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ARCHIVE -- JAN. 2001 (II)

January 19-21 -- "Wacky warning label" winners.   First place in the fourth annual Wacky Warning Label contest sponsored by Michigan Lawsuit Abuse Watch went to "a label on a pair of shin guards for bicyclists: "Shin pads cannot protect any part of the body they do not cover."  Second place? a "label on a toilet at a public sports facility in Ann Arbor, Michigan warning 'Recycled flush water unsafe for drinking' ... Honorable mention went to a Texan who found a label on an electric wood router made for carpenters which cautions: 'This product not intended for use as a dental drill.'" (Jan. 17; M-LAW site; Andrea Cecil, "Wacky warnings", FoxNews.com, Jan. 17). 

January 19-21 -- Come to America and sue.   Lawyers representing survivors of German victims of last summer's Concorde crash near Paris airport have now sued Air France, Continental Airlines and several other defendants.  And where have they filed their suit?  Why, in the United States, naturally -- which is thousands of miles from the crash site, but where we hand out much bigger tort awards than they do in France.   ("Victims' families file suit in Concorde crash", CNN, Jan. 9; see Sept. 29). 

January 19-21 -- Turn off those registers.   The Lemelson Foundation, famously hyperactive in patent assertion (see Aug. 28, 1999), has sued 135 national retail chains claiming that its patents have been infringed by their use of bar-code scanning technology.  Representing defendants, Kenneth Chiate of Pillsbury, Madison & Sutro says that if the foundation prevails it could get a court to issue an injunction against using the familiar check-out method: "They could put a stop to the whole retail industry in this country... it could be devastating."  (Kirsten Andelman, "Pillsbury Wins Beauty Contest", The Recorder (San Francisco), Nov. 7). 

January 18 -- Annals of zero tolerance: gun-shaped medallion.   "School officials have suspended a third-grade student under the state's zero-tolerance weapons law after he brought a 1 1/2-inch-long gun-shaped medallion to class.  The boy apparently found the piece of jewelry in a snowbank and brought it to Owen Elementary School on Wednesday, school officials said.  'State law takes precedence and requires us to take action even though it was a toy,' said Donna Poag, director of elementary education for the Pontiac [Mich.] School District." ("Third-grader suspended for gun-shaped medallion in school", AP/CNN, Jan. 13). 

January 18 -- "Bogus" assault on Norton.   Opponents of Interior Secretary-designate Gale Norton (Jan. 15, Jan. 5) have absurdly sought to depict her as pro-Confederacy based on a 1996 speech she gave to the Independence Institute.  But as Mickey Kaus points out at Kausfiles.com: "The more inflammatory charges against Norton based on this speech appear to be almost totally bogus .... Norton's opponents ask 'Who is "we" in the phrase "we lost too much"'? But 'we' clearly means 'we Americans who should believe in states' rights,' not 'we Americans who believe in the Confederate cause.' ...You might not find her speech convincing, but only a willful misreading turns it into any sort of secret embrace of the Confederate cause." (left column, dated Jan. 17). 

Meanwhile, the Sierra Club, in what may be another sign of an emerging working relationship between the more extreme environmental groups and activist trial lawyers (see Dec. 7), has made it an explicit part of its case against Norton's confirmation that while a lawyer in private practice she "worked to dissuade state attorneys general" from turning paint companies (one of which she was representing) into the "next tobacco".   Other public figures who get in the way of this kind of retroactive expropriation through litigation should be duly warned: they, too, may turn up on the Sierra Club's hit list ("NH Sierra Club opposes Norton confirmation", AP/FindLaw, Jan. 17). (DURABLE LINK)

