To end an employment lawsuit, or more often simply as part of a non-litigious parting, employers often offer a severance package part of which consists of various terms releasing all claims and covenanting not to sue, requiring confidentiality and cooperation in the case of future litigation, and so forth. Now, in a lawsuit against CVS, the Equal Employment Opportunity Commission is taking the position that many such clauses constitute “retaliation” for protected activity and are legally invalid. Jon Hyman of Ohio Employer’s Law Blog notes that the clauses under challenge are generic ones widely used in severance packages and explains why in his view the “case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.” Daniel Schwartz at Connecticut Employment Law Blog also calls the suit “a big deal: “My gut tells me that the courts are not likely to view the government’s arguments with favor. … But for employers, that is of little solace.” More: Ameet Sachdev/Chicago Tribune (“the EEOC brought the suit even though CVS expressly protected employees’ rights under discrimination laws”), Joshua Feinstein, JD Supra (“the potential for havoc is great”), Hope Eastman/Paley Rothman (“a major shock to employers”)
I’ve got a new post at Cato summarizing four recent cases in which judges have rebuked the Equal Employment Opportunity and Department of Labor, awarding attorneys’ fees against the agencies in two cases (Gate Guard and Freeman Cos.) and rejecting two major EEOC initiatives against wellness programs (Flambeau) and severance package language (CVS). Excerpt:
Why are independent, strong-minded courts so important to a free society? One reason is that they – and often only they – are the ones who can stop government agencies from trampling on the rights of the citizens….
Imagine what these agencies and others would be getting away with were our judiciary someday reduced to a spirit of subservience to the executive branch of government.
The federal Equal Employment Opportunity Commission (EEOC) is used to getting its way since most employers would rather settle rather than face the expense and publicity risk of litigating against it. But sometimes, as I note in my new post at Cato, judges get a close look at just how weak the commission’s position is. And then…
More from Bob in comments: “Here’s the problem… major employers have made changes to their severance agreements to comport with the EEOC’s position in CVS. They EEOC has lost the case and still gotten the change they wanted. That’s all they care about. Much like the new Pregnancy Discrimination Act guidance which turns prior guidance and case law on its head. Major employers have already reacted in order to avoid costly litigation though the chances of a neutral court agreeing with the guidance are pretty low.”
- A good labor economics class lets you see through society’s secular religion [Bryan Caplan first, second, and third (“Why labor fallacies have replaced industrial organization fallacies in society’s secular religion”) posts]
- “Meet The Obama Czars Who Decide How Your Workplace Runs” [Connor Wolf/Daily Caller, and thanks for quote]
- Welcome news for employers: Seventh Circuit signals it isn’t buying EEOC’s attack on severance offers in CVS case [Jon Hyman, background]
- Can a unionized Uber or Lyft driver file a grievance over your negative comment as a customer? “It’s not at all clear how union job protection policies can jibe with a community-rating economy.” [Brian Doherty, Reason]
- Riffling through just one day’s BNA Labor Report, Michael Fox finds headlines like Firing After FMLA Request Raises Triable Issues, Recommendation Letter Saves Fired Professor’s Bias Suit, and Commission Seeks Comment on Workplace Murder Case [Employer’s Lawyer]
- Disney exec: here’s our plan to engage in racial discrimination in hiring journalists [Ira Stoll, Future of Capitalism] Have they compared notes with BuzzFeed Canada? [Mediaite]
- On minimum wage, New York Times editors find Hillary Clinton overly tethered to economic reality, urge cutting of final moorings [Charles Hughes, Cato] “The Evidence Is Piling Up That Higher Minimum Wages Kill Jobs” [David Neumark, WSJ]
- Court dismisses case against CVS in which EEOC had sought to redefine standard severance confidentiality provisions as unlawful retaliation [Jon Hyman, Daniel Schwartz, earlier here and here]
- Temp-agency jobs brought in-house: “The NLRB Forces CNN to Rehire Workers Terminated Over a Decade Ago” [Alex Bolt, Workplace Choice]
- “NLRB may encourage your employees to file OSHA, FLSA claims too” [Eric B. Meyer, Employer Handbook] “You’re NOT Paranoid — The Agencies ARE Ganging Up” [Dabney Ware, Foley & Lardner]
- “The U.S. Department of Labor claims it can’t come up with the cash to fully reimburse Oregon farmers for the $220,000 it unlawfully coerced from them.” [Capital Press, Oregon] House committee flays department over use of “hot goods” orders to arm-twist growers of perishables on labor issues [committee, CQ via Dunn Carney, The Grower]
- Sauce for gander: if left can push labor ordinances at county and municipal level, supporters of right-to-work laws might do the same thing [James Sherk and Andrew Kloster, Heritage]
- “I wonder how large the overlap is between people who want Ray Rice banished from NFL forever and those who want to ‘ban the box'” — @Toirtap
- Jacob Huebert on the Harris v. Quinn decision [new edition of Cato Supreme Court Review]
- “House Report criticizes EEOC for litigation before conciliation” [HRM America, attention-stirring Merrily Archer survey and more]
- Do you gripe about upward spiral of executive salaries? Do you want to force employers into fuller pay disclosure? Be aware of the tension between those two positions [Gary Shapiro of CEI, Daily Caller]
- Because the union is all about respect: Laborers/LIUNA brings giant inflatable rat to St. Louis funeral home [KTVI]
- Reality-based: “during five of last six federal minimum wage increases, nation fell into recession” [Thomas Firey, Cato via @scottlincicome] Minimum wage and automation [Ira Stoll, earlier]
- Minnesota legislature expands employer regulation under apple-pie heading of “Women’s Economic Security Act” [Courtney Ward-Reichard guest-posting at Daniel Schwartz’s] How well are state-mandated employee leaves working in California? [Coyote]
- “EEOC continues fight against severance agreements, while employers fight back” [Jon Hyman, earlier on CVS case]
- OSHA targets auto suppliers in South for enforcement crackdown, rationale to be supplied later [Sean Higgins, DC Examiner via Instapundit (“Well, he can’t come right out and say it’s about hurting non-union shops”)]
“U.K. roundup” (perennial litigant), Jun. 12-15, 2003.
“‘Resumé spam saddles employers’“, Jun. 3, 2003.
Fair Labor Standards Act, overtime and employee classification suits, 2003: “Schools roundup“, Apr. 9. 2001: “Wal-Mart- as-‘cult’-suit: it is about the money“, Jun. 14. 2000: “Goodbye to gaming volunteers?“, Sept. 12 (& update Oct. 3); “Why rush that software project, anyway?” (California overtime law), March 29; “And so now everybody’s happy” (temps fired in wake of Microsoft decision), Feb. 17 (& see letters, Dec. 20); “Strippers in court” (challenge to independent contractor status), Jan. 28; “Microsoft temps can sue for stock options“, Jan. 11. 1999: “Don’t call us professionals!“, Oct. 1-3; “Click here to sue!” (AOL volunteers who want to be recategorized as employees), Sept. 7; “Do as we say (I)” (overtime suit filed against Justice Department on behalf of its own lawyers), Aug. 30; “Click here to sue!” (Seattle law firm offers easy way to sign up for labor law class actions), Aug. 19.
“It ain’t heavy to him, he’s my brother“, May 1-2, 2003; “Firehouse blues” (too-short firefighter), Feb. 20-21, 2002; “Non-pregnant rescuers, please“, Sept. 13, 2001; “Litigators vs. standardized tests, II: who needs sharp cops?“, Feb. 9-11, 2001; “Slow down, it’s just a fire” (Canadian high court strikes down firefighter speed test), Sept. 17-19, 1999; “Perps got away, but equity was served” (Lanning v. SEPTA: challenge to running test given to prospective transit cops), Sept. 15, 1999 (& Oct. 5-7, 2001, Oct. 25-27, 2002).
“U.K.: ‘Killer wrongly sacked for axe attack’“, Apr. 7-8, 2003.
“Maybe crime pays dept.” (annual roundup of weird employment and labor law cases), Apr. 1, 2003.
Their own petard, 2003: “Wellstone campaign didn’t buy worker’s comp for its employees“, Feb. 6-9. 2002: “‘Civil Rights Agency Retaliated Against Worker, EEOC Rules’“, Jun. 14-16; “‘Disability rights attorney accused of having inaccessible office’“, Apr. 25. 2001: “EEOC sued for age bias“, Mar. 6. 2000: “White House pastry chef harassment suit“, Sept. 18. 1999: “Do as we say (I)” (overtime suit filed against Justice Department on behalf of its own lawyers), Aug. 30 (more).
“Race-bias cases gone wrong“, Jan. 24-26, 2003.
“Ninth Circuit panel sniffs collusion in bias settlement fees“, Dec. 16-17, 2002.
Public employee entrenchment, 2002: “Munched zoo animals, gets six months severance” (Germany), Nov. 8-10; “Convicted, but still on their teaching jobs“, Jul. 10-11; “School told to rehire cocaine abuser“, Mar. 20-21. 2001: “‘Poor work tolerated, employees say’“, Nov. 15. 2000: “Reprimand ‘very serious’ for teacher” (had given 11-year-old girl money to buy marijuana), June 27; “‘Foreman who slept on job wins reinstatement’“, June 7; “From the labor arbitration front” (disallowed firing of Ct. town employee who pleaded no contest to larceny), March 28; “Not to be dismissed” (unfireable workers, Canada and U.K.), Feb. 25. 1999: “Better than reading a lunchtime novel” (IRS employee sues; fired for accessing taxpayers’ personal returns 476 times), Oct. 25; “Undislodgeable educators” (teacher peer review undermined by tenure legalities), Aug. 18.
“‘Nannies to sue for racial bias’” (U.K.), Oct. 30-31, 2002.
“Looking back on EEOC v. Sears” (sex discrimination, statistics and history), Oct. 28-29, 2002.
Appearance and authenticity, 2002: “‘Demand for more ugly people on TV’” (Norway: higher “ugly quotas” sought), Oct. 21. 2001: “Facial-jewelry discrimination charged“, Jul. 2; “Pregnant actress complains at being denied virgin role“, Jun. 21; “‘Fired transsexual dancers out for justice’“, Mar. 23-25. 2000: “Appearance-blind hiring?“, Dec. 26-29; “Latest female Santa case“, Dec. 13-14 (and see Dec. 18-19); “Wal-Mart wins female Santa case“, Oct. 12; “Next: gender-blind stage casting?” (theme restaurant’s hiring of males as “riverboat tough” food servers), Mar. 24-26.
“U.K.: ‘Dr. Botch’ sues hospital for wrongful dismissal“, Oct. 18-20, 2002; “Let them sue us!” (hospitals get sued if they withdraw privileges from questionable doctors), Mar. 23, 2000.
“‘Inundations of electronic resumes pose problems for employers’“, Oct. 16-17, 2002.
“Right to break workplace rules and then return“, Sept. 16-17, 2002.
“Personal responsibility roundup” (workers’ comp told to compensate worker for his suicide attempt), Sept. 12, 2002; “‘Court upholds workers compensation for drunk, injured worker’“, April 6-8, 2001.
National origin, language on the job, 2002: “Hiring apple pickers = racketeering“, Sept. 9-10; “‘Surgeon halts operation over foreign nurses’ poor English’“, Jul. 25; “No ‘flood’ of Muslim or Arab discrimination complaints“, Jun. 17-18; “Must-know-Spanish rules defended“, May 28-29; “High court nixes back pay for illegal aliens“, Apr. 3-4. 2001: “Sued if you do dept.: language in the workplace“, Dec. 19 (& Nov. 17, 1999); “Competitor can file RICO suit over hiring of illegal aliens“, Dec. 13-14; “Opponents of profiling, still in the driver’s seat“, Nov. 2-4; “Employee’s right to jubilate over Sept. 11 attack“, Oct. 9 (& letters, Oct. 22). 2000: Christian Science Monitor on accent discrimination, see Dec. 18-19; “Green cards gather moss” (immigration delays), Feb. 4; “Back pay obtained for illegal aliens“, Jan. 10 (& Oct. 28, 1999). 1999: “52 green-card pickup” (rules against asking for too much documentation of citizenship in hiring), Oct. 29; “Say what?” (accent), Reason, November 1997.
“Ambulance driver who broke for doughnuts entitled to sue“, Nov. 2-4, 2001 (& Jun. 28-30, 2002).
“Not worth the hassle?” (Home Depot tries to avoid federal contractor status), Jun. 17-18, 2002.
“Advertisement for ‘friendly’ employee deemed discriminatory“, Jun. 10, 2002.
“Catharine MacKinnon, call your office“, May 16, 2002.
“Soap star: ABC wrote my character out of the show” (“medical leave” for drug rehab), Apr. 10, 2002.
“Will EU silence the pipes?” (occupational noise regulation), Mar. 8-10, 2002; “Britain’s delicate soldiery“, Dec. 22-25, 2000.
Retaliation: “Inability to get along with co-workers” (employer’s counterclaim as retaliation), Mar. 8-10, 2002; “Latest lose-on-substance, win-on-retaliation case“, Oct. 16, 2001; “Latest lose-on-substance, win-on-retaliation employment claim“, Jan. 25, 2000; “Employment-law retaliation: real frogs from ‘totally bogus’ gardens“, Sept. 29, 1999.
