November 15 --
Class-action coupon-clippers. Hard-hitting page-one Washington
dissection of class-action abuse, specifically
the "coupon settlements" by which lawyers claim large but notional face-value
benefits for the represented class, which can serve as a predicate for
high fees even if few consumers ever take advantage of the benefits.
"The record in one case, against ITT Financial Corp., showed that consumers
redeemed only two of 96,754 coupons issued, a redemption rate of 0.002
percent." Settlement-confidentiality rules often make it impossible
to learn how many coupons were redeemed. Groups like Public Citizen
and Trial Lawyers for Public Justice, normally closely aligned with plaintiffs'-side
interests, are crusading against the coupon abuses, fearing they'll erode
public support for the class action device and "sour the public" on the
The piece includes a profile of Chicago lawyer Daniel Edelman, who's
won millions in fees in about thirty consumer lawsuits, and is variously
called by consumerist critics "the Darth Vader of class action settlements"
and "the poster child for how to rip off consumers under the guise of helping
them": "I can think of no plague worse than to have a court impose the
likes of Daniel Edelman...on absent and unsuspecting members of a class,"
said one judge in a lawsuit against Citibank. Edelman was among the
plaintiff's lawyers in the famed BancBoston Mortgage case, whose outcome
was described by federal judge Milton Shadur (who was not involved in it)
as "appalling" and "astonishing": "The principal real-money beneficiaries
of the settlement," Judge Shadur wrote, "turned out to be the class counsel
themselves." The consumer who originally objected to that settlement,
Dexter Kamilewicz of Maine, "chose not to comment for this article, noting
that Edelman's firm had countersued him for $25 million. That case is settled,
but he said he feared landing in court yet again." (For more on lawsuits
filed by class action lawyers against their critics, see Nov.
4 commentary). (Joe Stephens, "Coupons Create Cash for Lawyers",
Washington Post, Nov. 14, link now dead)
November 15 --
Link your way to liability? Daniel Curzon-Brown, a professor
of English, has sued TeacherReview.com,
a student-run "course critique" site that provides a forum for anonymous
praise and criticism of faculty at City College of San Francisco (CCSF)
and San Francisco State University. "Free speech is great, but this
is not about free speech," said Brown's lawyer, Geoffrey Kors, saying his
client had been falsely labeled racist and mentally ill, among other damaging
charges. ("Other teachers were called 'womanizers,' 'reportedly homicidal'
and 'drugged out.'") In one of the suit's more ambitious angles,
the lawyers have joined CCSF as a defendant on the grounds that it "allow[ed]
one of its student clubs to provide
a link to the review site on a college-hosted Web page" which "helped
to create the appearance of official backing for the site". ("Teacher
sues over 'racist' Web review", Reuters/ZDNet, Oct. 21 -- full
story). Update Oct. 10, 2000:
Curzon-Brown agrees to drop suit.
November 15 --
Are they kidding, or not-kidding? We've read over both
these opinion pieces carefully, and here are our tentative conclusions.
We think Nancy Giuriati, writing in the Chicago Tribune's "Voice
of the People", probably is kidding when she suggests overeating
be addressed as a public health problem through lawsuits
against food companies along the lines of the anti-smoking crusade.
("Treat Eaters Like Smokers", Nov.
9). On the other hand, we think Ted Allen, writing in the Legal
Times of Washington, probably isn't kidding when he suggests
fans file class-action suits against
hard-luck sports teams like the Boston Red Sox and New Orleans Saints.
("Sue da Bums?", Nov.
1). It could be, however, that we've got things upside down --
that Mr. Allen is kidding, while Ms. Giuriati isn't. If you think
you can help us out, or wish to call our attention to other who-knows-whether-they're-joking
proposals for the further extension of litigation (entries from law reviews
especially welcome!), send your emails to AreTheyKidding
-at -overlawyered - dot - com. Update Apr.
11, 2002: Ms. Giuriati writes in to say she wasn't kidding.
November 15 --
Gimme an "S", "U", "E". Latest lawsuit over not making
the high school cheerleading squad filed by Merissa D. Brindisi and her
father, Richard, who claim it was arbitrary and unfair for Solon, Ohio,
school officials to have used teacher evaluations as one factor in deciding
who got on the squad. Another suit by an unsuccessful cheerleader
contender was filed last month in nearby Lorain County, but was dismissed.
(Mark Gillispie, "Solon ex-cheerleader, father file suit", Cleveland Plain
Dealer, Nov. 10 -- full
November 13-14 --
Fins circle in water. Hoping to piggyback on Judge
Jackson's Microsoft findings
of fact and attracted by the treble damages provided by antitrust law,
"veterans from the cigarette wars are plotting to sue the company in a
wave of private litigation. If the onslaught unfolds as expected, teams
of lawyers will turn Microsoft into the next Philip Morris, tangling the
company in courts across the country." David Segal, "New Legal Guns
Train on Microsoft", Washington Post, Nov. 12 -- link now dead).
Same day, same paper, same byline: another profile of emerging trial lawyer
strategy of mounting assault on their targets' stock price in order to
force them to the negotiating table (see "Deal
with us or we'll tank your stock", Oct. 21). The announcement
of a major trial lawyer offensive against HMOs destroyed $12 billion of
value in a single day as the market reacted. "Most of the companies
have yet to recover." (David Segal, "Lawyers pool resources, leverage
settlements", Washington Post, Nov. 12, link now dead).
