Author Archive

Cory Lidle, One Year Later

The AP brings us up to date on the anniversary of Cory Lidle’s death:

By one estimate, more than $63 million worth of lawsuits now trail the estate of Yankees pitcher Cory Lidle, seeking compensation for injuries, damages or insurance payouts that followed his plane’s crash into a New York City apartment building.

A year after the wreck, a federal safety panel has concluded that Lidle and his flight instructor died because they misjudged a turn, but the finding has done little to settle the legal fights that now stretch across the country.

According to the article, Lidle’s estate isn’t nearly large enough to pay all the claims against it… unless, of course, Lidle’s widow wins her $100 million lawsuit against the plane’s manufacturer.

(Previous entries: Mar. 2, Apr. 4, May 2).

Backfire in Bloomberg lawsuit

NYC Mayor Bloomberg’s lawsuits against out-of-state gun dealers continue in New York City, thanks to Judge Weinstein (see Aug. 27, and links therein), but it’s not all rosy for the mayor. As we previously reported, some of the gun dealers targeted by Bloomberg’s sting are fighting back, and one of them won a victory last month:

Questioning the legality of tactics used by New York Mayor Michael Bloomberg to sue gun dealers, a federal judge in Atlanta has allowed a defamation suit by a Smyrna, Ga., gun shop against Bloomberg and other New York City officials to go forward.

Although the judge dismissed the Smyrna gun seller’s negligence claims against New York officials, he declared that six of 13 potentially defamatory statements were actionable and cleared the way for a tortious interference with business claim.


Bloomberg, accompanied by other New York public officials, announced the results of the sting — and the accompanying suit — in May 2006 at a news conference. According to court records in the case, Bloomberg called the gun dealers “a group of bad apples who routinely ignore federal regulations,” and Feinblatt said that the targeted gun dealers had “New Yorkers’ blood on their hands.” Forrester ruled that both of those statements are vulnerable to liability claims.

More importantly, the judge denied Bloomberg’s request to transfer the case to New York, where it would have been heard by Judge Weinstein. (Bloomberg is attempting to get the decision reversed, but for now, the suit against him is active.)

In other gun-related litigation, it seems that Gary, Indiana’s lawsuit against gun manufacturers may continue, despite the fact that Congress passed a law explicitly banning such lawsuits; as in New York City’s war on gun manufacturers, activist judges seem to want to interpret away Congress’s words. (Last week, the Second Circuit Court of Appeals heard oral arguments in Manhattan in an appeal of Judge Weinstein’s ruling allowing the city’s lawsuit to proceed. (Earlier: Nov. 2005)

Get a C, File a Lawsuit.

In the Fall 2006 semester, Brian Marquis got a C in his “Problems in Social Thought” class at the University of Massachusetts. Apparently attempting to prove he learned more about the problems than about the solutions, he immediately proceeded to file a federal class action lawsuit alleging that the school, its trustees, his professor, and various deans violated his constitutional right to get an A.

In a rare case of speedy resolution, it took the court just four months from the time the lawsuit was served on the defendants for the court to dismiss the case; that might have had something to do with the fact that Marquis was proceeding pro se, and drafted a semi-grammatical complaint with no legitimate causes of action. (For instance, he listed a racial discrimination statute as one of his causes of action, despite being white and failing to allege that race played any role in the matter.)

Still, that hardly means the suit was cost-free; as one of the defendants put it, “It ended up just wasting a lot of people’s time and money.” Moreover, Marquis says that he’s thinking of appealing. But lest you think that Marquis just had sour grapes, he had a good reason for filing the suit:

Marquis – who salts his comments with “strike that” – acknowledged he was alarmed the C might lower his grade point average and make him less attractive to a law school.

The C has rendered his transcript a “dismal record of non-achievement,” his suit said. Marquis, who enrolled at UMass-Amherst in spring 2006, said he has roughly a B-plus average.

I’m going to go out on a limb and guess that “Has a history of filing lawsuits against his school and his professors” on his résumé isn’t actually going to make him more attractive to a law school. (Although his 2004 lawsuit against his previous school didn’t keep him from being admitted to the University of Massachusetts.)

(h/t Kerr @ Volokh)

A Thousand Little Refunds, Plus Attorneys Fees

For $800,000, one could buy a nice house, two thousand iPhones, about five days’ worth of Alex Rodriguez’s contract, or 1,700 hours of class action lawyers producing absolutely nothing of any value to anybody.

