|ARCHIVE -- JAN. 2000
January 31 -- Scorched-earth
divorce tactics? Pay up. Lawyers in Massachusetts
are assessing the impact of two recent cases in which, departing from usual
practice, courts have penalized family-law
litigants for engaging in carpet-bombing tactics by ordering them to
attorneys' fees to their victimized opponents. In one case, Basel
v. Basel, a husband was ordered to pay $100,000 of his wife's legal bill
after he unsuccessfully accused her of being a drunk, a drug addict, and
a child abuser; the judge ruled that he'd engaged in a "calculated campaign
of outrageous behavior to destroy (his) wife's credibility" and called
his portrayal of his wife "nefarious" and "fraudulent". "By the time it
was over," the Boston Globe reports, "the lengthy litigation had
cost more than $600,000 in legal fees, half of which was paid by [the husband's]
Peter Zupcofska, vice chairman of the Boston Bar Association's family
law section, said the ruling by Worcester probate judge Joseph Lian Jr.
could signal a new departure in the state of matrimonial practice: "if
the litigation that's waged is clearly done to harass, harangue, and intimidate
the other party, and to create a kind of economic slavery by utilizing
vast amounts of marital funds in a really destructive way," he said, "then
the judge is going to do something to redress that imbalance." In
another recent Bay State case, Krock v. Krock, a probate judge awarded
$81,000 in fees against a wife found to have engaged in wrongful litigation.
"You can no longer assume that having money gives you the right to wage
these frivolous, scorched-earth campaigns without risking paying the price
for the other side," said Boston family law practitioner Elaine Epstein.
"And if you do, you do so at your own peril." (Sacha Pfeiffer, "A
warning to battling spouses", Boston Globe, Jan. 23).
January 31 -- Coils
of forfeiture law. For Joe Bonilla, the good news is his
acquittal three months ago on charges of drunken driving. The bad
news is that New York City has no plans to give back the $46,000 Ford Expedition
he was driving when cops pulled him over. Bonilla, a 34-year-old
construction worker, is paying $689 a month on the vehicle, which he'd
been driving for only two days when stopped last May on his way home, he
says, from a late screening of the movie "Shakespeare in Love". A
Bronx judge declared him not guilty on the charge, but that doesn't mean
he can have his car back, the city says. (Tara George, "He's Not
Guilty of DWI, But Cops Still Have Car", New York Daily News, Jan.
25) (more on forfeiture: Oct. 7,
January 31 -- Do
as we say.... Serious fire code violations are threatening
to snarl plans to open a $1-million public facility in Charleston, W.V.
It's kinda embarrassing since the facility is itself a fire station.
"Not only is a firewall improperly installed inside the $1 million station
house, but there are no smoke alarms in the sleeping quarters." (Todd C.
Frankel, "Fire station also lacking smoke alarms", Charleston Daily
Mail, Jan. 19).
January 31 -- Showdown
in Michigan. Battle royal shaping up this November in
the Wolverine State, whose Supreme Court, since a series of appointments
by Republican Gov. John Engler, has been assuming a national leadership
role in rolling back litigation excesses. Trial lawyers, unionists
and others are furiously plotting revenge when the judges stand for their
retention elections. A Detroit News editorial provides a quick
rundown on what promise to be some of this year's most closely watched
judicial races (Jeffrey Hadden, "State Supreme Court in partisan Catch-22",
Detroit News, Jan.
January 29-30 --
Update: OSHA in full retreat on home office issue.
The Occupational Safety and Health Administration announced on Wednesday
that it will not, after all, seek to regulate hazardous conditions in workers'
home offices, such as rickety stairs, ergonomically inappropriate chairs,
or inadequate lighting. Accepting the agency's spin, the New York
Steven Greenhouse reports the new stance as a "clarification" meant to
dispel "confusion". Translation: the agency has baldly reversed its
earlier policy. When OSHA's November advisory letter came to public
notice earlier this month, the Washington Post summarized
its contents this way: "Companies that allow employees
to work at home are responsible for federal health and safety violations
that occur at the home work site." (see Jan.
5, Jan. 6, Jan.
8-9 commentaries). Under the new policy, the word "not"
will simply be inserted before the word "responsible" in that sentence.
(At least as regards home offices: manufacturing activities conducted at
home will still come under its jurisdiction, the agency says.)
Why did the earlier OSHA directive cause such an uproar?
According to the Times' Greenhouse, it "alarmed thousands of corporate
executives and angered many lawmakers, particularly Republicans" who began
"using it" as a political issue -- very naughty of them to do such a thing,
we may be sure. But as most other news outlets reported, word of the policy
had scared not just bosses but innumerable telecommuters themselves, who
not unreasonably expected that the new policy would result in (at a minimum)
more red tape for them and quite possibly a chill on their employers' willingness
to permit telecommuting at all. And while opposition from Republicans
might come as scant surprise, the newsier angle was the lack of support
from the measure from many elected Democrats; even a spokeswoman for Rep.