On Friday the stock of big New Orleans-based engineering and construction
company, McDermott International Inc., important in the offshore oil business,
fell by 35.5 percent following a 26.7 percent drop the previous day to
hit a 10-year low. The company disclosed lower earnings and "said
in its earnings statement that the settlement of asbestos claims was using
up a growing amount of the cash flow of its Babcock & Wilcox (B&W)
subsidiary", one of the nation's best known makers of power plants. "This
unquantifiable asbestos liability puts a whole new spin on things. [McDermott]
becomes an asbestos liability valuation play rather than an earnings recovery
play," said analyst Arvind Sanger of brokerage firm Donaldson Lufkin &
Jenrette, who added that he thought the market had overreacted to the uncertainty.
("Asbestos Claim Worries Hurt McDermott", FindLaw/Reuters, Nov. 12, link
November 13-14 --
Update: ADA youth soccer case. Bang! Ouch! As reported
here a week ago, parents insisted that 9-year-old Ryan Taylor, who suffers
from cerebral palsy, be allowed onto soccer team despite administrators'
fears of injuries from his metal walker. Now they've filed suit under
federal Americans with Disabilities Act (see "After
Casey Martin, the deluge", Nov. 5-7). ("Parents Sue Over Son's
Soccer Ban", AP/FindLaw, Nov. 12, link now dead).
November 13-14 --
Risks of harm. "One woman manager whom I spoke to, an architect
who has worked in construction for a number of years, put it this way:
'When a woman comes to me with a complaint, I want first of all to make
sure that no harm comes to the woman. But I want to make sure that
no harm comes to the man, too. Because if a charge of sexual
goes into his folder, he may never get another promotion in his entire
[emphasis in original] -- from the forthcoming book What
to Do When You Don't Want to Call the Cops: Or a Non-Adversarial Approach
to Sexual Harassment, by Joan Kennedy Taylor (see
November 12 --
Turning the tables. Automaker
DaimlerChrysler has sued plaintiff's attorneys and a individual named client
who it says cost it millions of dollars and harmed its reputation by naming
it in what is says was a meritless suit. In June, the locally based
law firm of Greitzer & Locks and Maryland attorney William Askinazi
filed a class-action suit in Philadelphia
against DaimlerChrysler, Ford, General Motors and GM's subsidiary Saturn
alleging that the companies' seat design was defective and unsafe. Similar
suits were filed in other states, and lawyers were quoted in one story
as claiming the aggregate value of their claims could amount to $5 billion.
But DaimlerChrysler and Ford say they were dropped from the Philadelphia
case after the named plaintiff, Brian Lipscomb, was shown never to have
owned cars manufactured by either automaker.
The German-U.S. company has been on something of a mission recently
to fight what it sees as abusive litigation. It recently secured dismissal
of an Illinois class action over allegedly excessive engine noise and in
1996 unsuccessfully sought fees after securing dismissal of a Seattle class
action that turned out to have been filed without client permission.
It succeeded last year in winning an $850,000 judgment against two lawyers
in St. Louis who it alleged had taken confidential documents while working
for one of its outside law firms and then used that information to file
class-action suits against the automaker. "Class-action lawsuits should
be used to resolve legitimate claims and not serve as a rigged lottery
for trial lawyers," said Lew Goldfarb, DaimlerChrysler vice president and
associate general counsel, in a statement this week. "For too long,
trial lawyers have been exploiting class actions, turning these lawsuits
into a form of legalized blackmail. They launch frivolous cases because
they believe that just the threat of massive class actions filed in many
states can coerce a company into settlement. It's time
they started paying for some of the costs of abusing our legal system."
"DaimlerChrysler sues lawyers over lawsuit", Reuters/Findlaw, Nov. 10,
link now dead; "Automakers sued for allegedly defective seats", Detroit
November 12 --
Suppression of conversation vs. improvement of conversation.
"Another difficulty in dealing with sexual
harassment as a legal problem is that almost all people accused of
harassment, from the one whose joke is misunderstood to the hard-core opportunistic
harasser...don't believe they are hurting anyone. [emphasis
in original] And we know from our experiences with alcohol and drug
prohibition that people whose behavior is regulated and who don't believe
they are hurting anyone else overwhelmingly evade and resent the regulations....If
you tell people that the way in which they relate to each other naturally
is against the law, their immediate reaction is to think the law intrusive.
If, by contrast, you tell people that they may have misunderstood each
other but that they can learn to communicate more clearly, you are offering
them a new skill without blaming half of them in advance." -- from What
to Do When You Don't Want to Call the Cops: Or a Non-Adversarial Approach
to Sexual Harassment, by Joan Kennedy Taylor, a book to be published
this month by New York University Press and the Cato Institute.
November 11 --
We didn't mean those preferences! At Boalt Hall,
the law school of U.C. Berkeley, it's de rigueur to consider race,
gender and various other official preferences as entirely constitutional
as a way of balancing out past collective hardship. However, there's
one form of official preference you'd better not speak well of lest you
risk ostracism: veterans' preference. "If you, despite your well-intentioned,
fine-toothed combing of the Constitution, just can't find a legal rule
that says that veterans' preferences are impermissible gender discrimination,
then that is sexism. If you think that these veterans' preferences
are acceptable as a matter of policy -- for the liberals who are willing
to concede that there is a difference between constitutional permissibility
and policy advisability -- then that is extreme sexism." -- contributor
Heather McCormick in The
Diversity Hoax: Law Students Report from Berkeley, edited by David
Wienir and Marc Berley (Foundation for
Academic Standards and Tradition, 1999).
