Big news from federal court in San Francisco: we’ve repeatedly questioned the U.S. Department of Justice’s adventurous decision to charge Federal Express with crimes for, in essence, refusing to snoop into its customers’ packages and business. From our post two years ago:
The federal government has prevailed on a grand jury to indict Federal Express for servicing what it should have known were illicit online pharmacy operations. FedEx says it repeatedly asked the government to supply a list of shippers it considered illicit so that it could cut off service, but that the government refused; the Department of Justice contends that circumstantial evidence should have been enough to alert the package shipment company. …
And last month, quoting Washington Legal Foundation’s Cory Andrews:
“Federal prosecutors have accused FedEx of knowingly shipping illegal drugs in interstate commerce and laundering money by merely doing its job: delivering packages (in this case, from online Internet pharmacies) to their intended recipients and getting paid for the service. …To avoid the very sort of ‘gotcha’ prosecution at issue here, Congress inserted exceptions for common carriers in each of the relevant statutes” authorizing shipment of prescription medications and controlled substances when done in the usual course of business….
Now, this [Associated Press/ABC News]:
A criminal trial nearly two years in the making alleging FedEx knowingly delivered illegal prescription drugs to dealers and addicts ended suddenly Friday when prosecutors moved to dismiss all charges against the shipping giant.
U.S. District Court Judge Charles Breyer, who had been highly critical of the government’s positions as the trial unfolded, granted the motion to dismiss: on Friday he called FedEx “factually innocent” and said the withdrawal of charges was “in the court’s view, entirely consistent with the government’s overarching obligation to seek justice even at the expense of some embarrassment.”
FedEx spokesman Patrick Fitzgerald said in a statement Friday that the company has always been innocent and the case should never have been brought.
“The government should take a very hard look at how they made the tremendously poor decision to file these charges,” he said. “Many companies would not have had the courage or the resources to defend themselves against false charges.”
Many in the field of white-collar legal defense have warned large corporations, particularly those with businesses built upon relationships of public trust, to cut a deal with the federal government rather than try to withstand the full force it can bring to bear in a prosecution. But FedEx, for one, has shown that it is still possible to defy the authorities and win. Mike Koehler at FCPA Professor says that might help lay to rest what has been called the “Arthur Andersen effect” in which indictment is itself seen as tantamount to corporate death.
P.S.: Our friend James Copland of the Manhattan Institute has this observation (via email):
What’s remarkable here is that UPS agreed to a $40 million non-prosecution agreement — and to hire a new corporate officer and an independent auditor looking over their shoulder and reporting to the U.S. Attorney — for the same alleged conduct.
[cross-posted at Cato at Liberty]
More from Jim Copland and Rafael Mangual at Real Clear Markets: “Judge Breyer observed that the government had failed to show any ill intent, and he pointedly noted that prosecutors have not gone after the U.S. Postal Service for the same conduct…. glad FedEx called the government’s bluff and won.” And: Eugene Volokh; George Leef, Forbes (and thanks for quote).
The federal government has prevailed on a grand jury to indict Federal Express for servicing what it should have known were illicit online pharmacy operations. FedEx says it repeatedly asked the government to supply a list of shippers it considered illicit so that it could cut off service, but that the government refused; the Department of Justice contends that circumstantial evidence should have been enough to alert the package shipment company. Writes Mike Masnick at TechDirt: “we don’t want shipping companies to be liable for what’s in packages, because then they have not just the incentive, but the mandate to snoop through all our packages.” Amy Alkon has more on reactions. Earlier, UPS paid the government $40 million to resolve similar allegations, and Google agreed to pay a fine of $500 million for (as we put it at the time) “matching willing buyers with sellers through Canadian pharmacy ads… a forfeiture geared to the revenue the pharmacies (not it) took in from the ads.”
- Six L.A. County sheriff workers get prison for obstructing jail probe [L.A. Times, earlier]
- More thoughts on pros and cons of police cameras [Howard Wasserman/Prawfs, Scott Greenfield]
- Equal time: Heather Mac Donald’s perspective on Ferguson, policing, and race food for thought even if different from ours [City Journal; our earlier coverage of Ferguson]
- “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies” [Volokh]
- How much criminal culpability for battered women when their violent partners harm children? [BuzzFeed]
- If Stephen Colbert broke NYC’s wacky knife law on the air, all the more reason to reform it [Village Voice (link fixed now), earlier]
- Details of additional charges in billion-dollar Department of Justice case against FedEx for not policing contents of its packages [WSJ, earlier]
November 9-11 — “Politically Incorrect Profiling: A Matter of Life or Death”. Stuart Taylor, Jr. returns to the subject of air passenger profiling in a must-read sequel to his September column: “Political pressure from Arab-American and liberal groups spurred the Clinton and Bush Administrations to bar use of national origin as a profiling component before September 11. … [This] achieved its goal of minimizing complaints, which plunged from 78 in 1997 to 11 in 1998, 13 in 1999, and 10 last year, according to Transportation Department data. It did not work so well at preventing mass murder. On September 11, the CAPS [Computer-Assisted Passenger Screening] system flagged only six of the 19 Middle Eastern hijackers for extra scrutiny, which was apparently confined to the bags of the two who checked luggage. None of the 19 men or their carry-ons appear to have been individually searched. And the FAA’s 1999 decision to seal CAPS off from all law enforcement databases — after complaints from liberal groups that criminal records were error-prone — may help explain why the FBI had not told the FAA that two of the 19 were on its watch list of suspected terrorists.” Incredibly, the Bush Administration has signaled that it’s sticking to the current ban on letting airlines do national-origin passenger profiling. (National Journal/The Atlantic, Nov. 6) See Oct. 3-4; also Richard Cohen, “Profiles in Evasiveness”, Washington Post, Oct. 11).
MORE: This makes a good time to catch up on Taylor’s columns since the attacks, all recommended: index; “The Bill to Combat Terrorism Doesn’t Go Far Enough”, Oct. 31; “The Media, the Military, and Striking the Right Balance”, Oct. 23; “The Rage of Genocidal Masses Must Not Restrain Us”, Oct. 16; “Wiretaps Are An Overblown Threat To Privacy”, Oct. 10; “How To Minimize the Risks of Overreacting to Terrorism”, Oct. 2; “Thinking the Unthinkable: Next Time Could Be Much Worse”, Sept. 19.
November 9-11 — Must be the Ninth Circuit, right? Yep, it is: in a September ruling, the much-reversed West Coast federal appeals court “discovered that male inmates in prisons have a ‘fundamental’ right to procreate by artificial insemination,” and thus to become daddies via FedEx delivery (George Will, “Inmates and Proud Parents”, Washington Post, Nov. 8).
November 9-11 — Infectious disease conquered, CDC now chases sprawl. The Centers for Disease Control were established to combat outbreaks of infectious disease, but have been steadily expanded and politicized to the point where the agency has recently crusaded against “epidemics” of gun ownership, tobacco use and domestic violence. The newest initiative of agency officials? A joint effort with the Sierra Club to put over the notion that housing sprawl is a public health risk, in part because suburbanites don’t get exercise walking to shops or work the way many city dwellers do — though you’d think their bigger yards and easier access to outlying recreational areas might give them more chance to exercise in other ways. Vincent Carroll pokes several holes in this theory, noting for example that Colorado, an archetypal suburban-sprawl state, has the country’s lowest rate of obesity (“Once more into the big, bad suburbs”, Rocky Mountain News, Nov. 3; Richard J. Jackson, M.D. (director of CDC’s National Center for Environmental Health), and Chris Kochtitzky (associate director for policy and planning at NCEH’s Division of Emergency and Environmental Health Services), “Creating A Healthy Environment: The Impact of the Built Environment on Public Health”, SprawlWatch Clearinghouse Monograph Series, report in PDF format; Washington Times, “Sprawl alert” (editorial), Nov. 8). Then there’s the CDC’s own recent finding, which goes unmentioned on the Sierra Club’s page, that suburban areas boast better public health indicators than either cities or rural areas (“HHS Issues Report On Community Health in Rural, Urban Areas”, CDC press release, Sept. 10). Given the agency’s performance in the anthrax affair, where it has been left playing desperate catchup to close the gaps in its knowledge base and capabilities, we hope budgeters realize that it can ill afford to squander its resources and credibility on this kind of thing. (See InstaPundit, Oct. 24). (DURABLE LINK)
November 9-11 — Welcome JerryPournelle.com readers. On his “Computing at Chaos Manor” website, the famous science fiction writer and polymath recommends: “If you have any extra time, take a look at Overlawyered.com to see just what our legal system is capable of…” (Thursday’s entry — after this week an archive search will be required, look for Nov. 8). Not only is Pournelle a Macaulay fan, but he’s completely sound on the proposition that wars should be declared (our takes on the former, latter). We’ve also recently been linked by Robert Longley in his About.com sites on U.S. Government Info — specifically, in the environment and gun control subsections. Longley cites our environment page as offering “some fascinating reading” and gives a “Best of the Net” designation to our gun page: “an excellent resource to important gun-related cases”, he calls it.