Richard Gephardt said it "seemed excessive".
OSHA director Charles N. Jeffress announced that the "bottom
line" remained what it had "always been": "OSHA will respect the privacy
of the home and expects that employers will as well." Translation:
the agency was stung so badly by the public reaction to its initiative
that it's going to pretend it never proposed it in the first place (Steven
Greenhouse, "Home Office Isn't Liability For Firms, U.S. Decides", New
York Times, Jan. 28; Frank Swoboda, "OSHA Exempts White-Collar Telecommuters",
Washington Post, Jan.
27; "OSHA Exempts Home Offices", Reuters/FindLaw, Jan. 27).
January 29-30 --
Update: judge angered by obstructive SEPTA defense.
After last month's $50 million jury award against the Philadelphia transit
authority over the maiming of 4-year-old Shareif Hall on an escalator,
Judge Frederica Massiah-Jackson expressed anger over SEPTA's mishandling
of physical evidence and failure to provide relevant documents requested
by the plaintiffs. The agency settled the case for $7.4 million and
pledged to improve both its escalators and its litigation behavior in the
future. (Claudia Ginanni, "Judge Fines SEPTA $1 Million; Authority
Held in Contempt for Withholding Evidence", The Legal Intelligencer,
23; "SEPTA Settles Escalator Suit for $7.4 Million", Jan. 6; see Dec.
January 28 -- Law
prof wants to regulate newspaper editorials. Libertarians
have long warned that laws curbing private buying of campaign ads constitute
a dangerous incursion on free speech and are likely to pave the way for
further inroads. In last June's Texas Law Review, Associate
L. Hasen of Loyola University Law School (Los Angeles) proceeds to
prove them correct by endorsing government regulation of newspaper editorials.
He writes: "If we are truly committed to equalizing the influence of money
of elections, how do we treat the press? Principles of political
equality could dictate that a Bill Gates should not be permitted to spend
unlimited sums in support of a candidate. But different rules [now]
apply to Rupert Murdoch just because he has channeled his money through
media outlets that he owns... The principle of political equality means
that the press too should be regulated when it editorializes for or against
Hasen happily looks forward to the day when the Supreme Court can be
persuaded to overturn Buckley v. Valeo and the way will be
clear for such regulation of the expression of opinion in newspapers: "op-ed
pieces or commentaries expressly advocating the election or defeat of a
candidate for federal office could no longer be directly paid for by the
media corporation's funds. Instead, they would have to be paid for
either by an individual (such as the CEO of the media corporation) or by
a PAC set up by the media corporation for this purpose. The media
corporation should be required to charge the CEO or the PAC the same rates
that other advertising customers pay for space on the op-ed page."
(Quoted by Stuart Taylor, Jr., "The Media Should Beware of What It Embraces",
Journal, Jan. 1, no longer online; see also Richard Hasen, "Double
Standard," Brill's Content, Feb. 1999).
January 28 -- From
our mail sack: unclear on the concept. To
judge from the summaries of our search-engine traffic, a nontrivial number
of visitors land on this website each day because they're looking to get
in on class-action lawsuits. We
fear that we do not always succeed in giving full satisfaction to these
visitors. For example, last week the following note arrived in our
inbox, signed K.E.: "Please send me the website or address re the Toshiba
settlement. I need to file. Why was this not on your site where
it could readily be found?"
January 28 -- Strippers
in court. A group of San Francisco exotic dancers sued
their employers last month, saying they'd been improperly categorized as
contractors with the result that they were denied overtime pay and
were unfairly forced to purchase their own "supplies", in the form of expensive
drinks. (National Law Journal, "The Week in Review: The Flux",
Dec. 27-Jan. 3). In Canada, a judge has ruled against Loredana Silion,
24, in her petition for a work permit to perform as an exotic dancer.
While Ms. Silion had danced in a nightclub in her native Rumania, the job
there involved only topless dancing, which the judge ruled was not a close
enough match in skills for the task of dancing at Toronto's Sunset Strip
club, where nothing at all is worn. (Marina Jimenez, "Stripper told
she's not naked enough to work in Canada", National Post, Jan. 14).
And exotic dancer Doddie L. Smith has now sued an Arizona plastic
surgeon, saying the doctor's augmentation surgery left her breasts
"too high" with the result that she is "unable to be a 'featured dancer'
at exotic dance clubs, model as a centerfold in adult magazines, or promote
her modeling career". Estimated wage loss: $100,000. (Gretchen
Schuldt, "Exotic dancer claims doctor botched breast surgery", Milwaukee
Sentinel, Jan. 12) (Update: more on strippers in court: May
23, July 26-27).