November 11 --
Microsoft roundup. Peter Huber of the Manhattan Institute,
author of Law
and Disorder in Cyberspace, argues in yesterday's Wall Street Journal
that a breakup of the company
would in fact be less destructive of value than seemingly more modest remedies
that might require the company to prenegotiate its future business relationships
or even its software revisions with competitors' lawyers: "Complex remedial
decrees invariably kick off endless rounds of follow-up bickering.
Costs mount quickly. Private lawsuits follow. And antitrust
law awards triple damages." ("Breaking Up Isn't hard to Do", Wall Street
Journal, Nov. 10 -- requires online
subscription). "Two branches of the federal government, which
is a case study in institutional sclerosis, are lecturing Microsoft on
the virtues and modalities of innovation," notes George Will ("Risks of
Post, Nov. 9, link now dead). "The dynamism
of technology long ago rendered the entire case moot," argues a Detroit
editorial. "...It is doubtful, for example, that America Online would
have paid $10 billion for Netscape if Microsoft’s Bill Gates had indeed
rendered the Navigator [browser] worthless." ("Microsoft: Punishing Success",
9). Declan McCullagh at Wired News finds it surprising that
the judge was so dismissive of the prospects of Linux, the open-source
competitor to Windows ("Judge Jackson: Linux Won't Last",
November 11 --
Accommodating theft. In New Jersey, the Office of Attorney
Ethics is seeking the disbarment of Tenafly lawyer Charles Meaden, who
was arrested in 1996 for trying to buy $5,600 worth of golf clubs with
a stolen credit card number. Mr. Meaden's attorney, Linda Wong, argues
that her client suffered from bipolar illness and was in a manic state
at the time of the theft due to a change in his medication. "The
panel has to send a signal to the public that disabilities can be accommodated."
The ethics body counters that Mr. Meaden's use of the stolen number showed
considerable planning, and added that he'd applied for guns four times
in the two years before the arrest, each time denying that he'd been treated
for psychiatric conditions. His lawyer's response? Mr. Meaden,
she said, was relying on his doctor's assurance that depression was "not
a psychiatric condition", besides which "it was understandable that Meaden
did not disclose his psychiatric history because the mentally ill face
discrimination." (Wendy Davis, "The Case of the Stolen Credit Card:
Mental Illness or Well-Planned Heist?", New Jersey Law Journal,
Oct. 21 -- full
November 10 --
$625,000 an hour asked for time on stopped elevator.
Nicholas White, 34, a production manager at Business Week, has filed
suit asking $25 million from the owners of Rockefeller Center over an incident
last month in which he got stuck on an elevator late one Friday and remained
there, pushing buttons and banging on the door, for 40 hours before any
building employees noticed. He had only a pack of Life Savers and
three cigarettes to see him through the ordeal. "When he had to go
to the bathroom, he would pry open the doors a little," a friend of his
told the New York Post. White's lawyer, Kenneth P. Nolan, said last
week that his client was "still in a state of shock" and "has not gone
back to work". ("Floor, please", Fox News/Reuters, Oct. 21 (link
now dead); "Man Trapped in Elevator Wants $25M", AP/Washington Post,
Nov. 3, link now dead; "Man, trapped in New York elevator 40 hours, sues",
Reuters/San Jose Mercury News, Nov. 4, (link now dead; Philip Delves
Broughton, "Editor sues for $25-million after 40-hour elevator terror",
National Post (Canada) (originally Daily Telegraph, London),
Nov. 6, link now dead)
November 10 --
Annals of zero tolerance: more nail clippers cases.
The Marshall Elementary School in Granite City, Ill. has suspended second-grader
Derek Moss for three days after a custodian found him with a nail clipper.
Earlier this fall in Cahokia, Ill., 7-year-old second-grader Lamont Agnew
drew a 10-day suspension for possession of the same contraband.
(Robert Kelly, "Another nail clippers incident reported", St. Louis Post-Dispatch,
Nov. 2 (link now dead)) Earlier this year Pensacola, Fla. administrators
recommended the expulsion of 15-year-old sophomore Tawana Dawson for possession
of a clipper with a two-inch attached blade; she'd lent it to a classmate
to trim her nails. ("School calls nail clipper a weapon", AP/APB
News, June 7). In recent California cases, a 12-year-old Corona
boy was expelled over a nail clipper, a decision later reversed; a Mission
Viejo 10-year-old was suspended over a three-inch cap-gun toy on her key
chain, and a Buena Park 5-year-old was transferred to another school after
he brought into school a disposable shaver he'd found at a bus stop.
November 10 --
Haunted-house story is here; gun lawsuits vs. national
security story, here.
November 10 --
"The Dutch Boy isn't Joe Camel." The companies recently sued
by Rhode Island "voluntarily stopped marketing lead-based paint for interior
use in the 1950s -- a generation before the federal government decided
to ban interior lead paint in 1978," writes Judy Pendell of the Manhattan
Institute's Center for Legal Policy (with which our editor is affiliated).
You'd think withdrawing your product before you were obliged to would count
as socially responsible, but no good deed escapes punishment. Nor,
it seems, does any incorporated bystander with deep pockets: "Many of the
defendants acquired their companies long after they had stopped making
lead paint...If you can sue an industry
that essentially shut itself down almost a half century ago, who's next?"
("Trial lawyers' next target: the paint industry",
Wall Street Journal,
Oct. 18 -- now online at the Manhattan
Institute site, which boasts a growing collection of online reports
on legal issues (link now dead)).
