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ARCHIVE -- FEB. 2001 (III)

February 28-March 1 -- Put out that match.   Environmental activists are stepping up efforts to curb agricultural burning, a practice common among farming peoples since prehistoric times.  One pressure group in Washington state filed a complaint a year and a half ago charging that the state was violating the Americans with Disabilities Act by issuing permits to wheat farmers to burn the stubble of their fields, the argument being that the smoke from the practice could aggravate existing respiratory distress among the disabled.  Last March the state entered into a pact with the activists in which it agreed, among other things, to "conduct airplane flights ... to assess compliance with legal permitting requirements for wheat-stubble burning" and to enter mediation concerning other demands.  (Department of Ecology news release, March 3, 2000).  And via Irk Magazine (Nov. 1) we learn of the existence of Burning Issues, founded by a Sierra Club activist, whose mission is to crusade against the burning of wood -- that is to say, wood as in fireplaces and wood stoves.   Its website includes headings like: "The holidays -- the deadliest time of the year" with advice on ways to roast chestnuts other than on an open you-know-what, as well as its motto: "Learn Not To Burn".  The ever-meddlesome American Lung Association has come out for tighter restrictions on household woodburning, declaring that "individuals should avoid burning wood in houses where less polluting heating alternatives are available" -- which is to say, rejecting entirely as an adequate reason for snuggling in front of a fireplace simply that you and your snugglee might enjoy doing so.  (Government Relations position, April 24, 1999).

February 28-March 1 -- "It's time to disarm the hired guns".   "'He acted as a lawyer,' said longtime Clinton adviser Harold Ickes of his law partner William Cunningham's pardon work while he was treasurer of Hillary Clinton’s Senate campaign. ... The legal profession can’t take much more of this free publicity."  (Arianna Huffington, syndicated column, Feb. 26).

February 28-March 1 -- By reader acclaim: suing over circumcision.   William Stowell is suing the hospital where he was born, saying that his adult sex life is not as much fun for him and his partners as it might have been because it subjected him as an infant to the surgical procedure of circumcision.  "Stowell is just a test case for a new niche of personal-injury caselaw being carved out by Atlanta lawyer David Llewelyn, who has become to the anti-circumcision camp what Johnnie Cochran is for celebrities accused of horrendous, made-for-TV crimes.  More than a decade since the first 'wrongful circumcision' case, Llewelyn has been increasingly successful at winning settlements ($65,000 in a 1995 case, for example) and blocking unwanted circumcisions." (Gersh Kuntzman, "Sex life not good?  Sue!", Newsweek/MSNBC, Feb. 26)

February 27 -- Appeals panel: schools' harassment rule unconstitutional.   A panel of the Third Circuit U.S. Court of Appeals has unanimously ruled that the State College, Pa. school district impermissibly infringed on freedom of expression when it adopted a policy banning a broad range of name-calling and other deprecating speech directed at students' sex, race, color, national origin, age, disability, or "other personal characteristics" such as "clothing," "appearance," "hobbies and values" and "social skills".  "There is no categorical 'harassment exception' to the First Amendment's free speech clause," wrote Judge Samuel Alito.  "Moreover, the SCASD Policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law." (April White, "3rd Circuit Finds School Anti-Harassment Policy Violates Free Speech Rights", The Legal Intelligencer (Philadelphia), Feb. 16).

February 27 -- Forbidden paint zone.   Touring a school in her New York City council district, Eva Moskowitz noticed that although most of each classroom had been newly painted, the upper part of the walls and the ceiling conspicuously hadn't been.  It turned out to reflect a systemwide work rule: custodians can only paint the walls up to ten feet, beyond which you have to call in the painters.  It's "a bizarre and wasteful approach to maintenance that we would never accept in any other context.  Would you want your apartment to be painted in two steps, perhaps years apart?  Your inconvenience would be doubled," to say nothing of how the results would look.  "The 10-foot rule is a symptom of a much deeper problem. We are at the mercy of an educational monopoly, a system that is the sole repository of public funds for education and therefore competes with no one for the privilege of educating our children."  (Eva Moskowitz, "Paint by Numbers", The New Democrat Online, Dec. 20) (via WSJ Opinion Journal).