January 26-27 --
Florida ADA complaint binge. Invoking the Americans with
Disabilities Act, "a half-dozen non-profit corporations and associated
individuals [ ] have filed more than 600 federal suits in Miami, Fort Lauderdale
and West Palm Beach" charging building owners and service providers with
failing to make their facilities accessible to the handicapped, according
to Miami's legal publication, the Daily Business Review. Targets
of the complaints, large and small, range from Kmart and Carnival Cruises
down to local funeral homes and the little Coconut Court Motel in Fort
Lauderdale, as well as nonprofits and public entities such as the local
Baptist hospital and the city of Pompano Beach. A six-lawyer Miami
Beach law firm, Fuller, Mallah &
Associates, has spearheaded the assault, helping form three nonprofits
that account for most of the filings. Indeed, no less than 323 of
the cases name as plaintiff 72-year-old wheelchair user Ernst Rosenkrantz.
"When pressed to explain how he hooked up with the law firm, Rosenkrantz
said law firm partner John D. Mallah is his nephew." However, "Mallah
didn't mention that relationship when asked about Rosenkrantz in an earlier
interview," notes reporter Dan Christiansen.
Most cases settle when the charged business agrees to make some modification
to its facilities and pay the complainant's legal fees -- $275 an hour
plus expenses in Mallah's case. The ADA allows complainants to file
suit without warning the target, and it displays considerable solicitude
for the welfare of lawyers filing cases: "the attorney's fees provisions
are such that even if they get [nothing more than] the telephone volume
controls changed, they automatically win the case," says one defense lawyer.
First Union, the large bank, says it refuses on principle to settle cases
filed by the group: "The fees that are being charged seem to be way out
of line to the amount of work that they do," says one of its lawyers, besides
which the bank had been moving forward on its own with an ADA compliance
program. Rep. Mark Foley (R-Fla.)
has asked the U.S. Department of Justice to investigate mass ADA filings
in Broward County. (Dan Christiansen, "Besieged by Suits", Miami
Daily Business Review, Dec. 21). (Feb.
15 update: Congressmen introduce legislation) (DURABLE
January 26-27 --
Seattle police: sued if they do... The constabulary of the northwest
metropolis now faces a slew of lawsuits over its handling of the World
Trade Organization protests in late November and early December.
According to the Post-Intelligencer, the claims divide into two
broad groups: those accusing the city of cracking down on the protesters
too hard, and those accusing it of not cracking down hard enough.
(Mike Barber, "Police sued for doing too little, too much", Seattle Post-Intelligencer,
January 26-27 --
Feelings of nausea? Get in line. In 1997 a barge
accident and chemical spill on the
Mississippi sent a foul-smelling haze over much of Baton Rouge, La.
A steering committee of attorneys formed to sue for compensation for local
residents over symptoms such as "nausea, severe headaches and fatigue"
experienced after smelling the odors. And did the claims ever start
to roll in: by November of last year 13,000 forms had already been submitted,
according to one lawyer, and the pace became even more frenetic as the
Jan. 14 final deadline approached for filing claims. Long lines stretched
around the block outside the old federal building; one woman said she waited
six hours to get in the door, while more than 100 others were turned away
at the end of the day, to come back the next day if at all; and many grumblings
were heard about missing work. (Adrian Angelette, "Long line awaits
claimants in chemical leak suit", Baton Rouge Advocate, Jan. 14).(DURABLE
January 26-27 --
From our mail sack: the lawyer's oyster.
Regarding our Jan. 15-16 "Poetry Corner"
reprint of "The Benefit of Going to Law", from Benjamin Franklin's Poor
Richard's Almanack, 1733, New York attorney John
Brewer writes: "Just a few days after noting the verse by Ben Franklin
you had posted on your site, I came across an earlier and more concise
exposition of the same image, viz.:
"Two find an Oyster, which they will not
Both will have all or none, the Lawyer's
Must end the strife; he fits their humour
Eats up the fish, and gives them each a
"According to the recently published Oxford
Companion to the Year ("An exploration of calendar customs and
time-reckoning"), this appeared in the 1665 edition of Poor Robin's
Almanack (note possible Franklin influence of the name), as one of
four such bits of doggerel marking the traditional four law terms.
The oyster stanza was for Michaelmas Term.