November 7-8 — Vaccine industry perennially in court. Why are drug companies so chary about participating in the vaccine business? As a medical intervention administered to otherwise healthy persons, vaccination is easy to blame when recipients are later struck by otherwise inexplicable medical problems, and it’s not easy to distinguish genuine (often rare) side effects from unexplained maladies that would have struck just as frequently in the absence of vaccination. Although an Oct. 1 report from the National Academy of Sciences’ Institute of Medicine found no evidence that children have suffered autism or other brain damage from vaccines employing trace amounts of mercury-containing thimerosal as a preservative (as well as no disproof of that scary proposition), a consortium of plaintiff’s law firms was undeterred from piling on a day or two later with mass lawsuits against Merck, Lilly, Abbott, Glaxo SmithKline, and numerous other firms (IOM press release, study; American Medical Association; William McCall, “Drug Companies Sued Over Vaccines Containing Traces of Mercury”, AP/law.com, Oct. 3; “Immune to Reason” (editorial), Wall Street Journal, Oct. 23 (online subscribers only)). For the history of lawsuits charging that the diphtheria- tetanus- pertussis (DTP) and measles, mumps, and rubella (MMR) childhood vaccines cause autism and brain damage, see Aug. 31; American Medical Association; Howard Fienberg, “This Vaccine Won’t Hurt at All”, National Post (Canada), March 22; Howard Fienberg, “There’s No Vaccine Against Irrational Fears”, San Francisco Chronicle, July 5, 2000 (both reprinted at STATS site with long list of links appended).
The troubled recent production history of the anthrax vaccine administered to members of the U.S. military has been matched by an equally troubled legal history (Vanessa Blum, “At War Over Anthrax”, Legal Times, Oct. 23; Matt Fleischer-Black and Bob Van Voris, “Anthrax Vaccine’s Liability Issue”, National Law Journal, Oct. 23). On a personal level all this has tended to hit home for us with the word that our friend Mark Cunningham of the New York Post editorial page has been diagnosed as victim #18 in the anthrax attacks, and the third employee at the paper to contract the illness; it’s just a skin case and he’s doing fine (“really no big deal,” he says). “Fight Terror; Buy the Post” is his new slogan.
November 7-8 — Sued if you do dept.: co-worker’s claim of rape. For years now, HR compliance manuals have been warning that employers face liability if they fail to launch prompt and vigorous investigations when female employees charge male colleagues with sexual harassment, and the more serious the alleged harassment, the more trouble the company is in if it fails to investigate. But now a Philadelphia jury has awarded $150,000 to a male employee against his employer, chemical company Rohm & Haas, which he said invaded his privacy by subjecting him to an embarrassing police-style interrogation after a female co-worker wrongly accused him of rape. The employee’s attorney, Richard Silverberg, “said he believes the company had no business investigating the incident at all. ‘Rape is a police matter. An employer shouldn’t be undertaking to investigate whether a rape occurred,’ Silverberg said.” The jury also found the woman had defamed the man by making false accusations, but declined to order her to pay him any money. (Shannon P. Duffy, “Employee Awarded $150,000 After Co-Worker Falsely Accuses Him of Rape”, The Legal Intelligencer, Oct. 24).
November 7-8 — Byways of intellectual property law. They include this 1993 patent, called to our attention by one of our readers, for a laser-assisted cat-exerciser (US5443036: Method of exercising a cat — issued Aug. 22, 1995, filed Nov. 2, 1993) (Delphion.com).
November 7-8 — “They’re Making a Federal Case Out of It . . . In State Court”. Everything you wanted to know about why big class actions of nationwide scope belong in federal, not state court, from John H. Beisner and Jessica Davidson Miller of O’Melveny & Myers, in a paper for a forthcoming Harvard Journal of Law and Public Policy and the Manhattan Institute’s Center for Legal Policy (with which this site’s editor is affiliated). (No. 3, Sept. 2001: html, PDF formats). For frequent updates on new publications from the Manhattan Institute, whose areas of special focus include not only legal policy but education, urban policy (including New York’s recovery), taxation, crime and many other subjects, many of them covered in the acclaimed publication City Journal, we recommend signing up for the Institute’s free announcement list.
November 6 — NBC mulls Brockovich talk show. “NBC said this week it will feature Erin Brockovich in a pilot for a one-hour syndicated talk show that could begin airing as soon as early next year.” Writing for TechCentralStation.com, Sallie Baliunas and Nick Schulz are not impressed, calling Brockovich “the poster figure for trial lawyer excess and the assault on sound science”. (“Trial Lawyer TV: NBC Announces New Erin Brockovich Program”, Oct. 24; our take, “All About Erin”).
November 6 — In the mean time, let them breathe spores. “The U.S. Postal Service has bought millions of protective masks to guard its 700,000 workers who handle mail against inhaling anthrax spores, but postal workers are not allowed to use the masks until they are trained under Occupational Safety and Health Administration (OSHA) rules. On the advice of health officials at the federal Centers for Disease Control and Prevention (CDC) in Atlanta, the Postal Service bought 4.8 million of the spore-proof masks for its workers who handle mail and began offering workers the masks last week. But according to OSHA officials and regulations, the workers must undergo hours of training and pass a ‘fit test’ before they can be allowed to use the protective masks, which are like those worn by construction workers who install drywall and can be purchased at hardware stores.” (Daniel F. Drummond, “OSHA halts mask use in Postal Service”, Washington Times, Nov. 2).
November 6 — Gun controllers on the defensive. “Though gun-control groups have tried to capitalize on the Sept. 11 attacks, those attempts have misfired.” Indeed, the recent events have pointed up the questionable nature of several of the gun control movement’s underlying tenets: “that violence – even against a criminal – is always bad, that ordinary people are not to be trusted, and that it is best to let the authorities look out for you. … Americans have learned that being harmless does not guarantee that they will not be harmed”. (Glenn Harlan Reynolds, “Terrorists Attacked Gun Control Movement”, FoxNews.com, Nov. 4; George Will, “Armed Against Terrorism”, Washington Post, Nov. 4). Another major setback to the gun-confiscation cause came last month with the Fifth Circuit’s important decision in U.S. v. Emerson making clear that the Second Amendment protects an individual right to gun ownership (David Kopel and Glenn Reynolds, “A Right of the People”, National Review Online, Oct. 25; Michael Barone, “A decision of historic importance”, U.S. News, Oct. 19; Jacob Sullum, “Second Sight”, Reason Online, Oct. 23). For the Taliban’s version of gun control, see Reynolds’s Instapundit (Oct. 24). Go into the kitchen, said Winston Churchill, and get a carving knife: Michael Barone, “Time to stand and fight”, U.S. News, Nov. 11.
November 5 — Talk of torture. “It’s the sort of question that, way back in spring semester, would have made for a good late-night bull session in a college dorm room: If an atomic bomb were about to be detonated in Manhattan, would police be justified in torturing the terrorist who planted it to learn its location and save the city? But today, the debates are starting up in the higher reaches of the federal government. And this time, the answers really matter.” (Steve Chapman, “Should we use torture to stop terrorism?”, Chicago Tribune, Nov. 1; Dahlia Lithwick, “Tortured Justice”, Slate, Oct. 24).
November 5 — Judge may revive “Millionaire” ADA case. Citing the U.S. Supreme Court’s ruling in favor of golfer Casey Martin, a federal judge has indicated that he may revive a dismissed suit, now on appeal, in which disabled plaintiffs charged that the qualifying rounds of ABC’s “Who Wants To Be a Millionaire” unlawfully fail to provide accommodations that would allow deaf or paralyzed applicants to answer questions over the telephone. (Susan R. Miller, “Federal Judge Seeks Rerun of ‘Millionaire’ ADA Case”, Miami Daily Business Review, Nov. 1). And in what promises to be a much-watched case, the U.S. Supreme Court has agreed to review the Ninth Circuit’s ruling in favor of Mario Echazabal in his ADA suit against Chevron Corp. over a refinery job, “contending that he should have gotten the job despite a chronic case of hepatitis C. Doctors who examined Mr. Echazabal said exposure to chemicals at the refinery would speed the deterioration of Mr. Echazabal’s liver and that a large exposure from a plant fire or other emergency could kill him.” (“Justices to decide if ADA protects hepatitis patient”, AP/Dallas Morning News, Oct. 31). Dissenting judge Stephen Trott called the result “unconscionable” and noted that it “would require employers knowingly to endanger workers” in pursuit of the nondiscrimination ideal. (“Needlessly endangering workers” (editorial), Las Vegas Review-Journal, Oct. 30).