November 10 --
Correction: the difference one letter makes. On Sept.
2 we ran
an item about the role of charitable
and social-service groups in efforts to take down the gun
industry, and included the YMCA on the list of such groups. That
was off base: it's the YWCA that's
a participant in the Coalition to Stop
Gun Violence, not its male counterpart. The mistake is one the
anti-gun coalition itself unleashed on the world when it erroneously listed
the YMCA on its list of supporting organizations. The Capital Research
Center took the claim at face value in its report on anti-gun philanthropy,
whence it made its way to our summary. Patrick Reilly of the Capital
Research Center tells us he's spoken with the coalition, which acknowledges
its mistake and says it's replaced the "M" version with the correct "W".
In the mean time, the poor YMCA has gotten calls from outraged supporters
of the Second Amendment. Send those outraged calls to the YWCA
November 9 -- Gun
jihad menaces national security. Colt Manufacturing is
an important current, as well as historic, defense resource to this country:
"We are one of the two suppliers of the M16 rifle and the sole supplier
of the M4 carbine to the United States military, as well as many of our
allies." Yet the courtroom assault masterminded
by American trial lawyers and carried out by their friends at city
hall is quickly running the enterprise into the ground: legal defense costs
are "astronomical", financing and insurance are drying up, and managers
have scant time to do anything but respond to legal demands.
"In connection with these lawsuits, Colt has been served with extraordinarily
expansive and burdensome discovery requests seeking virtually every document
in Colt's possession related to the design, manufacture and marketing of
firearms -- military and otherwise. In our defense, waves of lawyers
have descended on Colt and other legitimate gun manufacturers, scouring
every corner and aspect of our business in an effort to respond to these
If the municipal firearms litigation
"forces us out of business, it also will leave the military without an
experienced base to turn to during a time of crisis. In the opinion of
the Department of Defense, it would take two to five years and significant
government investment to return any of today’s weapon systems to their
current level of operational reliability should we lose this present capability."
"We are uneasy and troubled by the fact that we and other companies
in the future may be driven out of business by a wave of lawsuits, even
if the courts eventually find out that the plaintiff’s cases have no merit."
-- Lt. Gen. William M. Keys U.S.M.C. (ret.), chief executive officer of
the New Colt's Holding Company, in testimony before the Senate Judiciary
Committee Nov. 2. (full
November 9 --
Hold your e-tongue. Though employees may still fondly
imagine their screen banter to be somehow entitled to privacy, "e-mails
not only are subject to discovery, but also can kill you in a courtroom,"
explain two lawyers with Miami's Becker & Poliakoff. The problem
for companies that get sued is that "people who are normally careful of
what they say in writing seem to feel that e-mail doesn't count, and...say
things in e-mails they would never say in person or by telephone."
All of which leads up to the following rather startling advice: "Businesses
should have an e-mail policy. Consider such rules as 'No e-mail may contain
derogatory information about individuals or the competition.'" (Mark
Grossman and Luis Konski, "Digital Discovery: Decoding Your Adversary",
Times (Wash., D.C.), Oct. 20 -- full
November 9 --
"Banks' good deeds won't go unpunished". Good Steve Chapman
column on ill-advised laws adopted in San Francisco and Santa Monica, and
under consideration for U.S. military bases, that forbid banks from charging
a fee for non-customers' ATM withdrawals; currently banks put automatic
machines "in all sorts of relatively low-traffic, out-of-the-way places",
a trend likely to halt abruptly if the business becomes a legislated money-loser.
(Chicago Tribune, Nov. 7 -- full
November 8 -- Microsoft
ruling: guest editorials. Venture capitalist Jay
Freidrichs of Cypress Growth Fund: "My gut is, this is not positive for
the industry. The less government involvement, the better." Peter
Ausnit of San Francisco brokerage Volpe Brown Whelan & Co. is alarmed
that the ruling could "open up Microsoft to thousands of lawsuits from
every belly-up software firm in the world....Are they going to be set upon
like the cigarette industry?" George Zachary, a partner at Mohr Davidow
Ventures: "a scary reminder that if you make it to the top, someone will
try to pull you down." Venture capitalist Tim Draper: "Silicon Valley should
be furious with the way our government is treating successful companies...Any
would-be entrepreneur is getting a message from Washington that says: 'Become
successful but not too successful, or we'll ruin your life.'" (David
Streitfeld, "Glee, Gloom in Silicon Valley", Washington Post, Nov.
6 (link now dead); Duncan Martell, "Silicon Valley Cheers Microsoft Ruling",
Yahoo/Reuters, Nov. 6 (link now dead)). Plus: Virginia Postrel, "What Really
Scares Microsoft", New York
Times, Nov. 8; George Priest, "Judge
Jackson's Findings of Fact: A Feeble Case", Wall Street Journal,
8 (requires online subscription).
November 8 -- Ohio
tobacco-settlement booty. A private firm with close links
to prominent Columbus lobbyists has been angling for the contract to handle
Ohio's anti-tobacco ad campaign, financed from its share of the state's
settlement loot. It just so happens the next CEO of this firm is
State Rep. E.J. Thomas, a key player in the divvying up of the tobacco
spoils as chair of the House Finance-Appropriations Committee.
