ARCHIVE -- MARCH 2002
March 29-31 --
British judge rejects hot-drink suits. U.K. lawyers had
hoped to replicate the success of the celebrated American case in which
a jury voted Stella Liebeck $2.7 million (later reduced to just under $500,000,
and settled out of court) after she spilled
coffee in her lap. However, on Mar. 27 High Court Justice Richard
Field ruled against lawsuits by 36 patrons whose lawyers had claimed that
the burger chain failed to warn of risks of scalding, "served drinks that
were too hot, [or] used inadequate cups ... 'I am quite satisfied that
McDonald's was entitled to assume that the consumer would know that the
drink was hot and there are numerous commonplace ways of speeding up cooling,
such as stirring and blowing,' the judge said." ("British Judge Rules
McDonald's Not Liable for Hot Drinks That Scald", AP/TBO, Mar.
28; "Judge rules against McDonald's scalding victims", Daily Telegraph,
March 29-31 --
Florida's ADA filing mills grind away. The clutch
of Miami lawyers who've been making a tidy living filing disabled-accommodation
claims against local entrepreneurs are moving their way up into central
Florida, where they are suing tourist businesses along interstate corridors,
reports the St. Petersburg Times (see July
20, 2001 and links from there). One motel owner hit with a complaint
has agreed to pay off the plaintiff lawyer's hefty "fee" in installments,
but can't tell a reporter how big it is, because as part of the settlement
he is forbidden to disclose the amount. ("Big winners in disabled
crusade? Lawyers", St. Petersburg Times, Mar.
March 29-31 --
The lawyers who invented spam. "On April 12, 1994, Laurence
Canter and Martha Siegel, two immigration lawyers from Arizona, flooded
the Internet with a mass mailing promoting
their law firm's advisory services." Widely reviled at the time,
Canter is still quite unapologetic: "Yes, we generated a lot of business.
The best I can recall we probably made somewhere between $100,000 to $200,000
related to that -- which wasn't remarkable in itself, except that the cost
of doing it was negligible." (Sharael Feist, "Spam creator tackles
the meaty issue", ZDNet News, Mar.
March 27-28 --
Judge orders woman to stop smoking at home. In Utica,
N.Y., Justice Robert Julian has ordered Johnita DeMatteo, if she wants
to continue visitation rights with her 13-year-old son, to stop smoking
in her home or car, even in the boy's absence. "While similar rulings
have been made in cases where children are in poor health, Julian's ruling
is apparently the first involving a healthy child who is not allergic to
smoke" or suffer from a condition like asthma that would be worsened by
it. (Dareh Gregorian, "Judge Bars Mom from Smoking", New York Post,
Samuel Maull, "Judge Imposes Smoking Ban on Mother", AP/Washington Post,
25)(see Oct. 5 and Nov.
26, 2001). Following the publication of a new study suggesting
the possibility of a link between smoking and sudden infant death syndrome,
anti-smoking activists are excited to think they may now have the leverage
needed to obtain legal measures against smoking by parents in homes.
"Ms. [Gail] Vandermeulen of [Ontario] Children's Aid said attempts to curb
smoking in the home have so far proved unworkable. In 1999, for example,
the association drew up a policy trying to keep foster parents from smoking.
'It caused quite a controversy; people felt they had a right to do what
they want to do in their own homes,' Ms. Vandermeulen said. (Carolyn
Abraham, "Secondhand smoke linked to SIDS", Toronto Globe & Mail,
21). And anti-smoking activists, in a report financed by the
government of California, are demanding that an "R" rating be attached
to movies in which anyone smokes, putting Golden Age Hollywood films off
limits to the underage set unless they drag an adult to the theater with
them ("Anti-smoking groups call for movie ratings to factor in tobacco",
Hollywood Reporter, Mar.
12; "The Marlboro woman" (editorial), The Oregonian, Jan.
28 (Univ. of Calif.'s Stanton Glantz)). (DURABLE
March 27-28 --
"The American Way". Thanks to James Taranto at WSJ
"Best of the Web" (Mar.
26) for this pairing of quotes:
* "They evil ones didn't know who they were attacking. They thought
we would ... roll over. They thought we were so materialistic and self-absorbed
that we wouldn't respond. They probably thought we were going to sue them."