November 5 — “Teen sex offenders face years of stigma”. “He was 16, wanting to be one of the guys, playing truth or dare. The dare: touch a girl’s breast during a football game at Hazel Park High School last year [outside Detroit]. He did. As a result, the boy will be branded as a sex criminal until the year 2024.” (L.L. Brasier, Detroit Free Press, Oct. 15) (via iFeminists.com).
November 2-4 — Opponents of profiling, still in the driver’s seat. Hiring for a job that involves, say, transporting petroleum, caustic chemicals or other hazardous materials? Don’t you dare apply any extra scrutiny to driver-applicants of Mideast origin, experts warn. Federal anti-discrimination law bans employer policies or interview questions that relate in any way to religion, ethnicity, or national origin and the Equal Employment Opportunity Commission has put out word that its commitment to this policy is in no way altered by the events of Sept. 11. “Experts say that companies must be careful to apply equally to all job applicants any beefed up prejob screening. Companies can’t, for example, run criminal background checks only on their Middle Eastern job applicants.” It’s also extremely hazardous as a legal matter to contact law enforcement about any unusual pattern of behavior involving one or more employees of Mideast origin unless one is prepared to show in court that one would have acted just as quickly to report the same unusual pattern in employees of Welsh or Korean or West Indian extraction. Hey, we may be sitting ducks, but at least we’re non-discriminatory sitting ducks, right? And of course if someone uses one of your trucks to cause harm you can expect to be sued for every dime you’re worth to compensate the survivors (Deirdre Davidson, “Rethinking the Workplace After Sept. 11”, Legal Times, Oct. 17).
Fourteen Syrian men arrived at Dallas/Fort Worth Airport last month to enroll in U.S. flight schools; although “their country is one of seven on the State Department’s ‘watch list’ of nations that sponsor terrorism,” they were waved through, there still being no official policy that would pose the slightest impediment to their obtaining such training here (Ruben Navarrette, “Flight training for Syrians should raise red flags”, Dallas Morning News, Oct. 19). The Associated Press, describing reports of extra scrutiny given to air passengers of Middle Eastern descent, quotes a parade of sources who deplore such scrutiny but not a single source willing to say there might be good reasons for it, although majorities of both blacks and Arab Americans have supported passenger profiling in post-Sept. 11 polls. (“Some travelers suspect profiling”, AP/CNN, Oct. 21). “A traveler, no less a potential immigrant, with a passport from Yemen and visas from Lebanon and Qatar should receive greater scrutiny — not harassment, but careful scrutiny — than a traveler with a passport from Chile and a visa from Spain. That is not racism; it is prudence — an objective assessment of where the threat resides. To do otherwise after September 11 would constitute extraordinary negligence,” writes Martin Peretz (“Entry Level”, The New Republic, Oct. 15). Before jumping into any proposal to apply heightened scrutiny to residents of Arab descent in this country, however, it should be recalled that the vast majority of Arab-Americans are in fact of Christian, not Muslim, descent, which makes them especially unlikely targets of recruitment efforts by bin Laden cell organizers. (Smart — and Stupid — Profiling”, Chris Mooney, The American Prospect, Oct. 23). (DURABLE LINK)
MORE: Air Canada has assured the Canadian Arab Federation that it has no policy of coordinating with police about passengers with Arabic-sounding names who check in on its flights (Jamie Glazov, “Discrimination a Must For Protection Against Islamic Terrorism”, FrontPage, Sept. 24). On Sept. 22 a United Air Lines flight crew prevented M. Ahsan Baig, a Pakistani man who works for a California high-tech company, from boarding a flight bound from the West Coast to Philadelphia. “A customer service manager repeatedly apologized to Baig for the incident and immediately got him on another flight,” but he’s suing the airline anyway (Harriet Chiang, “Man barred from flight sues airline”, San Francisco Chronicle, Oct. 30). Also see Jason L. Riley, “‘Racial Profiling’ and Terrorism”, OpinionJournal.com, Oct. 24; Jonah Goldberg, “In current context, racial profiling makes sense”, TownHall, Oct. 26; Allison Sherry, “Profile protest ignites debate”, Denver Post, Oct. 21 (sensitivity training demanded after incident at a Radio Shack). See Sept. 19-20, Oct. 3-4, Oct. 9.
November 2-4 — Updates. Digging deep into our backlog in search of items we can call good news:
* Gov. Bob Taft has signed a bill reversing some of the most extreme aspects of the Ohio Supreme Court’s recent jurisprudence expanding the bounds of employer-provided auto insurance. The new law went into effect Oct. 29 on a prospective basis, but judicially mandated retroactive liability will still cost employers more than $1.5 billion in estimated claims currently in the pipeline. (Ohio Chamber of Commerce, summary, “Uninsured/ Underinsured Motorists Availability Act of 2001“; see June 29 and David J. Owsiany, “Judicial tyranny in Ohio”, Buckeye Institute, 2000).
* Following urgings in this space (do you think we had an effect?), the U.S. Department of Justice has reversed its previous position and asked federal judges “to drop thousands of upstate property owners as defendants in lawsuits by Indian tribes to recover land they contend New York State took from them illegally in the 19th century.” (see Nov. 3, 2000 and commentaries linked there) (Richard Perez-Peña, “Justice Dept. Moves to Drop Homeowners In Tribes’ Suits”, New York Times, Aug. 4, not online)
* Courts have generally been frowning on the idea of letting companies milk their insurance policies for the cost of fixing Y2K computer problems, which was the goal of an attempt by creative policyholder lawyers to reinterpret an old marine insurance doctrine known as “sue and labor”. (Celia Cohen, “Y2KO’d: Unisys Damage Suit Voluntarily Dismissed”, Delaware Law Weekly, Aug. 30; Sept. 16, 1999).
November 2-4 — Ambulance driver who broke for doughnuts entitled to sue. “A federal judge has denied the city of Houston’s request to throw out a lawsuit filed by a former ambulance driver fired after he stopped for doughnuts while transporting a patient to a hospital.” On July 10, 2000 Larry Wesley made a snack stop while transporting an injured youth to Ben Taub Hospital; the boy’s mother filed a complaint, and Wesley subsequently lost his job. But U.S. District Judge Lee Rosenthal said Wesley could proceed with his suit charging that had he been white rather than black he would not have been disciplined as severely for the lapse. (Rosanna Ruiz, “Judge refuses to toss suit by ambulance driver fired after doughnut stop”, Houston Chronicle, Oct. 31)(& update Jun. 28-30, 2002: Wesley loses case). (DURABLE LINK)
November 1 — Cipro side effects? Sue! In a welcome if somewhat belated move, public health authorities have advised the public that the normally indicated treatment for suspected exposure to the current round of anthrax attacks should be older antibiotics such as doxycycline rather than the extremely potent antibiotic Cipro, which is best reserved for infections that do not yield to conventional germ-killers. The German drug and chemical company Bayer, having been whipped up one side of the street for its perceived reluctance to hand out Cipro to everyone among the worried well who feels they would like some, might end up getting whipped down the other because it failed to dissuade consumers from using the drug, given the side effects some will likely suffer from it. “Cipro, or ciprofloxacin, is one of several fluoroquinolones, a controversial class of antibiotics that can cause a range of bizarre side effects: from psychological problems and seizures to ruptured Achilles tendons. … Fluoroquinolone users who have suffered severe side effects call themselves ‘floxies’ and have created their own Web site [“Quinolone Antibiotics Adverse Reaction Forum“]. … The Philadelphia law firm Sheller Ludwig Badey has been involved in about two dozen cases of severe quinolone side effects.” (Tara Parker-Pope, “Health Journal: Surge in Use of Cipro Spurs Concerns About Side Effects”, Wall Street Journal, Oct. 26 (online subscribers only)) Lawyers have already jumped all over Bayer over claimed side effects from its cholesterol-lowering drug, Baycol (Ruth Bryna Cohen, “More Locals Jump on Baycol Bandwagon”, The Legal Intelligencer (Philadelphia), Aug. 31).
November 1 — Swiss banks vindicated. A four-year investigation has concluded that “[m]ost dormant Swiss bank accounts thought to have belonged to Holocaust survivors were opened by wealthy, non-Jewish people who then forgot about their money.” Although officials at first assumed that a large share of the 10,000 older dormant accounts would turn out to be those of Nazi victims, only about 200 were, accounting for around $10 million. A public relations and litigation campaign led by American trial lawyers forced Swiss banks into a $1.5 billion settlement of claims that they withheld money from Holocaust victims’ families. (Adam Sage and Roger Boyes, “Swiss Holocaust cash revealed to be myth”, The Times (London), Oct. 13; see Aug. 29, 2000; May 31, 2000 (second item); Feb. 5, 2000 (second item); Aug. 25, 1999).
