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ARCHIVE -- AUGUST 2002
(III)
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August 30-September 2
-- Banish those desk photos of spouse at beach.
A few years ago, when a Nebraska graduate student was targeted with a complaint
from a university colleague for displaying a photo at his workplace of
a woman in skimpy beachwear who happened to be his wife, some assumed it
was a fluke case. But it wasn't. "[D]esktop photographs of
bikini-clad girlfriends or bare-chested husbands ... could result in sexual
harassment claims, lost productivity or a tarnished company image,
say employment experts. 'Employers have a duty to provide a work environment
that is not objectionably and subjectively hostile, so the days of pinups
in the locker room should be past,' says John Lowe IV, an attorney in Kegler
Brown Hill & Ritter's Columbus labor and employment practice group."
Yep, they're perfectly serious (Betsy Butler, "Dress code good strategy
for desktop photo display", Columbus Business First, Aug.
23). (DURABLE LINK)
August 30-September 2
-- Intel sued in notorious county. Lawyers
have filed a lawsuit seeking class-action
status on behalf of personal computer owners "against Intel, Gateway,
and Hewlett-Packard alleging the companies misled them into believing the
Pentium 4 was a superior processor
to Intel's own Pentium III and AMD's Athlon. The complaint -- Neubauer
et al v. Intel et al -- was filed June 3 in the Third Judicial Circuit
in Madison County, Illinois." (Tom Mainelli, "Intel, PC Makers Sued Over
P4 Performance", PCWorld.com, Aug.
16; discussion, StorageReview
forums). Litigation buffs will immediately recognize the chosen
venue, Madison County, Ill., as being perhaps the most celebrated destination
in the country for class-action "forum-shopping", its courts recognized
as unusually accommodating to the designs of the lawyers who file such
suits. For one recent view of the county's reputation, see: Adam
Liptak, "Court Has Dubious Record as a Class-Action Leader", New York Times,
Aug.
15 (reg) (DURABLE LINK)
August 30-September 2
-- Second Circuit: we mean business about stopping frivolous securities
suits. The New York law firm of Jaroslawicz & Jaros
"faces nearly $200,000 in sanctions after a federal appeals court said
it had not received a severe enough penalty for an abusive securities
fraud suit." The 2nd U.S. Circuit Court of Appeals has weighed
in three times on the case; among its rulings was that "the presence of
some nonfrivolous claims in an otherwise frivolous complaint is not sufficient,
standing alone, to establish that either the violation of Rule 11 [the
main federal rule providing sanctions against meritless litigation] was
de
minimis or that the sanctions would create an unreasonable burden,
for purposes of overcoming the statutory presumption of the PSLRA [Private
Securities Litigation Reform Act of 1995]." (Tom Perrotta, "2nd Circuit
Imposes Stiff Fine in Securities Fraud Case", New York Law Journal,
Aug.
27). Mr. David Jaroslawicz, of Jaroslawicz & Jaros, last
figured in these chronicles on Jan. 17,
2000, after he was quoted in the New York Observer as hoping
to spearhead a wave of sexual-harassment suits against the then-flush firms
of New York's Silicon Alley. (DURABLE
LINK)
August 29 -- 7.000
missing colors, many of them crisply green. Last week
Palm, the handheld computer maker, conceded that although it had advertised
its m130 model, introduced in March, as displaying 65,536 different colors
or color combinations, the actual number is a mere 58,621 -- "approximately
11 percent fewer color combinations than we had originally believed", as
a Palm spokeswoman said. Attorneys with the Philadelphia law firm
of Sheller, Ludwig & Bailey promptly filed a lawsuit in Santa Clara,
Calif. Superior Court seeking class-action
status on behalf of Palm's customers, traumatized as they no doubt
were by this hue shortfall. Legal experts predict that Palm will
most likely settle rather than face the legal uncertainties and bad publicity
of a protracted suit, but that customers shouldn't expect anything more
than coupons, future discounts and the like. "It's hard to put a
dollar figure on how much you have been damaged because your computer
won't do some particular feat you might never ask it to do anyway," said
Norman Spaulding, a professor at the Boalt Hall School of Law at the University
of California at Berkeley. (Elisa Batista, "Palm Handed Suit Over
Colors", Wired News, Aug.