-- President George W. Bush, Mar.
* "Whether or not we invade Iraq to topple Saddam Hussein, let's
go about this the American way. Let's sue him."-- Nicholas Kristof,
New York Times (reg), Mar.
March 27-28 --
Reparations suits: so rude to call them extortion.
What happened on Wall Street when the first three major U.S. companies
were named in lawsuits demanding reparations for slavery? "In afternoon
New York Stock Exchange trading, Aetna shares were up 44 cents at $37.78,
CSX shares were up 66 cents at 37.55, and FleetBoston shares were up 24
cents at $35.38." Should we interpret that as a recognition of the
frivolous nature of the suits, or as investors' vote of sympathy for the
first extortion targets among many more to come? (Christian Wiessner,
"Reparations Sought From U.S. Firms for Slavery", Reuters/Yahoo, Mar.
26; "Suit seeks billions in slave reparations", CNN, Mar.
of complaint in PDF format, courtesy FindLaw; James Cox, "Aetna, CSX, FleetBoston
face slave reparations suit", USA Today, Mar.
24). Reparations activists are shrewdly structuring their meritless
suits as guilt-seeking missiles, aimed at corporations nervous about their
image and, coming up, the juiciest target of all: elite colleges and universities.
At Princeton, for example, an early president of the college was recorded
as owning two slaves at his death, and "numerous trustees and antebellum-era
graduates owned slaves." Reason enough to expropriate Old Nassau
-- get out your wallets, alums. (Andrew Bosse, "Reparations scholars
may name University in lawsuit", Daily Princetonian, Mar.
12; Alex P. Kellogg, "Slavery's Legacy Seen in the Ivory Tower and
Elsewhere". Africana.com, Aug.
28, 2001) (see Feb. 22).
"It's never about money," lawyer Alexander Pires of the Reparations
Coordinating Committee said last month. (Michael Tremoglie, "Reparations
-- 'It's Never About Money'", FrontPage, March
4). "To me it's not fundamentally about the money," said radical
Columbia scholar Manning Marable, who is also helping the reparations effort.
(Kelley Vlahos Beaucar, "Lawsuit Chases Companies Tied to Slavery", FoxNews.com,
Translation: it's about the money. And next time you are inclined
to be overawed by the reputation of Harvard Law School, consider that an
ornament of its faculty, Prof. Charles Ogletree, not only is a key adviser
to the reparations team but also co-chairs the presidential exploration
committee of buffoon/spoiler candidate Al Sharpton, whose name will be
forever linked with that of defamation victim Steven Pagones (see Dec.
29, 2000). (Seth Gitell, "Al Sharpton for president?", Boston
28 - Mar. 7). (DURABLE LINK)
March 27-28 --
Why your insurance rates go up. To the Colorado Court
of Appeals, it makes perfect sense to make an auto insurer pay for a sexual
assault that took place in a car. (Howard Pankratz, "Court: Attack
in car insured", Denver Post, Mar.
15). Update Oct.
15, 2003: state's Supreme Court reverses by 4-3 margin.
March 25-26 --
Web speech roundup. The famously litigious Church
of Scientology has had some success knocking a major anti-Scientology
site off the Google search engine
(the offshore Xenu.net, "Operation Clambake") by informing Google's operators
that the site violates copyrighted
church material under the Digital Millennium Copyright Act. (Declan
McCullagh, Google Yanks Anti-Church Sites", Wired News, Mar.
21; "Google Restores Church Links", Mar.
22; John Hiler, "Church v Google, round 2", Microcontent News,
22) (via Instapundit)(&
see Mar. 19, 2001). The
National Drug Intelligence Center, a unit of the U.S. Department of Justice,
acknowledged in December that it monitors more than 50 privately operated
websites that provide information about illegal drugs. In a report,
the Center warned that many such sites include material "glamorizing" such
substances or are "operated by drug legalization groups" with an aim to
"increase pressure on lawmakers to change or abolish drug control laws."
Yes, it's called "speech" to you, buddy (Brad King, "DOJ's Dot-Narc Rave
Strategy", Wired News, Mar.
13; "Government Admits Spying on Drug Reformers", Alchemind Society,
Mar. 15; National
Drug Intelligence Center, "Drugs and the Internet", Dec.
on what DoJ calls "offending" websites).
