Author Archive

Updates – September 7

Some updates to earlier stories we’ve covered:

  • Spyware maker Zango, which embarked on a strategy of suing all the anti-spyware vendors that were calling its products spyware, has dropped its lawsuit against PC Tools, the maker of Spyware Doctor. (We covered the filing of the lawsuit on May 23.) Presumably it chose to drop the suit because it just lost a similar one against Kapersky Lab, with a federal court ruling that antispyware companies’ decisions of this sort are protected from suit.

    Eric Goldman has the details, including links to all the relevant decisions.

  • We reported on August 21st on the “crackpot” libel suit against blogger PZ Myers for an unflattering book review. Stuart Pivar, who filed the suit to great derision in the blogosphere, apparently dropped the suit a week later. (Even if the suit had legal merit, it was filed in the wrong court, so dismissal was just bowing to the inevitable; in theory, Pivar could refile in the appropriate court, but after the way constitutional law professor Peter Irons dissected the complaint, I think Myers ought to feel safe.) Free hint to readers: defamation lawsuits are almost always a bad idea. All they do is provide publicity to the very claims one is trying to suppress. Defamation lawsuits against prominent bloggers are even less sensible.
  • Two years ago, the Illinois Supreme Court put an end to one of the more fraudulent “consumer fraud” lawsuits ever filed, a $10 billion lawsuit against Philip Morris for marketing “light” cigarettes in accordance with federal guidelines. But even though the state’s highest court ordered the case to be dismissed, Madison County repeat offender Steve Tillery went back to a local court run by notorious Judge Nicholas Byron and tried to reopen the lawsuit. Finally, last month the Illinois Supreme Court definitively slapped down Tillery, telling Byron to dismiss the case.

    (Overlawyered’s sister site Point of Law has been covering this case.)

Federal court: Fieger can call judges Nazis

We’ve covered many of Michigan trial lawyer Geoffrey Fieger’s antics and legal troubles here on Overlawyered over the years; his most recent problems include being censured in Arizona and being criminally indicted for illegal campaign contributions.

But he may have managed to wriggle out of punishment for at least one of his shenanigans: his 1999 radio tirade in which he labelled as Nazis the judges who ruled against his client. He was sanctioned by the Michigan courts for this conduct, with the Michigan Supreme Court upholding the discipline against his first amendment challenge in Aug. 2006 (Yes, that’s seven years after the incident.)

But this week, a federal court bought Fieger’s first amendment argument, holding that the rules under which he was sanctioned were unconstitutional.

The rules say lawyers must treat everyone involved in the legal process with “courtesy and respect” and should “not engage in undignified or discourteous conduct” toward the bench.

In the decision released late Tuesday, U.S. District Judge Arthur J. Tarnow said “the rules are unconstitutional on their face because they are both overly broad and vague.”

If we were snide, we might note that it could say something about Fieger that he couldn’t figure out that calling someone a Nazi is not dignified or respectful. We were amused at the Court’s reasoning for why Fieger had standing to challenge these rules:

The likelihood that Plaintiff Fieger may again say something negative about a Michigan court that could subject him to further punishment under the courtesy provisions is not the attenuated situation presented in Grendell. Plaintiff Fieger is a vocal, often harsh, and at times vulgar critic of Michigan’s judiciary.

You don’t say.

Ninth Circuit: Molski “Plainly lied”

We’ve been covering the exploits of professional ADA plaintiff Jarek Molski and his lawyer Thomas Frankovich for a long time now (See Aug. 3, Mar. 23, many others). When last we checked, Molski/Frankovich were appealing a federal judge’s finding in Molski v. Evergreen Dynasty Corp. that they were vexatious litigants; the designation meant that they couldn’t file any more ADA lawsuits in the Central District of California without first getting permission from the court.