In January 2006, The Smoking Gun reported that James Frey’s A Million Little Pieces memoir had significant inaccuracies. After a few days of denial, Frey admitted that the book was inaccurate. The publisher, Random House, immediately posted a statement to that effect on its website and offered a refund to anybody who was upset. Approximately 12 seconds later, hordes of trial lawyers copied down the allegations from The Smoking Gun’s website and rushed to the courthouse to file “consumer fraud” class action lawsuits against Frey and Random House. They demanded… that Random House post a disclaimer and give refunds to anybody who was upset. In a sane world, those lawyers would have been sanctioned for filing a frivolous lawsuit, and then sanctioned again for wasting everyone’s time by asking for a remedy that had already been achieved.

But as we know, this world is Overlawyered, so, more than 1,700 hours of trial lawyer time later, Random House agreed to settle the case for “up to” $2.35 million, to cover refunds, costs, and attorneys fees for the up-to-3.5 million people who purchased the book before Frey admitted it was inaccurate.

And now the other shoe has dropped, exactly as Walter predicted in May. The deadline for class members to submit their claims was October 1st, and according to filings by the class lawyers, a grand total of 1,345 people had done so by September 17th; based on past experience, they expected another 250 submissions in the last two weeks before the deadline. Yes, that total would be less than one-half of one percent of those who bought the book — the alleged “victims” of the alleged “consumer fraud.”

But despite this dismal response rate, the class action lawyers have now submitted their fee request… $783,333.33 — or one third of the imaginary $2.35 million settlement. Plus $14,000 in expenses. The lawyers defend this fee as reasonable on the grounds that they spent those 1,700 hours preparing their case. (h/t The Smoking Gun) $800,000, and 1,700 hours — for a case where the research was all done by the Smoking Gun before the suit was filed, and the only thing the lawyers had to do was create enough of a nuisance to induce Random House to settle.

For those of you scoring at home, assuming a $15 refund for each claimant, that would be a total recovery of approximately $24,000 for the class members. And $800,000 for the lawyers. Or, in other words, about 3% of the recovery for the consumers, and 97% for the lawyers. Ain’t America grand?

Sued for not endorsing 9/11 conspiracy theory

Fifty years ago, conspiracy theorists could rant in bars, or perhaps write letters to the editor. Twenty years ago, conspiracy theorists could call talk radio. Now? Through the magic of qui tam laws, conspiracy theorists can wage their war against sanity in the courts.

While reading Bizarro-Overlawyered’s paean to 9/11 lawsuits — guess what? They’re not (just) about the money! They’re really about helping the public “know what happened”! — a commenter on the site provided a link to Morgan Reynolds’ 9/11-related lawsuit. Reynolds, a former economist at the Department of Labor, became unhinged sometime after 9/11 and began ranting on the internet about the various conspiracies that brought down the World Trade Center. (Hint: government laser beams from space, not airplanes.) In the past, that would have been the end of it. Even if Reynolds wanted to take legal action, he couldn’t — he wasn’t injured by 9/11, so he would have no standing to file a lawsuit against anybody.

Ah, but that doesn’t take into account the False Claims Act. The qui tam provisions of the False Claims Act allow private individuals to sue on behalf of the government whenever the government is defrauded, and collect a portion of the money owed to the government. So all one needs to do is find a creative legal hook to claim that the government has been cheated, and all of the sudden one has standing to sue. What was Reynolds’ claim? He argues that when the National Institute of Standards and Technology (NIST) — a government agency — prepared its report on the collapse of the World Trade Center, it paid various companies to consult with it. Since none of those consulting companies mentioned the government laser beams from space, they obviously defrauded the government.

So he sued… well, he sued everyone. To be precise, he sued:

Science Applications International Corp.; Applied Research Associates, Inc.; Boeing; Nustats; Computer Aided Engineering Associates, Inc.; Datasource, Inc.; Geostaats, Inc.; Gilsanz Murray Steficek Llp; Hughes Associates, Inc.; Ajmal Abbasi; Eduardo Kausel; David Parks; David Sharp; Daniele Venezano; Josef Van Dyck; Kaspar William; Rolf Jensen & Associates, Inc; Rosenwasser/Grossman Consulting Engineers, P.c.; Simpson Gumpertz & Heger, Inc.; S. K. Ghosh Associates, Inc.; Skidmore, Owings & Merrill, Llp; Teng & Associates, Inc.; Underwriters Laboratories, Inc.; Wiss, Janney, Elstner Associates, Inc.; American Airlines; Silverstein Properties; and United Airlines