Companies continue to wield threats of litigation with success against
individuals who criticize them on
investor and other message boards: "Dan Whatley ...lost a $450,000 defamation
lawsuit for statements he had made about a company called Xybernaut on
an Internet message board. He said he didn't even know the suit existed."
(Jeffrey Benner, "Online Company-Flamers: Beware", Wired News, Mar.
1). The Texas Republican Party recently threatened legal action
against a parody website aimed at calling attention GOP links to the failed
Enron Corp., but succeeded only in giving the site's operators far more
publicity than they could have gotten in any other way (Eric Sinrod (Duane
Morris), "E-Legal: Republican Party of Texas Goes After Enron Parody Web
Site", Law.com, Mar.
5). The Canadian government
has demanded that pro-tobacco website Forces
Canada cease using a version of the national flag's maple leaf (which
turns out to be a trademarked logo) as a design feature, claiming it could
confuse viewers into thinking the site is officially sanctioned (Joseph
Brean, "Take Canadian flag off Web site, government tells smokers' group",
National Post, Jan.
30). And the Electronic Frontier Foundation along with law school
clinics at Harvard, Stanford, Berkeley, and the University of San Francisco
have launched the new Chilling Effects
Clearinghouse, aimed at assisting site owners worried about being accused
of violating copyrights or trademarks. It includes special sections
devoted to fan sites, poster anonymity and other issues, and publishes
examples of lawyers' letters commanding site owners to cease and desist,
popularly known as nastygrams. (Gwendolyn Mariano, "Site reads Web
surfers their rights", Yahoo/CNet, Feb.
26). (DURABLE LINK)
March 25-26 --
La. officials seek oyster judge recusal. "The Louisiana
Department of Natural Resources is asking a state district judge to remove
himself from hearing oyster lease damage cases because he has already awarded
a former client and the client's family almost $110 million from two previous
cases. Monday, state District Judge Manny Fernandez is set to begin
hearing more lawsuits claiming the Caernarvon Freshwater Diversion damaged
oyster leases in St. Bernard Parish. The state says at least one
plaintiff in the case is a former client of Fernandez's and that man's
family and related companies received damage awards in recent Fernandez
decisions. ... The upcoming case is the latest in a string of oyster damage
suits that, if upheld on appeal, will cost the state more than $1 billion,
according to the state's motion." (Mike Dunne, "DNR asks judge to
step down", Baton Rouge Advocate, Mar.
16). (DURABLE LINK)
March 25-26 --
Tribulations of the light prison sleeper. David
Wild, serving a sentence for murder at a medium security prison in British
Columbia, is asking C$3 million in damages over what he calls the prison's
"inhumane" practice of conducting head counts in the middle of the night,
which "has caused him to lose a full night's sleep 509 times over five
years." In particular, Wild's suit "says prison guards acted thoughtlessly
and carelessly by rattling door knobs, stomping down stairs, turning on
lights and talking loudly on two-way radios in the middle of the night."
Federal Court Justice James Hugessen has already ruled that the case can
go forward, rejecting the Canadian
government's attempt to get it thrown out as frivolous or vexatious.
(Janice Tibbetts, "Prison guards wake me up too much, murderer claims in
$3.1M lawsuit", Southam/National Post, Mar.
12). (DURABLE LINK)
March 22-24 --
"O'Connor Criticizes Disabilities Law as Too Vague". Another
noteworthy public speech from Supreme Court justice Sandra Day O'Connor
on a topic dear to our heart, namely the way the Americans
with Disabilities Act created a massive new edifice of rights to sue
without making clear who was actually covered by the law or what potential
defendants had to do to comply. Law professor Chai Feldblum,
who played a key role in guiding the law to passage while with the American
Civil Liberties Union's Washington office, counters by saying that its
backers were not rushed and devoted much care and attention to drafting
the bill's provisions. Note that this does not actually contradict
the charge of vagueness, but only Justice O'Connor's charitable assumption
that the vagueness was inadvertent; it is consistent with our own long-voiced
opinion that the bounds of the law were made unclear on purpose.
(Charles Lane, Washington Post, Mar.
