ARCHIVE -- OCTOBER 2002
October 18-20 --
EEOC: employer must accommodate "Church of Body Modification" beliefs.
Massachusetts: "Last year Costco Wholesale Corp. fired Kimberly M. Cloutier
of West Springfield for refusing to remove [her eyebrow] ring. She filed
a $2 million suit against the corporation. Cloutier, 27, belongs to the
of Body Modification, and maintains that her piercings, which include
several earrings in each ear and a recently acquired lip ring, are worn
as a sign of faith and help to unite her mind, body and soul. 'It's not
just an aesthetic thing,' Cloutier said. 'It's your body; you're taking
control of it.'
"Cloutier filed suit against Costco in Springfield’s U.S. District Court
after a finding in May by the U.S. Equal Employment Opportunity Commission
that Costco probably violated religious discrimination laws
when its West Springfield store fired Cloutier in July 2001. The commission’s
area director in Boston, Robert L. Sanders, determined that Cloutier’s
wearing of an eyebrow ring qualified as a religious practice under federal
law, and that Costco refused to accommodate Cloutier." (Marla A. Goldberg,
"Eyebrow ring, firing spark $2 million suit", MassLive/ Springfield Union-News,
16) (& see Megan McArdle, Oct.
21, and reader comments).Update Dec.
11, 2004: First Circuit federal appeals court grants summary judgment
in favor of store. (DURABLE LINK)
October 18-20 --
U.K.: "Dr. Botch" sues hospital for wrongful dismissal.
"A surgeon who was struck off the medical register after being held responsible
for the deaths of four women and the maiming of six others is suing his
former hospital for wrongful dismissal.
Steven Walker, nicknamed 'Dr Botch', is claiming up to £100,000 in
compensation for lost wages and 'unfair' treatment after being sacked by
the Victoria Blackpool Hospital in Lancashire last November." (Rajeev
Syal and Hazel Scotland, "'Dr Botch' issues writ against hospital in claim
for £100,000", Daily Telegraph (UK), Sept.
22). (DURABLE LINK)
October 18-20 --
Enron: "Who Enabled the Enablers?". "Congressional investigators
and plaintiffs' lawyers are closing in on Enron Corp.'s so-called enablers
-- the banks that made Enron's suspect deals possible. But the lawyers
on those deals haven't received much attention. Yet." (Paul Braverman,
"Who Enabled the Enablers?", The American Lawyer, Oct.
8). See also Otis Bilodeau, "Enron Report Casts Harsh Light on Lawyers",
30; Otis Bilodeau, "More Lawyers Snared in Enron Trap", Legal Times,
3; Susan Koniak, "Who Gave Lawyers a Pass?", Forbes, Aug.
12. (DURABLE LINK)
October 16-17 --
Ohio's high-stakes court race. A key race to be decided
at the polls next month
could challenge the four-to-three margin by which a bloc of activist (to
say the least) judges currently control the Ohio Supreme Court. Legal
reformers' hopes are riding on Republican Lt. Gov. Maureen O'Connor, running
for a vacant seat on the court. Her opponent, Democrat Tim Black,
"backed heavily by trial lawyers and labor unions," is considered likely
to vote with the current court majority (its
deplorable record) which has expanded liability in many unprecedented
ways, struck down democratically enacted tort reform and revived the city
of Cincinnati's lawsuit against the gun industry. (Jim Siegel, "Black
vs. O'Connor could change Ohio Supreme Court", Gannett/Newark, Ohio Advocate,
14). (DURABLE LINK)
October 16-17 --
"Inundations of Electronic Resumes Pose Problems for Employers". Employers
are deluged with resumes arriving by email as well as on paper, each of
which represents both a paperwork obligation and a potential source of
liability. "Under the current federal standard, anyone who submits
a resume electronically is a job applicant. Even people who are not looking
at any job in particular or are clearly unsuited -- say, a high school
student applying for the position of chief executive -- qualify. In and
of itself, this would not be a concern, but the government also requires
every company with more than 100 employees to track the race, gender and
ethnicity of every one of these so-called job applicants." Plaintiff's
lawyers can also demand that a defendant company produce these applications,
and then proceed to troll through them for patterns suggesting disparate
rejection of protected groups.