“European workplace notes“, Feb. 25-26, 2002.
“‘The Enron mythos’” (employee compensation, 401(k)), Feb. 15-17, 2002.
“‘UK women can demand to know men’s salaries’“, Dec. 28, 2001-Jan. 1, 2002.
“Menace of office-park geese“, Dec. 13-14, 2001.
“‘Halliburton shares plunge on verdict’” (law-firm whistleblowing), Dec. 10, 2001.
“An ill wind” (layoffs mean prosperity for employment lawyers), Dec. 4, 2001.
“Rejecting an Apple windfall” (race discrimination suit), Nov. 30-Dec. 2, 2001.
“Sued if you do dept.: co-worker’s claim of rape“, Nov. 7-8, 2001.
“In the mean time, let them breathe spores” (OSHA and anthrax), Nov. 6, 2001.
“Judge may revive ‘Millionaire’ ADA case” (Echabazal v. Chevron: employer’s right to turn away workers who would be injured by job), Nov. 5, 2001.
“‘Attorney Ordered To Pay Fees for “Rambo” Tactics’“, Oct. 5-7, 2001; “Even the chance of loser-pays helps keep ’em honest” (pilots’ union bid for back pay), August 12, 1999.
“Employment class actions: EEOC to the rescue“, Sept. 10, 2001.
“Not discriminatory to kick sleeping worker’s chair” (includes item on U.K. employee privacy), Sept. 3, 2001.
“Firefighter’s demand: back pay for time facing criminal rap“, Aug. 29-30, 2001.
“Negligent to lack employee spouse-abuse policy?“, Aug. 29-30, 2001.
“N.J. court declares transsexuals protected class“, July 30, 2001; “‘Fired transsexual dancers out for justice’“, March 23-25, 2001; “Columnist-fest” (transgender employee sues over no-skirt order), May 31, 2000.
Age discrimination law: “Research for lawyers, courtesy of their targets“, July 6-8, 2001; “EEOC sued for age bias“, March 6, 2001; “‘Toronto Torch’ age-bias suit” (stripper), May 23, 2000; “Take the settlement, sue anyway“, March 13; “‘Tenure Gridlock: When Professors Choose Not To Retire’“, March 3-5; “‘The case for age discrimination’“, Jan. 20, 2000; “Age-bias law expands” (Calif., N.J. developments), Aug. 12, 1999.
“Court says tipsy topless dancer can sue club“, Jul. 3-4, 2001.
“‘Hearsay harassment’ not actionable“, Jun. 12, 2001.
“Dispatches from abroad” (U.K. policeman claims snoring resulted from inhalation of cannabis), May 28, 2001.
“Six-hour police standoff no grounds for loss of job, says employee“, May 21, 2001.
“Letter to the editor” (arbitration agreements), Apr. 16, 2001.
“‘2000’s Ten Wackiest Employment Lawsuits’“, Apr. 13-15, 2001.
“‘Kava tea drinker alleges bias in FedEx firing’“, Mar. 19-20, 2001.
Ergonomics: “Narrow escape from ergonomic regs“, March 9-11, 2001; “‘Cop’s claim: gun belt too heavy’“, Feb. 23-25, 2001; “Born to regulate“, June 28, 2000; “Go ahead and comment — if it’ll do much good” (OSHA ergonomics regulations), March 17-19, 2000; “Repetitive motion injury Hall of Fame” (phone sex operator), Nov. 22, 1999.
“Forbidden paint zone” (New York City schools’ 10-foot rule), Feb. 27, 2001.
“Employees not tenured in California“, Feb. 7-8, 2001.
“Digital serfs?“, Jan. 26-28, 2001.
“‘Firms mum on troubled workers’“, Jan. 22-23, 2001.
Police-record discrimination: “Coming soon to a school near you” (applicant with police record OK’d since no convictions), Jan. 17, 2001; “‘Killer’s suit alleges job discrimination’“, Jan. 15, 2001; “You were negligent to hire me” (undisclosed rape-related conviction), May 30, 2000; “Hire that felon, or else” (Wisc. law protects felons from job discrimination), Jan. 7, 2000 (& earlier commentary: Sept. 24, 1999).
“Stressed out in New Hampshire” (stress from legitimate workplace criticism triggers workers’ comp), Jan. 4, 2000; “Stress of listening to clients’ problems” (masseuse wins benefits), June 21, 2000; “Weekend reading” (workplace psychological injury claims), July 31-August 1, 1999.
Damages, big numbers: “Big numbers” (Kroger Co. hit for $55 million after workplace accident), April 16, 2001; “Property taxes triple after wrongful-termination suit“, Dec. 20, 2000; “‘Stock Options: A Gold Mine for Racial-Discrimination Suits?’“, Dec. 11-12; “How to succeed in business?” (Christian Curry case), Nov. 20; “Wonder Bread hierarchy too white, suit charges“, July 10 (updates Aug. 4: jury awards $132 M damages and Oct. 10: judge cuts award by $97 M); “Penalty for co.’s schedule inflexibility: 30 years’ front pay” (ADA), June 16-18; “Record employment verdict thrown out” (Lane v. Hughes Aircraft), March 9, 2000; “From our mail sack: memoir of a morsel” (Calif. employer’s story), Nov. 24-25, 1999; “The stuffed-grape-leaf standard” (litigator says $300K isn’t that much money), August 14-15, 1999.
“Promising areas for suits” (broken interview promises, third party suits to sidestep workers’ comp limits), Dec. 7, 2000.
“Obese soldiers class action“, Nov. 10-12, 2000.
“New unfairness for old” (Employment Non-Discrimination Act), Oct. 26, 2000.
“Judge tells EEOC to pay employer’s fees“, Oct. 5, 2000.
“EEOC: offbeat beliefs may be protected against workplace bias“, Sept. 5, 2000.
“Losing your legislative battles? Just sue instead” (contraception coverage by employer health plans), July 26-27, 2000.
Coke: “‘Coca-Cola settles race suit’“, Nov. 17-19, 2000; “Class-action lawyers to Coke clients: you’re fired“, Jul. 21-23; “‘Coke plaintiff eavesdrops on lawyers; case unravels’“, Jul. 19-20; “‘Ad deal links Coke, lawyer in suit’” (Willie Gary, suing Coke on behalf of clients, enters into a lucrative ad deal with it), May 11, 2000.
“Chutzpah is. . .” (marital-status discrimination case by boss’s ex-son-in-law), Jul. 18, 2000.
“Welcome readers” (CNNfn article advising workers thinking of suing employers; cites this site), Jun. 19, 2000; “Favorite bookmark” (head of Employment Policy Foundation likes this site), May 23, 2000.
“Look for the Kiwi label” (sweatshops), Jun. 9-11, 2000.
“Funny hats and creative drawing“, May 1, 2000.
“Employer-based health coverage in retreat?“, Mar. 31-April 2, 2000.
OSHA and at-home workers: “OSHA & telecommuters: the long view“, April 7-9, 2000; “Update: OSHA in full retreat on home office issue“, Jan. 29-30; “OSHA at-home worker directive“, Jan. 8-9; “OSHA backs off on home-office regulation“, Jan. 6; “Beyond parody: ‘OSHA Covers At-Home Workers’“, Jan. 5, 2000.
“Feds’ mission: target Silicon Valley for race complaints“, Feb. 29, 2000.
“Judgment reversed in Seinfeld case“, Feb. 26-27, 2000.
“Warn and be sued” (industrial psychologist found liable for warning co-workers of patient’s violent fantasies), Jan. 12, 2000; “Indications of turbulence” (pilot whose mental fitness for duty was challenged wins partial back pay), Dec. 1, 1999.
“Christmas lawyer humor” (“Restructuring at the North Pole” parody), Dec. 23-26, 1999.
“Truth in recruitment?” (N.J. jury verdict), Dec. 17-18, 1999.
“From the quote file” (Legal Times: U.S. Supreme Court as nation’s chief human resources manager), Dec. 15, 1999.
Under surveillance at work? “Hold your e-tongue” (employee emails), Nov. 9, 1999; “EEOC encourages anonymous harassment complaints“, Sept. 3; “Please — there are terminals present” (email censorship and harassment law), July 30; “‘Destroy privacy expectations: lawyer’” (advice managers are getting), July 26, 1999.
“Bring a long book” (New York takes average of seven years to adjudicate discrimination complaints), Nov. 4, 1999.
“Perkiness a prerequisite?” (bias suit says employer wanted workers to look like “Doris Day or the boy next door”), Nov. 2, 1999.
“New Jersey court system faces employment complaint“, Oct. 21, 1999.
“Blackboard jungle” (Ann Arbor, Mich. substitute teachers’ suit gets $30 million), Sept. 14, 1999.
“Labor Day: ‘Overworked America?’“, Sept. 7, 1999.
“Big numbers” (Kroger worker $55 million award not blocked by workers’ comp), April 16, 2001; “Block PATH to lawsuits” (claims against NY-NJ commuter line under Federal Employer’s Liability Act), Sept. 1, 1999.
“Ohio high court says forget tort reform; should unionists be cheering?” (unions exempted from exposure to many injury suits), August 17, 1999.
“You made me defame myself” (workplace defamation law doctrine of “self-compelled publication”), August 10, 1999.
“All have lost, and all must have damages” (suit against employer by insurance agent who sold allegedly deceptive policies), August 3, 1999.
|Other writings by Overlawyered.com‘s editor: The Excuse Factory: What Happened When America Unleashed the Lawsuit (Free Press, 1997); writings on disabled rights/ADA; on harassment and sex discrimination law; on other branches of discrimination law.|
March 15 — Annals of zero tolerance: scissors, teacher’s beer. A twelve-year-old at Morton Middle School in Omaha has been expelled after she brought a pair of blunt-edged safety scissors to school earlier this month. (Tanya Eiserer, “7th-Grader With Scissors Violates Policy”, Omaha World-Herald, March 9, link now dead). And ordering and drinking a beer with dinner in the presence of her swim team has apparently brought an end to the teaching and coaching career of Lori Gallagher in Greenwood, Ind. Gallagher had taken her team to Noble Roman’s restaurant after a February swim meet. “Clearly, a situation in which alcohol is in the presence of minors is inappropriate,” said Dan Clark, deputy executive director of the Indiana State Teachers Association, which backed Gallagher’s removal. (Dana Knight, “Greenwood coach suspended for drinking”, Indianapolis Star, March 9, link now dead; Jeff Taylor, Reason Express, March 13 (second item)).
March 15 — Game over four decades ago: let’s change the rules. The latest “Angelos bill” moving through the Maryland legislature would retroactively change state law to make it easier for governments and individuals to sue makers of interior lead paint, which was pulled off the market in the 1950s. The bill would remove the requirement that plaintiffs actually identify which firm manufactured paint to which they were exposed, instead allowing suits against all manufacturers alike under the theory of “market-share liability”. The powerful attorney, owner of the Baltimore Orioles, was earlier instrumental in steering legislation through Annapolis retroactively tagging tobacco companies with liability for selling their wares, a caper that resulted in a $1 billion fee claim for his firm (see Dec. 9, Oct. 19 commentaries). Paint and pigment manufacturers brought in former U.S. attorney general Benjamin Civiletti, former Solicitor General Walter Dellinger and others to argue against the measure. (Michael Dresser, “Lead Paint Bill is Debated”, Baltimore Sun, March 10; Timothy B. Wheeler and William F. Zorzi Jr., “Lawmakers back bill on lead paint”, Baltimore Sun, January 28; industry press release) (via Junk Science).
March 15 — What ADA was written for. Jose Francisco Almada took off for Mexico on a Sunday in 1997 on learning that a niece there had died after a long illness. When he returned on Wednesday he was told that his employer, USA Waste Inc., had terminated him for skipping work without notifying a supervisor. Almada hired a lawyer who proceeded to sue the company under — can you guess which statute? Not the Family and Medical Leave Act, but the Americans with Disabilities Act, on the grounds that the company’s action was a mere pretext to discriminate against him on the grounds of a back injury which prevented him from doing heavy lifting in his sanitation rounds. The company denied the charge and said Almada had displayed “poor work attitude” aside from the absenteeism incident but the Colorado Civil Rights Division sided with him and so did a jury, which voted him more than $250,000. Almada’s lawyer, James E. Gigax, said: “It is this kind of case the ADA is written for.” (Howard Pankratz, “Driver wins lawsuit under disabilities act”, Denver Post, Feb. 22).
March 15 — A dream of black goats. “To dream of white goats is a sign of wealth and plenty,” declares a fortune-telling “Oraculum” regularly consulted by Napoleon Bonaparte; “but black signify sickness and uncertain lawsuits.” (Napoleon’s Book of Fate and Oraculum (Kessinger)) (via The New Yorker, “Book Currents”, Dec. 27-Jan. 3, not online) (send black-goat greeting card).
March 14 — Clinton legal legacy. American Lawyer asked this site’s editor to contribute to a cover-story symposium on President Clinton’s legal legacy. “Bill and Hillary Clinton emerged from a Yale Law School milieu that admired litigation as the remedy for practically every social ill and assumed that the more people could be persuaded to assert their rights in court, the better off society would be — what some of us call the invisible-fist theory. … [By the end] the Clintons themselves [came] to experience the intense miseries of destructive litigation — an ordeal through which they set a very poor example of how to behave, and from which they appear to have learned precisely nothing.” Along the way, the piece sounds off on everything from the federal tobacco suit to sexual harassment law. (Walter Olson, “Selective Liability”, American Lawyer, March 3).