"You might also find salient the verse for Hilary Term:
Anoint thy Lawyer, grease him in the fist,
And he will plead for thee e'en what thou
He'll make thy cause strong though the same
But if thy purse be dumb, his tongue can't
"The verses for Easter and Trinity Terms
are similarly on the theme of the costliness of going to law and its financial
benefit to none but the bar, but have somewhat less punch and clarity of
January 25 -- Feds'
tobacco hypocrisy, cont'd: Indian "smoke shops". It seems
when the Clinton Administration isn't filing lawsuits to brand tobacco-marketing
as "racketeering" (see Sept. 23 commentary),
it's quietly staking taxpayer money to help its constituents get into the
business. A Senate Small Business Committee probe has found that
since 1997 the Department of Housing and Urban Development has laid out
$4.2 million to enable four Indian tribes to build "smoke shops" that sell
discounted cigarettes free from state taxes. Why, one wonders, should
subsidies be needed to facilitate an intrinsically high-profit activity
that might be likened to lawful smuggling? And of course the source
of this largesse is the very same HUD whose Secretary Andrew Cuomo has
so loudly endorsed lawsuits against gun sellers
whose wares are said to inflict spillover damage on other localities' public
health. A crowning hypocrisy is that some of the tribes that derive
income from smoke shops are themselves now suing tobacco companies (see
The Senate committee uncovered six instances in which tribes obtained
HUD subsidies to open smoke shops, five in Oklahoma and one in Nevada,
but it is likely that the true number is larger. For example, this
site's editor, in his March Reason column (not yet in subscribers'
mailboxes, but previewing at the
site), identified another similar-sounding case: in 1997 HUD furnished
the Reno Sparks Indian Colony with $450,000 "to build a smoke shop along
Interstate 80 near the California border," according to the Bend, Oregon,
(Wendy Koch, "Tribes get funds to build 'smoke shops'",
Jan. 24; Walter Olson, "The Year in Double Takes", Reason, March).
January 25 -- Line
forms on the right for chance to suffer this tort.
A woman has won $5,135 in damages from owners for having been locked overnight
in an Irish pub. "Marian Gahan fell asleep on the toilet in Searsons
Pub in central Dublin, and did not wake until 2 a.m., by which time the
pub was closed". She argued that the pub managers should have checked
the toilets before locking up. The trial had to be adjourned early
on when Ms. Gahan's barrister, Eileen McAuley, burst into uncontrollable
fits of laughter while recounting her own client's case. ("Woman locked
in pub wins $5,135 damages", Reuters/Excite, Jan. 18; "Tears and laughter
at trauma in toilet", Irish Times, Oct.
January 25 -- Recommended
reading. On the unnerving ease with which
charges of abuse and violence can be pulled from a hat to provide legal
assistance in a divorce (Dan Lynch,
"We'll see how blind justice is", Albany Times-Union, Jan.
19); on the war underway in legal academia over many scholars' acceptance
of the idea that the Second Amendment does indeed protect individual gun
rights (Chris Mooney, "Showdown", Lingua Franca, February);
on the chill to workplace banter now that harassment
law has gotten well established in Britain (Roland White, "Careless
talk makes the office world go round", The Times (London), Jan.
January 25 -- Latest
lose-on-substance, win-on-retaliation employment claim.
It's pretty common, actually: the suit-prone worker flatly loses on his
original claim of discrimination, but his claim for "retaliation" comes
through to save the day because after the job relationship had turned adversarial
the employer was shown to have treated him less favorably than before.
Bad, bad employer! This time a
Delaware jury decided that Eunice Lafate had not in fact been passed over
for a promotion at Chase Manhattan because of her race, but awarded her
$600,000 anyway on her retaliation charges; after filing the complaint,
she said, she'd been cut out of management meetings and given less favorable
evaluations. (Jim DeSouza, "Jury Wants Chase Manhattan to Pay $600,000
for Retaliating Against Employee", Delaware Law Weekly, Dec. 9)(see
also Sept. 29 commentary).
January 24 -- Latest
shallow-end pool-dive case. In Massachusetts,
the state's Supreme Judicial Court has agreed to hear the appeal of Joseph
O'Sullivan, who was visiting his girlfriend's grandparents in Methuen and
decided to dive into the shallow end of their
pool. An experienced swimmer and 21 years old at the time, O'Sullivan
was not paralyzed but did crack two vertebrae and proceeded to sue the
grandparents for not stopping him or providing warnings. Boston Globe
columnist Derrick Z. Jackson takes a dim view of O'Sullivan's case, and
the lower court did not find it persuasive either ("A shallow case for
the SJC", Jan. 12).
January 24 -- "Mormon
actress sues over profanity". Christina Axson-Flynn,
20, is suing the University of Utah, charging that the theater department
insisted that she use foul language in character portrayals even though
they knew it violated her religious principles to do so. The department
disputes the contentions in her suit, which asks for unspecified damages.
(Yahoo/AP, Jan. 14; Jim Rayburn, "U. theater department sued over language",
Deseret News (Salt Lake City), Jan.
14). Update Feb.
16, 2004: appeals court lets suit proceed.
January 24 -- "Ambulance
chaser" label ruled defamatory. The Second
Circuit federal court of appeals has ruled that a New York attorney can
sue over a printed description of him as an "ambulance chaser" given to
taking only "slam dunk cases". The American Association of University
Women and its related AAUW Legal Advocacy Fund had put out a directory
in 1997 which listed 275 attorneys practicing in its fields of interest.