With the rise of Internet job postings, the numbers have exploded: "The
Boeing Co. has projected that it will receive about 1.3 million resumes
this year, compared with last year's mere 790,000 resumes. Lockheed Martin
Corp. has said it gets about 4,000 resumes a day, or upwards of 1.4 million
annually." "I know of a company that keeps a warehouse in Salt Lake City
just to store resumes," says chairwoman Cari Dominguez of the Equal Employment
Opportunity Commission. "They're just so afraid of throwing them away."
For two years the EEOC has been studying how to ease employers' retention
burdens by updating the definition of applicant, but it still hasn't acted.
(Tamara Loomis, New York Law Journal, Sept.
25). (DURABLE LINK)
October 16-17 --
"Patient sues hospital for letting him out on night he killed".
Australia: "A man who stabbed his prospective sister-in-law to death hours
after being discharged from a psychiatric hospital is suing Newcastle health
authorities for damages." Attorney Mark Lynch said that his client
"should be 'compensated for his premature discharge' and the tragic
events that followed." After murdering Kelley-Anne Laws in 1995,
Kevin William Presland, now 44, spent 2 years in jail and a psychiatric
institution. (Leonie Lamont, "Patient sues hospital for letting him
out on night he killed", Sydney Morning Herald, Oct.
15). (DURABLE LINK)
October 16-17 --
"Law to Protect Debtors Can Be a Windfall for Lawyers".
Mutiny among the bounty-hunted dept.: The Fair Debt Collection Practices
Act is a federal law passed in 1977 to combat harassment and other abuses
in debt collection. "In the last decade, the law has also given rise
to what some say is an unintended consequence: thousands of federal lawsuits
taking issue with the wording of collection letters. .....Successful plaintiffs
in these cases are entitled to $1,000, but their lawyers can collect vastly
larger sums," such as $40,000 or $50,000 if the defendant resists, even
if the dispute concerns only an arcane matter of wording. Federal
judge Gerard L. Goettel has criticized the trend, noting, "There is nothing
in the act to suggest that it was intended to create a cottage industry
for the production of attorneys' fees." "Plaintiffs' lawyers obtain
leads for such suits by scouring the dockets in small claims courts for
collection actions and by savvy questioning of people seeking to file bankruptcy
actions, [Indianapolis lawyer Dean R. Brackenridge, who represents collection
agencies and lawyers,] said. 'It is oftentimes like Christmas morning,'
he said, imagining the scene in the bankruptcy lawyers' offices. 'They're
opening up a grocery sack of collection letters that may give rise to these
lawsuits.'" (Adam Liptak, "Law to Protect Debtors Can Be a Windfall for
Lawyers", New York Times, Oct.
6). (DURABLE LINK)
October 16-17 --
New York tobacco-fee challenge, cont'd. The Albany paper
reports on Judge Charles Ramos's probe into whether lawyers who helped
handle the state of New York's copycat suit in the tobacco
litigation are entitled to an arbitration award of $625 million in
fees (see Jul. 30-31). "The New York
firms [asking a collective $14,000 an hour for their services] were politically
well connected and regular campaign contributors to both Democrats, trial
lawyers' traditional allies, and to Republicans, including [former attorney
general Dennis] Vacco and Gov. George Pataki. The Albany firm's senior
partner, Dale Thuillez, represented Pataki's first inaugural committee.
... Since the settlement, the firms have given a total of more than $200,000
to the campaign war chests of both parties." (Andrew Tilghman, "Tobacco
case legal fees under fire", Albany Times-Union, Oct.
14). (DURABLE LINK)
October 15 -- Incoherence
of sexual harassment law. The case of men subjected to
sexual taunts at the workplace by other men -- have they suffered sexual
harassment in the law's eyes, or no? -- reveals the lack of any real logical
coherence in our current scheme of sexual
harassment law. Several law profs seem to think that by taking
due note of this incoherence they demonstrate the need to extend the scope
of harassment law yet further, to suppress yet more forms of workplace
speech and social interaction than currently. (Margaret Talbot, "Men
Behaving Badly," New York Times Magazine, Oct.