March 14 — Swissair crash aftermath. Since its Flight 111 went down off Nova Scotia in September 1998, Swissair has been widely praised for going farther than any previous airline to help victims’ families: it offered them advance payments of about $154,000 without awaiting the results of litigation, reimbursed extensive travel and funeral expenses, and performed many other services for the bereaved. The efforts have generated much good will among the families, but “is all this likely to reduce Swissair’s liability or the number of lawsuits filed against it? Probably not,” reports Margaret Jacobs of the Wall Street Journal‘s news side. Faced with the reality that the American litigation system behaves in just as harsh a fashion toward defendants who try to be good guys as toward those who resist trench by trench, airlines in the future may find themselves financially tempted to emulate the much harder line taken by such as Korean Air Lines, which is still litigating against survivor families 17 years after a crash.
A sidelight on the affair: recognizing that “courts outside the U.S. typically award a third or less of what U.S. courts do in wrongful-death actions”, Swissair initially offered much lower amounts to European than to American families, which raised a ruckus over there: “Swiss papers asked whether the airline believed an American life had more value than a European one.” Inevitably, the airline wound up offering the higher sums to everyone. Talk about genuine (for once) American imperialism: our legal system is so successful at exporting its premises that European legal systems can hardly give effect to their considered view as to the suitable level of damages even in many disputes among European citizens. (Margaret A. Jacobs, “Swissair Crash Tests Relations With Insurers”, Wall Street Journal, Feb. 15, fee-based archive).
March 14 — How bad can a capital trial get? What happens when a candidate for the Bad Prosecutors Hall of Fame faces off against a contender for the Clueless Defense Attorneys Championship? You get something like the 1983 Texas trial that sent Calvin Jerold Burdine to Death Row, which a federal judge threw out last September in favor of a new trial. “It is true that there is no bright line that distinguishes consciousness from sleep,” wrote U.S. District Judge David Hittner, with reference to allegations that Burdine’s court-appointed defense lawyer had repeatedly snoozed off during the proceedings. “However, the record and the evidence here is clear: [the defense lawyer] was actually unconscious.” According to the Washington Post‘s Paul Duggan, such cases are frequent enough that Texas appellate lawyers simply call ’em “sleeping-lawyer cases”. Because Judge Hittner found the inadequacy of defense sufficient grounds to overturn the conviction, he did not need to address further allegations that prosecutors had tainted the atmosphere against Burdine, who is gay, by calling him a “fairy” and a “queer” during his trial on charges of fatally stabbing a man during a burglary. According to the Post, “the prosecutor, in seeking a death sentence, argued to the jury that imposing a life term on a gay man would be an inadequate penalty, considering the prevalence of homosexual activity in prison. ‘Sending a homosexual to the penitentiary certainly isn’t a very bad punishment for a homosexual, and that’s what he is asking you to do,’ the prosecutor told the jury, according to a transcript.” (“Inadmissible: Zzzzz”, Texas Lawyer, October 4; text of judge’s order, Southern District of Texas; Paul Duggan, “Verdict Overturned Last Fall, Man Still on Death Row”, Washington Post, March 2).
March 13 — Videogame maker agrees to furnish safety gloves. How our state attorneys general keep busy: Nintendo of America has agreed to offer padded, fingerless protective gloves, up to four per household, to owners of a video game that’s been blamed for cuts, blisters and other hand injuries. “The ‘Mario Party’ game on the Nintendo 64 home game system can cause hand injury because players are encouraged to rapidly rotate a joy stick with a grooved tip, [New York] Attorney General Eliot Spitzer said Wednesday.” Spitzer’s office said the company had set aside up to $80 million to provide gloves — actual outlays can be predicted to be far below that — “and agreed to also provide $75,000 for the cost of the attorney general’s investigation,” reports AP. (Spitzer press release, March 8; “Nintendo To Give Safety Gloves”, AP/AltaVista, March 8; David Becker, “Nintendo offers glove to prevent joystick injuries”, CNet News.com, March 9). Reader Kenton Hoover, one of our informants on this story, is reminded of the old dialogue: Patient: “Doctor, it hurts when I do this.” Doctor: “So don’t do that.”
March 13 — Majesty of the law. “Attorney Marvin Barish could be hit with harsh sanctions by a federal judge for threatening to kill an Amtrak defense lawyer and calling him a ‘fat pig’ during a trial recess,” Shannon Duffy reports in Philadelphia’s Legal Intelligencer. U.S. District Judge Herbert J. Hutton declared a mistrial upon learning that Barish had allegedly told defense attorney Paul F.X. Gallagher, fist cocked, “I will kill you with my bare hands.” “You threatened his life in the presence of witnesses, sir,” said the indignant judge, after hearing an account of the incident from his courtroom deputy. “Not in the presence of the jury,” Barish replied; then, perhaps as it dawned that this was not an entirely satisfactory response, he added a more general denial: “I didn’t threaten his life or anybody.” At a later sanctions hearing, Barish said that he was “not condoning my conduct. It was really bad” but that “I didn’t mean that I would kill him” and that Gallagher “wasn’t in obvious fear of his life”. Barish’s attorney, James E. Beasley, said that his client was the real victim in the situation, having been provoked by unfair legal tactics on the part of Amtrak: “I think that having Mr. Barish go through this has been a sufficient sanction in and of itself.” (Shannon Duffy, “An Angry Lawyer?”, The Legal Intelligencer, March 10).
The colorful Barish last figured in these columns December 14, when we reported on the controversy over his having set up a plaintiff client in an apartment and paid his rent, gas, electric, cable television and phone bills. Updating that case, a federal judge refused to disqualify the veteran Philadelphia attorney as counsel in the case, finding such a sanction too harsh even if he committed an ethical violation. (Shannon Duffy, “Sugar Lawyer”, The Legal Intelligencer, Nov. 22).
March 13 — Take the settlement, sue anyway. The Equal Employment Opportunity Commission is considering a regulation under which terminated workers who’ve accepted a severance packet in exchange for a waiver agreeing not to sue could keep the packet and sue anyway. The worker would be allowed to attack the waiver of rights as not knowing and voluntary without having to “tender back” the sums received. “This is take the money and run,” says Mark DiBernardo of the management-oriented law firm Littler Mendelson. Steven Allen Bennett, commenting on behalf of the American Corporate Counsel Association, isn’t happy about the proposed rule either, saying it encourages “disgruntled employees with spurious claims to fight on endlessly”. (Kevin Livingston, “Gilding the Golden Handshake”, The Recorder/ CalLaw.com, Jan. 24).
March 13 — Welcome WhatTheHeck.com, Center for Equal Opportunity, RTL-4 Dutch television visitors:
* WhatTheHeck.com says its mission is “exposing the funny underside of society and, of course, stupid government tricks”. Check out its list of joke Ebay auctions, entitled “Ain’t Capitalism Grand?”, and its link to Frederic Bastiat’s Petition of the Candle-Makers of Paris, the funniest-ever satire on trade protection, on an Australian server. We get listed under the heading “Smart Sites”;
* “If you haven’t visited <www.overlawyered.com>, you should,” advises the Legal & Regulatory News newsletter (January) of the Center for Equal Opportunity, “the only think tank devoted exclusively to the promotion of colorblind equal opportunity and racial harmony”, headed by Linda Chavez;
* And Max Westerman’s recent report for RTL-4 Dutch television on lawsuits in New York City draws on this site’s resources.
March 10-12 — Accused of harassment; wins $2 million from employer. A Circuit Court jury in Hawaii has voted a $2.1 million award to Leland Gonsalves, who was fired from an auto service manager job at Infiniti-Nissan after a female service clerk filed a sexual harassment complaint against him. “It felt like I was being dragged through the mud and no matter how hard you rinsed off, it was going to follow you for the rest of your life,” Gonsalves said. “The jury found that Infiniti-Nissan unlawfully discriminated against Gonsalves, breached a promise to him that his job would not be affected by the investigation, and violated its own personnel policies and procedures involving his termination.” In court documents, the company had contended that “it conducted a preliminary investigation into the clerk’s allegations and found that Gonsalves appeared to have sexually harassed her based on his admissions”.
Eric Miyasaki, president of Nissan Motor Corp. in Hawaii Ltd., said the company had scrupulously followed EEOC guidelines for investigating harassment claims but that the court had found those guidelines to be non-binding. Miyasaki “said the verdict has ‘dangerous’ implications for every employer in the state. ‘If this decision is allowed to stand, Hawaii employers receiving complaints of harassment will have to choose whether they want to risk liability for ignoring the complaint or risk liability for doing what the sexual harassment law says they must do.'” Gonsalves, according to his lawyer, “has admitted to some of the woman’s allegations, apologized to her for any actions that she may have considered offensive and denied some allegations. But [he] has maintained that his conduct did not reach a level where it created a hostile work environment”. (Debra Barayuga, “$2.1 million award in reverse prejudice jury verdict”, Honolulu Star-Bulletin, Jan. 26). [Update Jun. 2, 2003: Supreme Court of Hawaii in Nov. 2002 reversed verdict. Also corrected plaintiff’s first name.]
March 10-12 — Do as we say, cont’d. A big employer that delayed sending out overdue paychecks for weeks or even months would get in trouble with the law, right? But in this case the poky payers are the D.C. Superior Court and D.C. Court of Appeals in Washington, which have had a reputation for years for neglecting their bills. Eventually they got sued (in federal court) by three lawyers and one private investigator who hadn’t been paid for court-appointed criminal defense work. Then things got worse: “Because its attorneys did not reply within 20 days of Dec. 16 — the date the suit was filed — a clerk entered a default against the D.C. courts,” reports Legal Times. The failure to respond “certainly sets an interesting precedent in the courts’ effort to instill public confidence in its operations,” observes attorney Gary Sidell. (Carrie Johnson, “D.C. Courts Default in Suit by Lawyers”, Legal Times, Jan. 14).
March 10-12 — Rise, fall and rise of class actions. “The frequency of class actions has ebbed and flowed in the past 30 years. In 1988, The New York Times reported a sharp drop-off in these cases since the 1970s. A legal expert told the newspaper that class actions ‘sort of had their day in the sun and kind of petered out.’
“The sun is shining again. Though no government agency keeps accurate statistics on the numbers of class actions, no one — trial lawyers or corporate America — disputes that the frequency of these cases has multiplied exponentially [well, at least geometrically — ed.] since the early 1990s.
“A survey of large corporations by the Federalist Society, a conservative research group in Washington, D.C., estimated that from 1988 to 1998, class actions filings increased by 338 percent in federal courts and by more than 1,000 percent in state courts. Corporations that were defending only a handful of these cases 10 years ago now report dealing with 50 or 80 at a time.” (Eddie Curran, “On behalf of all others: legal growth industry has made plaintiffs of us all”, Mobile Register, Dec. 26) (see Feb. 7).
March 9 — Record employment verdict thrown out. A unanimous California Supreme Court, reversing an appeals court, has upheld a trial judge’s overturning of a record-breaking $89.5 million discrimination verdict against Hughes Aircraft Co. The trial judge had “found that (1) passion and prejudice had motivated the jury, (2) the damages did not bear a reasonable relationship to Hughes’s actions or plaintiffs’ injuries, and (3) they were grossly disproportionate to the amount of actual damages.” Justice Janice Brown wrote the high court’s opinion and also added a concurring opinion, also signed by Justice Ming W. Chin, calling unlimited punitive damages a violation of fairness and due process (“fundamental notions of justice require some correlation between punishment and harm” — with cite to Aristotle’s Nicomachean Ethics) and saying such damages should seldom exceed triple the amount of actual damages. A counter-concurrence by Justice Stanley Mosk dismissed the awarding of excessive punitive damages as a non-crisis and the 3x-damages yardstick as itself arbitrary.
Since Los Angeles County Superior Court Judge Malcolm H. Mackey threw out the verdict, attorneys for the plaintiffs have waged a personal campaign against him in the press: Judge Mackey appears to think “that only white people can be trusted to sit dispassionately on matters of race,” charges Santa Monica lawyer Ian Herzog, who represents former Hughes employees Jeffrey Lane and David Villalpando. “They were trying to send a message to the judiciary that any judge who overturns a civil rights verdict … is going to be accused of being racist,” said Hughes attorney Paul Grossman, of Paul, Hastings, Janofsky & Walker. “The tactics were outrageous.” (Maura Dolan, “Justices Order New Trial in Race Bias Suit”, Los Angeles Times, March 7, link now dead; Lane v. Hughes Aircraft text of decision, filed March 6 (PDF format)).
March 9 — Costly state of higher awareness. “Deepak Chopra, the high lama of litigation, may be a pussycat on TV, but cross him in the courtroom and you’ll have a tiger on your tail,” reports Stephen Lemons at Salon. The New Age guru has “garnered notoriety through his frequent visits to the courtroom”, of which the most famous was his $35 million defamation suit against the Weekly Standard, settled on terms that included an abject retraction plus what Chopra says was a $1.6 million settlement. The La Jolla-based author and alternative medicine advocate has described that suit as “an act of love” meant to lift the magazine to “a higher state of awareness.” (Stephen Lemons, “The art of the spiritiual smackdown”, Salon, March 7).