Those are engineering firms, airlines, consulting firms, defense contractors, building contractors, and real estate firms. All of which get to deal with his lawsuit. (Will it eventually be dismissed? Yes. Will Reynolds be ordered to pay defendants’ costs? Probably. (Assuming he could afford those costs, which seems unlikely given how many defendants he sued.) But thanks to the notion that private citizens can sue without suffering any injury, it superficially states a valid claim. And, hey, it isn’t that much kookier than the actual 9/11 families who seek to blame the airlines, the World Trade Center, etc. for 9/11. Incidentally, this isn’t one of those wacky pro se lawsuits; Reynolds has an actual lawyer, albeit one who’s also a 9/11 conspiracy theorist.)

(No links in this post; no need to encourage these people. Google if you want to find it.)

Lawsuit: Yahoo should break Chinese law

We recently covered the Caterpillar lawsuit, in which an American company was sued because of the way a foreign government used its products. Although the suit was dismissed by the Ninth Circuit, it wasn’t because it’s absurd to blame a manufacturer for how its products are used; rather, it was because — as Walter noted — the Caterpillar products were actually paid for by the U.S. government. Given that, it may not be much comfort to other companies being sued over the actions of foreign governments.

In 2004 and 2005, various Chinese citizens were arrested in China by the government of China, prosecuted for their pro-democracy activities, convicted, and sent to jail. They allege that, while in these Chinese prisons, they have been treated poorly by the Chinese government, and that they have suffered physical and mental anguish as a result.

So, in April of this year, these Chinese prison inmates sued the obviously-responsible party: Yahoo, naturally. In California. They sued Yahoo for violating federal law against torture. And for assault, battery, false imprisonment, unfair competition, intentional infliction of emotional distress, and for violating the U.S. Electronic Communications Privacy Act. In China. What was Yahoo’s wrongdoing? The company — or, rather, its Chinese subsidiary — allegedly provided evidence to the Chinese government which enabled the government to identify these people and prosecute them for breaking Chinese law.

Now, one may have no love for the Chinese government, or for companies that do business in China. One can argue that, ethically, Yahoo should refuse to cooperate with the Chinese government. But those are policy questions, and however one comes down on them, one can’t argue that a federal court in California can order a company to break the laws of another country. (The flaws in this should be readily apparent; as Yahoo notes in its motion to dismiss the case, under the logic of the plaintiffs, “A court in France could issue an injunction mandating that French companies doing business in America refuse to provide evidence in cases where the defendant might be subject to the death penalty.”) One can’t argue that a federal court in California can order a company to get a prisoner released from a Chinese prison (Yes, that’s in the lawsuit.) One can’t argue that a federal court in California can act as an appeals court for a Chinese trial, finding Chinese laws unconstitutional.

Yahoo is seeking to dismiss the case in its entirety. (Washington Post)

(Incidentally, it should go without saying that my introduction was not intended to compare the actions of Israel’s government in fighting terrorism with the actions of China’s government in punishing peaceful dissent. The only parallel here is the attempt to hold an American company responsible for the actions of a foreign government.)

Meanwhile, in other attempts to use the U.S. courts to run world affairs, a group of Bolivians have sued the former president of Bolivia, in the United States, for human rights violations that took place in Bolivia. (Reuters)

Chemerinsky legally entitled to job?

The UC Irvine-Erwin Chemerinsky debacle has been covered extensively in the blogosphere — Walter has a roundup of links over at Point of Law. One thing is for certain, though: regardless of the wisdom of UC Irvine’s actions, it clearly has the right to choose its dean based on any (non-discriminatory) criteria it wants. If the university isn’t happy with Chemerinsky’s ideological viewpoint, it obviously has the right to choose someone more compatible, right?

Well, maybe not, as Eugene Volokh explains. Under the wonders of California employment law, the mere fact that someone has abhorrent views doesn’t give you the right to fire him, and it doesn’t give you the right to decide not to hire him:

In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer’s customers, donors, employees, or others.


So it seems that an employer’s policy (written or not) that it won’t hire or won’t retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.

Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer’s customers would be deeply alienated by the person’s statements (past or future).

