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May 10 -- "Barbecue
group sued over contest". Jim Woodsmall of Jumpin' Jim's
BBQ in Johnston, Ia., has sued the Kansas
City Barbeque Society, charging that his business has suffered because
the society has failed to award his barbecue
recipe the stellar ratings he feels it deserved. The enthusiast
group fails to follow impartial and uniform rules in its cook-offs, Woodsmall
claims, which he thinks amounts to fraud and negligence. (Lindsey
A. Henry, Des Moines Register, May
8).
May 10 -- Fortune
on Lemelson patents. We've run a couple of items on the
amazing Jerome Lemelson patent operation (see Jan.
19, 2001 and August 28, 1999)
and now Fortune weighs in with the best overview we've seen.
Lemelson, who died in 1997, filed patents
for hundreds of ideas and industrial processes which he said he had invented,
and which underlay such familiar modern technologies as VCRs, fax machines,
bar-code scanners, camcorders and automated warehouses. A mechanical
genius? Well, at least a genius in figuring out the angles that could
be worked with American patent law: by filing vague patents and then arranging
to delay their issuance while amending their claims to adjust to later
technological developments, Lemelson steered them into the path of unfolding
technology, eventually securing bonanzas for his tireless litigation machine.
Foreign-owned companies folded first because they were afraid of American
juries, which helped give Lemelson the war chest needed to break the resistance
of most of the big U.S.-based industries as well. $1.5 billion in
royalties later, his estate continues to sue some 400 companies, with many
more likely to be added in years to come. (Nicholas Varchaver, "The
Patent King", May
14).
May 10 -- Prospect
of $3 gas. One reason refinery disruptions lead
to big spikes in the price of gasoline at the pump: environmental rules
end up mandating a different blend of gas for each state, hampering efforts
to ship supplies to where they're most needed. (Ron Scherer, "50
reasons gasoline isn't cheaper", Christian Science Monitor, May
4; Ben Lieberman (Competitive Enterprise Institute), "Skyrocketing
Ga$: What the Feds Can Do", New York Post, April 23, reprinted at
CEI site).
May 10 -- Welcome
Norwegian readers. We get discussed, and several of our
recent news items summarized, on the "humor" section of Norway's Spray
Internet service (Bjørn Tore Øren, "For mange advokater",
May
8). Among other non-U.S. links which have brought us visitors:
Australia's legal-beat webzine, Justinian
("A journal with glamour -- yet no friends"; more);
Baker
& Ballantyne, in the U.K.; the Virtual Law Library pages
on media law compiled by Rosemary Pattenden at the University of East
Anglia; and Sweden's libertarian- leaning Contra.nu
("Har advokatkåren i USA för stort inflytande?" they ask of
us)(more).
May 9 -- Oklahoma
forensics scandal. After serving fifteen years in prison
on a 1986 rape conviction, Jeffrey Pierce was released Monday after new
DNA evidence refuted testimony against him by a forensic specialist whose
work is the subject of a growing furor. "From 1980 to 1993,
Joyce Gilchrist was involved in roughly 3,000 cases as an Oklahoma City
police laboratory scientist, often helping prosecutors win convictions
by identifying suspects with hair, blood or carpet fibers taken from crime
scenes." Although peers, courts and professional organizations repeatedly
questioned the competence and ethical integrity of her work, prosecutors
asked few questions, perhaps because she was getting them a steady stream
of positive IDs and jury verdicts in their favor. Now Oklahoma Gov.
Frank Keating has ordered an investigation of felony cases on which Gilchrist
worked after an FBI report "found she had misidentified evidence or given
improper courtroom testimony in at least five of eight cases the agency
reviewed." (Jim Yardley, "Flaws in Chemist's Findings Free Man at Center
of Inquiry", New York Times, May
8; "Inquiry Focuses on Scientist Used by Prosecutors", May
2)(reg)
May 9 -- Not about
the money. Foreign policy making on a contingency fee:
"When
attorneys agreed to champion the causes of American victims of terrorism
in the Middle East, it wasn't supposed to be about the money." We've
heard that one before, haven't we? "But the prospect of multimillion-dollar
fees in what once seemed to be long-shot litigation against Iran has left
lawyers fighting over fees in federal court in Washington, D.C. High
principles of international law and justice aren't at stake. It's
simply a matter of who gets paid." (Jonathan Groner, "Anti-Terrorism
Verdicts Spur Big Fee Fights", Legal Times, April 18).