March 9 — Everyone should weblog. Via Eatonweb yesterday, we discovered more ‘blogs to keep an eye on: Law School Dropout, by Chris O’Connor out of Oregon, led us to several previously unfamiliar resources, including a site on famous American trials by Prof. Doug Linder of the U. of Mo.-K.C. School of Law, Prof. Peter Tiersma’s list of links on law and language, and a compilation of “Weird and Funny Cases” with appended case citations, a welcome service. News/discussion log Edgecaseis worth a look as well. Weblogging (of which this site is one example) “appears to be undergoing a huge surge in popularity,” reports Wired News (Leander Kahney, “The Web the Way It Was”, Feb. 23). And Editor & Publisher Online columnist Steve Outing says it’s time mainstream news organizations “started doing Weblogs of their own”. (“Weblogs: from Underground to Mainstream”, March 8).
March 8 — Barrel pointing backward, cont’d. Another item, overlooked earlier, to add to the file on how litigation is slowing development of “smart guns” (see Feb. 17 commentary): a company that’s pioneered attempts to develop such guns is now seeking to pull out of the firearms business. Switzerland’s SIG Industrial Co. Holding Ltd. said it was seeking to sell its firearms businesses in Europe and the U.S., the latter of which claims an 11 percent share of the U.S. commercial pistol market. “The SIG announcement … is notable because the company attracted attention [in December], when it said that it would be the first manufacturer to market ‘personalized’ handguns. These weapons include an electronic locking system designed to allow only authorized users to fire,” reports Paul Barrett of the Wall Street Journal‘s news side. Such locking systems, of course, are among the innovations demanded by the cities suing gunmakers. “SIG said it will go ahead with ‘limited shipments’ of its personalized pistols later this year.”
From the same report: “In a separate development, gun manufacturer H&R 1871 Inc. said it would cease to produce handguns because of the litigation-driven increases in the cost of liability insurance and shipping. H&R, Gardner, Mass., had made a relatively small number of handguns and is primarily known for shotguns and rifles.” And the Zilkha group, which owns Colt’s, is trying to complete an acquisition of German-owned Heckler & Koch, after which it would “reduce or phase out Heckler & Koch’s sales of civilian pistols in the U.S.” (Paul Barrett, “Swiss Gun Maker SIG Plans to Sell U.S. Unit”, Wall Street Journal, Jan. 19, fee-based online service).
March 8 — Californians reject law boosting insurance litigation. By about a two-to-one margin, Golden State voters turned thumbs down on Proposition 30 (see March 6 commentary), thus disappointing the state’s trial lawyers and a coalition whose efforts they had backed. With 59 percent of precincts reporting, the measure was trailing 33 to 67 percent. (L.A. Times, proposition results).
March 8 — “Girl puts head under guillotine; sues when hurt”. The mock guillotine, installed as part of a school gymnasium haunted-house, had a wooden blade and was considered safe but allegedly injured her when its rope snapped. (Paul Waldie, “Girl sues after having ‘guillotine’ hit her neck”, National Post, March 6, link now dead; via Obscure Store). It’s our second item within a week from a Nova Scotia junior high school (see “Hug protest in Halifax”, March 2).
March 8 — Audio clip: our editor on NPR “Morning Edition”. Lawyers filed suit this week against the company that owns the K-B Toys chain, seeking class action status on behalf of African-American customers. The suit charges that stores in the chain located in white neighborhoods around the Washington, D.C. area have a more liberal check acceptance policy than stores with a predominantly minority clientele, a disparity that they say violates the Civil Rights Act. NPR’s Kathleen Schalch interviews this site’s editor who points out that courts have been reluctant to find store-to-store disparities unlawful when owners can cite a cost basis for them, such as a higher risk of returned checks in some locations. (March 6, summary (sixth item); audio clip (6:09 — requires Real Audio)).
March 7 — Mass ADA complaints. The problem of ADA filing mills — law offices that work closely with nonprofits or individual complainants to file large volumes of complaints under the Americans with Disabilities Act, which are then settled for legal fees and a promise of alterations — has begun breaking out into the general press (see our Jan. 26-27, Feb. 15 commentaries). John Stossel last Friday devoted his ABC 20/20 “Give Me a Break!” to the topic, relating the tale of shop owners Dave and Donna Batelaan in Lake Worth, Fla., whose Action Mobility Products got tagged with an ADA complaint for not having a sign designating handicap parking, an amenity that seemed unnecessary since the store sells products aimed at disabled buyers and nearly all of its customers are disabled. The Batelaans, who are disabled themselves, wound up paying $1,000 to settle the lawsuit, which was filed without warning. (Frank Mastropolo and James Wang (writers), “Taking Advantage“, ABC 20/20, “Give Me a Break!” with John Stossel, March 3, transcript).
Also last Friday, USA Today drew attention to the problem and, for balance, ran a guest op-ed by Florida attorney Robert Anthony Bogdan, who files such complaints (“…the motivation of myself and Lance Wogalter, as attorneys for our clients, is not to rake in huge fees, as critics claim. We have undertaken this representation because our client’s position is the right position. Of course, we cannot work for free.”) And Forbes‘ Michael Freedman contributes further details about Bogdan’s representation of the disabled daughter mentioned in our Feb. 15 report: she’s only 12 years old, which makes it especially incongruous that she’s filed complaints against a liquor store and pawn shop for alleged lack of accessibility. (“Loophole lets lawyers sue over dubious problems”, and Robert Anthony Bogdan, “Suits force ADA compliance”, USA Today, both March 3, no longer online; Michael Freedman, “How lawyers keep busy”, Forbes, March 20).
March 7 — Medical mistakes, continued. Further weaknesses of that much-publicized “epidemic of malpractice” study, per an article by New York Times health writer Lawrence K. Altman, M.D.: the “medication errors”, prominent among the total, aren’t necessarily the clear-cut kind where a different compound or dosage is taken than the doctor intended; many instead shade imperceptibly into judgment calls as to whether the physician was right to balance hoped-for benefits against known risks of side effects in particular cases. And: “Classifying falls as errors, as the report did, is also a murky area because they happen commonly in homes and on the street.” Though caregiver negligence concededly contributes to some falls, others are unavoidable in a largely elderly patient population amid unfamiliar surroundings and disoriented by illness and by powerful medications. (“The Doctor’s World: Getting to the Core of Mistakes in Medicine”, New York Times, Feb. 29) (earlier coverage of the study on this site: Feb. 22, Feb. 28).
March 7 — The scarlet %+#?*^)&!. More firms are severing relations with customers who are heard to make profane, raunchy or racially insensitive remarks, a step that helps insulate them from possible liability for tolerating a “hostile environment” for their own workers. “Plante & Moran, a Southfield, Mich., accounting and consulting firm, has terminated two or three clients in the past five years for abusive or profane language, sexist jokes or other offenses, says managing partner Bill Matthews.” (Sue Shellenbarger, “More Firms, Siding With Employees, Bid Bad Clients Farewell”, Wall Street Journal, Feb. 16 (requires online subscription)). And Forbes reports that some employers are hiring $1,000-an-hour consultant James O’Connor to mount seminars for employees on how to avoid using foul language; O’Connor’s consultancy is called the Cuss Control Academy. (Michael Freedman, “The Curse of Consultants”, Forbes, Jan. 24).
March 6 — Zapped pylon-climber sues liquor servers, utility. Nominated by reader acclaim: Ed O’Rourke has sued Tampa Electric, along with six bars and stores that sold him alcoholic beverages, over a 1996 incident in which he was blasted by 13,000 volts of electricity after breaking into a fenced, gated and locked utility substation and climbing up a transformer in a “drunken stupor”. The suit further alleges that local bars and stores negligently served O’Rourke liquor even though he was “unable to control his urge to drink alcoholic beverages”. The owner of the Waterhole Sports Bar, one of those sued, said he “remembers the transformer incident but denied that O’Rourke drank at his bar the night it happened. ‘Because he was previously thrown out of here because he was writing on the bathroom walls.'” (“‘Shocked’ Man Sues Bars That Served Him”, Reuters/Yahoo, March 3, link now dead) (another pylon-climber case: see Sept. 17).
March 6 — Press releases, or “strike suit” ads? Tampa Tribune looks in some detail at the puffish “news releases” by which securities class-action lawyers announce new suit-filings: are they informing the press, or soliciting more clients? “‘These announcements are intended to say, “I’m here. I’d like to be lead counsel,”‘ said Charles Elson, a law professor at the Stetson University College of Law in Gulfport.” Bar association officials say that because these releases “don’t technically qualify as advertising, they aren’t subject to scrutiny by these professional groups.” (Eric Miller, “The paper chase”, Tampa Tribune, March 5, link now dead).
March 6 — “Whirlpool settles $581 million verdict out of court.” The original Alabama jury verdict last May involved a $1,200 dispute over a satellite dish. Terms of the new settlement, with lawyers for Barbara Carlisle and her parents, George and Velma Merriweather, weren’t disclosed. (AP/Fox News, March 1).
March 6 — Pro-litigation measures on Calif. ballot. Propositions 30 and 31, if defeated by voters, would repeal two laws favored by trial lawyers that make it easier to sue insurance companies for delaying the payment of claims, including third-party liability claims against their policyholders. The measures appear to be trailing in voter support. (Michael Kahn, “Calif. battle over insurance lawsuits cost millions”, Excite/Reuters, March 2, link now dead; Benjamin Zycher, “Do We Really Need Even More Lawsuits?”, Los Angeles Times, March 3, link now dead; Andrew Tobias, “California Props”, online column, March 6) (measures defeated; see March 8 update).
March 3-5 — It’s Howdy Doody litigation time. Although the freckle-faced marionette of fifties TV was awarded a bronze star last month at Rockefeller Center, the actual cowboy-puppet used on the show has been locked in a trunk in a bank vault in New London, Ct. for the past year, the subject of a prolonged ownership dispute between the late puppeteer Rufus Rose’s family and the Detroit Institute of Arts. The last cast member to play the part of Clarabell the clown, Lew Anderson, 77, has even been put through a deposition, but apparently did not jump up and squirt the lawyers with seltzer as he might have in days of yore. (Corey Kilgannon, New York Times/Deseret News, Feb. 27; NBC website on the show)
March 3-5 — Welcome Reader’s Digest visitors. Randy Fitzgerald’s newly posted article on the outrageous results of asset-forfeiture laws, “Guilty Until Proven Innocent“, gives this website a link.
March 3-5 — Junk fax litigation, continued. Latest case of this sort to attract notice is in Georgia, a class action seeking $12 million from Hooters restaurants over alleged uninvited faxing of lunch coupons. “Value-Fax, owned by Bambi K. Clark, was hired by Hooters and other businesses to distribute advertisements to Augusta-area fax machines” in the mid-1990s, according to Trisha Renaud in the Fulton County Daily Report (Jan. 26). See our Oct. 22 commentary for an account of the epic legal struggle over unsolicited faxing in Houston.
March 3-5 — “Tenure Gridlock: When Professors Choose Not To Retire”. The New York Times quotes Muhlenberg College president Arthur Taylor on the “tenure gridlock” that’s resulted from age bias law‘s having deprived colleges of discretion over how long faculty stay at their posts: “We have no way of asking someone to retire. They literally can go on forever — and some do.” (Edward Wyatt, Feb. 16).
March 3-5 — “ADA’s Good Intentions Have Unintended Consequences”. Insight‘s John Elvin explores headaches caused by the application of the Americans with Disabilities Act in the workplace, including safety worries, the law’s protection of workers who suffer mental illness, and the “sued if you do, sued if you don’t” clash between various legal rules. Quotes this site’s editor at length (Jan. 28).
March 3-5 — Medical monitoring conference. Lawsuits over “medical monitoring” contend that although a plaintiff may not have sustained any detectable health injury from an event, the defendant should nonetheless pay for periodic doctors’ checkups to keep tabs on whether such injury emerges later. In December the Federalist Society brought critics and supporters of the idea together for a conference whose transcript is now online; product liability critic Victor Schwartz of Crowell and Moring, with three co-authors, has also published a paper critical of the notion on the Social Science Research Network. (“Medical Monitoring – Should Tort Law Say Yes?“, posted Feb. 22).
March 2 — Hug protest in Halifax. “Students at a Nova Scotia junior high school went on strike yesterday, walking out of class to protest a strict behavioral code they say forbids everything from hugs and high-fives to piggybacks.” Like a growing number of other schools across Canada, Vanier Junior High “takes a zero tolerance stance on all physical contact, fearful that horseplay could spiral into something more serious.” The results have included prohibitions on tag, touch football and other contact games; mandatory suspensions for playful antics such as pushing schoolmates in the snow; and, in recent controversies at two Manitoba schools, bans on “mass hugging” and kissing in hallways. “We want to be able to go to school and be able to hug your friend good morning,” says eighth grader Rosemary Buote of the new Halifax protests, in which about 200 students chanted slogans and “carried homemade signs that read: ‘We want hugs not punches’ and ‘We want a school not a prison'”. (Peter McLaughlin, “Halifax students walk out over hands-off policy”, Halifax Daily News/National Post, Feb. 29; Jennifer Prittie, “Schools are ruining childhood, critics charge”, National Post, Feb. 28, links now dead).