February 26 -- Insurance class settlement scuttled.   Following scrutiny of the case by a reporter for the Albuquerque, N.M. Journal, Santa Fe attorney Gary Duncan has dropped a proposed settlement of a class action against the MassMutual life insurance company which would have paid him millions of dollars while all but two policyholders received no cash at all.  "The lawsuit accuses MassMutual of failing to disclose installment charges that it levies on policyholders who pay annual premiums over time rather than in one lump sum.  The proposed settlement called for Duncan to receive $5 million in cash, a $3 million life-insurance policy and annual payments of $250,000 for life.  The two MassMutual policyholders named as plaintiffs in the lawsuit would have shared $400,000, but 6 million other current and past policyholders represented by Duncan would have received nothing." 

"The insurance company has acknowledged not expressly stating installment charges in policies, but it has said policyholders could easily calculate such charges from payment schedules.  It also has said that its policies have been approved by state insurance regulators," according to reporter Thomas Cole in the Albuquerque paper.  More than a dozen similar class actions have been filed against insurers in New Mexico courts, and in December state judge Robert Scott approved a settlement in a case against Primerica Life Insurance Co. in which lawyers shared $7.5 million in fees and costs, the company agreed to improve disclosures, two named plaintiffs got $30,000 each, and the other 3 million members of the plaintiff class got $0.00.  Although Duncan wasn't one of the lawyers in the Primerica case, one lawyer who was, Floyd Wilson of Albuquerque, also turned up as one of the two named plaintiffs in the MassMutual case "and was to receive $250,000 under the proposed settlement."  (Thomas J. Cole, "Lawyers Reap Millions in Suits Against Insurers", Albuquerque Journal, Feb. 18; "Attorney Backs Out of Insurance Settlement ", Feb. 23).  Noted class-action objector Lawrence Schonbrun calls the MassMutual settlement "the poster child for class action abuse" (press release, not online, law offices of Lawrence Schonbrun, (510) 547-8070). (DURABLE LINK)

MORE ON CLASS ACTIONS: Tatiana Boncompagni, "Businesses, Lawyers Gird for Tort Battle", Legal Times, Feb. 14 (class action reform shaping up as one of earliest legal-system fights in Congress this year); Amanda Levin, Insurers Cry Out for Class-Action Reform, National Underwriter, April 24, 2000, reprinted at United Farmers Agents Association site (big class actions have insurers alarmed; quotes our editor); Mary Alice Robbins, "Tort Reformers Pushing for Limits on Class Actions — Again", Texas Lawyer, Feb. 12, reprinted at CALA Houston site; and perhaps the least shocking headline of the year 2000: Maggie Mulvihill, "Lawyers fight cap on class action fees", Boston Herald, Oct. 10

February 23-25 -- Hugh Rodham's "success fee".   What's so awful about President Clinton's brother-in-law charging presidential pardon-seekers on a contingency basis, accepting his whopping fee from them only if Brother Bill can be prevailed on to grant the clemency?  Doesn't that just guarantee customer satisfaction on the part of the client?  Ira Stoll asked that question in yesterday's SmarterTimes (Feb. 22) so here's one answer: lawyers are supposed to act as officers of the court, which means they're obliged to refrain from doing many things that might make their clients happy at the expense of justice.  If you incentivize lawyers too sharply by promising an instant fortune if they find a way to win, more of them will fall into ethical lapses and bad judgment (disgracing their senator sis, for example) in the quest to find get-rich-quick cases of this sort and make them come out the right way.  That's why most legal systems ban contingency fees for lawyers as unethical, and why ours used to do so too (more by our editor on this: part one, two). See also Chris Suellentrop, "Explainer: Should Hugh Rodham Be Disbarred?", Slate, Feb. 23) (Florida ethics rules forbid contingency payment in criminal cases, but it's not clear whether pardon lobbying counts as such). 

February 23-25 -- "P.C., M.D."   Sally Satel is making a stir with her critique of the politicizers of medicine, particularly the "indoctrinologists" who seem to have taken over much of the field of public health.  She summarizes her thesis in this talk before the American Enterprise Institute.  ("Postmodern Medicine", Bradley Lecture Series, Jan. 8) (more about book)(New Republic review by Sherwin P. Nuland, Feb. 19).