Last week, the Ninth Circuit issued an opinion (PDF) which upheld the finding in its entirety. The only quirky part of the case was that it was likely that many of the establishments sued by Molski/Frankovich at least technically probably had violated the ADA by not complying with its vague, onerous requirements. But the Ninth Circuit had no problem getting beyond that:

Frivolous litigation is not limited to cases in which a legal claim is entirely without merit. It is also frivolous for a claimant who has some measure of a legitimate claim to make false factual assertions. Just as bringing a completely baseless claim is frivolous, so too a person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.

And for some reason, neither the District Court nor the Ninth Circuit were impressed with Molski’s factual assertions:

However, it is very unlikely that Molski suffered the same injuries, often multiple times in one day, performing the same activities—transferring himself from his wheelchair to the toilet or negotiating accessibility obstacles. Common sense dictates that Molski would have figured out some way to avoid repetitive injury-causing activity; even a young child who touches a hot stove quickly learns to avoid pain by not repeating the conduct.

The Ninth Circuit was not any more complimentary towards Frankovich:

When a client stumbles so far off the trail, we naturally should wonder whether the attorney for the client gave inadequate or improper advice.

The court also found significant that Frankovich may well have broken legal ethics rules by trying to intimidate defendants into settling without hiring lawyers and giving them (bad) legal advice.

This isn’t necessarily the end for Molski/Frankovich. The vexatious litigant order applies only to the federal courts — in fact, only the federal courts in the Central District of California — and does not prevent them from filing suit; it only requires them to seek permission of the court first.

Read On…

Kentucky Fen-Phen update: judgment entered

We’ve provided extensive coverage of the Kentucky fen-phen scandal, in which the lawyers who represented fen-phen plaintiffs were found in a civil suit to have misappropriated more than $64 million of their clients’ money. The judge who heard the suit has now entered final judgment against the lawyers, which will allow the plaintiffs to start collection proceedings in 30 days, barring appeal by the lawyers. (The good news: to appeal, they would need to put up an appeals bond, which would make it easier for the plaintiffs to collect. It’s not clear whether they’re going to appeal; they may be too busy defending themselves against the criminal charges which have been filed against them.)

The lawyers’ lawyer calls it a “travesty of justice,” and offers an unusual defense to charges of defrauding clients:

“No one, including the judge, has acknowledged that the attorneys’ fees were ordered by a judge or the fact that each and every client in the case received multiples, and I repeat multiples, of any amount that they would have received if they had not been represented by my clients — Bill and Shirley.”

Since the lawyers did a good job in achieving the initial settlement, it’s okay for them to defraud their clients of some of the money? Pretty sure it doesn’t work that way. (And of course, in claiming that the fees were “ordered by a judge,” she somehow neglects to mention the fact that the judge was paid off by the lawyers, and that as a result he quit just before he was going to be kicked off the bench.)

Youtube lawsuit of the week: A&P vs. rappers

The only thing growing faster than the number of videos being shown on Youtube is the number of lawsuits arising from videos being shown on Youtube. The company itself has been sued by every media company in the known universe — led by Viacom — over copyright infringement by users of the website. And when Youtube isn’t being sued, the people who post the offending or infringing clips are.

A few weeks ago, a couple of college students posted a juvenile rap video about their work in a supermarket produce department. They filmed the video in the A&P supermarket where they were employed stocking shelves, but they never mentioned or displayed the A&P name. No matter; someone figured it out, and they were fired.

That could have been the end of that… except that A&P got the brilliant idea to file a $1,000,000 lawsuit against the two, for defamation. (Just a guess, but unless A&P pays a lot better than I suspect, they may not be good for the money.) And, shockingly, the video, which had just 2,500 hits earlier this week before the lawsuit, now has been viewed 60,000 times. Wonder who thought that this lawsuit was a good idea.

When lawyers fight

At least we can be sure that lawyers don’t treat each other any better than they treat other parties in litigation. Texas Lawyer provides us with a story of how two plaintiffs lawyers, who started out on the same side of a class action suit, managed to turn a dispute amongst themselves over $28,000 in fees into an eleven year fight with an ultimate award of over $250,000.