November 1 — Words as property: “entrepreneur”. How common does a common English word have to be before it’s okay to use it as a domain name without fear of being sued? The magazine named Entrepreneur has made legal rumblings suggesting that it violates its trademark rights for an unrelated entity to run a website entitled Entrepreneurs.com. The latter site does not plan to fold its tent quietly, however, and has mounted a vigorous defense of its position.
November 19-20 — New frontiers in discrimination law: Harleys among the cyclamens. Lawmakers in Ohio, South Carolina and several other states are pushing legislation that would prohibit businesses from turning away customers on motorcycles. Georgia state Sen. Joey Brush, who rides a Harley-Davidson, “introduced the legislation because of a long-running dispute with Calloway Gardens, a private, nonprofit horticultural garden that doesn’t allow bikers to drive onto the grounds. The ban, in place for the garden’s entire 49-year existence, is meant to protect the serenity and peace for which the grounds are known, said spokeswoman Rachel Crumbley. ‘We feel it’s not a civil right to ride a motorcycle wherever you please,’ Crumbley said.” An Ohio rider who supports such legislation “said a waitress at a restaurant near Cincinnati once placed him and his wife in a corner away from other patrons when the couple pulled up wearing leather boots, chaps and vests.” But the biker community, which in the past has often sided with libertarian causes such as opposition to mandatory helmet laws, is far from unanimous on this one: “As a business owner, they should have right to decide who they want,” says spokesman Steve Zimmer of Ohio’s pro-biker ABATE group — clearly someone who hasn’t forgotten that biking is supposed to be about freedom. (Andrew Welsh-Huggins, “Laws Seek to Protect U.S. Bikers”, AP/Yahoo, Nov. 14). (& letters to the editor, Feb. 28) (DURABLE LINK)
November 19-20 — Can’t find the arsonist? Sue the sofa-maker. “With the two-year statute of limitations almost up, lawyers representing victims of New Jersey’s Seton Hall University dormitory fire are working frantically to find parties to sue.
“The fire, which authorities believe was intentionally started, broke out in the Boland Hall dormitory on Jan. 19, 2000, killing three students and injuring 58 others. Seton Hall, which enjoys charitable immunity from suit, has settled out of court with some of the plaintiffs. Still, lawyers contemplate suits against other people who may have contributed to the conflagration — the arsonists, the maker of the sofa that ignited and any other potentially responsible parties.” (Charles Toutant, “Seton Hall Fire Victims’ Lawyers Still Scrambling to Identify Defendants”, New Jersey Law Journal, Nov. 14) (see June 1, 2000). (DURABLE LINK)
November 19-20 — By reader acclaim: football’s substance abuse policy challenged. “New England wide receiver Terry Glenn has sued the NFL, claiming a disability makes it difficult for him to adhere to certain rules in the league’s substance abuse policy. … Glenn filed the complaint under the Americans with Disabilities Act, but it did not specify what disability Glenn suffers. Glenn claims he should not have been suspended by the NFL for the first four games of the season for violation of the substance abuse policy.” (“Glenn’s suit doesn’t specify disabilities”, AP/ESPN, Nov. 4). Plus: reader Rick Derer, outraged by the Casey Martin episode, has put up an ADA horror stories website to call attention to what he terms “the worst law ever foisted on the American people”.
November 19-20 — Municipal gun suits on the run. Cause for thanksgiving indeed: the lawless and extortionate municipal gun-suit campaign has been encountering one setback after another. “In a major victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on [Nov. 16] upheld the dismissal of a suit brought by Camden County, New Jersey, that accused gun makers of creating a ‘public nuisance’ and sought to recoup the governmental costs associated with gun-related crimes.” Arguing the losing side were radical law prof David Kairys and class-action firm Berger & Montague. The three-judge panel was unanimous. (Shannon P. Duffy, “3rd Circuit Shoots Down Gun Suit Theory”, The Legal Intelligencer, Nov. 19). The city of Atlanta is desperately trying to keep its anti-gun suit alive in the face of legislation enacted by its parent state of Georgia making it as explicit as humanly possible that the city has no authority to press such a suit (Richmond Eustis, “Atlanta Asks State Appeals Court to Keep Alive Suit Against Gun Makers”, Fulton County Daily Report, Nov. 15).
Yale law professor Peter Schuck describes the gun lawsuits as based on the “most tenuous” theories yet of government rights of recoupment (“subrogation”) and tort law as “one of the last places” we should look to resolve the policy issues of gun control (“Smoking Gun Lawsuits”, American Lawyer, Sept. 10). And Bridgeport, Conn. mayor Joseph Ganim, who had taken perhaps the highest profile among Northeastern mayors in support of the gun suits, is likely to be less heard from for a while given his indictment last month on two dozen felony counts including extortion, bribery and mail fraud. (He denies everything.) (John Christoffersen, “In Connecticut, a growing and unwelcome reputation for corruption”, AP/Charleston (W.V.) Gazette, Nov. 16; Chris Kanaracus et al, “Ganim on the Spot” (pre-indictment coverage), Fairfield County Weekly, undated). See also Kimberley A. Strassel, “Bummer for Sarah Brady”, OpinionJournal.com, Nov. 15 (expressing optimistic view that municipal gun suits have been contained). (DURABLE LINK)
November 16-18 — Profiling perfectly OK after all. “State highway safety officials said they have received a $700,000 federal grant to help them crack down on two groups of chronic violators of the state’s seat belt law: drivers and passengers of pick-up trucks, and all male drivers and passengers between 18 and 55. … [Louisiana Highway Safety Commission Executive Director James] Champagne said state and federal studies have consistently shown pickup drivers and all male drivers are less likely to buckle up than any other groups of drivers or front-seat passengers. State law requires both the driver and front-seat passengers of vans, sports utility vehicles, cars and trucks to use seat belts. … Asked if the targeting of males and pickup drivers and passengers is profiling of a certain group, Champagne said, ‘Absolutely.'” To recap, then: the federal government strictly bans giving extra attention to 25-year-old males from Saudi Arabia at airport check-in. While they’re driving to the airport, on the other hand, it positively encourages them to be profiled. Perhaps the explanation is that it’s willing to swallow its scruples in order to combat really antisocial behavior — like failing to wear seat belts, as opposed to hijacking planes into buildings. (Ed Anderson, “Police to harness seat belt scofflaws”, New Orleans Times-Picayune, Nov. 10 — via InstaPundit). Meanwhile, the American Civil Liberties Union is soliciting racial-profiling plaintiffs in New Jersey. “The ACLU billboard, which went up last month, shows a photograph of two minority men and between them the words ‘Stopped or searched by the New Jersey State Police? They admit to racial profiling. You might win money damages,’ the sign reads. The ad includes the ACLU’s toll-free number.” (“Billboards in New Jersey Ask for Trooper Praise, Not Profiling Complaints”, FoxNews.com, Nov. 14).
November 16-18 — EEOC approves evacuation questions for disabled. To the relief of many in the business community, the Equal Employment Opportunity Commission has announced that it is not unlawful to ask workers about the state of their health for the purpose of formulating plans for emergency building evacuations. The September attacks called attention to the difficulty experienced in disaster situations by evacuees with such conditions as blindness, paraplegia, extreme obesity, and asthma. While employers may ask about problems that might impede evacuation, they should not insist on getting actual answers; EEOC officials recommend that they let each worker elect whether to disclose the information. The Americans with Disabilities Act has generally been interpreted as conferring on employees a broad legal right to conceal health problems from their employers. (Kirsten Downey Grimsley, “EEOC Approves Health Queries”, Washington Post, Nov. 1).
November 16-18 — Et tu, UT? Perhaps envying California its litigious reputation, the Supreme Court of Utah has ruled that it will not enforce releases in which parents agree to waive their children’s right to sue for negligence. The case involved a child thrown from a rented horse; the mother had signed a release before the accident, but then decided she wanted it invalidated so she could sue anyway. Attorney James Jensen, who represented defendant Navajo Trails, “listed many activities that now may be affected or curtailed, including school field trips, religious organization youth activities, scouting programs, amusement parks and ski resorts. ‘Anybody that provides recreational activities to minors,’ he said.” (Andrew Harris, “Utah High Court Says No Release of Liability to Children”, National Law Journal, Nov. 12).
November 15– “Poor work tolerated, employees say”. We keep hearing that if we were really serious about airport security we’d kick out those ill-paid Argenbright bag screeners and swear in a new 28,000-strong corps of federal employees to replace them. But a “new study concludes that federal workers themselves view many of their co-workers as poor performers who are rarely disciplined. The survey of 1,051 federal workers, conducted for the Brookings Institution’s Center for Public Service prior to the Sept. 11 terrorist attacks, found that on average federal employees believe 23.5 percent of their colleagues are ‘not up to par.’ Meanwhile, only 30 percent believe their organization does a very or somewhat good job of disciplining poor performers.” Those numbers are worse than the ones you get when you poll employees of private firms. At least when Argenbright botches things you can kick it out in favor of another contractor (Ben White, Washington Post, Oct. 30; Gregg Easterbrook, “Fighting the Wrong Fight”, The New Republic Online, Nov. 13).