That one may well fall under a “damned if you do, damned if you don’t” situation; hiring an outspoken Klansmen will expose employers to potential liability for creating a racially hostile work environment.
And as a special employment-law related bonus: the AP explains that companies that might want to try to save money on health insurance by financially incentivizing employees to stay healthy have to worry about HIPAA (if they provide too much in the way of incentives), and the Americans with Disabilities Act (if employees can convince a court that their obesity is a disability).

Lawsuit: Knowledge of English, thinking not required for police

Quick multiple choice question: you call the police to report an emergency. Several officers respond. Who do you want supervising these officers?

  1. Smart police officers
  2. Police officers who speak English
  3. Police officers who can choose the right strategy from multiple possibilities
  4. All of the above

Tricked you! The question can’t be answered, because police supervisors shouldn’t have to answer multiple choice questions at all:

Five police officers from Lawrence and Methuen filed a federal civil rights lawsuit yesterday against the two cities and the state, contending that the state promotional exam discriminates against members of minority groups and has prevented their advancement within the ranks.


They say the multiple-choice format of the test, not the content of the questions, has blocked the rise of minorities, many of whom grew up speaking a different language. They want the state to devise a promotion system that would better reflect the skills used by a police supervisor, instead of how well they answer multiple-choice questions.

Welcome to the world of “disparate impact” litigation, where you don’t have to demonstrate any racism to charge racial discrimination. All you have to do is claim that some groups get promoted less frequently than others, and point out that the employer can’t really prove that his standards are necessary for the job. You know, like speaking English…

“I think this exam is really outdated,” said Cano, who scored a 78 in 2006. “For me, a person whose native language is Spanish, it’s a challenge. The questions are extremely complicated.”

…or dealing with “complicated” situations. The complaints don’t even have to make sense:

Kevin Sledge, 45, a patrolman in Lawrence for 14 years, said the test favors those who have more practice taking written exams. He took the exam last year for the first time, scoring a 76, but was passed over for others who scored higher.

“Some people are more practical and verbal, and those are important skills to be a police supervisor,” he said.

Whereas multiple choice questions don’t test either practical or verbal skills? Well, I guess if you see an emergency, you can just call a lawyer instead. (H/T John Rosenberg)

(Past Overlawyered fun with civil service exams: Mar. 2005, Apr. 2006, Jan 2007, Aug. 1, others.)

Imus lawsuit: nevermind

Kia Vaughn, the Rutgers basketball player who filed a defamation lawsuit against Don Imus over his “nappy headed hos” comment, has withdrawn her suit:

Vaughn’s attorney, Richard B. Ancowitz, said in a statement yesterday that the junior from the Bronx decided not to pursue the suit so she could focus on academics and training for the upcoming season. Rutgers, which made it to the NCAA championship game last season, is expected to be one of the top teams in the country.

“Her strong commitments to both (academics and basketball) have influenced her decision to withdraw the suit at this time,” Ancowitz said in the statement. “We feel that we have made a strong and important statement against such hateful speech with the filing of this lawsuit.”

Translation: “Whoops. This case might be a little harder to win than I thought.”

I think the Overlawyered discussion thread (Aug. 15) about the case lasted longer than the lawsuit.

Nifong/Lacrosse update

Former Durham prosecutor Mike Nifong, railroader of the Duke Lacrosse 3, was found guilty of contempt of court and sentenced to one day in jail; this punishment is for lying to the trial court about the existence of DNA evidence. He reported to jail today to serve his sentence. He has already been disbarred, of course.

Next to come is the players’ civil suit, though that money is unfortunately going to come from the taxpayers of Durham rather than from Nifong. The players are attempting to negotiate a settlement before filing their suit; they’re reportedly seeking $30 million, plus changes to the legal process to allegedly prevent the district attorney from hijacking a police investigation the way Nifong did. They intend to file suit within a month if the city doesn’t settle. (AP, Herald-Sun)

And then there’s this little tidbit:

Durham’s Police Department, which helped Nifong secure the indictments, has also come under criticism. A special committee probing police handling of the case stopped working last month, however, because the city’s liability insurance provider warned that the committee’s conclusions could provide material for lawsuits.

At this point, if we were Bizarro-Overlawyered I’d be rambling about “Profits over People” or something, but since we’re not, I’ll just point out that it simply demonstrates the perverse incentives of the legal system and its unbounded discovery rules. As long as everything you put on paper can be used against you — even in hindsight — then the incentive is not to put it on paper. (Of course, I’m not suggesting that the specific wrongdoing in Durham was only obvious in hindsight; people like K.C. Johnson figured it out right away. But the incentives are the same in every case.)