May 9 -- Update:
cookie lawsuit crumbles. Half-baked all along, and now
dunked: a federal court in March dismissed a would-be class action lawsuit
against web ad agency DoubleClick over its placing of "cookies"
on web users' hard drives. Other such suits remain pending (see also
Feb.
2, 2000); this one was brought by Milberg Weiss's Melvyn
Weiss and by Bernstein, Litowitz (Michael A. Riccardi, "DoubleClick
Can Keep Hand in Cookie Jar, Federal Judge Rules", New York Law Journal,
March
30).
May 8 -- "Lawyers
to Get $4.7 Million in Suit Against Iomega". "Lawyers
in a class action suit alleging defects
in portable computer Zip disk drives will get the only cash payout, up
to $4.7 million, in a proposed settlement with manufacturer Iomega Corp.,
according to the company's Web site." Rebates of between $5 and $40
will be offered to past customers who buy new Iomega products, while Milberg
Weiss and three other law firms expect to split their fees in crisp
greenbacks, not coupons, if a Delaware judge approves the settlement in
June. (Yahoo/Reuters, April 12) (Rinaldi
class action settlement notice, Iomega website).
May 8 -- A definition
(via Sony's Morita and IBM's Opel). "Litigious (li-TIJ-uhs)
adjective: 1. Pertaining to litigation; 2. Eager to engage in lawsuits;
3. Inclined to disputes and arguments. [From Middle English, from Latin
litigiosus
from litigium, dispute.]
"'My friend John Opel of IBM wrote an article a few years ago titled
'Our Litigious Society,' so I knew I was not alone in my view that lawyers
and litigation have become severe handicaps to business, and sometimes
worse." -- Sony co-founder Akio Morita (Wordsmith.org "A
Word a Day" service, scroll
to Jan. 26).
May 8 -- "Halt
cohabiting or no bail, judge tells defendants".
"A federal judge in Charlotte is using a 19th-century N.C. law banning
fornication and adultery, telling defendants they won't be freed on bond
until they agree to get married, move out of the house or have their partner
leave. U.S. Magistrate Judge Carl Horn won't release a criminal defendant
on bond knowing that he or she will break the law. And that includes
North Carolina's law against unmarried couples cohabiting, placed on the
books in 1805." (Eric Frazier and Gary L. Wright, Charlotte Observer,
April
4) (see also May 18, 2000).
May 7 -- Says cat
attacked his dog; wants $1.5 million. "A San Marcos
man has filed a $1.5 million claim against the city because a cat who lives
in the Escondido Public Library allegedly attacked his dog." Richard
Espinosa says he was visiting the library on November 16 with his assistance
dog Kimba, a 50-pound Labrador mix, when the feline, named L.C. or Library
Cat because it's allowed to live in the building, attacked the dog inflicting
scratches and punctures. As for Espinosa, wouldn't you know, he "was
emotionally traumatized and suffers from flashbacks, terror, nightmares
and other problems." Four lawyers declined to take his case and he
finally filed it himself. "The cat was apparently uninjured."
(Jonathan Heller, "Escondido gets $1.5 million claim; library cat allegedly
assaulted dog", San Diego Union-Tribune, May
4) (see letter to the editor from Espinosa, June
13).
May 7 -- Judge
throws out hog farm suit. As was reported a few months
ago, a number of environmental groups
aim to take a lesson from the tobacco affair by using mass lawsuit campaigns
to pursue various goals which they haven't been able to secure through
the legislative and electoral process. To do this they've teamed
up with tobacco-fee-engorged trial lawyers; the nascent alliance got lots
of publicity in December with one of its first projects, suing Smithfield
Farms for billions over the nuisance posed by large-scale hog farming,
a project apparently masterminded by Florida trial lawyer Mike Papantonio
(tobacco, asbestos, fen-phen) and with suits against chicken and livestock
operations promised in later phases of the effort (see Dec.
7, 2000). Far less publicity has been accorded to Judge Donald
W. Stephens's ruling in March which threw out the first two lawsuits as
having failed to state a legal claim against the large hog packer and raiser.