24). (DURABLE LINK)
August 29 -- Discrimination
suit roundup. "The state of New Jersey has agreed to pay
$250,000 to settle claims by three black men who said they were victims
of racial profiling by the New Jersey state police. Attorney Stefan Presser
of the American Civil Liberties Union of Pennsylvania said the settlement
is the largest ever in a civil rights suit in which the victims were neither
physically injured nor jailed" and says New Jersey should adopt it a model
for other cases where black motorists were stopped and questioned without
adequate justification. (Shannon P. Duffy, "New Jersey Settles Profiling
Suit for $250,000", The Legal Intelligencer, Aug.
22). The Taco Bell chain has agreed to pay $160,000 to settle
the racial discrimination claims of a St. Louis family who, traveling 24-strong
on a chartered bus through Cullman, Ala. in July 1998, waited about 15
minutes after requesting service. Each of the 24 will get about $1,000;
the settlement "includes another $111,000 for attorney expenses and more
than $17,000 in attorney fees." ("Taco Bell settles discrimination
lawsuit", AP/NBC13.com, Aug. 26). And New York gubernatorial hopeful
Andrew Cuomo, the former federal housing secretary and gun-suit backer,
has called for legislation to make discrimination a felony -- we'll sleep
a lot sounder knowing errant taco-chain managers are behind bars.
("Cuomo: Make Discrimination a Felony", News12/The Bronx, Aug. 25). (DURABLE
LINK)
August 28 -- "Parents
suing youth football league". Texas: "Parents of a fifth-grade
boy asked the courts Tuesday to throw a yellow penalty flag on Katy Youth
Football over a rule change that switched players to different teams after
practice started. In a lawsuit filed Tuesday, an attorney sued the Katy
Youth Football league on behalf of his son. The boy had played with his
grade-level
team before being switched because of age to a junior high-level group
with "significantly larger" players. Russell Van Beustring and his wife,
Pamela Van Beustring, are asking a judge to order the league to revert
to rules in place when children registered in May." (Jo Ann Zuniga, Houston
Chronicle,
Aug. 20). (DURABLE LINK)
August 27 -- Ford
rollover verdict: you read it here first. We usually
refrain from running items pointing out that we covered one or another
litigation story before the major media picked it up. However, we
can't help noting for the record that we were three years (!) early in
beating the New York Times to the facts of the case they gave front
page treatment to yesterday, namely Romo v. Ford Motor, "the
largest punitive award ever affirmed by an American court in a personal
injury case: $290 million to the family of three people killed in the rollover
of a Ford Bronco." (Ford has asked the California Supreme Court to
review an intermediate court's upholding of the award.) We're glad
to see this case finally getting some attention, and glad to find the Times
highlighting the same angle of the case that we found most striking, the
very strange goings-on in the jury room: one juror recounted to her colleagues
a gruesome, omen-like dream revealing Ford's guilt, while another juror
passed on to her colleagues the contents of a badly misremembered "60 Minutes"
episode also supposedly establishing the carmaker's
malign state of mind. The Times sees all this as reason to
hold a public debate about whether juries' determinations of such issues
as punitive damages are sufficiently reliable to count as law at all.
We don't mind having such a debate -- we just wonder why we couldn't have
had it three years ago, when all the same facts were on the public record
(see this site's entries for Aug. 24,
1999 and Sept. 17-19, 1999).
(Adam Liptak, "Debate Grows on Jury's Role in Injury Cases", New York Times,
Aug.
26 (reg))(& update Oct. 24: California
Supreme Court leaves verdict intact)
P.S. While on the subject of juror misconduct, Vanderbilt
University law professor Nancy J. King found in a study "that modern-day
judges, while acknowledging that sleeping jurors are a fairly common sight,
do not see them as a serious threat to the fairness of trials." So comforting!
"In June, two members of the jury that convicted the accounting firm [Arthur
Andersen] of obstruction of justice told Texas Lawyer, an affiliate of
The National Law Journal and law.com, that two colleagues slept through
parts of the six-week trial, and that the alleged nappers were in such
a fog that one thought NASA was involved in the case and the other believed
that prosecution star witness David Duncan was the one on trial."
In a 1987 case, Tanner v. United States, 483 U.S. 107, "a majority composed
of the U.S. Supreme Court's most conservative members" declined to overturn
Anthony Tanner's conviction for mail fraud despite testimony from two jurors
that several of their colleagues had dozed off; one juror in his affidavit
said "the jury was on one big party," and that consumption of marijuana,
liquor and cocaine at lunch all contributed to later drowsiness.
(Gary Young, "Asleep at the Trial", National Law Journal, Aug.