January 18 -- What they did for lead-plaintiff status?   A brief filed by New York's Sullivan & Cromwell last fall alleged that class-action powerhouse Milberg Weiss Bershad Hynes & Lerach engaged in some fancy footwork in an attempt to gain the lucrative lead counsel position in a huge securities class action against Sullivan's client, Oxford Health Plans Inc.  "According to the brief, Milberg Weiss clients filed 'misleading' affidavits to 'create the appearance that they had suffered substantial losses' from trading in Oxford stock. In fact, one of Milberg's two clients reaped a huge profit from his trading, while the other suffered much smaller losses than others vying to become 'lead plaintiff' and seize control of the litigation under the Private Securities Litigation Reform Act of 1995, the brief alleges. ... Milberg Weiss' response ... contends that Sullivan & Cromwell 'distorted the facts and ignored the law, all the while peppering their papers with outrageous and unfounded allegations.'"  (Karen Donovan, "A Case of Ill-fitting Oxfords?", National Law Journal, Oct. 3).  More on the case: Peter Elkind, "The King of Pain Is Courting New Trouble", Fortune, Oct. 2; Cameron Stracher, "Attorneys' Fee-for-All", New York, Oct. 23 ("S&C is just mad," claims one lawyer, "because Milberg partners make more money than they do."); Scott Gottlieb, "Presidency or Health Care Giant, There's a Lawsuit in There Somewhere", WebMD, Nov. 17.  Update: a federal judge rejected the charges; see Feb. 21-22

January 17 -- "Coming soon to a school near you".   In Washington's alt-weekly City Paper (Jan. 12-18), "Loose Lips" columnist Jonetta Rose Barras reprints the following letter, which "leaves even [her] speechless": 

District of Columbia Public Schools 
Office of the General Counsel 
Labor Management and Employee Relations 

November 16, 2000 

Dear Ms. [name withheld]: 

On June 23, 2000, you were informed by letter that you would not receive an offer of employment with the District of Columbia Public Schools (DCPS) based on the results of your criminal background check. Based on your subsequent presentation of documentation that your 1984 charge for Uniformed Controlled Substance Act, Cannabis was no papered; that your 1984 charge for shoplifting was nolle prosequi; that your 1984 charge for assault with a dangerous weapon, razor was no papered; that your 1984 charge for destruction of government property was nolle prosequi; that your 1986 charge for assault with a deadly weapon was dismissed; that your 1987 charge for soliciting for prostitution was nolle prosequi; that your 1989 charge for assault with a dangerous weapon, razor was no papered; and that your 1992 Uniform Controlled Substance Act, possession with intent to distribute cocaine was dismissed. You are eligible for employment with DCPS. 

If you have any questions or concerns, kindly contact Labor Management and Employee Relations at (202) 442-5373. 


Delores Hamilton 
Acting Director of Human Resources 

cc: Alfred Winder 
Employee Services and Staffing 
Office of the General Counsel 
Labor Management and Employee Relations 
Division of Security 
Official Personnel File 

January 17 -- ABA's toothless ethics proposals.   The American Bar Association's "Ethics 2000" commission wants to revise lawyers' ethical code, the Model Rules of Professional Conduct.  But don't get your hopes up: the panel shows little enthusiasm for requiring lawyers to observe basic consumer protection precepts such as the disclosure to clients of the billing methods they use or of the existence of alternatives to contemplated legal work.   Public comments must be submitted before May.  (David A. Giacalone, "Counselors Oughtta Counsel (Not Conceal)", PrairieLaw, Dec. 7). 

January 16 -- "Holocaust Reparations -- A Growing Scandal".   Back in the September issue of the American Jewish Committee's journal Commentary, senior editor Gabriel Schoenfeld laid down a courageous challenge to the prevailing view of the World War II reparations crusade, pointing out the difficulties of resolving old title claims to bank accounts, insurance and real estate even when the holders of financial trusts are acting in good faith; questioning some reparations activists' insistence on portraying in the worst possible light the actions during the war of such nations as the Netherlands and Switzerland; and exploring the often far from constructive role played by ambitious American lawyers and politicians.  Now, in its January issue, the magazine publishes a "Controversy" in which numerous readers, including Deputy Secretary of the Treasury and key reparations negotiator Stuart Eizenstat, react to Schoenfeld's article, and he responds to their criticisms. 

January 16 -- Batch of reader mail.   The latest additions to our letters page discuss tax farming, things hospital staff do to so as not to risk being sued, lawyers' monopoly on real estate transactions (and the state of the courts generally), and where to buy hallucinogens other than on eBay.  Also, an attorney from Louisiana is really upset with us for our coverage of his client's suit over racetrack payouts. 