February 23-25 -- "Cop's claim: Gun belt too heavy".   "A five-year Federal Way Police Department veteran has filed a $57,000 damage claim against the city, saying he was forced to wear a heavy leather gun belt and holster that damaged his hip."  Roger Baldwin, 29, says he has developed bursitis.  (Seattle Post-Intelligencer, Feb. 22).

February 23-25 -- Top jury awards soar in 2000.   "Each year, there are record jury verdicts handed out somewhere.  But 2000 saw the largest verdict ever awarded -- $145 billion in a products liability class action.  Indeed, massive awards in nearly every category jumped significantly last year."  Especially hot: awards for patent infringement and other IP claims.  ("The Verdict on Jury Awards in 2000", National Law Journal, Feb. 15; Margaret Cronin Fisk, "Patent Victories Reflect 2000 Trend", Feb. 19; "Jury verdicts rise despite economy: paper", Reuters/FindLaw, Feb. 9).

February 21-22 -- 3Com prevails in shareholder suit.   A California judge has dismissed on summary judgment a shareholder class action against 3Com, which had alleged that the high-tech firm misled investors in 1996 and 1997.  "Despite the 1995 Private Securities Litigation Reform Act, 3Com -- like other companies dealing with dips in the stock market -- has faced a flood of securities fraud class actions. ... 'They were tired of getting sued,' [said Keith Eggleston, a Wilson Sonsini lawyer who defended 3Com].  'A lot of companies settle these because they need to get rid of distraction and it's the path of least resistance.' ... Since the 1995 legislation, securities class action filings in federal courts have increased from 188 in 1995 to 238 in 1999, according to National Economic Research Associates, an economic consulting and analysis firm based in New York. The cost of settlements has also risen substantially in the past five years, from $8.5 million to $12 million."  (Shannon Lafferty, "Judge Dismisses Securities Fraud Suit Against 3Com", The Recorder (S.F.), Jan. 31).

While the case is a setback for plaintiffs' attorneys Milberg Weiss Bershad Hynes & Lerach, which has sued 3Com three times in recent years, the law firm fared better in a White Plains, N.Y. courtroom where a federal judge ruled that Milberg had not maneuvered improperly to secure lead-counsel status in a class action against Oxford Health Plans Inc. (see Jan. 18).  Judge Charles Brieant rejected contentions by Oxford's lawyers, Sullivan & Cromwell, that Milberg's clients had been trying to sue despite favorable results on their Oxford investments.  (Jonathan D. Glater, "Judge's Ruling Is Victory for Law Firm's Reputation", New York Times, Feb. 16).

February 21-22 -- ABA criticizes zero tolerance.   Who says we're doomed always to disagree with the leadership of the American Bar Association?  They've now voted to oppose zero tolerance school discipline policies ("ABA Opposes 'Zero Tolerance' in Schools", AP/ABCNews.com, Feb. 20).  And the L.A. Times reports that school districts around the country have been quietly dropping or softening the policies, appalled by their tendency toward results both harsh (straight-A students kicked out for having a nip in the limo on prom night) and irrational (Seattle officials first expelled, later contenting themselves with suspending, a student who had a box cutter in his backpack for use in his after-hours job in a supermarket; numerous Boy Scouts got in trouble for knives; not to mention "the 10-year-old in Colorado who brought her mother's bread knife to school by mistake and was expelled even though she had turned it over to school authorities."  "We were just throwing kids out,'' said an assistant superintendent of the Brea Olinda schools in Orange County, Calif.  "It was a tough-love policy without the love.'' (Jessica Garrison, "Schools Learn Zero Tolerance Isn't 100 Percent Foolproof ", L.A. Times/St. Louis Post-Dispatch, Feb. 19).

February 21-22 -- Welcome visitors.   We were named yesterday (Tuesday) as the latest "Cool Site" by National Review Online; cited by Scott Norvell in his FoxNews.com column on political correctness and free speech, "Tongue-Tied"; and made it onto the Wall Street Journal's "Opinion Journal Best of the Web" (Feb. 20).  So it's no surprise that readership of this site is on track to set another record this month.  Thanks for your support!

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