Appended to the contact information for attorney Leonard Flamm was the
following description: "Mr. Flamm handles sex discrimination cases in the
area of pay equity, harassment and promotion. Note: At least one plaintiff
has described Flamm as an 'ambulance chaser' with an interest only in 'slam
dunk cases.'" U.S. District Judge Denny Chin had dismissed Mr. Flamm's
resulting lawsuit against AAUW, ruling that the comments, although "beyond
the pale" and "seriously derogatory", were protected as expressions of
opinion under the First Amendment. On appeal, however, a panel led
by Judge Thomas Meskill reinstated the action, noting that the objectionable
passage might be read as implying specific factual assertions relating
to unethical solicitation of business,
that it appeared in italics, and that the other entries in the directory
were generally of a factual rather than opinion-based nature. (Mark
Hamblett, New York Law Journal, Jan. 6).
January 24 -- No
clash between clauses. Cincinnati attorney
Richard Ganulin has filed a notice of appeal after a federal court dismissed
his lawsuit claiming that the government's observing of Christmas as a
public holiday violates the Bill of Rights' Establishment Clause.
Last month U.S. District Judge Susan Dlott rejected Ganulin's action, ruling
that Congress was “merely acknowledging the secular cultural aspects of
Christmas by declaring Christmas to be a legal public holiday. ... A government
practice need not be exclusively secular to survive”. She also prefaced
her opinion with a bit of free verse: "The court will uphold /Seemingly
contradictory causes /Decreeing “The Establishment” and “Santa” /Both worthwhile
Claus(es)." (Ben L. Kaufman, "Challenge to Christmas holiday appealed",
Cincinnati Enquirer, Jan.
January 21-23 -- "Tracking
the trial lawyers": a contributions database.
American Tort Reform Foundation today unveils a handy interactive database
for keeping track of which lawyers have been donating to which politicians
and parties. You can search by lawyer, by law firm, by recipient
politician or institution, and more. Hours of alarming fun ("Follow
January 21-23 -- From
our mail sack. Julia
Vitullo-Martin of the Vera Institute of Justice writes, regarding our
18 report on the strange-warning-labels contest:
"I can tell you were never a teenage girl that you think
the advice 'never
iron clothes while they're being worn' is wacky.
We used to do this in high school all the time. We'd be in a big
hurry -- having wasted hours trying on & discarding one another's clothes
-- and would finally find the right thing to wear only to notice that the
sleeve, say, was wrinkled. Why take it off? Just retract your arm
& iron. The occasional small burn never deterred us that I can
"I do like your newsletter."
January 21-23 --
Y2K roundup: poor things! Lack of century-end
catastrophes is a "calamity" of its own for lawyers who'd been set to file
suits galore demanding damages for outages and data loss. "Lawyers
were licking their chops," Madelyn Flanagan of the Independent Insurance
Agents of America told the Washington Post's David Segal. "I think
the whole world is relieved." (David Segal, "A Y2K Glitch For Lawyers:
Few Lawsuits", Washington Post, Jan. 10.) Ross & Co., a British
solicitors' firm that had been planning a big Y2K
practice, still hopes for the best: "It
Ain't Over Till the Fat Lady Sues", claims its website. ("Lawyers
still gearing up for millennium bug attack", FindLaw/Reuters, Jan. 20).
Don't count us out yet either, says Philadelphia attorney Ronald Weikers
who's hoping the state of Delaware will sue manufacturers over a glitch
that knocked out 800 slot machines for three days, thus preventing the
state from slurping up locals' spare coins over that period. Then
there are the remediation-cost suits: thus the commonwealth of Puerto Rico,
which made the transition "without a murmur", is considering suing tech
firms over the $80 million it says it spent to upgrade systems. ("Puerto
Rico Government Considers Suing Over $80 Million In Y2K Work", DowJones.com,
4) The reliable Ralph Nader has chimed in with his reasons for
blaming everything on the deep pockets ("Y2Pay", San Francisco Bay Guardian,
29.) And here come the backlash suits: the Independent
of London reports that one company has sued outside consultants for exaggerating
the risk from the calendar rollover (Robert Verkaik, "Y2K consultants sued
by firm for exaggerating risk", The Independent, Jan. 11). (DURABLE
January 21-23 -- Cartoon
that made us laugh. By Ruben Bolling, for Salon:
"....We can't take those off the market! Dangerous products are a
gold mine for the government!" (Jan. 20 -- full
January 21-23 --
Civil disabilities of freethinkers. Imagine letting a
murderer go free because you'd excluded the crime's only witness from testifying
on the grounds that as a religious unbeliever he could not take a proper
oath. Absurd? Yet such notions survive today in the constitution
of the state of Arkansas: "No person who denies the being of a God shall
hold any office in the civil departments of this State, nor be competent
to testify as a witness in any court." Along with Arkansas, the constitutions
of Maryland, North and South Carolina, Pennsylvania, Tennessee, and Texas
retain historic provisions that contemplate or mandate the exclusion of
unbelievers -- and in some cases, minority religionists who reject the
idea of a retributive afterlife -- from public office, admission
as witnesses in court, or both. Thus Article IX, Sec. 2, of the Tennessee
constitution: "No person who denies the being of God, or a future state
of rewards and punishments shall hold any office in the civil department
of this state." Widely considered unenforceable today, such provisions
might at some point resume practical importance given today's highly visible
movement to re-infuse religious sentiment into government; in the meantime,
they symbolically relegate to second-class citizenship those who hold one
set of opinions. "The Arkansas anti-atheist provision survived a
federal court challenge as recently as 1982". (Tom Flynn, "Outlawing
Unbelief", Free Inquiry, Winter
1999). (DURABLE LINK)
January 20 -- The
joy of tobacco fees. In his January Reason column,
this website's editor pulls together what we now know about the $246 billion
state-Medicaid tobacco settlements,
including: the role of the settlement in imposing a cartel structure on
the industry and chilling entry by new competitors; the happy situation
of some lawyers who are in line to collect hundreds of millions of dollars
when they simply "piggybacked" on others' legal work, with little independent
contribution of their own; and the often more-than-casual ties between
tobacco lawyers and the state attorneys general who hired them, to say
nothing of such influentials as President Bill Clinton and Senate Majority
Leader Trent Lott (both of whose brothers-in-law were in on the tobacco
plaintiffs' side). Maybe it's time to retire Credit
Mobilier and Teapot
Dome as synonyms for low points in American business-government interaction.