January 15 --  The Times vs. Gale Norton.   "The New York Times, for reasons that must be assumed to be political, has attempted to smear Gale Norton, President-elect George W. Bush's choice for secretary of Interior," writes Al Knight, columnist with the generally liberal Denver Post. Times reporter Timothy Egan sought to link Norton, who served as Attorney General of the state of Colorado, with inadequate law enforcement efforts in response to contamination from a gold mine in the town of Summitville, which allegedly led to the "death" of the Alamosa river.  Don't miss Knight's devastating point-by-point correction of Egan's numerous misimpressions: Knight concludes that "[a]ny mishandling of the [four-year-old] Summitville litigation can be directly traced to the EPA and to the Justice Department."  (Timothy Egan, "The Death of a River Looms Over Choice for Interior Post", New York Times, Jan. 7 (reg); "Summitville gold mine is cast as a political boogeyman", Denver Post, Jan. 10; "The blame for Summitville" (editorial), Jan. 11; via WSJ OpinionJournal.com). 

National environmental groups' jihad against Norton may have found a ready ear among some editors in cities like New York where, to quote Fran Lebowitz, the outdoors consists of the distance between one's apartment lobby and a taxicab.  But it exasperates many who actually worked with Norton in Colorado, to judge by a report in Denver's other major paper, the Rocky Mountain News.  "'There was never one iota of reticence to pursue polluters on (Norton's) part,' said Patrick Teegarden, policy director for the Colorado Department of Public Health and Environment and himself a Democrat.  'She took her role in enforcing our laws very, very seriously and did an excellent job on behalf of this agency.'"  On the much-misrepresented "self-audit" issue (see July 19, 1999 and link to Schulte, Roth and Zabel article there), Norton's position was backed by Democratic Gov. Roy Romer and by the state legislature.  (Todd Hartman, "Ex-cohorts deny Norton was patsy for polluters", Rocky Mountain News, Jan. 14).  Some trial lawyers, meanwhile, have it in for Norton because as a private attorney she counseled a major paint manufacturer on how to resist the courtroom assault aimed at turning the decades-ago sale of lead paint into the next tobacco (Douglas Jehl, "Environmental Groups Join in Opposing Choice for Interior Secretary", New York Times, Jan. 12 (reg)). 

A Jan. 13 Times report, meanwhile, darkly announces that Norton "has repeatedly challenged some of the laws that she would be obligated to enforce."  As one example, it offers the famous case of Adarand Contractors v. Pena, in which Norton as AG declined to represent the state against a suit that "challenged Colorado's support of a law setting aside some highway contracts for businesses headed by members of minority racial groups, a provision that Ms. Norton has opposed as unfair."  But Times reporter Douglas Jehl fails to note that higher courts, including the U.S. Supreme Court, proceeded to rule in Adarand's favor, confirming Norton's view.   Writes Ira Stoll of the invaluable daily Times-watchdog newsletter, SmarterTimes: "It's just flat-out false for the New York Times to report this Adarand matter as proof that Ms. Norton 'has repeatedly challenged some of the laws that she would be obligated to enforce.' She'd be under no obligation to enforce those racial set-aside laws as secretary of the interior -- they are illegal and unconstitutional, as federal courts have repeatedly ruled.  She was right to have challenged them."  And Stoll observes that the Denver Post's Al Knight "noted in a column that in opposing some of the state's affirmative action policies in 1995, Ms. Norton was 'doing precisely what the law requires her to do, make sure that the state is behaving in a lawful manner with minimal exposure to discrimination lawsuits.'" (Douglas Jehl, "Norton Record Often at Odds With Laws She Would Enforce", New York Times, Jan. 13 (reg); SmarterTimes, Jan. 13) (write a letter to the Times). (DURABLE LINK)

January 15 -- "Killer's suit alleges job discrimination".   Committed to state psychiatric care since the 1978 killing of his wife and stabbing of his daughter and grandmother, Richard L. Greist is now suing the hospital where he's a resident for allegedly discriminating against him by refusing to hire him for a job as clerk.  His suit charges that Norristown State Hospital and the Pennsylvania Department of Public Welfare violated the Americans with Disabilities Act as well as the Constitution's Equal Protection Clause.  "Greist has been found to have paranoid schizophrenia and mixed-personality disorder."  He is being represented by attorney Neil O'Leary.  (Kristin E. Holmes, "Killer's suit alleges job discrimination", Philadelphia Inquirer, Jan. 4) (more on killers' rights: Jan. 7, 2000, Sept. 24, 1999). 