"Does Mr. Thomas really believe nobody would have questioned his
neutrality while voting to award tobacco contracts when he has been holding
hands with one of the parties playing to win the jackpot?" editorializes
the Toledo Blade. ("The smoking cigarette", Oct. 24 -- link
November 8 -- Who
loves trust-and-estates lawyers? Well, auction houses,
for one, since these attorneys control so much asset-disposition business.
And so a lot of buttering-up goes on: "At one of the largest annual gatherings
of trust and estate lawyers in the U.S., held each year in Miami, Christie's
brings down hundreds of thousands of dollars in jewels so that the lawyers,
or their spouses, can try them on. 'I am not that easily swayed,'
says Carol Harrington, an estate lawyer from the Chicago law firm McDermott
Will & Emery, who deals regularly with the auction houses. 'But
what woman doesn't like having $40,000 in jewels around her neck?'"
(Daniel Costello, "An Art Collection to Die For", Wall Street Journal,
November 8 -- "Police
storm raucous party to find members of anti-noise squad".
Moral of this report from southwest England: if you're hoping to keep your
job on the town noise-abatement committee, don't hire three bands and throw
a bash late into the night at city hall; after annoyed neighbors called
in to report loud whoops and shrieks, police descended on the venue only
to find the mayor and local dignitaries in attendance. (AP/CNN, Oct.
26, link now dead).
November 5-7 --
"Scared out of business". Boston Globe
reports on decline of a Halloween tradition, the community haunted house,
under pressure from building and safety codes (No emergency sprinklers!
Combustible material! And children present, no less!) "In the
future, the only option will be to drive to a big, slick venue and pay
your $23.50 for a corporatized event that has nothing to do with community,"
said Douglas Smith, an illustrator who used to help design the haunted
house at Hyde Community Center in Newton Highlands, which has lately been
discontinued along with two other haunted houses in Newton. "Only they
have the resources. Only they can build to these codes." "I'm very
disappointed," said 10-year-old David Olesky, who had been looking foward
to the outing. "They can make rules, but they can't drain all the fun
out of everything. It's unfair." Now "the skull's mouth, the
body parts, and dozens of eyeballs remain packed in boxes" at the community
center. "Within a few years, I imagine all amateur haunted houses
will get shut down," Smith told the Globe's Marcella Bombardieri.
"Society is getting so concerned about liability that there's no way to
have fun." (Oct. 29 -- link now dead).
November 5-7 --
Public by 2-1 margin disapproves of tobacco suits.
New ABC News poll of 1,010 adults finds that by a 60-to-34 percent margin
public doesn't believe tobacco companies
should have to pay damages for smoking-related illnesses. But not
one of the fifty state attorneys general held back from filing such a suit
-- an indication these AGs are taking their policy cues from something
other than their states' electorates. As for trial lawyers, they
know the luck of the draw will eventually assure them a certain number
or juries and judges around the country willing to go along with the 34
percent view. That's enough to cash in no matter what the majority
may think. (ABC News.com, "Cigarette Makers Absolved: Six
in 10 Reject Liability for Tobacco Companies",
November 5-7 --
AOL sued for failure to accommodate blind users.
Yes, AOL is big, but the legal theories being advanced under the Americans
with Disabilities Act have the potential to redefine all sorts of websites,
including publishing and opinion sites, as "public accommodations".
If you're looking for a way to slow down the growth of the Web, try menacing
page designers with liability unless they set aside their to-do list of
other site improvements in favor of trooping off to seminars on how to
fix nonaccommodative coding choices. ("Blind Group Sues AOL Over
Internet Access", Excite/Reuters, Nov. 5; case settled August 2000)..
November 5-7 --
More details on Toshiba.
Last Saturday's L.A. Times, not in our hands before, adds a number
of salient details to the story covered in this space November
3. Number of laptops involved: 5.5 million. The company
agreed to settle "even though no consumer ever complained of losing data
as a result of the glitch". Company officials "said they had been
unable to re-create the problem in the lab, except when trying to save
something to a disk while simultaneously doing one or two other intensive
tasks, such as playing a game or watching a video." However, Toshiba
was tipped toward settling when it heard that NEC Corp. considered the
glitch a genuine one and learned moreover that there'd been an earlier
advisory from NEC, thus opening up scenarios in which lawyers could argue
that warnings had been callously ignored etc. The coupons will be
much more valuable than the usual style of settlement
coupons because owners "will be able to sell their coupons or use multiple
coupons toward a single purchase." But the public goodwill fund that will
bulk out the rest of the $1 billion settlement if claims fall short may
consist of donations of older hardware to charitable groups, a notoriously
soft accounting category (Joseph Menn, "Toshiba OKs Settlement of $1 Billion
Over Laptops", Oct. 30, link now dead). Jodi Kantor, Slate "Today's
Papers", also Oct.
30, reports: "The company's credit rating was immediately downgraded,
and its share price slipped 9%." (Toshiba
November 5-7 --
After Casey Martin, the deluge. Latest
handicap-accommodation demand from the playing field: family of 9-year-old
Ryan Taylor, who's afflicted with cerebral palsy, asks for his right to
play soccer in a metal walker. David Dalton, volunteer president of the
Lawton [Okla.] Optimist Soccer Association league, says the walker is hazardous
and a violation of the game rules. In addition, the league could
get sued if another player smashed into it while trying to contest Taylor's
control of the ball, if any were so unsporting as to try that. However,
"in 1996 a federal court in California ruled that a youth baseball league
violated the Americans With Disabilities Act by excluding an 11-year-old
with cerebral palsy who used crutches" and Houston disability-rights lawyer
Wendy Wilkinson is rattling the saber, saying the ruling "definitely applies
to this situation". (Danny M. Boyd, "Disabled boy is barred from playing
soccer with a walker", AP/Fox News, Nov. 3, link now dead).