November 15 — Lawyers’ immunity confirmed. In a dispute arising out of a developer’s plan to buy Fisher Island, home to many celebrities and wealthy persons, a Florida court has ruled that the developer cannot pursue a countersuit for tortious interference against residents who filed lawsuits aimed at derailing the deal, even if it can show they knew the suits to be unmeritorious. The court relied on a 1994 case in which the Florida Supreme Court ruled that an attorney’s acts in the course of litigation are subject to an “absolute” privilege: “We find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” Or, as the Miami legal paper puts it, “litigation itself is immune from litigation”. Put differently, people engaged in litigation boast an “absolute immunity” to engage in injurious behavior that would have a remedy at law if you or I tried it (Julie Kay, “Lawsuits of the Rich and Famous — and Their Two Dozen Law Firms”, Miami Daily Business Review, Nov. 1).
November 15 — Exxon Brockovich vs. Erin Valdez. The Ninth Circuit has struck down as excessive an Alaska jury’s $5 billion punitive award against Exxon over the Valdez oil spill, sending the case back for further litigation; compensatory damages are unaffected by the ruling (Henry Weinstein & Kim Murphy, “Court Overturns $5-Billion Judgment Against Exxon in ’89 Alaska Oil Spill”, L.A. Times, Nov. 8; Yahoo Full Coverage)(update Dec. 30, 2002: judge cuts award to $4 billion). Meanwhile, toxic-tort celebrity Erin Brockovich is helping spearhead a new effort to recruit plaintiffs from among the more than 15,000 workers who took part in the cleanup effort a dozen years ago, some of whom believe that it caused their health to take a turn for the worse. A Los Angeles Times account, after sympathetically relaying what would seem to be the most striking such cases the plaintiff’s team could come up with, concedes that “most health officials remain unconvinced that the cleanup left anyone sick”. (Nick Schulz, “Busy Bee Brockovich Looking to Sting Again”, TechCentralStation, Nov. 9; Kim Murphy, “Exxon Oil Spill’s Cleanup Crews Share Years of Illness”, L.A. Times, Nov. 5; Mary Pemberton, “Erin Brockovich probes Exxon complaints”, AP/ Anchorage Daily News, Nov. 6).
November 14 — “Rejoice, rejoice”. “[Y]esterday’s liberation of Kabul and much of the rest of Afghanistan is a great victory. … The moving scenes from the Afghan capital remind us … that most believing Muslims reject the rigorist insanity that bin Laden and the Taliban promote in their name, and are happy to worship God without having to wear a beard or a burqa. They can sing and dance again; women can work, and children can learn. The Taliban’s scorched-earth devastation of so many Afghan villages reveals their contempt for their own people, and their desertion of so many of their own Arab and Pakistani jihadis shows their capacity to betray. … Today, though, everyone who cast doubt on the possibilities of success and everyone who sneered at American ‘gung-ho’ should observe a period of silence. The rest of us should, to use a famous phrase from another war, ‘just rejoice rejoice'”. ((editorial), Daily Telegraph, Nov. 14; Paul Watson, “Taliban torturers on the run”, L.A. Times, Nov. 14; Christopher Hitchens, “Ha ha ha to the pacifists”, The Guardian, Nov. 14; Dexter Filkins, “In Fallen Taliban City, a Busy, Busy Barber”, New York Times, Nov. 13).
November 14 — Insurance market was in trouble before 9/11. With alarms being heard about an impending crisis in the availability of commercial insurance, it’s worth noting for the record that conditions were deteriorating rapidly in that market even before Sept. 11, mostly because insurers were pulling back from liability exposures: “Among the lines tightening the most are products liability, umbrella liability, contractor liability and nursing home liability, insurers and brokers say,” reported the July 2 issue of the trade publication Business Insurance. Also in scarce supply was coverage for “anything with an occupational disease exposure, like insulation and cell phones,” said one industry observer, Tom Nazar of Near North. “Generally, premiums for most liability lines are increasing anywhere from 25% to 60%,” with transportation risks seeing rate hikes of 100-200 percent and nursing homes 150 percent, said another insurance exec — all this well before the WTC attacks hit carriers with the largest losses from a single insured event in history. (Joanne Wojcik, “Transportation takes biggest hit in hardening market”, Business Insurance, July 2 (online subscribers only), and other contemporaneous coverage in the same publication). Directors’ and officers’ liability was another big problem area, especially for companies in fields such as high tech and telecom, financial services and health care. “The risks facing the steepest premium increases are pharmaceutical companies, nursing homes and contractors, especially organizations located in the litigious markets of California, Illinois and New York, insurance executives said.” In workers’ comp, “loss severity continues to deteriorate”.
And then there was asbestos: an August Standard & Poor’s report indicated that insurers were setting aside an additional $5-10 billion this year for asbestos claims, above earlier amounts reserved. “The implications to the insurance community are potentially devastating,” says the report. “Other analysts and ratings agencies recently have estimated that the insurance industry would need to put up as much as $20 billion to $40 billion more to cover their asbestos exposure. In May, ratings firm A.M. Best Co. calculated that insurers have set aside $10.3 billion to pay additional asbestos claims, having already paid out $21.6 billion.” A not-insubstantial portion of those sums, as we know, will go to compensate persons who are not sick from asbestos and never will be — raising once again the question of why we don’t try harder as a society to reserve the limited pool represented by insurance for situations where it’s really needed (Christopher Oster, “Insurers to Set Aside Additional Billions For Asbestos Claims”, Wall Street Journal, Aug. 1 (online subscribers only)). On proposals to bail out insurance markets since the attacks, see Scott Harrington and Tom Miller, “Insuring against terror”, National Review Online, Nov. 5. (DURABLE LINK)
November 14 — “Diabetic German judge sues Coca-Cola for his health condition”. Why should American lawyers have all the fun? In a trial that began Monday in Essen, Germany, Hans-Josef Brinkmann, 46, a judge in the east German town of Neubrandenburg, says the beverage company is partly responsible for his developing diabetes after drinking two bottles of Coca-Cola a day for years. He further “disputes the contention of the drinks company that Coca Cola is a ‘flawless foodstuff’ … Brinkmann plans to bring a similar case against Masterfoods, manufacturers of Mars Bars, Snickers and Milky Way chocolate candy, in January.” Whether Herr Brinkmann wins or loses these suits, we hope he’ll come to America — we bet he’d have no trouble landing a job at one of our law schools. (AFP/Times of India, Nov. 14) (more).
November 13 — From the paint wars: a business’s demise, a school district’s hypocrisy. “Sherwin-Williams Co. acquired Mautz Paint Co. Thursday after the local company said it could no longer afford facing a costly lawsuit filed by the city of Milwaukee. Bernhard F. ‘Biff’ Mautz, the company’s chairman of the board, said negotiations to sell the [family-owned] firm intensified in April after the city of Milwaukee filed suit seeking more than $100 million in damages over the manufacture of lead-based paints decades ago.
“‘Although we believe the city’s case is meritless and Mautz will ultimately be absolved of any responsibility, for the first time in our history we were faced with years of litigation, which even if (the plaintiff was) unsuccessful, would destroy our small company,’ he said. …
“The sale price was not released, but Mautz President Dan Drury said it was discounted to reflect the costs of the lawsuit. Founded in 1892, Mautz employed 260 people at its 33 retail stores and manufacturing plant. It had sales of $32 million last year. …
“Wisconsin Manufacturers & Commerce said the sale of the one of Madison’s oldest businesses will make it more difficult for the state to attract new businesses. ‘This is a sad day in the state of Wisconsin,’ said James S. Haney, the organization’s president. ‘This is every business person’s worst nightmare. Mautz got in the gun sights of the contingency fee trial lawyers and the bureaucrats and now another homegrown locally owned business with strong ties to the community is gone.'” (“Mautz announces acquisition by Sherwin-Williams”, AP/Janesville (Wis.) Gazette, Nov. 9).
Meanwhile: In Houston, where contingency-fee lawyers have been recruiting local school districts to go after paint companies, the lawsuit filed by the Spring Branch School District claims that residual paint from decades past exposes students and teachers to “a substantial risk of lead poisoning” — a dramatic charge indeed. Which left Jon Opelt, executive director of Citizens Against Lawsuit Abuse Houston and the parent of a child in the district, wondering why “the school district has never notified me, as a parent, of the presence of any health or safety risks related to lead. No cautionary notes have been sent home with my children. No alarming studies have been released discussing the severity of the problem in our schools.'”