March 2 — Because they still had money. Class-action lawyers sued cigarette companies last month on grounds of alleged price-fixing, but antitrust experts interviewed by the Washington Post said the case for liability was far from clear on the evidence laid out thus far. Michael Hausfeld, of D.C.’s high-profile Cohen, Milstein, Hausfeld & Toll, is leading the charge, as he also is in private actions against Microsoft. The Wall Street Journal‘s news side reports that Hausfeld “says he was eager to sue the industry, at least in part, because his firm missed out on the fee bonanza that resulted from the state tobacco settlements.” When the earlier litigation binge was being organized some of Cohen, Milstein’s partners were skeptical about the states’ likelihood of prevailing, with the result that the firm “turned down invitations to help represent various states.” (James V. Grimaldi, “Doubts Raised on Tobacco Lawsuit”, Washington Post, Feb. 9, link now dead; Paul Barrett, “New Legal Attack Aims at Tobacco Firms”, Wall Street Journal, Feb. 8) (requires online subscription).
March 2 — Update: unmitigated madness, on lawyers’ orders. Andrew Goldstein “has twice punched a court social worker since he stopped taking his anti-psychotic medication, court officials and lawyers disclosed”. Goldstein’s lawyers advised him to stop taking his medication in preparation for his murder trial so the extent of his schizophrenia could properly impress the jury (see February 26-27). Xavier Amador, a professor at Columbia’s medical school, conceded the defendant might benefit legally from the tactic, but said it was deplorable from a medical standpoint and might cause him permanent damage. In his previous trial, which ended with a jury deadlock, defense lawyers argued “that the subway attack [on Kendra Webdale] had been one in a series of psychotic episodes over 10 years in which Mr. Goldstein abruptly punched, kicked or shoved people.” (David Rohde, “Court is Told Subway Killer, Off Medication, Hit a Social Worker”, New York Times, Feb. 29 (fee-based archive)).
March 1 — From our mail sack: skin art disclaimers. Pat Fish of Tattoo Santa Barbara wrote us over the holidays:
“All tattoo parlors use a waiver form now, hoping to intimidate the clients from suing should they fail to take good care in healing their tattoo. Part of the form goes on at length about understanding that this is a permanent change to the appearance, that the client has no mental impairment or physical disease. So I got a perverse impulse the other day and added to mine the phrase ‘I am not a lawyer, nor do I work for one.’ Hey, I can wear gloves to protect myself from someone who has a communicable disease, but I figure it is LAWYERS I’m really scared of!
“So last week I got my first lawyer, and he did not initial the paragraph in which that phrase appeared and explained that, in fact, he was a lawyer. So I made him circle the phrase, and write in the margin next to it ‘But I am ashamed of it.’ Then we proceeded to do the armband tattoo.
“I have a feeling that I am on my way to becoming an urban legend in the law circles of Los Angeles, since I am sure that whenever he shows off his new tattoo to colleagues he will tell this story.” (Tattoo Santa Barbara consent form) (more on disclaimers).
March 1 — Class-actioneers’ woes. Milberg Weiss Bershad Hynes & Lerach L.L.P. is still the best-known plaintiff’s class action firm in the land, but it’s suffered more than its share of reverses of late. The National Law Journal reports that three of the firm’s partners have resigned so as to avoid paying a multimillion-dollar share of its $50 million settlement with Lexecon Inc. over charges of malicious litigation; the payout was not covered by insurance. In January, allegations emerged that one of the firm’s “lead plaintiff” investors in a class-action suit against Oxford Health Plans Inc. had misrepresented his education, criminal record, history as a defendant in a civil case and his trading in Oxford securities. All this on top of the embarrassment last fall (see Oct. 13) in which Milberg Weiss inadvertently sued one of its own clients for treble damages for alleged racketeering in the course of a legal offensive against makers of children’s Pokémon trading cards. (Karen Donovan, “Three Milberg Partners Resign”, National Law Journal, Jan. 11; “Another Fine Mess for Milberg”, Jan. 25).
March 1 — Prozac made him rob banks. Connecticut Superior Court Judge Richard Arnold last week found Christopher DeAngelo of Wallingford not guilty of robbing banks and a department store because the drug Prozac made him do it. “This is not a case of somebody pulling a fast one or being too clever,” said the twenty-eight-year-old’s attorney, John Williams. “The hard indisputable fact of this case is that this young man was driven to commit crimes by a prescription drug.” Courts in Kentucky, New York and Minnesota have rejected legal claims based on Prozac use over the last decade. (“Conn. judge: Man not guilty of robbing banks because Prozac made him do it”, AP/CourtTV, Feb. 25).
March 31-April 2 — Punished for resistance. Gun-suit organizers were hoping Smith & Wesson’s capitulation would bring about a race among other firearms makers to settle; instead, manufacturers, dealers and buyers are racing to dissociate themselves from the hapless company, formerly the market leader. Now — in a move that counts as heavy-handed even by the standards of activist attorneys general — Connecticut AG Richard Blumenthal and New York’s Eliot Spitzer are readying antitrust action against companies in the gun industry for the offense of shunning S&W. Connecticut reportedly issued subpoenas yesterday; among possible grievances bruited in the New York Times‘ account are that some organizers of shooting matches have told S&W that it is no longer welcome, that dealers are dropping its wares, and that other gun companies are unwilling to go on coordinating their legal defense efforts with S&W, which means it will have to find a new law firm. Blumenthal’s and Spitzer’s message to those in the gun business could hardly be clearer: better go quietly, because we’ll crush you if you resist in any organized way. (Fox Butterfield and Raymond Hernandez, “Gun Maker’s Accord on Curbs Brings Industry Pressure”, New York Times, March 30; Peter Slevin and Sharon Walsh, “Conn. Subpoenas Firms in Gun Antitrust Probe”, Washington Post, March 31).
March 31-April 2 — Terminix vs. consumer critic’s website. Pest control company Terminix retreats from courtroom efforts to swat dissatisfied consumer Carla Virga, who put up a website to publicize her unhappiness with its services. After its defamation suit was dismissed, the company tried again on the theory that Ms. Virga was infringing its rights by using the word Terminix itself in “metatags” directed at search engine listings. This succeeded in infuriating many in the Web community, and now the company has backed off that second action as well. Other companies that have gone to court against angry-consumer websites include Bally Total Fitness, Circuit City, and U-Haul. (Craig Bicknell, “Site No Longer Bugs Terminix”, Wired News, Mar. 11; Robyn Blumner, “Welcome to the world of free-speech exterminators”, St. Petersburg Times, Mar. 19).
March 31-April 2 — Employer-based health coverage in retreat? Report in the news-side Wall Street Journal last month suggests more big employers are beginning to “look for an exit strategy from the health-benefits business”, especially since “it’s possible that Congress or a court ruling will expose employers to legal liability in malpractice cases“. Under “defined contribution” models pioneered at Xerox Corp. and elsewhere, employees are given lump-sum health vouchers and told to find the plan that’s best for them. Sanford C. Bernstein analyst Kenneth Abramowitz sees the benefits of giving workers choice, but points out the danger that employees will be cut loose with a “Yellow Pages” outcome: “Here’s $5,000 and the Yellow Pages. You figure it out.” “Adding new liability for companies could prompt some to scuttle their health-benefits programs and send employees into the market to fend for themselves. Says Margaret O’Kane, head of a managed-care accrediting organization called the National Committee for Quality Assurance: ‘If employers find themselves in the path of the trial lawyers, I think you can expect a massive bailout'”. (Ron Winslow and Carol Gentry, “Health-Benefits Trend: Give Workers Money, Let Them Buy a Plan”, Wall Street Journal, Feb. 8, fee-based library).
March 31-April 2 — Welcome Milwaukee Journal Sentinel readers. Overlawyered.com was a featured website earlier this month in Bob Schwabach’s “On Computers” column, which runs in Wisconsin’s leading paper and many others nationwide (March 9).
March 30 — Hollywood special: “Erin Brockovich”. The words “babelicious” and “toxic tort” had probably never been used in the same sentence before, but Julia Roberts’ new flick is finally showing that with the right costume design a litigation movie can ace the box office. Now the Hudson Institute’s Mike Fumento, in an op-ed in Tuesday’s Wall Street Journal expanded considerably into a piece in yesterday’s National Post (Canada), challenges the premise, taken for granted among most reviewers of the film, that Pacific Gas & Electric was guilty as charged of poisoning the populace of a small California desert town with chromium-6 in the water. Fumento says the levels of contamination found were orders of magnitude lower than those needed to induce health effects in experimental animals; that the lawyers sought to blame on the water a wide assortment of ailments among local residents that science has not linked to chromium exposure; and that health studies found that the plant’s own workers, who were likely exposed to at least as much pollution as neighbors, had a life expectancy comfortably exceeding the California average. (Michael Fumento, “The dark side of Erin Brockovich”, National Post, March 29; Michael Fumento, “‘Erin Brockovich’, exposed”, Wall Street Journal, March 28; official film site; Mr. Showbiz review; Christine Hanley, “Brockovich’s Work Is Just Beginning”, AP/ABC News, March 27).
March 30 — Hollywood special: “The Insider”. Though nominated for numerous Oscars, last season’s portentous litigation epic The Insider got shut out in the actual naming of awards. Were Academy voters bothered by the film’s unacknowledged fictionalizations, or did they just share the views of Adam Heimlich of the New York Press, who last week called the film “preposterously overheated … The title character’s big revelation in this interminable movie — which treats the looting of tobacco companies by trial lawyers with enough gravitas to make Judgment at Nuremberg feel like Oklahoma! by comparison — is that ‘cigarettes are nothing but a delivery system for nicotine.’ … God forbid someone in Hollywood or on the Upper West Side speaks out against the selective demonization, for purposes of state and oligarchic power, of the drugs they don’t happen to use. Philip Morris should fight back with a drama exposing that Starbucks lattes are nothing but a delivery system for caffeine and martinis are nothing but a delivery system for alcohol. If Insider wins Best Picture … it’ll prove that Hollywood is nothing but a delivery system for the propagandistic justification of top-down class warfare.” But it didn’t win. (Adam Heimlich, “Heimytown”, New York Press, Mar. 22).
March 30 — Al Gore among friendly crowd. Last Thursday Vice President Gore attended a $500,000 luncheon fund-raiser at the Cincinnati home of Stanley Chesley, sometimes nicknamed the “Master of Disaster”, one of the country’s most prominent plaintiff’s trial lawyers. The Cincinnati Post says that Chesley, known for air-crash, tobacco and Microsoft suits, “has been a dependable fund-raiser for the vice president and President Clinton.” (Bill Straub, “Gore next to visit Cincinnati to raise funds”, Cincinnati Post, March 22; Sharon Moloney, “Gore bashes Bush tax plan”, Cincinnati Post, March 24); Christopher Palmeri and James Samuelson, “The Golden Leaf”, Forbes, July 7, 1997). For recent fund-raising by Bill Clinton among trial lawyers, see our Feb. 14 commentary.
Forbes Online columnist James Freeman recently took a hard look at Gore’s in-depth support from trial lawyers (“Who’s funding Gore?”, Feb. 28). Gore’s financial backers over the years have included most of the biggest names in the litigation business, including Wayne Reaud (asbestos, Toshiba laptops), John O’Quinn (breast implants, many others), Joe Rice (asbestos, tobacco), Bill Lerach (shareholder lawsuits), etc. Gore hosted Lerach at the White House for coffee in February 1995, Freeman writes, and Chesley was there for coffee that same day.
March 29 — Litigator’s bliss: finding opponent’s disgruntled former employee. “Assume the legal lotus position and imagine a happy place. What greater nirvana could there be than [finding] the disgruntled former employee of an opposing party? Gruntled or not, a high priority of any good discovery plan should be to identify and interview former employees as quickly as possible, before the other side can neutralize or co-opt them.” (Jerold S. Solovy and Robert L. Byman, “Discovery: Ex parte, Brutus?” (practitioners’ advice column), National Law Journal, March 27, not online).
March 29 — Why rush that software project, anyway? California adds to its reputation as a high-hassle state for tech employers with a law taking effect this year, backed by unions and plaintiff’s employment lawyers, requiring that many computer consultants be paid overtime rates if they put in more than eight hours in a day. Many such consultants bill at rates that exceed $50, $100 or even $200 an hour, before the overtime premium is added in. One Bay Area staffing exec says most of his employer clients are unwilling to trigger the overtime entitlement and are instead sending home specialists after eight hours who would previously have worked longer (Margaret Steen, “New overtime law spurs change in tech firms”, San Jose Mercury News, March 22, link now dead; “Hi, OT Law; Bye, Tech Boom?”, Reuters/Wired News, March 2; Margaret Steen, “New law means overtime pay for computer consultants”, San Jose Mercury News, Feb. 29; Kirby C. Wilcox, Leslie L. Abbott and Caroline A. Zuk, “The 8-Hour Day Returns”, CalLaw, Jan. 24).