November 5-7 --
"Land of the free...or the lawyers?" Nice editorial
in Investors Business Daily on the deepening litigation crisis:
"No industry or company is safe." It even quotes our editor (Oct.
21, link now dead).
November 5-7 --
Toffee maker sued for tooth irritation.
Spreading across the Atlantic?, cont'd: Former Miss Scotland Eileen
Catterson, a runway fashion model for ten years, has sued
the makers of Irn-Bru toffee bars saying the sticky confection has left
her with discolored teeth and sore gums. She is demanding £5,000
damages in Paisley Sheriff Court, which itself sounds like a fashion establishment.
(Gillian Harris, "Model sues sweets firm over teeth", The Times
November 4 -- Criticizing
lawyers proves hazardous. In July Publishers
Clearing House, the magazines-by-mail company whose sweepstakes is
promoted by Ed McMahon,
agreed to settle a class action charging it with deceptive practices.
The settlement provided for a maximum of $10 million in outlays by the
company, to be divided roughly as follows: $1.5 million to send a notice
of settlement to an estimated 48 million households in the class; $5.5
million or less to be refunded to dissatisfied magazine buyers that could
muster the required paperwork, the exact sum to depend on how many did
so; and $3 million in legal fees for the lawyers who filed the suit, sister-and-brother
attorneys Judy Cates and Steven Katz of Swansea, Ill. and a third colleague.
The announcement did not sit well with St. Louis Post-Dispatch
McClellan, who wrote August 27 that Cates and Katz "represent the modern
version of the James Gang....They recently gained renown by galloping into
the little town of Publishers Clearing House. They robbed the bank there,
and rode away." He added that "the way these class-action
lawsuits usually work" is that "members of the class get very little.
Usually nothing. Our lawyers get a lot. Always....It will be considered
a cost of doing business, and like all such costs, it will be passed on
to the consumers, who are, of course, the very same people who are allegedly
benefiting from the lawsuit."
And with that, almost before the popular columnist could
tell what hit him, he was staring down the barrel of a writ. On August
30 Cates and Katz filed suit against McClellan in federal court in East
St. Louis, Ill., seeking $1 million in damages for the libel of having
been compared to bank robbers.
Unrepentant, McClellan followed up with a second and equally jocular
effort, explaining that the lawyers had misunderstood: although upstanding
Illinois might object to bank robbery, "Here in Missouri, we like the James
Gang," as folk heroes from the state's Great Plains heritage. "So
it is with the gallant class-action lawsuit lawyers. Close your eyes and
see them the way I see them. They ride into town, file their lawsuits,
reach their settlements and then, their saddlebags stuffed with money,
they gallop into the night, but as they go, they throw coins to the cheering
"And coins is the operative word, too," McClellan added, pointing out
that on average each of the represented households stood
to gain something on the order of 12 cents, compared with $3 million
for their lawyers. It is not recorded that Cates and Katz have dropped
their suit or been in any other way mollified by this response. Bill
McClellan, "Only Ones Who Gain From Class-Action Suits Are The Lawyers",
Louis Post-Dispatch, Aug.
27; "Missourians love James Gang and today's robbers, too", Sept.
1). Update: Nov. 30
(he criticizes them again, though case is still pending); Feb.
29, 2000 (they agree to drop suit).
November 4 -- Bring
a long book. It takes New York, on average, seven years
to fully adjudicate discrimination cases
filed with its Division of Human Rights. One woman in Orleans County
spent 14 years in the system before obtaining a $20,000 award, while a
complainant against Columbia University was still waiting for a hearing
after 11 years. A federal judge has sided with the National Organization
for Women in a suit demanding that the agency hire more employees on top
of its current 190 to handle the case load; NOW wants that number tripled.
(Yancey Roy, "State faulted on rights cases", Rochester Democrat and
Chronicle, Nov. 2 -- link now dead).
November 3 -- Toshiba
flops over. Last Friday's announcement by Toshiba Corp.
that it had agreed to pay a class-action
settlement nominally valued at $2 billion over alleged defects in the floppy-drive
operation of its laptop computers appears to represent a genuine breakthrough
for plaintiff's lawyers who've for years been gearing up a push to extract
cash from high-tech companies
over crashes, glitches and other subpar aspects of the computing experience.
Many still unanswered questions about the new developments:
* Has the glitch led to any problems at all in real-world use?
Conspicuously absent from the coverage of recent days has been any word
from victims of the glitch saying that on such and such a date they lost
important data because of it. Yet if the plaintiffs' side had such
witnesses available, it's hard to see why they wouldn't have pushed them
forward to public notice by now. Apparently the lawyers, through
their expert, have found a way to configure Toshiba laptops so as to replicate
data loss under carefully controlled demonstration conditions, but news
coverage has not yet probed into the question of how artificial these conditions
are or how likely they are to occur to real users who aren't trying on
purpose to get their computers to lose data. The plaintiffs' theory,
which seems rather convenient, is that the data loss is so subtle that
people don't know it's happening or can't trace it to the glitch afterward.
* Given the above, who if anyone has suffered damages?
Next week Toshiba "will post on its Web site a free and downloadable software
patch that eliminates the problem." And a large percentage of laptop owners
never or almost never use their floppy drive, preferring modem transmission
of files. Yet all will be entitled to prizes.