(Walter Olson, "Puff, the Magic Settlement", Reason, January).
January 20 -- "The
case for age discrimination". You do it, Supreme Court
justices do it, we all do it: generalize about people based on their ages.
It's clear that most age-based discrimination isn't "invidious" in the
original sense of race bias, and it's only rational for an employer
to avoid investing in costly retraining for a worker who's likely to retire
soon. So how'd we wind up with a law on the books purporting to ban
this universal practice, anyway? (Dan Seligman, "The case for age
discrimination", Forbes, Dec.
January 20 -- Watchdogs
could use watching. Beginning in 1993 Brian D. Paonessa
employed an active solicitation campaign in conjunction with various Florida
law firms to sign up hundreds of securities investors to pursue arbitration
claims against Prudential Securities Inc. Not prominently featured
in Paonessa's marketing, apparently, was the fact that federal securities
regulators were on his own tail on charges that he'd pocketed $149,500
in "ill-gotten gains" at the expense of investor clients. Since then,
as the busy rainmaker has become embroiled in legal disputes over alleged
arrangements with the law firms, some colorful charges have made it
onto the public record. (Stephen Van Drake, "Florida Fee-Sharing
Suit May Open Door to Direct-Solicitation Scrutiny", Miami Daily Business
Review, Oct. 11).
January 20 -- Gotham's
plea-bargain mills. "Last year each judge sitting in the
New York City Criminal Court, on average, handled nearly 5,000 cases. With
calendars that huge, the system is reduced to a plea bargain mill, with
no true trial capability offering balance to the process. It's no
secret. Everyone -- including the repeat offender -- knows this."
-- New York chief judge Judith Kaye, State of the Judiciary Address, Jan.
10 (New York Law Journal site).
January 19 -- "Private
job bias lawsuits tripled in 1990s". "Aided by new federal laws,
private lawsuits alleging discrimination in the workplace
more than tripled during in the 1990s, the Justice Department said."
According to the Department's Bureau of Justice Statistics, "job bias lawsuits
filed in U.S. District Courts soared from 6,936 in 1990 to 21,540 in 1998....The
percentage of winning plaintiffs awarded $10 million or more rose from
1 percent in 1990 to 9 percent in 1998." (AP/FindLaw, Jan. 17; Bureau
of Justice Statistics abstract
and link to full report, "Civil Rights Complaints in U.S. District Courts,
January 19 -- Santa
came late. Faced with outages and high volume, the e-tailing
operation of Toys-R-Us failed to deliver many toys by Christmas as
promised. Now Seattle attorney Steve Berman has filed a lawsuit seeking
status to represent all customers who did not receive their shipments
by Dec. 25. According to George magazine's profile of tobacco
lawyers last year (see Aug. 21-22), Berman's firm is in line to receive
roughly $2 billion from representing states in the tobacco
settlement -- enough to stake a very large number of bets like this
one, should he see fit. The named plaintiff is Kimberly Alguard of
Lynnwood, Washington. ("ToysRUs.com Sued: Santa Failed", Reuters/WiredNews,
January 19 -- The
costs of disclosure. In 1992 Tacoma, Wash. attorney Doug
Schafer fielded what seemed a routine request from businessman-client Bill
Hamilton to draw up incorporation papers for a new venture. But the
details Hamilton provided convinced Schafer that his client was involved
with Tacoma lawyer Grant Anderson in dishonest business dealings arising
from Anderson's milking of an estate. To make things worse -- and
raising the stakes considerably -- Anderson shortly thereafter was elevated
to a Superior Court judgeship.