21). (DURABLE LINK)
August 27 -- OxyContin
wins one in West Virginia. A judge has dismissed a case
filed against Purdue Pharma, maker of the pain medication, on behalf of
the estate of a 41-year-old drug abuser who died after crushing the pills
and injecting them into her bloodstream. The Charleston Daily
Mail editorially draws some lessons about personal responsibility (Aug.
23)(see Apr. 10 and links from there).
(DURABLE
LINK)
August 26 -- "Junk
fax" suit demands $2 trillion. The Federal Communications
Commission recently took enforcement action against the enterprise Fax.com
for (it said) extensively violating the federal law banning unsolicited
commercial fax-sending. Last week Silicon Valley entrepreneur Steve
Kirsch (more)
and another plaintiff filed suits demanding the federal statutory penalty
of $500 for each unsolicited fax sent, trebled to a sum he estimates at
$2.2 trillion; Kirsch says Fax.com boasts that it sends 3 million faxes
a day. The gross national product of all countries on the globe stands
at $29 trillion or thereabouts, which would leave the plaintiffs if successful
with a claim on something like 7 percent of the earth's annual output if
they could collect it. And although it is not clear how many assets
Fax.com will be found to have at the end of a suit, Kirsch is also suing
for $500 per offending transmission Fax.com's telecommunications provider,
Cox Communications, as well as its advertisers. "'We believe that there
are companies with substantial assets in this group. We will seek treble
damages of $1,500 per unsolicited fax from Fax.com and Cox Communications,'
Kirsch said in a statement." (Bob Egelko, "2 trillion junk fax suit:
Silicon Valley man demands Fax.com end unsolicited messages", San Francisco
Chronicle,
Aug.
22; Andrew Quinn, "Lawsuits Seek $2.2 Trillion over 'Junk' Faxes",
Reuters/IEEE Spectrum, Aug.
23). Cox Communications is a NYSE-listed company with assets
of $25 billion, according
to Fortune. More on junk-fax suits as "Powerball for the
clever": July 24, 2001 and links from
there. Fax.com's own website seems
to be doing its best to portray the company as dedicated to charitable
endeavors for the recovery of missing children, with a remarkable lack
of emphasis on how it actually makes its money. (DURABLE
LINK)
August 26 -- R.I.:
no more cheap car leases? "A Rhode Island jury has held
a car-leasing company vicariously liable for the negligence of a leased
car driver, resulting in a $28 million personal injury award. The verdict
against the Chase Manhattan Automotive Finance Corp. -- one of the largest
personal injury verdicts in the state's history -- followed the Rhode Island
Supreme Court's April ruling that long-term car-leasing companies can be
held liable for the actions of leased car operators under the state's owner
and lessor liability statutes." A lawyer for Chase warned of the
impact on consumers: "'There are about one million people in Rhode Island,'
he said. 'Assuming only 50,000 people lease their cars, leasing can become
prohibitively expensive' if lessors have to pass on the cost of multimillion-dollar
verdicts." (Annie Hsia, "Car-Leasing Company Held Liable in Crash",
National
Law Journal, Aug.
19). Updates: see Mar.
12-14 and May 21, 2003. (DURABLE
LINK)
August 23-25 --
Prominent French author sued for "insulting Islam". In
France, the latest chapter in the hate-speech-laws vs. free-speech saga:
"Prize-winning French novelist Michel Houellebecq is being sued by four
Islamic organisations in Paris after making 'insulting' remarks about the
religion in an interview about his latest book. The action against Mr Houellebecq,
44, is being launched on 17 September by plaintiffs including Saudi Arabia's
World Islamic League and the Mosque of Paris." The plaintiffs have
also brought charges against a literary magazine, Lire, in which Mr. Houellebecq
reportedly said that reading the Koran is "so depressing" and called Islam
"the stupidest religion". ("Author sued over Islam 'insult'", BBC,
Aug.
22)(see
Jun. 11-12). Update
Oct.