(Appeal is expected.) Power scion Robert F. Kennedy, Jr. is still
on board with his headline-ready name to front for the lawyers in the press,
but he doesn't seem to have gone out of his way to call attention to the
adverse ruling ("North Carolina judge dismisses lawsuits against hog producer",
AP/MSNBC, March 30; Scott Kilman, "Environmental groups target factory-style
hog farm facilities",
Wall Street Journal/MSNBC, undated;
Smithfield press release, March
29).
MORE: National Public Radio, "Living on Earth" with Steve
Curwood and reporter Leda Hartman, week
of Feb. 16; Water Keeper Alliance (Kennedy's group), hog
campaign homepage with list
of lawyers (J. Michael Papantonio, Steven Echsner and Neil Overholtz,
Levin, Papantonio, Pensacola, Fla.; Thomas Sobol, Jan Schlichtmann,
Steven Fineman and Erik Shawn of Lieff, Cabraser, New York and Boston;
F. Kenneth Bailey, Jr. and Herbert Schwartz of Williams Bailey, Houston;
Howard F. Twiggs and Douglas B. Abrams of Twiggs, Abrams, (Raleigh, N.C.),
Ken Suggs and Richard H. Middleton, Jr. of Suggs, Kelly & Middleton
(Columbia, S.C.), Joe Whatley, Jr., Birmingham, Ala.; Kevin Madonna, Chatham,
N.Y.; Stephen Weiss and Chris Seeger, New York; Charles Speer, Overland
Park, Kan.; Hiram Eastland, Greenwood, Miss.) Compare "Conoco Could
Face $500 Million Lawsuit Over Bayou Water Pollution Problems", Solid
Waste Digest: Southern Edition, March
2001 (page now removed, but GoogleCached) (Papantonio campaign in Pensacola).
May 7 -- Website
accessibility law hits the U.K. "Scottish companies
were warned yesterday that they could face prosecution if their websites
are not accessible to the disabled. Poorly-designed websites are
often incompatible with Braille software." (more)
(yet more) (Pauline McInnes, "Firms
warned on websites access", The Scotsman, April
19).
May 4-6 -- By reader
acclaim: "Vegetarian sues McDonald's over meaty fries".
Seattle attorney Harish Bharti wants hundreds of millions of dollars from
the burger chain for its acknowledged
policy of adding small amounts of beef flavoring to its french fries, which
he says is deceptive toward vegetarian customers (ABCNews.com/ Reuters,
May
3). Notable detail that hasn't made it into American accounts of
the case we've seen, but does appear in the Times of India: "When
he is not practising law in Seattle, Bharti says he teaches at Gerry Spence's
exclusive College for Trial Lawyers in Wyoming". Does this mean you
can be a predator without being a carnivore? ("US Hindus take on
McDonald's over French fries", Times of India, May
3) (see also Aug. 30, 1999).
May 4-6 -- Mississippi's
forum-shopping capital. The little town of Fayette, Miss.,
reports the National Law Journal, is “ground zero for the largest
legal attack on the pharmaceutical industry” in memory. Tens of thousands
of plaintiffs are suing in the Fayette courthouse over claimed side effects
from such drugs as fen-phen,
Rezulin, and Propulsid, not because they're local residents (most aren't)
but because the state's unusually lax courtroom rules allow lawyers to
bring them in from elsewhere to profit from the town's unique brand of
justice. The townspeople, nearly half of whom are below the poverty
level and only half of whom graduated from high school, “have shown that
they are willing to render huge compensatory and punitive damages awards”.
Among other big-dollar outcomes, Houston plaintiff's lawyer Mike Gallagher
of Gallagher, Lewis, Serfin, Downey & Kim “helped win a $150 million
compensatory damages verdict for five fen-phen plaintiffs in Jefferson
County on Dec. 21, 1999. The jury deliberated for about two hours…”
There’s just one judge in Fayette County to hear civil cases, Judge Lamar
Pickard, whose handling of trials is bitterly complained of by out-of-town
defendants. As for appeal, that route became less promising
for defendants last November when plaintiff’s lawyers solidified their
hold on the Mississippi Supreme Court by knocking off moderate incumbent
Chief Justice Lenore Prather.