Which naturally raises the question: is there a genuine lead hazard, which the district has been covering up from parents, or just a phony hazard, which their lawyers are conjuring up in an effort to squeeze money from manufacturers? Opelt: “Ron Scott, a lawyer for the school district, is quoted in a Houston Chronicle article as saying: ‘This isn’t a panic issue. People don’t need to feel their schools are unsafe.’ Duncan Klussmann, a district administrator, told me, ‘Your child is not at risk.’ These are the very same people who signed onto a lawsuit that says there is a ‘substantial risk of lead poisoning.’ What are we to believe? District officials are telling parents their schools are safe but their lawsuit demands millions of dollars for addressing a dangerous situation caused by lead paint. Both cannot be true.” (CALA Houston website, “Parent Urges School District To “Get The Lead Out“, “Contrary to Other Reports“, David Waddell, “Why Should Safety Be a Secret?“, Annette Baird, “District: Lead-paint concerns in check”, Houston Chronicle, Oct. 17). (DURABLE LINK)
November 13 — Update: ousted quartet member wins damages. “A Pennsylvania judge has ordered three members of the Audubon Quartet to pay their former colleague David Ehrlich more than $600,000 in damages, adding yet another dramatic twist to the legal battle that has largely silenced the internationally acclaimed quartet since February 2000 and cost the group its home at Virginia Tech.” (Kevin Miller, “Ousted quartet member should receive damages, judge rules”, Roanoke Times, Oct. 16; “In Support of the Audubon Quartet“; summary of court opinion) (see June 5, 2000, June 14, 2001). Update May 10-12, 2002: defendants could lose house.
November 13 — Women’s rights: British law, or Islamic? According to columnist Theodore Dalrymple of The Spectator, a misguided multiculturalism has led authorities in the United Kingdom to adopt a hands-off policy toward some British Muslim families’ trampling of their young daughters’ rights (“The abuse of women”, Oct. 27).
November 12 — “Morales trying to ‘clear the air’ before campaign”. Many assumed the political career of former Texas attorney general Dan Morales was dead, dead, dead after allegations began flying in the papers about the circumstances under which he’d hired outside lawyers to represent the state in the tobacco affair and share one of the largest fee windfalls in history (see Sept. 1-3, 2000). But now Morales wants to run for the U.S. Senate seat being vacated by Phil Gramm and is insisting with new vehemence that he never acted improperly and that it’s all been a misunderstanding. Two of his lawyers have “asked a state district court in Austin to let Morales lay the groundwork for a possible defamation suit by taking the sworn testimony of four former associates. Morales wants to question John Eddie Williams Jr. of Houston — one of five trial lawyers who shared $3.3 billion in legal fees from the tobacco case — and three former assistants in the attorney general’s office — Harry Potter of Austin and Jorge Vega and Javier Aguilar of San Antonio. He indicated that Williams and Potter, who was actively involved in the tobacco suit, could be targets of any suit he may file.” Pull up a chair, this promises to be interesting (Clay Robison, Houston Chronicle, Nov. 7). Morales also continues to deny “allegations by Houston trial lawyer Joe Jamail that Morales improperly solicited $1 million from each of several lawyers he considered hiring for the tobacco suit.”
November 12 — Short-sellers had right to a drop in stock price. At least that’s the premise underlying this press release and lawsuit from a class action law firm seeking the right to sue on behalf of short-sellers who feel their speculative bets against the stock of Intelli-Check Inc. were stymied by the company’s allegedly over-sunny fiscal projections. (“Speziali, Greenwald & Hawkins, PC Announces the Filing of a Class Action Suit on Behalf of Short-Sellers of Intelli-Check, Inc. (Amex: IDN) Securities”, Yahoo/PR Newswire, Oct. 18).
November 12 — “U.S. Debates Info on Chemical Hazards”. “Separate hearings in the House and Senate [were] held this week to reassess the safety of chemical and industrial facilities in the light of recent terrorist attacks. A key policy at stake is the so-called ‘right to know’ law, which requires the federal government to publicly disclose sensitive information about facilities around the country that could be used by terrorists to target the most dangerous locations.” Jeremiah Baumann, a spokesman for the Nader-empire U.S. Public Interest Research Group, called for preserving public access to the sensitive information. “‘Let’s at least make the bad guys work for it,’ countered Amy E. Smithson, a chemical and biological weapons analyst for the Henry L. Stimson Center think tank.” Smithson said “[t]he Clinton EPA’s decision to post those plans for some 15,000 plants on the Internet in August 2000 ‘wasn’t just bad, it was colossally bad’.” (John Heilprin, AP/Yahoo, Nov. 8) (see Oct. 1). More: Carol D. Leonnig and Spencer S. Hsu, “Fearing Attack, Blue Plains Ceases Toxic Chemical Use”, Washington Post, Nov. 10 (chlorine use at Washington sewage treatment plant); Jonathan Adler, “How the EPA Helps Terrorists”, National Review Online, Sept. 27; “Environmental Danger”, Oct. 11; Angela Logomarsini, “Laws that Make Terror Easy”, New York Post, Oct. 12; “‘Right To Know’ Hearings – Taking Away Terrorist Tools”, Competitive Enterprise Institute press release, Nov. 7.
November 30-December 2 — Be somewhat less afraid. Notwithstanding a scare campaign by antinuclear activists including the egregious Robert F. Kennedy Jr., two physicists argue that U.S. nuclear power plants are not likely to top the list of targets of opportunity for terrorists seeking to inflict mass casualties (Gerald E. Marsh and George S. Stanford, “Terrorism and Nuclear Power: What are the Risks?”, National Center for Policy Analysis Analysis #374, November; “NY Nuclear Plant Shutdown Sought Pending Security Review”, AP/Dow Jones/Business Times, Nov. 9 (RFK Jr. compares Indian Point facility near NYC to nuclear bomb); NCPA “Ten Second Response” series, “Media Overplays Risk of Terrorist Attacks on Nuclear Power Plants”, Nov. 16). California agricultural officials are seeking to calm public fears that Central Valley crop dusters furnish a likely method of attack on major urban targets; among the planes’ limitations are their constricted range and speed (Michael Mello, “Crop-dusters nothing to fear, officials told”, Modesto Bee, Nov. 29). And for a really contrarian view, U.S. Army veteran Red Thomas has written a short essay on why, if you possess fairly minimal civil defense smarts, you’re likely to survive a chemical, biological or even radiological attack. (“The Real Deal — Words of Wisdom About Gas, Germs, and Nukes” — Snopes.com, via Libertarian Samizdata and Rallying Point weblogs).
November 30-December 2 — “U.S. Judge Dismisses All but One Columbine Lawsuit”. “A federal judge on Tuesday dismissed all but one lawsuit filed against police and all claims lodged against a school district by victims and relatives of people killed and injured in the 1999 Columbine High School shooting, lawyers said.” (Yahoo/Reuters, Nov. 27)
November 30-December 2 — Whiplash days: a memoir. Back in 1992, actor/writer Thomas M. Sipos (books: Vampire Nation, Manhattan Sharks, Halloween Candy) answered a help wanted ad in Los Angeles’s newspaper for lawyers and took a job with a high-volume personal injury law firm. He’s now published on his website a memoir of that experience, entitled “How To Make Money In Soft Tissue Injury” — names changed to protect the not necessarily innocent.
November 30-December 2 — Rejecting an Apple windfall. The news that a disgruntled Apple employee had filed a race discrimination lawsuit seeking $40 million from the computer maker prompted this reaction from one African-American who recalls his own run-in with prejudice at a high-tech employer (AppleLinks, “Moore’s Mailbag”, letter from Marvin Price, Nov. 9; Duncan Campbell, “Apple faces £27m ‘race bias’ lawsuit”, The Guardian, Nov. 9).
November 29 — “Patriot Act would make watchdogs of firms”. “Ordinary businesses, from bicycle shops to bookstores to bowling alleys, are being pressed into service on the home front in the war on terrorism. Under the USA Patriot Act, signed into law by President Bush late last month, they soon will be required to monitor their customers and report ‘suspicious transactions’ to the Treasury Department — though most businesses may not be aware of this.” (Scott Bernard Nelson, Boston Globe, Nov. 18).
Broadcaster Neal Boortz, who unlike many lawmakers actually sat down and read the text of the USA Patriot Act, spells out the details of what this means: “if you go to a business [not just a bank] and spend more than $10,000 in cash that business has to report your name, address, social security number and other pertinent information to the feds. It doesn’t matter whether you spend the money on one item, or a whole shopping cart full … the federal government must be notified.” He adds: “This has absolutely nothing to do with international terrorism” — at least not the variety practiced by the Sept. 11 killers, who used credit cards and “did not deal in large amounts of cash. … They never spent $10,000 in cash with any business. In short, they never engaged in any activity that would have to be reported under Section 365.” (Neal Boortz, “Neal’s Nuze: The ‘Patriot’ Act???”, Nov. 20). In fact, the Treasury Department has been hoping to extend federal “money laundering” law in this manner for years; it just wasn’t pressing an anti-terrorism rationale for doing so (see “Lost in the Wash”, Reason, March 1999). According to Gabriel Schoenfeld in Commentary, one of the conclusions of former CIA counterterrorism deputy director Paul R. Pillar in a major new study of terrorism policy for Brookings is that financial controls are primarily of “symbolic” importance in combating terrorism, which unlike drug trafficking typically involves the transfer of only smallish sums. (“Could September 11 Have Been Averted?”, Commentary, December).