25-27: Houellebecq acquitted. (DURABLE
LINK)
August 23-25 --
Canada: cash demanded for drug users and panhandlers inconvenienced by
film crews. In Vancouver, B.C., which has become a popular
site for Hollywood location filming, a group representing sex workers,
drug users and homeless people has demanded compensation for film crews'
tendency to displace or disrupt illegal street activity. "The Vancouver
Area Network of Drug Users, which represents about 1,000 residents of the
seedy Downtown Eastside, has sent a letter demanding compensation to 30
production firms. They include Club Six Prods., currently filming MGM's
'Agent Cody Banks' starring Frankie Muniz and Angie Harmon." The
letter states: "Sex trade workers must be compensated for displacement
they experience at your hands in the same manner you would compensate a
business if you were to use their locale during operating hours. The same
must hold true for homeless people you push from beneath a bridge or doorway,
and drug users you move from a park." The letter also asks for financial
compensation for loss of residents' panhandling opportunities. (Don Townson,
"Canadian Hookers Campaign Against Hollywood", Variety/Yahoo, Aug. 21).
(DURABLE
LINK)
August 23-25 --
Don't ban peanut butter from schools. A small number of
kids have serious peanut allergies, and schools -- under pressure from
activist parents and fearful of litigation -- are beginning to ban the
nutritious foodstuff from their cafeterias and halls. Don't be stampeded,
advises columnist Dennis Prager: there would be less overall disruption
to children as a group if schools just made a point of keeping a stock
of epinephrine, the antidote to allergic shock, on hand (syndicated/Town
Hall, Aug.
21). (DURABLE LINK)
August 22 -- Defying
the link-banners. David Sorkin, "associate professor of
law at The John Marshall Law School in Chicago, Ill., is the man behind
Don't
Link to Us, a Web site that exists merely to flout what it terms 'stupid
linking policies.' Sorkin's site was launched in reaction to recent
legal decisions in which courts upheld Web site terms and conditions that
prohibited
or restricted links," including a decision in which a Danish court
ruled that the NewsBooster site could not link to internal story pages
within various news organizations' sites. (Paul Festa, "Site fights
'stupid linking'", ZDNet News, Aug.
21). (DURABLE LINK)
August 22 -- Jury
clobbers NYC with $21 million slip/fall verdict. "A Manhattan
jury has awarded more than $21 million to a woman who tripped over a four-inch
protrusion of a broken parking sign and suffered serious head injuries
as a result — the largest slip-and-fall verdict ever leveled against the
city. Aides to Mayor Bloomberg are calling the verdict excessive, and have
vowed to use it to illustrate why limits need to be placed on the city’s
liability in personal injury cases." (Errol Louis, "A Record Liability
Verdict Is Brought In Against City", New York Sun, Aug. 21). More
coverage: Susan Huners, "Sidewalk Hazard Costs NYC $21 Million",
National
Law Journal, Sept.
12. (DURABLE LINK)
August 22 -- We
did it all for the public health, cont'd. Although fewer
than 300 acres of tobacco are grown in Alabama, "Tobacco farmers in Alabama
have received $500,000 from the national tobacco
settlement. ... [Meanwhile,] only $350,000 is being spent for anti-smoking
programs, with most of that aimed at young people. Let that sink in: More
money from Alabama's portion of the national tobacco settlement goes to
people who grow tobacco than to those who are trying to get people to kick
their tobacco habits." ("Strange truths" (editorial), Birmingham News,
Aug.
21). (DURABLE LINK)
August 21 -- Judge
questions "shotgun" naming of 282 defendants in trailer-mold case.
According to a May 22 report in the Baton Rouge Advocate, the Fifth
Circuit has agreed to examine a dispute between Lafayette, La. attorney
Barry Domingue and U.S. District Judge Tucker Melancon, who is hearing
a case filed by Domingue against no fewer than 282 manufacturers.
The lawsuit, which seeks certification as a class action, purports to represent
plaintiffs who "unknowingly bought poorly made manufactured homes defective
in design, composition and construction. The lawsuit alleges that the defective
design allowed condensation to create formation of a toxic mold
in the walls, making occupants sick. The companies have denied that they
produce an inferior product, and they are seeking dismissal of the case.
During a hearing last month, Melancon ordered Domingue to disclose to the
court all investigative files and any other materials used to develop the
lawsuit. The judge said Domingue would have to explain why he included
the 282 companies as defendants, even though many of them haven't done
business in Louisiana and many others have gone bankrupt. The judge said
Domingue would be required to pay legal fees of any companies included
in the lawsuit without proper justification." The judge also expressed
skepticism toward Domingue's contention that the manufacturers had collectively
conspired to conceal the dangers of mold in trailers and were thus each
open to suit. Domingue contends that Judge Melancon has become an
advocate for the defense side in the litigation. (Bruce Schultz,
"Lawyer attacks critical judge in mobile-home suit", Baton Rouge Advocate,
May 22). (DURABLE LINK)
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