Lots of good details here, including how the Bankston Drug Store, on
Main Street in Fayette since 1902, has the bad fortune to get named in
nearly every suit because that tactic allows the lawyers to keep the case
from being removed to federal court. Plaintiff's lawyer Gallagher,
who also played a prominent role in the breast implant affair, says criticism
of the county’s jurors as easily played on by lawyers "'sounds racist',
since the jury pool is predominantly black". He also brushes off
defendants' complaints about forum-shopping with all the wit and sensibility
at his command: "They want to tell me where I can sue them for the damage
they caused? They can kiss my a**." (Mark Ballard, "Mississippi
becomes a mecca for tort suits", National Law Journal, April 30).
May 4-6 -- Agenda
item for Ashcroft. Attorney General Ashcroft could make
a real difference for beleaguered upstate New York communities by backing
off the Justice Department's Reno-era policy of avid support for revival
of centuries-dormant Indian land claims, which went so far as to include
the brutalist tactic of naming as defendants individual landowners whose
family titles had lain undisturbed since the early days of the Republic
(see Oct. 27, 1999, Feb.
1, 2000) (John Woods, "Long-Running Indian Land Claims in New York
May Hinge on Ashcroft's Stance", New York Law Journal, April 16).
May 3 -- "Family
of shooting victim sue owners of Jewish day-care center".
If the gunman doesn't succeed in wiping out your institution, maybe the
lawyers will: "The parents of a boy who was shot by a white supremacist
at a Jewish day-care center have filed a lawsuit claiming the center's
owners failed to provide the necessary security to prevent hate crime attacks."
Buford O. Furrow fired more than 70 shots at the North Valley Jewish Community
Center in Los Angeles on Aug. 10, 1999 (AP/CNN, May
1).
May 3 -- Update:
mills of legal discipline. They grind slow, that's for
sure, but does that mean they grind exceeding fine? A disciplinary
panel has ended its investigation of New Hampshire chief justice David
Brock, letting him off with an admonishment, in the protracted controversy
over the conduct (see April 5 and
Oct.
11, 2000) which also led to his impeachment and acquittal in the state
senate; Brock's lawyer had threatened to sue the disciplinary panel if
it continued its probe, and a dissenting committee member called that lawsuit-threat
"intended to intimidate" ("Threat of lawsuit ended Brock case", Nashua
Telegraph, April 23; Dan Tuohy, "Finding bolsters call for reform",
Foster's Daily Democrat, April 26). A hearing committee
of the District of Columbia Board on Professional Responsibility has recommended
that Mark Hager be suspended for three years over the episode [see Feb.
23, 2000] in which he and attorney John Traficonte "began negotiations
with [drugmaker] Warner-Lambert to make refunds to consumers, and to pay
himself and Hager $225,000 in exchange for which they would abandon their
representation, agree to hold the agreement and fee secret from the public
and their clients, and promise not to sue Warner-Lambert in the future.
Traficonte and Hager accepted the offer without first obtaining the approval
of any class member." The disciplinary committee "found that Hager's
conduct was shockingly outrageous, and that his status as a law professor
was a factor in aggravation." We've seen no indication that anyone
in the administration of American
University's law school, where Hager continues
to teach, has expressed the smallest misgivings about the example that
students are supposed to take from his conduct (Denise Ryan, law.com D.C.,
Board on Professional Responsibility No. 31-98, In re Hager, issued
Nov.
30, 2000). (Update Jul.
19, 2003: Hager resigns AU post in April 2003). And off-the-wall Michigan
tort lawyer and politician Geoffrey
Fieger faces charges before the state attorney grievance commission
following reports that he used his radio show to unleash "an obscenity-laced
tirade" against three state appeals judges ("Fieger Under Fire For Alleged
Swearing Fit", MSNBC, April
17).
May 3 -- "Valley
doctors caught in 'lawsuit war zone'". A report from the
Texas Board of Medical Examiners finds medical
malpractice cases approximately tripled in 1999 in Texas's McAllen-Brownsville
region compared with the previous year. Among short-cuts lawyers
are accused of employing: suing doctors without an authorization from the
client, and hiring as their medical expert a family doctor who charges
$500 an hour and has reviewed 700 cases for lawyers, second-guessing the
work of such specialists as cardiovascular surgeons, but has not herself
(according to an opposing lawyer) had hospital privileges since 1997.