November 29 — Taco Bell a liquor purveyor? Well, no, you can’t buy booze at its outlet in Fort Smith, Ark. However, after several of its employees there attended a party together on their own time, one got into a fatal traffic accident, and before you can say “Yo quiero deep pockets” the lawyers had figured out who they really wanted to blame (Jeff Arnold, “Taco Bell Attorneys Seek Dismissal”, Fort Smith Times-Record, Nov. 9). Update Feb. 20: case settled.
November 29 — Lutefisk as toxic substance, and other reader letters. A Wisconsin attorney writes to say that his state’s employee right-to-know law specifically excludes the Scandinavian discomfort food from being considered a toxic substance; and we hear about precedents for Sept. 11 litigation, the proper response to malicious email pranks, and whether judges should expect any more privacy than the people who appear before them.
November 29 — “North America’s most dangerous mammal”. It’s not the grizzly bear or mountain lion, but adorable Bambi: deer-car collisions kill 130 Americans a year and seriously injure many more. Meanwhile, “nearly all the venison served in America’s finest restaurants is imported from places like New Zealand (where deer are an exotic species).” One idea for getting more on platters and fewer on fenders: reconsidering old laws restricting traffic in hunted game. (Ronald Bailey, Reason, Nov. 21).
November 28 — Bioterror unpreparedness. First the government does its best to render the making of vaccines uneconomic; then it declares that the private sector has failed and vaccine production must be federalized (Sam Kazman & Henry I. Miller, “Uncle Sam’s Vaccines”, National Review Online, Nov. 26; Naomi Aoki, “Nation wants vaccines, but drug makers remain wary of the risks”, Boston Globe, Nov. 14). Meanwhile, the haste with which politicians like Sen. Charles Schumer and anti-intellectual-property activists called (quite unnecessarily) for abrogating Bayer’s patent in its antibiotic Cipro helped send the worst possible signal to drug companies’ research budgeters about the safety of their investments (James Surowiecki, “No Profit, No Cure”, The New Yorker, Nov. 5; John E. Calfee, “Bioterrorism and Pharmaceuticals: The Influence of Secretary Thompson’s Cipro Negotiations”, draft, American Enterprise Institute, Nov. 1).
November 28 — Oklahoma forensics scandal, cont’d. The Washington Post has a substantial front-page piece catching up with it. “Already, a reexamination of [Joyce Gilchrist’s] work has freed a convicted rapist and a death row inmate, overturned a death sentence, and called into question the evidence used to execute a man last year.” (Lois Romano, “Police Chemist’s Missteps Cause Okla. Scandal”, Nov. 26)(see May 9).
November 28 — “Does reading grades aloud invade privacy?” The Supreme Court has now heard arguments on that very strange case (see June 27) in which a teacher who allowed students to rate each other’s performance on an exam was accused of violating federal “educational privacy” laws. (Warren Richey, Christian Science Monitor, Nov. 27; Frank J. Murray, “Students’ grading papers passes Supreme Court’s test”, Washington Times, Nov. 28; Marcia Coyle, “High Court Faces First School Records Case”, National Law Journal, Nov. 13). Update: high court rules practice not unlawful (Feb. 22, 2002).
November 28 — Fiat against further fatherhood. The Wisconsin Supreme Court “has upheld a ban preventing a man who owes thousands of dollars in child support from having any more children. The court ruled that David Oakley, a father of nine, would be imprisoned if he had another child, unless he was able to prove that he would pay support for both that child and his current offspring.” (BBC, “Baby ban on US child support shirker”, Nov. 24).
November 27 — U.K. to compensate relatives who saw WTC attack on TV. “British families who watched their relatives die during live television coverage of the terrorist attacks on the World Trade Center may receive compensation for the trauma they suffered. The Criminal Injuries Compensation Authority (CICA), which normally compensates people who witness in person a relative killed or injured in Britain, has taken the unprecedented decision that people who watched coverage of the 11 September attacks should be eligible for payments. … Those eligible will receive payouts of between £1,000 and £500,000, although the average level will be an estimated £20,000.” Under earlier rules, such payouts were made only in cases where family members witnessed crimes that took place in Great Britain. Critics complain that the U.K. is developing a “compensation culture”. (Matthew Beard, “British families of New York victims may be compensated for trauma”, The Independent, Nov. 19; Dominic Kennedy, “Surprise payout for relatives who saw attack on TV”, The Times, Nov. 19; Sarah Womack, “Cash plan for British TV witnesses”, Daily Telegraph, Nov. 19).
November 27 — Target: ethnic-immigrant landlords. Latest shock-horror on the housing front: many ethnic immigrant landlords prefer to rent units to members of their own minority group. Who knew? Such patterns have been detected among “Cambodians in Long Beach, Latinos in El Monte and Taiwanese in Rosemead”; some landlords, it seems, will take tenants from their own state in Mexico but not from other states in Mexico. The L.A. Times lends a sympathetic ear to civil rights activists who send out “testers” to catch such building owners and supers in the act, though the article does not explore the hefty financial rewards sometimes available when activists succeed in these missions (see “Tripp Wire”, Reason, April 1998). The article quotes no critics of the law, but does unveil yet another demand coming down the pike: “In California, advocates say the state should require antidiscrimination training for landlords.” (Sue Fox, “Mi Casa No Es Su Casa”, L.A. Times, Nov. 21).
November 27 — Columnist-fest. Very topical stuff today:
* The proposed settlement of (some of) the private Microsoft class actions (donations of outdated product to school districts, which could entrench the company even more as standard-setter) may be absurd, but blame that on the absurdity of the underlying lawsuits themselves, argues Nick Schulz (“‘You’re an Evil Predator; Now Teach My Kids'”, TechCentralStation.com, Nov. 23; Matthew Fordahl, “Few criticize Microsoft deal”, AP/Seattle Post-Intelligencer, Nov. 24).
* Canada’s super-liberal asylum policies are coming under a lot more scrutiny (Christie Blatchford, “Canada and terrorism: programmed to receive”, National Post, Nov. 24; “Canada probes 14,000 refugees”, Nov. 24)(see Sept. 14-16). See Cindy Rodriguez, “Suspects take advantage of liberal asylum program”, Boston Globe, Nov. 23 (tossed grenades at airliner, now collects welfare in Ontario).
* “A desperately needed bill to protect the nation’s insurance industry and the greater economy after Sept. 11 remains in dire peril, thanks to the financial pressure group that exerts the most influence over the Democratic Party: the plaintiff trial lawyers of America.” (Robert Novak, “Politics as usual”, syndicated/TownHall, Nov. 22).
November 26 — Utah: rescue searchers sued. “The family of Paul Wayment and his son Gage have filed claims against searchers who did not find 2-year-old Gage before he froze to death last year. The family of Paul Wayment is seeking more than $3 million. Paul Wayment committed suicide after being sentenced to jail for negligent homicide in his son’s death. The family is accusing searchers of being negligent in their efforts to find Gage and are seeking more than $2 million in damage for the deaths of father and son.” (Pat Reavy, “Wayment kin sue searchers”, Deseret News, Nov. 21; Jim Woolf, “Multimillion-Dollar Claim Filed By Wayments Against Searchers”, Salt Lake Tribune, Nov. 21; Lucianne.com thread).
November 26 — “Smokers Told To Fetter Their Fumes”. In suburban Washington, D.C., the Montgomery County, Md. council has approved a measure setting stiff fines for residents who smoke at home if their neighbors object. “Under the county’s new indoor air quality standards, tobacco smoke would be treated in the same manner as other potentially harmful pollutants, such as asbestos, radon, molds or pesticides. If the smoke wafts into a neighbor’s home — whether through a door, a vent or an open window — that neighbor could complain to the county’s Department of Environmental Protection. Smokers, and in some cases landlords or condominium associations that fail to properly ventilate buildings, would face fines of up to $750 per violation if they failed to take steps to mitigate the problem.” “This does not say that you cannot smoke in your house,” said council member Isiah Leggett (D-At Large). “What it does say is that your smoke cannot cross property lines.” Arthur Spitzer, legal director of the American Civil Liberties Union’s capital area chapter, expressed unease over the proposal, but George Washington U. law prof and anti-smoking activist John Banzhaf, who has been known to give class credit to students for suing people, calls it a “major step forward”. (Jo Becker, Washington Post, Nov. 21; Jacob Sullum, “The Home Front”, Reason Online, Nov. 27) (see also Oct. 5-7). Update: plan is dropped after storm of criticism (Jo Becker, “Global Ridicule Extinguishes Montgomery’s Anti-Smoking Bill”, Washington Post, Nov. 28).