January 12-14 -- Hunter sues store over camouflage mask.   Gregory Abshier, 42, of Kent City, Michigan, was paralyzed three years ago when he fell out of a tree stand used for bow hunting.  He's now suing retailer Meijer Inc. for selling him the camouflage mask he was using at the time, claiming he was overcome by fumes from its dyes.  He's being represented by the Southfield law firm of well-known litigator Geoffrey Fieger.   Also named in the suit is Hunter's Specialties Inc., of Cedar Rapids, Iowa, makers of the mask.  (Doug Guthrie, "Paralyzed hunter sues Meijer over camouflage mask", Grand Rapids Press, Dec. 26). 

January 12-14 -- The Kessler agenda.   Critics used to say former food and drug chief David Kessler had a more extreme antilibertarian agenda on tobacco than he let on at the time, and you know what?  They were right.  He's now out with a new book (A Question of Intent) arguing that the government should prohibit the sale of cigarettes to persons not already confirmed smokers (after all, wasn't alcohol prohibition a roaring success?) and that it should establish a nonprofit monopoly enterprise to sell the things.  (Duncan Campbell, "US call to ban cigarette sales", Guardian (UK), Jan. 8). 

January 11 -- By reader acclaim.   Among recent stories submitted by multiple correspondents: 

*  Latest McDonald's coffee lawsuit: Teresa Reed of Murphysboro, Ill. says her ankle was burned on New Year's Eve 1998 when the hot beverage spilled out of a cup holder in her mother's car.   She's suing the local McDonald's operator, along with Wal-Mart for selling the cup holder, another company for making it, and -- best detail -- her mom, asking $450,000.  What, no suit against the automaker?  (Karen Binder, "McDonald's Being Sued; Couple Allege Coffee Was Served Too Hot", Southern Illinoisan, Jan. 8; "McDonald's Sued Over Spilled Coffee", AP/Washington Post, Jan. 9) (more on hot beverage suits: Aug. 10 and list at end). 

*  In Vancouver, B.C., a "man who became a slave to crack cocaine is suing his alleged dealers, claiming they 'owed a duty of care' to their customers and should have known their activities could cause harm. "  (Greg Joyce, "Cocaine-addicted man files court claim, suing alleged dealers for damages", CP/Ottawa Citizen, Jan. 3; "Crack addict sues dealers for lack of care", Ananova.com, Jan. 4). 

* As expected, Baltimore lawyer-Orioles owner Peter Angelos (asbestos, tobacco, lead paint) has sued companies connected with the cellular phone industry charging that radiation from the devices causes cancer, despite a further ebbing of the always-tenuous scientific backing for that proposition (National Cancer Institute, "No Association Found Between Cellular Phone Use and Risk of Brain Tumors", press release, Dec. 21; Steven Milloy, "Junk science: Studies steal cell phone lawyer's Christmas", FoxNews.com, Dec. 22; Chris Ayres, "Vodafone sued over brain cancer", The Times (London), Dec. 28; "Cancer scare hits cell firms", CNNfn, Dec. 28; Richard Baum, "Mobile phone firms face fresh suits over tumours", Reuters/ FindLaw, Dec. 28). Update Oct. 1-2, 2002: court dismisses case.

January 11 -- In the gall department.   Napster Inc., the company that made a huge success by encouraging its users to take a casual approach toward other people's intellectual property, went to court last month to file a trademark-infringement suit.  It's suing a souvenir apparel-maker for allegedly selling T-shirts and other items bearing its well-known logo without its consent.  (Benny Evangelista, "Napster Sues Firm for Trademark Violations", San Francisco Chronicle, Dec. 30). 

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