Frivolous — but honest about it

No matter how absurd a lawsuit is, the plaintiff usually has an elaborate, ingenuous theory to explain why he deserves to be compensated for injuries caused in some convoluted, indirect way by the nefarious defendant, and the obligatory disclaimer about the case “not being about the money” is usually tacked on. Usually. And then there’s James Schlimpert, president of Oklahoma-based Garage Storage Cabinets LLC.

When asked why he brought a suit against a competitor (Don Mitchell/MGCS) for misappropriation of trade secrets and tortious interference with his company’s dealer contracts, he explained, forthrightly:

When deposed, GSC President John Schlimpert testified that his company held no trade secrets, had no exclusive dealer contracts, and had filed the lawsuit for the sole purpose of putting MGCS out of business.

“I am amazed in some respects that the plaintiff said that, and he said it more than once, said his purpose was to put them out of business,” reads the court record issued by the District Court of Payne County, Honorable Larry Brooks, judge. “I think, under the plaintiff’s stated purpose, he was bringing it just to be vexatious to the defendants. I think it’s vexatious litigation.”

Wow. Still, for anybody who wasn’t already convinced by the Roy Pearson case, the history of the suit illustrates the difficulty courts have in protecting defendants from frivolous suits.

Because the complaint, on its face, seemingly stated legitimate causes of action, the only way for Mitchell to establish that the suit was frivolous was to conduct discovery and take the deposition of the plaintiff. Then Mitchell had to get lucky; if Schlimpert hadn’t foolishly admitted the fraudulent nature of his suit, the court would almost certainly treated the suit as legitimate. (Mitchell could still have won, but wouldn’t have gotten sanctions.) Once Mitchell got lucky, he had to make a motion to the court to have the case thrown out.

Then, after having the case thrown out, Mitchell had to make a separate application to the court for sanctions — he actually botched this procedure, but the court let the issue slide — and then had to participate in a hearing to try to establish how much those sanctions should be. All of that cost more money, more attorneys fees, with no guarantee that these costs would be recouped. Indeed, in this case Mitchell asked for $49,300, and the judge awarded only $31,500, because Schlimpert was successful in finding an expert witness to convince the judge that the lower number should have been sufficient to beat his frivolous case.

Moreover, the judge refused to penalize the plaintiff’s lawyer, finding that just because Schlimpert was acting in bad faith didn’t mean his lawyer was.

And then, after all that, Schlimpert appealed. Finally, this month, the appeals court upheld the trial court’s decision. And now Mitchell has to go back to the trial court, after having spent another $8,000 on the appeal, and has to hope the judge will make him whole.

P.S. In case you were wondering: this suit was filed in May 2003. It took 17 months from the time the suit was filed until the time the judge ruled in favor of Mitchell. It took another 17 months for the judge to award sanctions to Mitchell. After Schlimpert appealed, it took yet another 17 months for the appeals court to rule. In other words, more than four years elapsed. But — as mentioned — it’s still not over, because now Mitchell has to return to the trial court, to be awarded fees because of Schlimpert’s appeal.

Bloomberg gun lawsuits will go on

Last year, New York City Mayor Bloomberg filed federal lawsuits against bunches of gun stores across the country; we’ve covered these suits extensively. (See, e.g. May 2006, Jun. 2006, Sep. 2006). NYC sent people to stores in places such as Georgia, Ohio, Virginia and South Carolina; these city agents then conducted “stings” in which they made supposedly illegal firearms purchases. Bloomberg then sued these stores, claiming that the guns were ending up in New York City and that the stores should for some reason be liable for this.

Somehow, despite the fact that whatever illegal sales took place did so in Georgia, Ohio, Virginia and South Carolina, the suit ended up in the Brooklyn courtroom of federal Judge Jack Weinstein, the man who has never seen a products liability case he couldn’t endorse. The gun stores moved to dismiss the suits on the grounds that New York courts have no jurisdiction.

Last week, Weinstein rejected the gun stores’ motion in a 99 page opinion (PDF) replete with anti-gun rhetoric (about criminals who “terrorize” the city and descriptions of guns as “Saturday Night Specials”) and citations to his own decisions in previous gun-litigation cases (Jul. 2003) So the suits will continue; a trial date has been set for January.