November 26 — After racist gunman’s assault, a negligent-security suit. “A San Fernando judge is set to decide if the North Valley Jewish Community Center can be sued for failing to protect 5-year-old Benjamin Kadish from a racist gunman who opened fire inside the Granada Hills facility in August 1999, injuring the boy and four others. Benjamin’s parents, Eleanor and Charles Kadish, sued the center in April, claiming the center’s officials should have known the facility ‘was a target for anti-Semitic attacks’ and taken appropriate security precautions, such as locking entrances and hiring guards.” Defense lawyers for the center call the Kadishes’ lawsuit “inappropriate, divisive and utterly unsupported by the law”. “There cannot be a duty on the [center] to prevent the likes of Buford Furrow from doing this terrible thing,” attorney Scott Edelman said. “They are suing a victim.” (Jean Guccione, “Judge to Rule on Suit Over Shooting”, Los Angeles Times, Nov. 19).
November 23-25 — Disposable turkey pan litigation. The National Law Journal‘s Gail Diane Cox decided to follow up on some of the suits that get filed after each holiday season against makers of disposable turkey roasting pans, alleging that the pans buckled or collapsed causing personal injuries to result from oven-hot birds or drippings. Attorney Matthew Willens of the Rapoport Law Offices in Chicago said his office’s case on behalf of a 69-year-old Illinois woman hurt in a pan incident on Thanksgiving Day 1995 settled for “a decent amount, if not the millions that some of these cases seek,” but that his office did not pursue opportunities for cases brought in by resultant publicity: “We didn’t want to become known as the turkey pan guys.” (“Voir Dire: Thanksgiving law a turkey”, National Law Journal, Nov. 12, not online). (DURABLE LINK)
November 23-25 — “School sued over poor results”. One we missed last month from the U.K. educational scene: “A student is suing her former school, claiming poor teaching was to blame for her failure to achieve a top grade at A-level. Kate Norfolk, who attended £4,000 per term independent school Hurstpierpoint College, West Sussex, says she was not properly prepared for her Latin A-level. … Her family has issued a writ to the High Court, seeking £150,000 to cover the loss of future earnings, school fees and compensation for the distress caused.” (BBC, Oct. 1).
November 23-25 — Australian roundup. In Australia, Supreme Court Justice Peter McClellan has ruled against Kane Rundle’s claim for more than $1 million in compensation for brain damage suffered when, as he leaned out of a train carriage to spray-paint graffiti on a wall, his head collided with a stanchion. Rundle had argued that the State Rail Authority was negligent “because it had failed to ensure a carriage window could not be opened far enough to put his body through.” (Will Temple, Queensland Courier-Mail, Oct. 6). In the state of Victoria, a woman has won a $20,000 payout from the police for being handcuffed by police in a 1993 incident after she failed a breath test; police sources said the woman had “started banging her head against a wall for several minutes and was handcuffed to a chair [for five minutes] to stop her injuring herself” while the woman contended in a 1998 writ that the cuffed state had lasted a half hour and that she had been severely bruised. A police spokesman said the payout was made after considering the expected cost of fighting the claim and that the department did not concede any liability. “In the past 2 1/2 years, about $5 million has been paid out by police over alleged bashings, illegal arrests and jailings. Police have blamed ‘no win, no fee’ lawyers for fueling a flood of claims.” (Nick Papps, “$20,000 payout for handcuffing”, Sunday Herald-Sun (Melbourne), Sept. 9). However, a Perth bodysurfer dumped by a wave lost his case arguing that the local council breached its duty of care by not posting signs warning of the dangers of bodysurfing, leading one frustrated Aussie private citizen to post a formal declaration: “I hereby publicly totally renounce any duty of care to anybody. … If a person wants to commit suicide, it is not my duty to talk them out of it.” (“Ziggy”, “Blame Others for Your Mistakes“). (DURABLE LINK)
November 21-22 — Liability limits speed WTC recovery. How to help New York City and the commercial aviation business recover from the devastating blows of September? When the chips are down, there’s no substitute for reining in our system of unlimited liability and unpredictable punitive damages, as is being recognized in the WTC case by some unlikely candidates for the role of tort reformer, like New York Sens. Hillary Rodham Clinton and Chuck Schumer, both Democrats who have opposed liability limits in the past. Clinton and Schumer have now successfully pressed for legislation to protect the operator/leaseholder of the destroyed WTC, Larry A. Silverstein; the Port Authority; the city of New York; airport operators such as Boston’s Logan; and certain aircraft makers from the prospect of unlimited, ruinous liability in a decade or more of future litigation. Most of these entities will see their exposure limited to the extent of their insurance or, in the case of the self-insured city of New York, to $350 million, a figure that approximates the city’s annual payout for suits of all other kinds. Sen. Patty Murray (D-Wash.) went to bat for provisions protecting Boeing, which has large operations in Washington state; the airlines themselves were protected in an earlier round.
House Judiciary Chairman James Sensenbrenner (R-Wisc.) warns that various less obvious targets that wield less clout on the Hill, including World Trade Center architects, steel manufacturers, jet-fuel providers, and the state of New York, still face open-ended liability. You’d think this would be what educators call a teachable moment for longtime tort-reform opponents Hillary and Chuck, since they’ve now acknowledged that when it’s really necessary to pick up and keep going after disaster, some limits are needed on the power of their friends in the trial bar to keep the blame process in play forever. Unfortunately, both New York senators are signaling that the circumstances in this case were, um, unique, and that no other defendants worried about liability exposure should expect any sympathy from them. (DURABLE LINK)
SOURCES: “Hillary for Tort Reform” (editorial), Wall Street Journal, Nov. 20 (online subscribers only); statement of Rep. James Sensenbrenner, chairman, House Judiciary Committee, Nov. 16; Christopher Marquis, “Measure Sets Liability Caps for New York and Landlord”, New York Times, Nov. 17; “War Profiteers” (editorial), OpinionJournal.com, Oct. 14; “War Profiteers II” (editorial), Wall Street Journal, Nov. 8; and WSJ coverage: Jim VandeHei, “Airline-Security Bill Will Extend Liability Shield to Boeing, Others,” Nov. 16; Jim VandeHei and Milo Geyelin, “Bush Seeks to Limit the Liability Of Firms Sued as Result of Attacks”, Oct. 25; Jim VandeHei and Jess Bravin, “Lawmakers Work to Provide Liability Shields For Boeing, World Trade Center Leaseholder”, Oct. 24.
November 21-22 — “They’re back!” No, this isn’t the first parody of what will happen if apprehended Al-Qaeda terrorists hire big-name American trial lawyers to get them off, but it’s one of the funnier ones (Victor Davis Hanson, National Review Online, Nov. 20). See also Jonathan Kay, “Bullets over barristers”, National Post, Oct. 13; Michelle Malkin, “No more jury trials for terrorists”, TownHall.com, Oct. 24; James S. Robbins, “Bring on the Dream Team!”, National Review Online, Oct. 9. Incidentally: here’s an inspiring photo weblog of Afghan liberation (via Matt Welch).
November 21-22 — Fight over dog’s disposition said to cost taxpayers $200K. An eight-year legal battle over a Lhasa Apso by the name of Word, alleged by the city of Seattle to be vicious, has at last ended with the dog’s reprieve. “Attorneys for Word’s owner say the fight has cost taxpayers well over $200,000.” (Sara Jean Green, “Canine con gets reprieve after eight years”, Seattle Times, Nov. 14).
November 21-22 — Welcome SmarterTimes readers. Ira Stoll’s invaluable New York Times-watching service gave us a nice mention Tuesday in a discussion of an absurdly one-sided piece the Times ran on the Americans with Disabilities Act. (Nov. 20, see bottom). Also linking us recently: India’s Bombay Bar Association (“Law-U.S.”); Duke Update Morning Run (college sports); John Brignell’s NumberWatch from the U.K. (a site “devoted to the monitoring of the misleading numbers that rain down on us via the media”); Citizen’s Coalition for Children’s Justice (zero tolerance abuses); CPA Wizard; National Anxiety Center; Jim’s Cop Stuff; Egotist (“The mildly libertarian stance bothers me but that aside this site seems to actually have something to say, which is sadly not the rule on the internet”); Randleman Land; weblogs More Than Zero (Andrew Hofer), LawSchoolCrazy, Nov. 17 (Jorge Schmidt, Univ. of Miami — “Every once in a while I need a reality check. Nothing is better at reminding me what most people think of lawyers, and the law, than the outstanding Overlawyered.com site”), What the…? (Andrew Shulman — “find out how funny and sad our legal system is”). Best wishes to all of you, and happy Thanksgiving.