13)(reg)(see also Mark Kleiman blog, Oct.
13). In the case of Burns v. City of Detroit, still
working its way through the courts per the latest we can find on Google,
Michigan judges are expected to address the question of whether some forms
of speech penalized by the current state of harassment law are in fact
protected by the First Amendment to the Constitution. (Kingsley Browne,
"Harassment law chills free speech", Detroit News,
at Center for Individual Freedom site; Brian Dickerson, "Harassment
law becomes a hot potato", Detroit Free Press, Jun.
14 and "Harassment law headed for a tune-up", Jun.
from Center for Individual Freedom) (via Howard Bashman this summer, #1,
October 15 -- Chocolate,
gas-pump fumes, playground sand and so much more. Unanticipated
(at least to non-lawyers) consequences of California's Proposition 65,
passed in 1986, mandating warning
labels on all hazardous chemicals: "The last two years have seen bounty
hunter lawsuits claiming that Californians are exposed to toxins from products
such as picture frames, lightbulbs, Christmas lights, electrical tape,
braces, game darts, stained-glass lamps, fire logs, exercise weights, hammers,
terrariums, tools, cue chalk, cosmetics, even Slim-Fast," according to
attorney Jeffrey B. Margulies. Yes, cue chalk has always terrified
us. ("New legal target: chocolate", Orange County Register, Oct.
8). (DURABLE LINK)
October 15 -- Judicial
selection, the Gotham way. New York stands alone in its
method of picking basic-level trial judges: "closed judicial nominating
conventions followed by partisan elections. Party bosses rule." The
parties then engage in collusive cross-endorsements which operate to deny
most City voters a meaningful
choice. The results? According to the editorialists of the
New York Daily News, an unusually high number of mediocre or downright
bad jurists make it to the bench, while in Brooklyn, 10 of 60 sitting judges
currently face ethics questions or actual charges. ("N.Y.'s unnatural
selection" (editorial), Oct.
2). (DURABLE LINK)
October 14 -- Australia
on the front lines. The island nation, one of the staunchest
members of the worldwide coalition fighting the battle against terrorism,
now finds itself on the front lines of that battle, with more than 200
of its citizens still missing following the Bali attacks. "[T]his
time terrorism has come to our doorstep, to the holiday home away from
home that is Bali. The tourist destination familiar to most of us as a
safe, cheap and friendly island of tolerance and fun has been turned into
a charred graveyard. Horrifying images of bodies burned beyond description,
seriously injured young men and women, and the street scenes of utter devastation
recall a war zone....Certainly more Australians have been killed in Bali
than in any other international disaster. ... The Bali bombings expose
the lie that the act of war on September 11, 2001, was simply an attack
on Americans and American values. Bali proves that all freedom-loving peoples
are at risk from terrorism, at home and abroad." ("We must remain
firm in face of terror" (editorial), The Australian, Oct.
14). More: "Thirteen Australians confirmed dead, 220 missing
in Bali", ABC.au, Oct.
14; Ben Martin, "Australia terror: Fearful wait", The West Australian,
14; Matthew Moore, "US ambassador saw writing on wall a month ago",
Sydney Morning Herald, Oct.
14; Simon Kearney & Sarah Blake, "Terror Warning: Targets Named",
13. For hard-hitting commentary on the ideological implications,
check out maverick Aussie journalist Tim
Blair. More good links: zem
blog, Gweilo Diaries (mid-October
entries). Update: As of Oct. 21 the likely death toll of the blasts
was thought to be 190, including 103 Australians as well as numerous Indonesian
nationals and citizens of such countries as Germany, Sweden, New Zealand
and the United States. See Melbourne Age, Oct.
21. (DURABLE LINK)
October 14 -- Rather
die than commit profiling, cont'd. "A federal judge has
cleared the way for a discrimination lawsuit
filed by an Arab-American who was removed from a United Airlines flight
three months after the Sept. 11 attacks. U.S. District Judge Florence-Marie
Cooper ruled airlines do have a legal right to remove passengers who pose
a security threat, but that does not allow them to discriminate on the
basis of race, ethnicity or national origin." ("Judge rules Arab-American
taken off plane can sue United Airlines", AP/Sacramento Bee, Oct.
