3)(iv), an FCC regulation that enables lawsuits against senders of unsolicited faxes.

Walburg, however, never sent any unsolicited faxes; he was sued under the regulation by a class of plaintiffs for failing to include opt-out language in faxes sent to those who expressly authorized Walburg to send them the faxes.

The Federal Communications Commission has now taken the position that a federal enactment known as the Hobbs Act “prevents federal courts from considering challenges to the validity of FCC regulations when raised as a defense in a private lawsuit.” The Cato Institute has joined the National Federation of Independent Business in an amicus brief seeking Supreme Court certiorari, supporting Walburg’s position “that the Eighth Circuit was wrong to deny him the right to judicial review without having to initiate a separate (and impossible) administrative review.” [Ilya Shapiro, Cato]

Police and prosecution roundup

  • Follow the federal funding: “Stop giving out awards for arrests” [Andrew Sullivan]
  • NYC cops shoot at mentally disturbed man, hit bystanders instead, charge him with their injuries [Scott Shackford, Popehat]
  • Electric car owner charged with stealing 5 cents worth of power [Chamblee, Ga.: WXIA, auto-plays]
  • Claims re: sex trafficking in US fast spiraling into absurdity. Keep going [Maggie McNeill, earlier] “Perverse Incentives: Sex Work and the Law” [Cato Unbound symposium] “California to Open Victim Compensation Funds to Prostitutes” [Shackford]
  • Illegal ticket quotas at the LAPD, inmate beatings at the county sheriff’s jail: Los Angeles policing hit by multiple scandals [L.A. Times: editorial on charges against 18 sheriff’s deputies, LAPD ticket quota]
  • Massachusetts crime lab test faker Annie Dookhan gets 3-5 year sentence [ABA Journal]
  • “Overcriminalization in the states” [Vikrant Reddy, Texas Public Policy Foundation, draft; related Mother Jones] Conservatives call for reforms in New Mexico justice system [Rio Grande Foundation via @PatNolanPFM]
  • Also: “Chief Judge For 9th Circuit [Alex Kozinski] Cites ‘Epidemic’ Of Prosecutor Misconduct” [Radley Balko]

Voting for unconstitutional laws, and a lawmaker’s oath

I’ve long found it exasperating when would-be lawmakers take the view that it’s okay for them to vote for measures that might be unconstitutional because, after all, the courts are there to backstop things. The Michigan businessman who’s challenging Rep. Justin Amash in a Republican primary is just out with a particularly flagrant quote along those lines to which I respond at Cato at Liberty.