Republican presidential-non-candidate Fred Thompson doesn’t think much more of these suits than we do.

Alcohol isn’t tobacco, unfortunately for trial lawyers

Class action lawyers — led by David Boies III, son of famed litigator David Boies — continue to try to attack the alcohol industry the same way they did the tobacco industry, but with far less success. Back in June 2006 we reported that Boies the Younger had been racking up an impressive track record… of losing. His lawsuits are based on the marketing practices of the alcohol companies; the claim is that the advertising was aimed at (who else?) children. But the suits don’t allege any actual harms suffered by, well, anybody. Instead, they claim that the marketing caused the plaintiffs’ underage children to buy alcohol. Even with creative lawyering, the only damages that they could allege were that the kids spent their parents’ money on the alcohol.

The lower courts have laughed these suits out of court, and last month, in response to Boies’ appeals, the Sixth Circuit did the same (PDF), finding that the plaintiffs didn’t even have standing to bring the suits. And when they did so, they gave a little civics reminder of how our legal system is supposed to work:

In any event, if outlawing the actual sale and purchase is insufficient to remedy the alleged injuries (which is the premise underlying the plaintiffs’ theories), then outlawing mere advertising must be insufficient as well. Consequently, the plaintiffs cannot demonstrate redressability. If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not by judicial fiat.

In a rational world, this would be the end of these trial lawyer efforts. But since there’s no loser pays, our legal system doesn’t work that way. Trial lawyers can keep filing these over and over again in state after state, tweaking their arguments slightly from time to time, hoping to win the lottery; all they need to do is prevail once to earn back their entire investment in this litigation scheme. Whereas the alcohol companies have to win every one of these suits to avoid a backbreaking financial penalty.

Read On…

Imus in the Courtroom, Update

In April, Don Imus infamously called the Rutgers Unversity women’s basketball team “nappy-headed hos.” After a week of controversy, criticism, and grovelling apologies, he was fired from his job by CBS radio. Imus threatened a lawsuit, and yesterday he settled with CBS. That should have been the end of the story. But of course, if it were, then how would the poor trial lawyers feed their families? Now that Imus’s settlement is final, he has money to burn. So, just a few hours after the settlement was announced, the first Rutgers player rushed to the courthouse to file suit against Imus and the other deep pockets:

“Imus lost four months of employment and gained $20 million and a new platform. But what about these young women? How does Imus’ big payday affect their self-esteem?” said Vaughn’s lawyer Richard Ancowitz.

The suit, which also named CBS, MSNBC and Imus sidekick Bernard McGuirk, did not ask for a dollar amount. There was no immediate comment from the defendants.

“The kind of sexist and bigoted attack these young women and Kia in particular suffered demands more than lip service,” Ancowitz said. “She wants the court to recognize that Imus slandered her.”

I haven’t seen a copy of the complaint yet, but it’s hard to imagine that it is anything other than utterly frivolous. Imus’s comments might have been nasty and uncalled for, but calling someone a “nappy headed ho” is not defamatory unless it is interpreted as an actual accusation that the person is a prostitute. No reasonable person could interpret it that way. That’s without even getting to the issue of lack of actual damages.

Update: AP provides the money quote from the complaint, and unless there’s a lot more they failed to mention, it’s exactly as frivolous as I expected:

The Vaughn suit claims that the comments were made in the context of a news or sports report and therefore Imus had certain standards to abide by but ignored them. The suit reprints the script from the “Imus in the Morning” show on which the comments were made.

“The … false, defamatory, sexually denigrating and slanderous statements and comments against the women athletes of said basketball team were heard, believed and understood by millions of listeners … as factual pronouncements concerning the character, chastity and reputation of the plaintiff,” the lawsuit says.

I’d tell you what I think of a lawyer that actually tries to make such a claim with a straight face, but I’m afraid he’d sue me for challenging his character, chastity, and reputation.