March 29 — The bold cosmetologists of law enforcement. The New York Times took note this Sunday of efforts in Nevada and Connecticut to enlist beauty-parlor personnel in the task of identifying possible victims of domestic violence for referral to battered women’s shelters and other social service agencies (see our March 16 commentary). Its report adds a remarkable new detail regarding the sorts of indicators that Nevada cosmetologists are being officially encouraged to watch for as signs of household violence (being licensed by the state, they have reason to listen with care to what’s expected of them). “Torn-out hair or a bruised eye may signal abuse, but more subtle warning signs may come out in conversation. One Nevada hairdresser, [state official Veronica] Boyd-Frenkel said, told of a client who said: ‘My husband doesn’t want me to see my friend anymore. He says she is putting bad ideas in my head.’
“‘Emotional abuse, intimidation, control, jealousy, overpossessiveness and constant monitoring,’ she said, can be as sure signs of domestic violence as physical injuries.” Does Ms. Boyd-Frenkel, who holds the title of “domestic violence ombudsman” for the attorney general of Nevada, really deem it “emotional abuse” and potential domestic violence when a husband seeks to warn a wife (or vice versa) away from a friend who’s considered a bad influence? Is such spousal behavior really to trigger the notice of the official social-service apparatus, and its new deputies in the hair and nail salons of Nevada? (Jeff Stryker, “Those Who Stand and Coif Might Also Protect”, New York Times, March 26).
March 29 — Update: advice to drop medication unavailing. As reported earlier, subway-push defendant Andrew Goldstein went off his antipsychotic medication before his recent murder trial on advice of his lawyers, in order to demonstrate to the jury how deranged he was (see Feb. 26-27 and March 2 commentaries). Whatever the ethical status of this tactic, it was apparently unavailing in practice: a New York City jury convicted Goldstein of murder last week. He will probably serve his sentence in a state prison outfitted to give him psychiatric care. (Samuel Maull, “Man Convicted in Subway Shove Case”, AP/Excite, Mar. 22).
March 28 — $65 million Texas verdict: driver at twice the legal blood limit. “A Galveston, Texas, jury has awarded $65 million to the parents and estate of a woman who drowned after her car plunged off a boat ramp and she couldn’t disengage her seat belt.
“The jury found defendants Honda of America Manufacturing Co. Inc. and Honda R & D Co. Ltd. 75 percent responsible for the death of Karen Norman — even though after her death, Norman’s blood-alcohol level measured at nearly twice the Texas legal limit. …
“After the accident, [Honda attorney Brad] Safon noted, Norman’s blood-alcohol level was measured at 0.17. The Texas drunk driving limit at the time of the accident was 0.10; it is now 0.08.” Plaintiff’s lawyers said the salt water in which Norman drowned might have thrown off the blood level reading. (Margaret Cronin Fisk, “Fatal Grip of Seat Belt Results in $65M Verdict”, National Law Journal, Mar. 27)(& update Oct. 13, 2003: appeals court throws out award, which trial judge has previously reduced to $43 million).
March 28 — Call me a fraud, will you? Why, I’ll…I’ll hire you! Last year Big Five accountants Ernst & Young paid $185 million to settle a bankruptcy trustee’s charges that it had mishandled the affairs of the now-defunct Merry-Go-Round apparel chain. Now Ernst has sued its former law firm, D.C.-based Swidler Berlin Shereff Friedman, which it says should share the blame. And to prosecute the new suit Ernst has hired none other than the law firm that sued it in the first round, Snyder, Weiner, Weltchek & Vogelstein of Pikesville, Md. “Swidler noted that Snyder Weiner in the earlier suit had accused Ernst of fraud, and now Snyder Weiner in ‘this complaint asserts “E&Y’s innocence of the fraud”‘”. An Ernst executive shrugs off criticism: “Who knows about the case more than the firm that argued the other side?” (Elizabeth MacDonald, “Ernst & Young Sues Law Firm Over Settlement”, Wall Street Journal, March 14 (online subscribers only); James V. Grimaldi, “Accounting Firm Sues Lawyers”, Washington Post, March 14).
March 28 — Annals of zero tolerance: don’t play James Bond. A fifth-grade “model student” at Sutton Elementary School in Tecumseh, Michigan faces expulsion for up to a half year for bringing a plastic toy gun to school because he wanted to “play James Bond”. “You could see it was plastic,” said school superintendent Rich Fauble. “If you looked at it, you could tell it wasn’t a gun.” “I just wanted to play with it at recess,” said the boy, in Fauble’s account. “I didn’t want to hurt anybody. I play with it at home.” Sutton principal Debra Langmeyer said the board’s recommendation of expulsion “might seem extreme” but is intended to “send a message” about guns. (“Toy gun may cause student’s expulsion”, Toledo Blade, Mar. 16).
March 28 — From the labor arbitration front. The Connecticut Supreme Court, over dissents from two of its members, has upheld an arbitrator’s order that David Warren be reinstated to his municipal job in the town of Groton, from which he was dismissed in 1997 after pleading no contest to charges of larceny. Warren was accused of stealing money from the town by selling dumping permits and pocketing the proceeds himself, but the court saw no reason to disturb an arbitrator’s reasoning that his no contest plea might have reflected a wish to avoid the cost and inconvenience of trial, rather than actual guilt. (“‘No-contest’ not guilty, Supreme Court says”, New Haven Register, March 21). And the U.S. Supreme Court has agreed to review an arbitrator’s order that a West Virginia mining company rehire a heavy machinery operator fired after he twice tested positive for marijuana use. The Fourth Circuit upheld the reinstatement, noting that courts “overwhelmingly” defer to the results of arbitration in the unionized workplace. (AP/FindLaw, “Supreme Court to clarify when lower courts can overrule arbitrators”, Mar. 20; Eastern Associated Coal Corp. vs. United Mine Workers, 99-1038).
March 28 — Another visitor record set. Last week was the busiest yet for visitors since Overlawyered.com was launched nine months ago … thanks for your support!
March 27 — Welcome Arts & Letters Daily readers. The best weblog in the world for coverage of essays and history, biography and belles-lettres, is put out for a worldwide audience by philosophy professor Denis Dutton of the University of Christchurch in New Zealand. We get a featured link today (see right-hand column after link to Sullivan piece, for which itself see below).
March 27 — Another S&W thing. “We want to do a Smith & Wesson-like thing with DoubleClick,” Michigan attorney general Jennifer Granholm said Thursday, referring to restrictions on Web data collection that she and attorneys general from New York, Connecticut, and Vermont have been negotiating with the biggest online ad-placement company. We suppose this means that she and her colleagues want to invent far-fetched legal theories to attack business practices that have long been regarded as lawful; file a great flurry of suits in multiple courts so as to overwhelm the designated opponent; use the threat of bankrupting legal expense to muscle it into submission with no need to reach a decision on the merits; and instill fear into other businesses that the same thing could happen to them unless they cooperate with the dictates of ambitious AGs. After all, that’s what was done to S&W. (“AGs Eye Privacy”, Reuters/Wired News, March 23; “DoubleClick in settlement discussions”, Bloomberg News/CNet, March 23).
March 27 — Philadelphia: feminist groups to be consulted on whether to classify incidents as rape. As several high-profile cases in recent years demonstrate, authorities sometimes charge men with rape or sexual abuse in cases where there’s conflicting or ambiguous evidence as to whether there was nonconsensual sexual contact (see, for example, the case of Columbia University grad student Oliver Jovanovic, whose conviction was overturned by a New York appeals court in December). Now Philadelphia police commissioner John Timoney has announced that “he will let women’s organizations help police decide when to believe sexual-assault complaints and how to classify them.” Barbara DiTullio, who heads the Pennsylvania chapter of the National Organization for Women, called the plan “wonderful” and said it could become a model for police departments across the country. “We’re putting together a committee of women . . . and [will] actually, quite literally, let this women’s group be the final say on our classification [of cases]” said Timoney in an interview, though the women’s groups themselves expressed doubt as to whether their say would be final. (Mark Fazlollah, Craig McCoy, and Robert Moran, “Timoney to allow sex-case oversight”, Philadelphia Inquirer, Mar. 21) (via Freedom News).
March 27 — Microsoft Windows downgrade. Be prepared for the Justice Department’s anticipated “remedies” in Reno v. Gates by visiting this parody site (Bob Rivers, KISW, Seattle).
March 27 — Social engineering by lawsuit. Yale law professor Peter Schuck “doubts [that Smith & Wesson] would have lost a court case,” according to this New York Times “Week in Review” piece, which also quotes the editor of this website concerning the evils of litigation as an end run around democratic process (Barry Meier, “Bringing Lawsuits to Do What Congress Won’t”, New York Times, March 26). Cato Institute fellow Doug Bandow wonders why undemocratic lawmaking-by-lawsuit hasn’t become a bigger election issue: “Politics is a bad way to make policy. Litigation is worse.” (“Litigative vs. Legislative Democracy”, Cato Daily Commentary, March 20). And Andrew Sullivan warns Britons that unless they watch out, their country’s trend toward “empowerment of lawyers” will lead them to the state of “hyper-litigation” typified by the U.S. (“A brief warning: soon lawyers will have Britain by the throat”, Sunday Times (London), March 26).
Also: we’ve now put online our editor’s op-ed from last Tuesday on the Smith & Wesson settlement, which expanded on the arguments made earlier in this space (Walter Olson, “Plaintiff’s lawyers take aim at democracy”, Wall Street Journal, March 21).
March 27 — Kessler rebuked. Last week the Supreme Court ruled that former Food and Drug Administration chief David Kessler had made an improper power grab when he claimed for his agency “broad powers that had somehow gone unnoticed for more than half a century” to regulate tobacco, writes Chicago Tribune columnist Steve Chapman: “This was a startling revelation indeed. In 1964, the FDA said it had no authority to regulate tobacco. In 1965, it said it had no authority to regulate tobacco. In 1972, it said it had no authority to regulate tobacco. Ditto in 1977, 1980, 1988, and so on — until four years ago, when Kessler checked the attic and was pleasantly surprised to find this prerogative stashed in a box crammed with eight-track tapes and copies of Look.” (“On Target: A Setback for the Anti-Tobacco Jihad”, March 23; Tony Mauro, “For ‘Better or Worse’ FDA Can’t Regulate Tobacco”, American Lawyer Media, March 22).
March 24-26 — “Trial Lawyers Pour Money Into Democrats’ Chests”. The article everyone’s talking about: yesterday’s New York Times shines some overdue light on the trial lawyers’ frantic shoveling of vast sums into this year’s federal election races. “‘It would be very, very horrifying to trial lawyers if Bush were elected,’ said John P. Coale, a Washington lawyer involved in the tobacco litigation, who has given over $70,000 to the Democrats. ‘To combat that, we want to make sure we have a Democratic president, House and Senate. There is some serious tobacco money being spread around.'” “What’s different this time around,” said Michael Hotra, vice president of the American Tort Reform Foundation, “is that everyone recognizes that the stakes are higher. We have a candidate who is making legal reform a core issue and we certainly applaud Bush for that.” Also discusses the website ATRF has set up to monitor trial lawyer campaign spending (Leslie Wayne, “Trial Lawyers Pour Money Into Democrats’ Chests”, New York Times, March 23).
March 24-26 — Who wants to sue for a million? A group of disabled Miami residents has filed a federal lawsuit against Disney and ABC under the Americans with Disabilities Act, claiming that the screening process for the hit TV show “Who Wants To Be a Millionaire” requires the use of a touch-tone telephone and does not make alternative provision for deaf applicants. “The group is seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (Jay Weaver, “Disabled 4 sue to try for TV million”, Miami Herald, March 17). Update Nov. 7: federal judge dismisses case.
March 24-26 — Next: gender-blind stage casting? A federal jury in Nashville has returned a sex discrimination verdict against a pair of historical theme restaurants that hired only male food servers as a part of attempting to convey the atmosphere of 1800s-era riverboats. The Equal Employment Opportunity Commission sued Cock of the Walk restaurants in 1996 after a woman named Susan Mathis carried a secret tape recorder in her purse while applying for a server’s job (more on the curious lack of outrage over this practice). “The servers had to represent the legendary fighters who brawled for the privilege of steering the riverboats, which netted them the best-of-the-best title: ‘Cock of the Walk’,” a group that historically did not include women.
In 1997 the EEOC came under criticism for its crusade against the “Hooters” sexy-waitress chain, which paid $3.75 million in a settlement in hopes of not having to hire “Hooters Boys”. However, the agency’s contention that entertainment value is an improper basis for sex-casting in the hiring of food servers “has never been applied [by a court] to a more mainstream restaurant such as this, which does not have sexual titillation as part of its theme,” said a lawyer for the restaurants. (Stacey Hartmann, “Restaurants’ male-server policy loses in court”, The Tennessean (Nashville), March 16).
March 24-26 — Slip, fall, head for court. Roundup of recent Chicago gravity mishaps, as reported in the Sun-Times and relayed in Jim Romenesko’s irresistible Obscure Store: “Debbie Jacques was forced to wear paper booties when she tumbled. Monica Beeks walked in deep, loose grass, and fell. John Incisi tripped on a Kleenex box left on the stairs. They’re all hanging out in civil court, hoping to get some cash.” (Tim Novak, “Health worker blames paper booties for slip”, Chicago Sun-Times, Mar. 21).