12). The American Civil Liberties Union helped organize the suit. See
also Eugene Volokh, Oct.
14. (DURABLE LINK)
October 14 -- Macaulay
on copyright law. In two
speeches given in Parliament in 1841, the historian and statesman anticipated
most of the issues worth thinking about on the issue of whether lawmakers
should extend copyright long past
the natural life of authors and other creators (courtesy Eric
Flint, "Prime Palaver")(more
on TBM). (DURABLE LINK)
October 14 -- "'Pay-before-pumping
rule called racist'". Ohio: "North Randall Mayor Shelton
Richardson fumes when he sees gas stations in his community that demand
that customers pay before they pump, a practice he calls racist. The requirement
is insulting and implies a presumption that customers will steal, he says.
He wants to outlaw it. ... No gas station in North Randall could require
payment first if City Council adopts Richardson's proposal to ban pay-first
policies Monday night. ... Prepayment is required around the clock at the
24-hour Shell station at the corner of Warrensville and Emery roads in
North Randall. Manager Mike Jadallah said he would comply if the new law
is approved. But he thinks he should be able to decide how he runs his
business. 'Is the city going to cover our losses?' he asked." (Kaye Spector,
"Pay-before-pumping rule called racist", Cleveland Plain Dealer,
12). (DURABLE LINK)
October 11-13 --
"High court judge had use of condo owned by group that includes trial lawyer".
More eyebrow-raising allegations in the Mississippi favors-for-judges flap
reported earlier this week: "A Gulf Coast
condo owned by a partnership that includes prominent trial lawyer Richard
'Dickie' Scruggs has been used by Supreme Court Justice Oliver Diaz Jr.,
reports say." "Mark Lumpkin, an associate in the firm of prominent Mississippi
lawyer Paul Minor, said Wednesday that he lives in the condominium and
has allowed Diaz to use it." It seems the judge had recently divorced
and needed a base for visitation with his kids, so it's just good Southern
hospitality, don't you know. AP/Alabama Live, Oct.
10) See also Jerry Mitchell, "Probe could sway voters", Jackson
9. More: Scruggs "denies that he repaid loans for Diaz
or any other judge." ("Investigation Targets Lawyers, Judges &
Loans", WLOX, Oct.
7; see Oct. 9-10). See also Nikki
Davis Maute, "McRae won't accept donation from lawyer", Hattiesburg American,
10. (DURABLE LINK)
October 11-13 --
Malpractice: Pennsylvania House votes to curb venue-shopping.
The measure, which has yet to be approved by the state Senate or governor,
requires plaintiffs in medical liability
cases to file their suits in the county where the alleged negligent conduct
occurred, rather than just heading to Philadelphia with its generous juries
and indulgent judges. Doctors say it's a start, while the state trial
lawyers association is already promising a constitutional challenge --
doesn't this kind of measure violate the constitutional right to high verdicts,
or something? (M. Bradford Grabowski, "Physicians react to 'venue
shopping' bill", Bucks County (Pa.) Courier Times, Oct.
9). (DURABLE LINK)
October 11-13 --
"Wealthy candidates give Democrats hope". Trial lawyer
Harry Jacobs, who is reported to have a net worth of $42 million mostly
from filing malpractice suits, is running for a Congressional seat in northern
Florida. Jacksonville's Wayne Hogan, who bagged $54 million in the
state of Florida's highly aromatic suit
against the tobacco industry, "is trying to unseat Rep. John Mica,
R-Winter Park. In West Virginia, attorney Jim Humphreys is running against
incumbent Republican Shelley Moore Capito" in a rematch after her year-2000
upset win. (Bill Adair, St. Petersburg Times, Oct.
7). Update Nov. 7: all lose
by wide margins. (DURABLE LINK)
October 11-13 --
Quote of the day. "I have a few (trial lawyer) friends,
but most of them abuse the system" -- Ohio Supreme Court Justice Evelyn
Stratton, quoted in David Benson, Mansfield (Ohio) News Journal,
9. (DURABLE LINK)