* How valuable are those prizes? There's some talk
of refunds for recent purchasers, but presumably most would rather download
a software patch than return a computer they like. (Toshibas are popular.)
Others will get coupons
mostly valued at $100-$225 "for the purchase of Toshiba computer products
sold through Toshiba's U.S. subsidiary". Usually the face value of
a coupon settlement is a highly unreliable guide to what the settlement
is actually costing; otherwise a Sunday paper with $30 in grocery coupons
in it would sell for $30. Yet Toshiba is taking a $1 billion accounting
charge, and pledges to donate unclaimed amounts from the settlement fund
to "a newly created charitable organization". And it's also agreed
to pay a very non-imaginary $147.5 million to a not-so-charitable organization,
the lawyers that brought the suit.
* Can the lawyers take their act industry-wide? "On Sunday
night, four new suits were filed in U.S. District Court in Beaumont, Texas
[where the Toshiba case had been filed only six months ago], against PC
makers Hewlett-Packard Co. Compaq, NEC Packard-Bell and e-Machines Inc."
Compaq says there are specific diferences between its machines and Toshiba's
which render the case against it meritless. Pattie Adams, a spokeswoman
for eMachines, said her company still hadn't seen the suit but expressed
the view that it. "doesn't really apply to us...It appears to be about
laptops, which we do not have, and the technology is from before we were
even established." As if that would save them in our current legal
system! Another news report suggests the lawyers are busily trying
to rope in governments as plaintiffs, à la guns-tobacco-lead
paint: "federal investigators have attended laboratory demonstrations sponsored
by plaintiffs' lawyers intended to show the occurrence of the alleged defect,
these people said. State and local agencies can opt to assert damage claims
on their own."
The law firm involved, Reaud, Morgan & Quinn, of Beaumont, Texas,
may not be a familiar name to tech-beat reporters, but it's quite familiar
to those who follow high-stakes litigation. After growing rich on
asbestos claims it moved into the tobacco-Medicaid suit on behalf of Texas
21, 1998 and sidebar).
It also made the Houston Chronicle's list
of top ten political donors in Texas (five of whom, all consistent
Democratic donors, happen to have represented the state in tobacco litigation
for $3.3 billion in fees). Beaumont, which also is home to another
of the Big Five Texas tobacco firms, is sometimes considered the most plaintiff-dominated
town in the United States. (DISCUSS)
Sources: Toshiba press release, Oct.
29; Terho Uimonen, "Toshiba Settles Floppy Disk Lawsuit", IDG /PC
World News, Oct.
29; Andy Pasztor and Peter Landers, "Toshiba to pay $2B settlement
on laptops", Wall Street Journal Interactive/ZDNet, Nov.
1; Michael Fitzgerald and Michael R. Zimmerman, "PC makers hit with
'copycat' suits", PC Week/ZDNet News, Nov.
1; "More PC lawsuits filed", AP/CNNfn, Nov. 2 (link now dead); "Laptop
Illogic", Wall Street Journal, Nov. 3.
November 3 -- Flag-burning
protest requires environmental permits. You're so angry
you want to burn a flag in public? You'll have to fill out these
two environmental permissions first,
please, one for the smoke aspect and one for the fire aspect. We
don't think this is a parody. (Vin Suprynowicz, "Levying a Free-Speech
Fee", Las Vegas Review-Journal, Oct. 28 -- full
November 3 -- Welcome
Allergy Links readers. Coverage of EEOC protection
of illegal aliens is here, and of possible
Rhode Island-led suits against glove makers, here.
November 2 -- School
shootings: descent of the blame counselors. It may seem
incredible to Americans, but after the 1996 massacre at Dunblane, Scotland,
in which 16 kindergarteners and their teacher were killed, "not a single
lawsuit was filed". How different in Littleton, Colo., West Paducah,
Ky., and Jonesboro, Ark., where busy litigators -- call them blame counselors?
-- seem to outnumber grief counselors, aiming suits in all directions:
at school districts, entertainment
gunmakers, and most controversially
the parents of the killers. Many victim families still decline to
sue, taking the older view of litigation as an obstacle to forgiveness
and community reconciliation; others throw themselves vigorously into their
suits as a cause, believing they're helping expose deep-seated evils of
today's America or at least the negligence of certain bad parents; and
then there's the middle ground represented by one Columbine High School
mother who says she's forgiven the shooters' parents, but, frankly, now
needs the money. (Lisa Belkin, "Parents Suing Parents", New York
Times Magazine, Oct.
31) (see also July 22, 1999 and April
13, 2000 commentaries).
November 2 -- "Responsibility,
RIP". Columnist Mona Charen comments on two auto
safety suits, one of them the child-left-in-hot-van case discussed
in this space Oct. 20. In the other
case, $2 million went to the survivors of a Texas man who'd left a truck
running on a hill and walked behind it. "You don't need an owner's
manual to tell you that it's dangerous to walk behind a running, driverless
vehicle on a steep hill. This used to be known as common sense. But
so long as juries return such verdicts, the concept of individual
responsibility gets hammered ever lower...the trial lawyers' wallets
grow corpulent, and the populace is increasingly infantilized." (Jewish
World Review, Oct. 25 -- full
November 2 -- How
the tobacco settlement works. "'There'll be adjustments
each year based on inflation,' said Brett DeLange, head of the Idaho attorney
general's consumer protection unit. Plus, 'If cigarette volume goes down,
our payments will go down. If volume goes up, our payments will go up even
more.'" Why, it's like Christmas come early! Of course DeLange
denies that this arrangement will in any way dampen the state's enthusiasm
for reducing tobacco use. (Betsy Z.