March 24-26 — Welcome visitors. A sampling of the websites that have linked to Overlawyered.com recently: the distinguished literary and arts monthly, the New Criterion; ABC News correspondent John Stossel‘s site; the Capital Research Center, which keeps an eye on politicized philanthopy; Pat Fish’s Luckyfish.com; the Nebraska Taxpayers for Freedom; Pickaway County (Ohio) Sportsmen, known for their shooting competitions; and Turkey’s Association for Liberal Thinking (Liberal Düsünce Toplulugu).
March 23 — Baron’s judge grudge. Dallas asbestos-suit czar Fred Baron may or may not have added another notch to his belt with the GOP primary defeat this month of Texas 14th District Court judge John Marshall. In 1998 Judge Marshall was presiding over asbestos litigation filed by Baron & Budd when evidence surfaced that the firm had engaged in extensive witness-coaching (see “Thanks for the Memories“); Judge Marshall referred the matter to a grand jury for possible prosecution, but the charges were eventually quietly buried without indictments. Baron, who now claims vindication, “made no secret of the fact he wants Marshall’s head,” according to alt-weekly Dallas Observer in a report just before the primary. “As early as last spring, Baron was casting about, looking for a candidate to back. ‘I talked to half a dozen people. We were looking for any candidate we could get who would be qualified to run against John Marshall'”. It had to be in the Republican primary, though, which is nowadays tantamount to election in Dallas County. First-time candidate Mary Murphy of Jenkins & Gilchrest, the one who eventually stepped forward to challenge Marshall, “insists she’ll be a fine Republican judge even though she wrote a $1,000 check to the Democratic party four years ago” among other past Democratic ties. “I had nothing to do with getting Mary Murphy to run. That’s a lie, a complete and absolute lie,” Baron told the Observer. Murphy says Baron did try to talk her into running but that it was others who convinced her. Promptly assembling an ample campaign chest, she went on to defeat the incumbent Marshall, obtaining 52 percent of the vote. (Thomas Korosec, “Bench Press”, Dallas Observer, March 9; Todd J. Gillman, “Republican judge questions challenger’s party loyalty”, Dallas Morning News, Feb. 19; Holly Becka, “Voters sent message by ousting three judges, experts say”, Dallas Morning News, March 16 (links now dead)).
Baron, whom we believe holds the title of president-elect of the Association of Trial Lawyers of America (we apparently jumped the gun recently in awarding him the title of president), has in the past been touchy about criticism. In 1998, when the Dallas Observer ran a cover-story exposé on his firm, columnist Julie Lyons said Baron had “bullie[d] the Observer’s every effort to investigate his firm’s practices, even taking the newspaper to court to discover sources, in a pattern of intimidation and paranoia such as the Observer has never experienced before.” (Patrick Williams, Christine Biederman, Thomas Korosec, Julie Lyons, “Toxic Justice”, August 18, 1998; Julie Lyons, “The Control Freak”, August 12, 1998. See also earlier Baron coverage on this website: Feb. 14, Jan. 8).
March 23 — Update: mistrial in bank robber’s suit, more litigation expected. By a vote of 9 to 3, jurors in their deliberations were of the view “that the civil rights of Emil Matasareanu, armed criminal, shooter of cops, were not violated on Feb. 27, 1998, by officers who didn’t get an ambulance to poor Emil quickly enough” after his bloody shootout with police following a North Hollywood bank robbery (see Feb. 23 commentary). A federal judge declared a mistrial, and an L.A. Times columnist writes that “the attorney for Matasareanu’s survivors is expected to bring the case against the city and two retired LAPD officers to court again. By survivors, I mean the dead man’s family, not the people he didn’t kill.” (Mike Downey, “A World With No Bad Guys, Just Topsy-Turvy Juries”, Los Angeles Times, March 17, link now dead).
March 23 — Let them sue us! In the recent media boomlet over “medical mistakes”, it’s been easy to forget that hospitals currently must anticipate years of expensive litigation if they move aggressively to withdraw practice privileges from perceived “problem doctors”. Consider the now-celebrated “Dr. Zorro” case, in which Dr. Allan Zarkin is alleged to have carved his initials into a patient’s body at New York’s Beth Israel Hospital. The hospital’s chairman, Morton P. Hyman, “vowed he would make it harder for doctors to maintain their privileges at Beth Israel and would see that hospital procedures were tightened further. … Doctors disciplined by the state will be automatically dismissed from the hospital, he announced, even if their firings leave the hospital liable. ‘Let them sue us,’ he said, pounding the table.” (Jennifer Steinhauer, “At Beth Israel, Lapses in Care Mar Gains in Technology”, New York Times, Feb. 15, not online).
March 22 — Next on the class-action agenda: liquor? Public Citizen, whose campaigns against American business often closely parallel those of the organized plaintiff’s bar, has for a while been grouping alcohol and gambling companies with tobacco and gun makers as “killer industries” in its distinctively shrill propaganda. (“Killer Industries Fund Congressional Champions of “Family Values'”, press release, Dec. 28, 1998, “Family Values, Killer Industries”, undated; both on Public Citizen website). And the pro-hospitality-business Guest Choice Network thinks it has evidence that the previously long-shot idea of mass litigation against alcoholic beverage makers may be getting to be less of a long shot:
“* The Minnesota DWI Task Force called upon their state’s criminal justice system to initiate class action litigation against makers of adult beverages.
“* MADD’s [Mothers Against Drunk Driving‘s] year-end press conference closed with a comment from president Karolyn Nunnallee that initiating litigation against alcohol and hospitality companies ‘will be an issue of discussion’ at an upcoming meeting. Although MADD did not have plans to sue ‘at this time,’ she added, ‘but never say never!'” (“They’re Bellying Up to the Bar!”, Guest Choice Network, undated). Martin Morse Wooster examines the evolution of MADD’s views in a new paper for Capital Research Center (“Mothers Against Drunk Driving: Has Its Vision Become Blurred?”, Feb. 2000).
March 22 — Rise of the high school sleepover disclaimer. Before having some of his daughter’s tenth-grade classmates out for the weekend to the family home in East Hampton, a parent at Manhattan’s tony Brearley School had his attorney draft a 765-word “liability waiver and indemnification agreement” for the other parents to sign and return. It describes the students’ impending visit to the “house and surrounding property at the above address (the ‘premises’) without charge on or about Saturday, November 20, 1999 and Sunday, November 21, 1999 during their weekend trip to East Hampton, NY (such use of the premises, the ‘visit’).” Several dense sentences later, it gets to the point: “Student and parent hereby waive any and all present and future claims related to or arising out of or in connection with the visit or any losses they, any other family member or any third party may suffer in connection therewith…” Apparently enough parents signed and the trip came off with no problem. (“Gotham: In Loco Parentis”, New York, Dec. 6; portions of disclaimer appear in printed magazine but not online).
March 22 — Newest disabled right: audio TV captioning. Decision expected this summer on Federal Communications Commission proposal that TV networks be compelled to provide at least four hours of programming a week with “secondary audio” descriptions of filmed action (“…Rhett takes Melanie in his arms and carries her to safety as Atlanta burns around them”) in hopes of giving blind viewers an “equivalent experience” to what sighted viewers are getting. Hollywood types “say descriptions will stifle creativity and jack up programming costs by about $4,000 for an hour of airtime”; audio captioning is considerably more expensive than closed-captioning for the deaf, mandated since 1998, because descriptions of filmed action call for a modicum of editorial judgment as opposed to mere transcription. And the National Federation of the Blind reports that many of its constituents have mixed feelings about the technique, finding it “irritating, overdone, and full of irrelevant information” and switching it off after a trial. (FCC captioning page; Nat’l Fed. Blind comments; Jonathan Aiken, “FCC proposes descriptive audio to help blind enjoy TV”, CNN, Feb. 24). See also our Feb. 19-21 commentary, on the ADA suit filed by deaf moviegoers in Oregon seeking to compel theaters to install closed captioning for films.
March 21 — Smith & Wesson’s “voluntary” capitulation. Today’s Wall Street Journal carries our editor’s op-ed on the Smith & Wesson settlement, adapted and expanded from yesterday’s commentary on this site. The piece asks: why aren’t Republican members of Congress and business people expressing more outrage? “It would surely make a symbolic difference if a few CEOs of companies outside the gun industry chipped in personal checks to start a legal defense fund for small gun makers being bulldozed by the cost of litigation, to give them at least a hope of surviving to fight the suits on the merits. Or if they let it be known that mayors who’ve signed on to the gun-suit jihad should stop passing themselves off as ‘pro-business.’ Not long ago the mayor of Bridgeport, Conn., Joseph Ganim, a gun-suit mastermind who’s considered ambitious for statewide office, was feted by a Chamber of Commerce in his local Fairfield County. Hey — it’s someone else’s industry he’s working to destroy, right?” (Walter Olson, “Plaintiffs Lawyers Take Aim at Democracy”, Wall Street Journal, March 21 (requires online subscription)).
March 21 — Ability to remain conscious not obligatory for train dispatcher, EEOC argues. “In the case of a former Consolidated Rail Corp. employee with a heart condition that can cause him to lose consciousness, the Equal Employment Opportunity Commission told a federal appeals court in Philadelphia that ‘while consciousness is obviously necessary to perform’ train-dispatcher tasks, ‘it is not itself a job function.'” The worker had sued Conrail under the Americans with Disabilities Act and lost in federal court; on appeal, the EEOC argued that the railroad could have accommodated his condition and that he was not a ‘direct threat’ to others, which is the standard employers must meet under the ADA if they wish to exclude disabled employees from jobs on safety grounds. “The employee was denied a dispatcher’s job that involves directing trains and taking emergency action to prevent crashes.” (“Employment Briefs: Worker denied promotion sues”, Detroit News, March 18).
March 21 — Furor just one click away. Outcry over Amazon.com’s patent of “one-click” shopping method rumbles on. Founder/CEO Jeff Bezos says the company did it in self-defense; he’s now proposed an across-the-board reduction in the length of patent protection for software and business-method patents. Some veteran intellectual-property lawyers take issue with that scheme and are also upset at a New York Times Magazine article by science writer James Gleick questioning some of the patent system’s fundamental assumptions. Until recently it was widely assumed that business methods — the discovery of a superior method for laying out the aisles of a supermarket, for example — couldn’t be patented at all. What would stores be like today if the idea of a “checkout counter” had been locked up for twenty years by the first company to file for it?
SOURCES: Victoria Slind-Flor, “The Biz-Method Patent Rush”, National Law Journal, Feb. 28; Chris Oakes, “Another Amazon Patent Furor”, Wired News, March 2; Boycott Amazon site (Free Software Foundation); Chris Oakes, “Bezos: Patents Were Self-Defense”, Wired News, Mar. 3; Chris Oakes, “Patently Absurd”, Wired News, Mar. 3; Bezos open letter, Amazon site; Dugie Standeford, “Book Publisher Launches Cybercampaign Against Amazon.com”, E-Commerce Law Weekly, March 8; James Gleick, “Patently Absurd,” New York Times Magazine, March 12; “The Harm of Patents”, O’Reilly Network, March 13; Omar Perez, “Amazon.com Patents Cast Giant Shadow Over Affiliates”, March 20; Miami Daily Business Review, March Victoria Slind-Flor, “Bar Reacts To Bezos Patent Reform Plan”, National Law Journal, March 20.
March 21 — Whether they meant to hurt anyone or not. How harsh can the legal environment become for drunk drivers? North Carolina seems to have pushed things to the ultimate extreme: its prosecutors seek to execute them when they cause fatal accidents. (Paula Christian, “Supreme Court to decide if drunk drivers get death penalty”, Greensboro News & Record, Mar. 12).
March 21 — New subpage on Overlawyered.com: Canadian corner. Finally! A page for our many readers north of the border who’ve noticed the nuggets of Canadian content we periodically slip in and would like them gathered in one spot for convenience. As befits the differences between the two legal systems, there isn’t so much “overlawyering” apparent in most of the stories we relay from Canada; but with regard to most other types and varieties of human folly, the two nations seem to be are in a neck-and-neck race.
March 20 — Liberty no longer insured by Smith & Wesson. In an ominous triumph for brute litigation force — and a setback for both democratic governance and Second Amendment liberties — the Clinton Administration and lawyers representing city governments on Friday bullied the nation’s largest gun maker into agreeing to a variety of controls on the distribution of its products, controls that the Administration had not been able to obtain through the normal legislative process. The company said its capitulation would preserve the “viability of Smith & Wesson as an ongoing business entity in the face of the crippling cost of litigation.” As the New York Times reports, the deal has “opened a new avenue for regulating the firearms industry without action from Congress, where partisan gridlock has stalled even modest gun-control legislation in recent months” — “partisan gridlock” being here employed by the Times as a pejorative synonym for the normal democratic process, which when working properly does not result in the speedy enactment of measures passionately opposed by a large constituency within the majority legislative party.
At this point it would make sense for the Republican Congressional leadership to rise up in unmistakable disapproval of the Clintonites’ invasion of their legislative prerogatives, and announce that –whatever one’s personal position on the details of gun control proposals — the use of litigation as an undemocratic end run around the legislative process is categorically wrong and must be fought with appropriate means at Congress’s disposal, such as funding cutoffs. And yet the first round of wire service stories quotes only one GOP Congressional leader, J.C. Watts of Oklahoma, as reacting to the news, and his quoted words, incredibly, are favorable: “we hail Smith & Wesson for taking a pro-active approach to the problem of violence”.