15). For the Justice's comments last summer on the relation between
contingency fees, class actions and the litigation explosion, and on zero-tolerance
policies, see July 6, 2001. (DURABLE
March 22-24 --
Lawyers stage sham trial aimed at inculpating third party.
Arizona bar authorities say opposing lawyers in a medical malpractice case
cut a secret deal in which the lawyers for the physician defendant "promised
not to object to any of the plaintiffs' evidence in return for the plaintiffs'
promise to dismiss the case before the jury began deliberations."
A second defendant, Scottsdale Memorial Hospital, had already been dismissed
from the case on summary judgment, and for the plaintiffs the point of
the maneuver "was to create a record that would help them in seeking reconsideration
of the summary judgment in favor of the hospital". Both parties were
aware that the physician defendant's resources were insufficient to pay
the claim if successful. The trial judge had been suspicious of the
plaintiffs' motion to withdraw the case, and later discovered the secret
agreement when considering their motion to reconsider the summary judgment
in favor of the hospital.
The state bar of Arizona brought a disciplinary
action against Richard A. Alcorn and Steven Feola, who had represented
the doctor. (The plaintiff's attorney involved in the deal, Timothy
J. Hmielewski, is from Florida). A hearing officer recommended against
punishing the two, "concluding that the lawyers had a 'good faith belief'
that they had no duty to disclose the secret pact". However, both
a disciplinary panel and the Arizona Supreme Court disagreed, and the latter
ordered Alcorn and Feola suspended from practice for six months.
It "concluded that the scripted trial and prearranged dismissal worked
a serious fraud on the court and the public." The trial judge had
also "ordered all the attorneys involved to pay a $15,000 fine each for
committing a fraud on the court and duping the court into conducting 'a
mock trial at the taxpayers' expense.' That sanction was affirmed on appeal."
("'Sham Trial' Slammed, ABA Journal eReport, Mar.
8; In re Alcorn, Ariz. No. SB-01-0075-D.) (DURABLE
March 22-24 --
Arsenic: one last dose? Last year some environmental
groups did their best to make the public think that by pulling back the
Clinton administration's last-minute arsenic rules the incoming Bush White
House was trying to let "polluters", specifically the mining industry,
get away with dumping the poison into town drinking water supplies.
"This decision suggests the Bush Administration is caving to the mining
industry's demands to allow continued use of dangerous mining techniques,"
said Sierra Club executive director Carl Pope. (Sierra Club release, Mar.
20, 2001). "This outrageous act is just another example of how
the polluters have taken over the government," said Natural Resources Defense
Council senior attorney Erik Olson. (NRDC release, Mar.
20, 2001). Critics of the stringent Clinton rule said its real
victims would be ratepayers and taxpayers in the Southwest where municipal
water systems would be forced to spend huge amounts to remove traces of
naturally occurring arsenic that had been causing no evident health effects
(see Sept. 11, 2001 and links from
So who was right? The Bush people ran into a p.r. disaster and
soon backed down, but this week's L.A. Times report from Albuquerque,
N.M., which has more arsenic in its water than any other big American city,
suggests that the enviros won their victory on the issue by misleading
the public. Pretty much everyone the paper talked to in Albuquerque,
from the Democratic mayor on down, dislikes the new standard: "many people
here say the rule will do little more than cost the city $150 million,
and Albuquerque and the state of New Mexico are suing to block it."
Did mining operations cause the city's high arsenic levels? No, "volcanoes
and lava flows are responsible". (Elizabeth Shogren, "Albuquerque
Battles to Leave Arsenic in the Water", L.A. Times, Mar.
18). See also Robert McClure, "Mining, arsenic rules are next
on Bush's list", Seattle Post-Intelligencer, Mar.
21, 2001: "Virtually all arsenic in drinking water is naturally occurring."
Mining companies wind up being affected indirectly by drinking water standards
because of rules that treat mine runoff water as pollution if it flunks
drinkability standards, even (absurdly) if the natural occurrence of substances
like arsenic in the soil meant that the water would not have met the standard
with or without mining operations. (More: Nick Schulz, "Greens vs.
Poor People", TechCentralStation, Nov.
6; Jonathan Adler, "Wrong way on water", National Review Online,
13). (DURABLE LINK)