What should a lawyer do in those circumstances? Schafer later
decided to go public and seek an investigation of the judge and the transaction,
thus beginning a struggle whose eventual results included an order by the
Washington Supreme Court throwing Judge Anderson off the bench (for "egregious"
misconduct) and a $500,000 recovery by a hospital in a lawsuit against
the judge and others over their conduct. But in the state of Washington
-- as in a majority of other states -- a lawyer has no right to breach
his obligation of confidentiality to clients even when the result is
to bolster public integrity or provide a remedy to defrauded parties.
And so next month Doug Schafer will appear before a panel of the Washington
State Bar Association to defend himself against disciplinary charges.
Moreover, the reputation he's picked up as a single-minded scourge of the
corruption he perceives in the system has helped devastate his legal career,
while Judge Anderson, though forced off the bench, has as yet faced no
other consequences from bar enforcers, though an investigation is ongoing.
(Bob Van Voris, "The High Cost of Disclosure", National Law Journal,
4; Mary Lou Cooper, "The Cadillac Judge", Washington Law & Politics,
1998; Tacoma News-Tribune coverage, 1998,
website). Update Jul.
26, 2003: Washington Supreme Court suspends Schafer for six months.
January 19 -- 175,000
pages served on Overlawyered.com. Thanks for your support!
January 18 -- "Never
iron clothes while they're being worn". That's the winning
entry in Michigan Lawsuit Abuse Watch's third annual Wacky Warning Label
Contest. Bonnie Hay of Plano, Texas, found the warning on an iron.
Second place was awarded to a Traverse City, Mich. man's discovery of "Not
for highway use" on his 13-inch wheelbarrow tire, and third place went
to "This product is not to be used in bathrooms" on a bathroom heater.
M-LAW president Robert B. Dorigo Jones said the contest had a serious point,
to illustrate manufacturers' growing
fear of lawsuits and the retreat of principles of individual responsibility.
Finalists in earlier years' contests have included sleeping pills labeled
"May cause drowsiness"; a cardboard sunshield to keep sun off a car's dashboard
that warned "Do not drive with sunshield in place"; and a cartridge for
a laser printer that warned the consumer not to eat the toner. (CNN/AP,
Jan. 13; M-LAW; contest
January 18 -- Courts
mull qui tam constitutionality. The Civil War-era
False Claims Act provides stringent civil penalties for anyone who submits
inflated or false bills to government procurement officials, and the "relator"
provisions of that act allow any private citizen to bring suit to enforce
the law and obtain damages for the United States. The relator --
who may be an employee of the defendant enterprise, or a complete stranger
-- can then by law collect a share of between 15 and 30 percent in any
recovery obtained by the government, with no need to prove an injury to
himself. Qui tam actions have soared in number in recent years,
actively solicited by lawyers seeking rich contingency payouts (the law
was liberalized in 1986 to provide treble damages). For their part,
businesses, hospitals and universities complain that the quality of accusations
filed against them is often low (see Sept.
9 commentary) and that the law can actually encourage bad behavior
by bounty-hunting employees who (for example) may fail to report billing
irregularities promptly to higher management finding it more lucrative
to let them mount and then file a legal complaint. In Pennsylvania,
eyebrows were raised when one entrepreneur pitched his services to a hospital
as a consultant for the prevention of false claims, and then, having been
turned down for that job, proceeded to sue that hospital and 99 others
as relator based on a statistical analysis of their billing patterns.
Recently the qui tam provisions have come under heightened scrutiny.
On November 15, writing for a panel of the Fifth Circuit U.S. Court of
Appeals, Judge Jerry Smith struck down as unconstitutional the portions
of the act that authorize actions by uninjured parties in the absence of
a go-ahead from Washington, ruling that such suits encroach on the Constitutionally
guaranteed separation of powers by impairing the executive branch's right
to control litigation that goes on in the name of government interests.
The case will be reheard by the full Circuit. Moreover, the decision
may have had immediate repercussions at the U.S. Supreme Court, which had
already agreed to consider whether the state of Vermont can be sued by
one of its own former staff attorneys, acting as relator, for allegedly
exaggerating the proportion of its employees' time that was allocable to
federally reimburseable environmental programs. Apparently responding
to the Fifth Circuit decision, the Court ordered the lawyers in the Vermont
case to brief the issue of whether the relator provisions are unconstitutional.
Even if the Court does not go that far, it might rule that the application
of the law to states as defendants violates the Constitution. Justice
Stephen Breyer called it "one thing" to allow individuals to sue private
federal contractors and "quite another" to "set an army of people loose
on the states." Update: The Court later upheld the constitutionality
of the act's relator provisions, but ruled that state governments cannot
be named as defendants (Francis J. Serbaroli, "Supreme Court Clarifies,
Broadens Antifraud Laws", New York Law Journal, July 27, reprinted
at Cadwalader, Wickersham & Taft site) See also April
30, 2001, July 30, 2001.
SOURCES: Peter Aronson, "Whistleblower Breaks New Ground",
Law Journal, Oct. 27; Susan Borreson, "5th Circuit Slams Qui Tam Suit",
Lawyer, Nov. 22; Vermont Agency of Natural Resources v. United
States ex rel. Stevens, Supreme Court case 98-1828; Kenneth
Jost, "Qui Tam Comes To the High Court", The Recorder/CalLaw, Nov.