(James Pinkerton, Houston Chronicle, March 2 -- via Houston
CALA). State representative Juan Hinojosa has introduced a bill
that would allow doctors and hospitals to countersue
lawyers and clients who file suits with reckless disregard as to whether
reasonable grounds exist for their action. ("Doctors seek new remedy
to fight frivolous lawsuits", CALA Houston, undated).
May 2 -- Suing
the coach. "A teenager, who felt she was destined
for greatness as a softball
player, has filed a $700,000 lawsuit against her former coach, alleging
his 'incorrect' teaching style ruined her chances for an athletic scholarship.
Cheryl Reeves, 19, of Rambler Lane in Levittown, also alleges that her
personal pitching coach, Roy Jenderko, of Warminster, not only taught her
an illegal style of pitching but also used 'favorite players' which resulted
in demoralizing the teen. " (Dave Sommers, "Legal Pitch", The
Trentonian, May
1).
May 2 -- Trustbusters
sans
frontieres. Truly awful idea that surfaced in the
press a while back: a bipartisan group of senators led by Sen. Arlen Specter
(R-Pa.) say they're trying to pressure the Bush administration to file
an antitrust suit against the Organization of Petroleum Exporting Countries,
accusing it of restricting the output of oil in order to raise prices to
consumers in countries like ours -- which is, of course, OPEC's reason
for existence. "Most antitrust and foreign policy experts interviewed
say they cannot imagine a scenario in which such legal action would succeed,
or that any president would risk his foreign policy goals for such a lawsuit",
reports the National Law Journal. But even the gesture of
inviting unelected judges and unpredictable juries to punish sovereign
foreign powers would increase the chances of our landing in a series of
confrontations and international incidents that would be at best imperfectly
manageable by the nation's executive branch and diplomatic corps (which
cannot, for example, necessarily offer to reverse or suspend court decisions
as a bargaining chip).
The United States's relations with OPEC countries, it will be recalled,
have on occasion embroiled us in actual shooting wars, which are bad enough
when entered after deliberation on the initiative of those to whom such
decisions are entrusted in our system of separation of powers, and would
be all the less supportable if brought on us by the doings of some rambunctious
judge or indignant jury. Wouldn't it be simpler for Sen. Specter
to just introduce a bill providing that the courts of the United States
get to run the world from now on? (Matthew Morrissey, "Senators to
Press for Suing OPEC Over Pricing", National Law Journal, March
1).
May 1 -- Columnist-fest.
Scourings from our bookmark file:
* Mark Steyn on the Indian residential-school lawsuits that may
soon bankrupt leading Canadian churches
(see Aug. 23, 2000): ("I'll give you
'cultural genocide'", National Post, April 9). Bonus:
Steyn on protectionism, globalization and Quebec City ("Don't fence me
in", April 19).
* Federalists under fire: there's a press campaign under way to
demonize the Federalist Society,
the national organization for libertarian and conservative lawyers and
law students. The Society has done a whole lot to advance national
understanding of litigation abuses and overuse of the courts -- could that
be one reason it's made so many powerful enemies? (Thomas Bray, "Life
in the Vast Lane", OpinionJournal.com, April
17; Marci Hamilton, "Opening Up the Law Schools: Why The Federalist
Society Is Invaluable To Robust Debate", FindLaw Writ, April
25; William Murchison, "In Defense of the Federalist Society", Dallas
Morning News, April
25).
* A Bush misstep: the White House has named drug-war advocate
and Weekly Standard contributor John P. Walters as head of the Office
of National Drug Control Policy. "Walters, almost alone among
those who have spent serious professional time on drug abuse in
America, harbors no misgivings over the fact that we've been crowding our
prisons almost to the bursting point with nonviolent drug offenders." (William
Raspberry, "A Draco of Drugs", Washington Post, April
30) (Lindesmith Center).
* "Overreaching IP legal teams kick the firm they supposedly represent":
Seth Shulman of Technology Review on the "patented peanut butter
sandwich" case (see Jan. 30).
("Owning the Future: PB&J Patent Punch-up", May).
Also: California
judge William W. Bedsworth ("Food Fight!", The Recorder, March 16).
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