Russell, "Tobacco money gets closer to Idaho", Spokane Spokesman-Review,
Oct. 24 --
story) (see also July 29 commentary)
November 2 -- Lockyer
vs. keys. "October 12, 1999 (Sacramento) -- Attorney General
Bill Lockyer today sued 13 key manufacturers and distributors for allegedly
failing to warn that their products expose consumers to the toxic
chemical lead in violation of Proposition 65." -- thus a press release
from the office of the California AG. From time immemorial, it seems,
house keys have been made of brass, and brass contains lead. Whatever
you do, don't tell him about the knocker on your front door, or those robe
hooks in the bathroom. (press release link now dead)
November 2 -- Perkiness
a prerequisite? Lawsuit charges local outlet of Just for
Feet shoe chain with bias against black workers. Among evidence alleged:
store "policy dictating employees should
look like Doris Day or 'the boy next door.' Company representatives
deny the existence of such a policy." ("Shoe store accused of discrimination",
AP, Las Vegas Sun, Oct. 26 -- full
November 2 -- 80,000
pages served on Overlawyered.com.
With help from our Canadian visitors, we hit a new daily traffic record
last Thursday. New weekly and monthly records, too. Thanks
for your support!
November 1 -- New
topical page on Overlawyered.com : family
law resources. Divorce, custody, visitation, child
support, adoptions gone wrong, and other occasions for overlawyering of
the worst kind.
November 1 -- Not-so-Kool
omen for NAACP suit. Apparently unconcerned about retaining
the good will of Second Amendment advocates, the National Association for
the Advancement of Colored People is suing gunmakers
for having catered to strong demand for their product in inner cities (see
Aug. 19 commentary). Its potential case, however, is widely
regarded as weak -- so desperately weak that back on July 19 the National
Law Journal reported the civil-rights group as angling to get the suit
heard by Brooklyn's very liberal senior-status federal judge Jack Weinstein
because the underlying theories "might not succeed in any other courtroom
Now there's another omen that the much-publicized lawsuit is unlikely
to prevail: in Philadelphia, federal judge John Padova has dismissed a
class action which charged cigarette
makers with selling in unusually high volume to black customers and
targeting them with menthol brands and billboard ads. To bring a
civil rights claim, the judge wrote, "[p]laintiffs would have to contend
that the tobacco products defendants offer for sale to African Americans
were defective in a way that the products they offer for sale to whites
were not." If a racial angle can't be grafted onto the legal jihad
against cigarette makers, is the same tactic likely to be any more successful
when directed at gun makers?
Sources: Sabrina Rubin, "Holy Smokes!", Philadelphia
1999; Shannon P. Duffy, "Court Urged to Dismiss Menthol Cigarette Class
Action", The Legal Intelligencer, April
8; Joseph A. Slobodzian, "A novel civil-rights lawsuit vs. tobacco
industry is dismissed", Philadelphia Inquirer, Sept. 24, link now
dead; Shannon P. Duffy, "Judge Dismisses Smoking Suit", The Legal Intelligencer,
November 1 -- Mounties
vs. your dish. About a million Canadians
are said to defy their country's ban on the use of satellite dishes to
receive international programming, though the Mounties'
that violators "can face fines of up to $5,000 and/or up to 12 months in
prison". The ban applies not only to "pirate" watching (where viewers
buy stolen code that lets them unscramble signals without compensating
the satellite provider) but even to straightforward paid subscriptions
to foreign satellite services. The only lawful option is to go through
one of a duopoly of Ottawa-approved suppliers (Bell Express Vu and Star
Choice). Good news on another front, though: Internet radio is letting
listeners bypass the absurd and oppressive laws requiring Canadian content
in that medium. Bring Internet TV soon, please! (Ian Harvey, "RCMP
threatens a clean-up of illegal dishes", Toronto Sun, Oct. 13 --
November 1 -- "Shoot
the middle-aged". That's the title of a
editorial responding to the Michigan House's unanimous approval of a bill
allowing for doubling of criminal penalties when offenses are committed
against the young or elderly. (Oct. 23 -- full
November 1 -- World
according to Ron Motley. Even before tobacco
fees, the Charleston-based plaintiff's lawyer was "worth tens, maybe hundreds,
of millions of dollars. But he's about to get much richer. A billion or
two or three richer....Sketching plans that would alarm many corporate
executives, the 53-year-old lawyer will reinvest most of his newfound money
to finance lawsuits against the makers of lead paint, operators
of nursing homes, health maintenance organizations and prescription drug
makers." He calls the businesses he sues "crooks". "Mr.
Motley's windfall [from tobacco] is likely to exceed $3 billion...'If I
don't bring the entire lead paint industry to its knees within three years,
I will give them my [120-foot] boat,' he says".
In its flattering profile of the 53-year-old South Carolinian, yesterday's
Morning News quotes a pair of law profs who hint that the public should
really be glad Motley is now personally reaping billions for representing
government clients, because next time he sues some huge business it'll
be more of an even match. By that logic, we'd be better off if we
let every lawyer who argues a case against, say, Microsoft, amass as much
wealth as Bill Gates. Maybe the trial lawyers will figure out a way
to make that happen too before long (Mark Curriden, "Tobacco fees give
plaintiffs' lawyers new muscle", Oct. 31 --