Advocates of gun-control-through-litigation — not to mention trial lawyers looking for an eventual payday from gun suits — view Smith & Wesson’s surrender as a harbinger of more victories ahead. “The legal fees alone are enough to bankrupt the industry,” boasts John Coale, one of the lawyers masterminding the city suits. “The pressure is going to be on”. Why are so few elected officials standing up to say that what’s going on is wrong?
SOURCES: Agreement text at HUD website; Smith & Wesson statement; Clinton Administration press release; “U.S. Drops Legal Threat Against Smith & Wesson”, Reuters/Excite, Mar. 17; Knut Engelmann, “U.S. Drops Legal Action Against Gun Maker”, Reuters/Excite, Mar. 17; David Ho, “Officials Praise Smith & Wesson”, AP/Excite, Mar. 17; Amy Paulson, “Smith & Wesson agrees to landmark gun safety settlement”, CNN, Mar. 17; Brigitte Greenberg, “Smith & Wesson Gets Preference”, AP/Excite, Mar. 18; Edward Walsh and David A. Vise, “U.S., Gunmaker Strike a Deal”, Washington Post, March 18; James Dao, “Gun Maker Agrees to Curbs in Exchange for Ending Suits”, New York Times, March 18 (requires free registration).
March 20 — “Study Shows Breast Implants Pose Little Risk”. “An analysis appearing in Thursday’s New England Journal of Medicine suggests silicone breast implants are safe, despite widespread perception that the controversial devices cause health problems” — not to mention a trial-lawyer-led campaign that drove the devices off the market and reaped a settlement totaling billions of dollars from manufacturers. Researchers at the University of North Carolina, Chapel Hill, performed a combined analysis of 20 earlier studies and concluded that “‘the elimination of implants would not be likely to reduce the incidence of connective-tissue diseases’ such as rheumatoid arthritis, lupus, or other illnesses caused by the misfiring of the immune system”. (Reuters/ FindLaw, Mar. 15).
March 20 — Do as we say, cont’d. Disabled-rights laws are feared by many private business owners who face the prospect of heavy fines and lawsuit settlements for noncompliance. As for the judicial branch, charged with enforcing these selfsame laws? Well, they’re often a wee bit less mindful of ’em. Howard County, Maryland Circuit Judge James B. Dudley, who isn’t disabled, concedes that his desire to stick close to the courthouse so he could answer jurors’ questions during a trial was “probably not a justification” for his having chosen to park in a clearly marked handicapped space, a practice also engaged in by local sheriff’s deputies. (Del Quentin Wilber, “Judge parks in hot water”, Baltimore Sun, Mar. 11). And in Massachusetts, following on the revelation that Boston’s opulent new courthouse lacks wheelchair access to its jury boxes and witness stands (see July 17-18, 1999 commentary), the Cape Organization for Rights of the Disabled sued over the disabled-unfriendly state of the Plymouth County courthouse; Barry Sumner couldn’t get over the threshold to divorce his wife and had to ask her to help lift his chair. (Paul Sullivan, “Suit seeks access for disabled at Plymouth court”, Boston Herald, Sept. 10, 1999). Aren’t these courts lucky they’re not private businesses?
March 20 — Costs of veggie-libel laws. Talk show hostess Oprah Winfrey keeps winning in round after round of litigation filed by cattlemen after a February 1998 show she did on mad-cow disease. “Ironically, the more she wins, the more she loses,” observes First Amendment specialist Paul McMasters. Aside from our lack of a loser-pays rule, the culprit is “agricultural-disparagement” laws enacted in 13 states, which menace media producers if they knowingly broadcast false and disparaging statements that harm the salability of perishable farm products. (“Shut up and eat everything on your plate”, Freedom Forum Online, Feb. 21; Ronald K.L. Collins and Paul McMasters, “Veggie Libel Laws Still Out to Muzzle Free Speech”, Texas Lawyer, March 30, 1998). Last year the Texas legislature turned back an attempt to repeal that state’s ag-disparagement law, though the Abilene Reporter-News pointed out that the law is hard to square with the state’s successful efforts under Governor Bush to curb excessive litigation. (“‘Veggie libel’ law Texas can live without” (editorial), April 13, 1999; “House lets ‘veggie libel’ law stand; Bill seeking repeal voted down 80-57”, AP/Dallas Morning News, May 8, 1999).
March 20 — 250,000 pages served on Overlawyered.com. Thanks for your support!
March 17-19 — Holiday literary selection: Irish squire’s litigious ways.“Then there was a bleach yard near us, and the tenant dare refuse my lady nothing, for fear of a law-suit Sir Murtagh kept hanging over him about the water course. With these ways of managing, ’tis surprising how cheap my lady got things done, and how proud she was of it. … [The tenants] knew her way, and what with fear of driving for rent and Sir Murtagh’s law-suits, they were kept in such good order, they never thought of coming near Castle Stopgap without a present of something or other nothing too much or too little for my lady eggs honey butter meal fish game, grouse, and herrings, fresh or salt all went for something. … [H]e made a good living of trespassing cattle there was always some tenant’s pig, or horse, or cow, or calf, or goose, trespassing, which was so great a gain to Sir Murtagh, that he did not like to hear me talk of repairing fences….
“As for law, I believe no man, dead or alive, ever loved it so well as Sir Murtagh. He had once sixteen suits pending at a time, and I never saw him so much himself roads lanes bogs wells ponds eel-wires orchards trees tythes vagrants gravel-pits sandpits dung-hills and nuisances every thing upon the face of the earth furnished him good matter for a suit. He used to boast that he had a law-suit for every letter in the alphabet. How I used to wonder to see Sir Murtagh in the midst of the papers in his office why he could hardly turn about for them. I made bold to shrug my shoulders once in his presence, and thanked my stars I was not born a gentleman to so much toil and trouble but Sir Murtagh took me up short with his old proverb, ‘learning is better than house or land.’ Out of forty-nine suits which he had, he never lost one but seventeen; the rest he gained with costs, double costs, treble costs sometimes but even that did not pay. He was a very learned man in the law, and had the character of it; but how it was I can’t tell, these suits that he carried cost him a power of money in the end he sold some hundreds a year of the family estate but he was a very learned man in the law, and I know nothing of the matter except having a great regard for the family. I could not help grieving when he sent me to post up notices of the sale of the fee simple of the lands and appurtenances of Timoleague. ‘I know, honest Thady,’ says he to comfort me, ‘what I’m about better than you do; I’m only selling to get the ready money wanting, to carry on my suit with spirit with the Nugents of Carrickashaughlin.'” — from Chapter 1, Castle Rackrent, subtitled An Hibernian Tale Taken from Facts, and from the Manners of the Irish Squires, Before the Year 1782, by Maria Edgeworth (1800) (biographies: Edgeworth family site, E-Search Ireland, WritePage, Morley’s) (e-text at Carnegie-Mellon; alternate e-text location, Creighton U.) (passage is from fourth long paragraph of text).
March 17-19 — Letterman sign suit. Anna Soares, 79, who lives near the Manhattan studio where David Letterman tapes his show, filed a lawsuit last month demanding $12 million from CBS because the network has declined to remove a giant illuminated sign of Letterman’s likeness which shines into her apartment’s window. Network officials say they believe they have the proper permits for the sign. Reader Gregory Kohs of American Cynic comments: “what I find preposterous is the $12 million sum the lady decided would be fair.” If the sign does not violate code, how about asking for the costs of relocating to a less-commercial neighborhood? “I think a wee bit less than $12 million would be sufficient to get her belongings into a moving truck.” (“People in the news: Woman files lawsuit over Letterman sign”, Boulder Daily Camera, Feb. 19) (second item).
March 17-19 — Go ahead and comment — if it’ll do much good. The Occupational Safety and Health Administration’s proposals on ergonomics “may be the single most costly employment policy regulation in U.S. history,” according to the Employment Policy Foundation. Now OSHA has thrown open a period for public comment on the rules, but the Clinton Administration has already signaled that the option favored by most organized employers — not proceeding with the rules at all — is unlikely to be considered, no matter what volume of critical comments may come in. (Alice Ann Love, “Public dialog opens on new workplace safety rules”, AP/Fox News, March 14; Michael D. Towle, “OSHA pushing for new regulations aimed at preventing repetitive motion injuries”, CNN, March 9).
SOURCES: OSHA proposed standard; Yahoo Full Coverage; Ron Bird and Jill Jenkins, “Ergonomics Regulation: Vague, Broad and Costly”, EPF Backgrounder, Jan. 12; National Coalition on Ergonomics (employer alliance); Matt Labash, “Hooked on Ergonomics”, Weekly Standard, Feb. 28; “OSHA Unveils Ergonomics Standard To Ire of Congress, Employer Groups”, Employment Law Weekly, Nov. 29; comments of Mercatus Center, George Mason U., National Association of Manufacturers; (via Junk Science🙂 Robert Hahn, “Bad Economics, Not Good Ergonomics,” Wall Street Journal, Nov. 24; David Saito-Chung, “What Price Workplace Safety? New Rules Spark Debate Over Science, Business Costs”, Investor’s Business Daily, Nov. 30; “New OSHA regs need rethinking” (editorial), Boston Herald, Nov. 26; “OSHAme on them!” (editorial), New York Post Nov. 24; “Repetitive Bureaucracy Syndrome” (editorial), Chicago Tribune, Nov. 24.
March 16 — Dave Barry on tobacco suits, round II. The humorist, who wrote a priceless column on the federal tobacco suit last fall (see Oct. 26) now offers an update reflecting on the news that “so far the states are spending more than 90 percent of the tobacco-settlement money on programs unrelated to smoking, such as building highways. … This is good, because we need quality highways to handle the sharp increase in the number of Mercedes automobiles purchased by lawyers enriched by the tobacco settlement.” Then there’s the new round of class-action suits contending that smokers themselves deserve money from the states, which if successful will establish the following cycle:
“1. SMOKERS would give money to THE TOBACCO COMPANIES in exchange for cigarettes.
“2. THE TOBACCO COMPANIES would then give the money to THE STATES (and their lawyers).
“3. THE STATES would then give the money to SMOKERS (and their lawyers).
“4. THE SMOKERS would then presumably give the money to THE TOBACCO COMPANIES in exchange for more cigarettes.”
But isn’t this inefficient, you may ask? Wouldn’t it be easier to order the tobacco companies to give smokers free cigarettes directly? “The trouble with that idea is that it would defeat the two main purposes of the War on Smoking, which are (1) to provide the states with money; and (2) to provide lawyers with, well, money.” Don’t miss this one (“War on Smoking always has room for another lawyer”, Miami Herald, Feb. 18).
March 16 — Judges can’t charge cost of corruption defense to insurer. “Three former San Diego Superior Court judges convicted of corruption charges can’t parlay judicial liability insurance into coverage for their criminal defense, the 9th U.S. Circuit Court of Appeals ruled.” In one of the biggest judicial scandals in California history (see our editor’s 1996 piece on the case), Michael Greer, James Malkus and G. Dennis Adams were found to have accepted gifts from prominent trial lawyer Patrick Frega in exchange for favorable rulings in cases. (Jason Hoppin, “No Coverage for Judges Convicted of Corruption”, The Recorder/ CalLaw, March 2).
March 16 — Your hairdresser — and informant? Hairdressers “are often confidantes for many people,” says Veronica Boyd-Frenkel, who holds the post of “domestic violence ombudsman” in the state of Nevada. All this is by way of explaining why her office, working with the state attorney general’s office, has launched a program to train cosmetologists to recognize signs of domestic abuse, the better to steer suspected victims to approved anti-domestic-violence groups. “They may hear things even someone’s best friend may not hear,” says Ms. Boyd-Frenkel, of the hair stylists. The Las Vegas Review-Journal, in an editorial, thinks it all rather smacks of the enlistment of ever wider circles of the citizenry as official informants (Angie Wagner, “State asks hairdressers to help domestic abuse victims”, AP/Las Vegas Review-Journal, Feb. 28; “Down the wrong path” (editorial), Feb. 29; Vin Suprynowicz, “The Libertarian: Watch what you tell your hairdresser” (expanded version of editorial), March 1; “Training would not make informants of cosmetologists” (letter to the editor from Ms. Boyd-Frenkel), March 5).
March 16 — Prof sues for right to flunk students. The University of Michigan describes as “utterly without merit” a lawsuit filed by Dental School associate professor Keith Yohn challenging the university’s refusal to fail two sophomore dental students. Yohn charges that the school bent its academic rules to allow the two to remain, and that an assistant dean sent him a belligerent email informing him that poor grades he and three other professors had given the students would be disregarded. Acting as his own attorney, Yohn went to federal court to charge the university with “deprivation of ‘freedom of speech'” and disregard of the ‘health care interest’ of the public and their children”; he also asks $125,000 for emotional distress. (David Shepardson, “U-M sued over dental grades”, Detroit News, Dec. 30; Hanna Lopatin, “Dental Prof. Sues U. Michigan for Refusing to Fail Students”, Michigan Daily/ StudentAdvantage.com, Jan. 5).