30; Charles Tiefer, "Don't Quit on Qui Tam", Law News Network, Nov. 29.
MORE BACKGROUND: Fried, Frank;
Steven G. Bradbury, "The Unconstitutionality of Qui Tam Suits", Federalist
Society Federalism and Separation of Powers Working Group Newsletter,
1, no. 1; Mark Koehn and Donald J. Kochan, "Stand Down", Legal Times,
Dec. 6, 1999, reprinted
at Federalist Society site; Dan L. Burk, "False Claims Act Can Hamper
Science With 'Bounty Hunter' Suits", The Scientist, Sept.
4, 1995; Ridgway W. Hall Jr. and Mark Koehn, "Countering False Claims
Act Litigation Based on Environmental Noncompliance", National Legal Center
for the Public Interest, Sept.
1999 (PDF format). Pro-qui tam sites, many of which double
as client intake sites for law firms, include those of Taxpayers
Against Fraud; Phillips
& Cohen; Ashcraft
& Gerel; Miller, Alfano
& Raspanti; QuiTamOnline.com;
and Chamberlain & Kaufman.
January 18 -- Columnist-fest.
Pointed opinions on issues that aren't going away:
* Major League Baseball, meet Soviet psychiatry? Charles Krauthammer
on the John Rocker case, and why it's dangerous to view racism and general
unpleasantness of opinion as suitable candidates for mental-health treatment
("Screwball psychologizing", Washington Post, Jan. 14)
* John Leo on how courts and legislatures often seize on ambiguous enabling
language as a blank check for vast social engineering: vague provisions
in state constitutions get turned into an excuse to equalize school funding
or strike down tort reform, domestic violence gets federalized on the grounds
that it affects interstate commerce, and more. ("By dubious means",
News & World Report, Jan. 24).
* Clarence Page asks why states fight so hard to keep convicts in prison
even after newly emergent DNA evidence clears them of the original rap.
Do prosecutors and wardens care more about maintaining high inmate body
counts, or about doing justice? ("When Innocence Isn't Good Enough",
Chicago Tribune, Jan. 3).
January 17 -- New
York court nixes market-share liability for paint. In
a setback for lawyers hoping to make lead paint their next mass-tort breakthrough,
a New York appeals court has rejected the plaintiffs' request that "market-share
liability" be applied to the industry. This theory allows claimants
to dispense with the need to show whose products
they were exposed to, in favor of simply collecting from all defendants
who sold the item, in proportions based on their market share. In
explaining why such methods of assigning liability would be unjust, the
court observed that paint makers did not have exclusive control over risks
arising from their products, that makers sold at different times and to
different markets, and that the composition of paint differed substantially
from one maker to the next. (Jim O'Hara, "Court Sinks Lead Poisoning
Case", Syracuse Online, Jan.
January 17 -- Montreal
"Lawsuit of the year". "Two bagpipers sued Swissair
for lost income from tourists at Peggy's Cove because of the plane
crash that killed 229 people in September of 1998. They claim their
income declined dramatically while the lighthouse area was closed to the
public." ("Technology", Dec. 31; Richard Dooley, "Swissair responds to
bagpipers' lawsuit", Halifax Daily News, June 22, 1999).
January 17 -- Dot-coms
as perfect defendants. They're flush with venture-capitalist
and IPO cash, they're run by hormone-crazed kids who bring a party atmosphere
to the office, and they haven't developed big human resources bureaucracies
to make sure nothing inappropriate goes on. Why, they're the perfect
harassment defendants! New York contingency-fee attorney David
Jaroslawicz, a veteran of securities class actions and now "an aspiring
scourge of the Internet", hopes to
spearhead a resulting "Silicon Alley sex-suit wave". He has filed
three suits on behalf of disgruntled female employees, including two against
free-access provider Juno.com, one of which has been dismissed, and a third
against Internet-TV producer Pseudo.com.
Asked why he happened to ask for the same amount, $10 million, in both
lawsuits against Juno, Jaroslawicz says the damage request "is 'arbitrary,
whatever the secretary types in' -- just as long as it has enough zeros".
You 'put in some high absurd number, because you can always take less,'
Mr. Jaroslawicz explained." (Renee Kaplan, "The Sexual Harassment
Suit Comes to Silicon Alley", New York Observer, Jan. 17).
January 17 -- New
improvement to the Overlawyered.com site: better search capability.
This weekend we installed the PicoSearch
internal search engine, which you'll find to be a big leap forward from
our previous search system: fast results displayed in context, fuzzy logic
to catch near-misses, no ads, search boxes available on key pages, and
so forth. In addition, the database indexed now includes our editor's
home page (with a wide selection of articles, mostly on legal themes).
Give it a test run, either by visiting our search page or just by typing
your search into the box in the left column and hitting "return".