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A Prediction For 2009

Not quite gone yet.

Which firm will be the first to file a class action against Microsoft over the New Year’s Eve Zune crash? Apparently every 30 gigabyte Zune in America is stuck on a loading screen, refusing to play music due to some bizarre Y2K-like programming error.

This would be a posterchild case of the sort that many advocates say is the merit of the class action.  Millions (well, perhaps thousands – the Zune is also a good illustration of Microsoft’s inability to get things right the first time, or the second) of people have been injured, or at least inconvenienced, in some small fashion, all suffering the same injury, none of them able to obtain legal assistance due to small damages in each individual case, against a heavily lawyered, deep pocket defendant.

A settlement, if such an action is filed, would also illustrate the problems inherent in the form, with a few lawyers and an individual named class representative getting a bonanza of millions spread among a few people, while class “members” receive coupons good for one free download, assuming they’re willing to take the time to fill out a form and mail it to a Post Office box in Oregon.

All of this assumes that the problem, reported this morning, hasn’t already been fixed.  Personally, if I owned a Zune, and Microsoft irrevocably “bricked” it, I would emulate my hero Mitchell Berns and get a default judgment in small claims court over my lunch hour, when Microsoft inevitably failed to appear.

Still, whether the inconvenience is permanent, or just one day’s duration, the Zune case is a perfect class action.  I predict that in some plaintiffs’ firm, somewhere, an associate attorney’s New Year’s has already been ruined.  Maybe I should upset my wife and do it myself tomorrow.  Does anyone here own a 30 gigabyte Zune, and are you willing to be a class representative?

Thanks to Kip Esquire for the notion.

Daily Roundup 2008-12-31

Due to work and family commitments today and tomorrow, this may be my final post at Overlawyered.  Walter Olson will be returning shortly.

  • Eight Los Angeles police officers may face suit from an unwilling Jamie Lynn Spears decoy. Why does the LAPD provide any officers at all to protect B-list celebrities?
  • What slippery slope? New Jersey Civil Rights Division finds discrimination in case of Methodist ministry which refused to rent a pavilion for civil union of two lesbians, but otherwise rented the pavilion for marriage without regard for sectarian concerns.  Perhaps this makes sense if sexual orientation is protected under New Jersey civil rights law, but I’m pretty sure New Jersey still gets it wrong on the First Amendment;
  • Revolutionary breathrough in cellular anti-aging, or journalistic malpractice?
  • “But the majority voted not to disbar since they saw a distinction between an attempt to have sex with the minor and actually doing it.”  Like Eric Turkewitz, I’m astonished;
  • In building a law firm, perhaps Craigslist is not the best substitute for traditional recruiting practices;
  • Great news for British authors of Popeye fan fiction.  American fans are still out of luck;
  • Talk show hosts whose entertainment relies on “zinging” stupid guests, with the support of an even more stupid audience, should never invite Christopher Hitchens to appear on their shows;
  • Thoughts on whether it’s deceptive, or just lame, to call a solo law practice “the Law Offices of John Smith” or “John Smith and Associates” from sole practitioner Scott Greenfield.

In the event that this is my final piece here, I’ve enjoyed my stint guest-blogging, and commend Walter on the hard work he’s done through the years to make this a great site, as well as to build an unusually good commenting audience.  Happy new year!

Katrina Formaldehyde Plaintiffs: Not A Class

Judge Kurt Engelhardt of the Eastern District of Louisiana, who held in October that the Federal Emergency Management Agency does not enjoy immunity from suit by plaintiffs seeking to recover from exposure to formaldehyde in trailers, yesterday dealt plaintiffs a setback by holding that they are not entitled to present their claims against various trailer manufacturers through a class action.

I have not read the opinion, but one can find a good summary of the issues presented in this story from the Times Picayune, which emphasizes the court’s concern over impossibility of determining liability, proximate causation of injury, and damages for a “class” of people of varying health, age, demographics, and lengths of exposure.  Each plaintiff will have to try his or her case separately.

All of the above are individual issues that render analysis on a class-wide basis utterly impossible, ” Engelhardt ruled in a 50-page decision. “Each plaintiff’s claims and alleged injuries will require an examination of individual evidence.

This makes sense because, from a practical standpoint, it would be impossible to present over 100 chemical injury claims to one jury, a problem that isn’t present in class settlements such as Vioxx.  (The Vioxx case still had problems aplenty.)  The opinion also emphasizes that each of the trailer manufacturer defendants may have separate defenses, including different manufacturing techniques and levels of formaldehyde within its trailers.

If anyone knows of a publicly available link to the opinion (I’m not writing this from a computer where a PACER download would be practical), it would be greatly appreciated.

New Character Class Coming to your Favorite Games: The Patent Troll

A Massachusetts company known as, which to my knowledge has never produced a product of the sort known as a “Massive Multiplayer Online Roleplaying Game,” nevertheless claims a patent in the concept.  These games, the best known of which are probably World of Warcraft or Everquest, have been around for well over ten years, and are quite the moneymaking ventures for their producers.

Now is suing NCSoft, a Korean company that produces the games Lineage and City of Heroes, based on a patent filed in 1999 and issued in 2004 for a “system and method for enabling users to interact in a virtual space,” though some of the NCSoft games alleged to breach the patent were produced before even filed its application.  As has never produced such a game, and appears to be little more than a vehicle for holding the patent, one expects that NCSoft will counterclaim seeking to invalidate the patent.  Nevertheless, announces that it would “welcome licensing inquiries from the on-line game industry,” meaning Sony and Blizzard, to allow those companies to continue making money from their own games.

The best story I could find on this came from The Register, which has the application and notes that the patent is an “extremely broad” one which could reach beyond games.  Other informative coverage can be found at gaming sites, including Broken Toys, Kotaku, and Virtual World News.

Daily Roundup 2008-12-29

Soon, baby soon.  Walter Olson’s new year’s resolution is to return to blogging at Overlawyered.

  • International adoption is always a risky business, fraught with uncertainty: now aspriring parents, burned by changes in Guatemalan law, are suing adoption agencies alleging civil RICO liability;
  • Some tasks can’t be delegated.  New Jersey attorney sanctioned for sending paralegal to domestic court, where she appeared as “counsel” and advocated on behalf of the client;
  • Some tasks can’t be delegated, part II: Las Vegas personal injury lawyer Glen “The Heavy Hitter” Lerner complains that he can’t understand rules prohibiting Nevada lawyers from allowing attorneys not licensed in Nevada to sign up Nevada clients, prepare demands, negotiate claims, and serve as the clients’ sole contact within the firm.  The Nevada Supreme Court disciplines Lerner anyway, figuring that after multiple past reprimands Lerner could take a hint;
  • Some tasks shouldn’t be delegated:  Arkansas authorities investigating attorney Terry Lynn Smith, who “invested” a client’s substantial personal injury settlement, then admitted that “all of her money was gone.”
  • And then some tasks should definitely be delegated: Top Obama aides are “lawyering up” in response to the Blagojevich probe;
  • The fall of Dickie Scruggs has been named as the top story of the year in Mississippi, by the Associated Press;
  • God told me to beat you up.  Texas church claims first amendment immunity from tort liability arising from an exorcism gone horribly awry (via WSJ Law Blog);
  • Rise and Fall of the Great Powers: former Republican presidential candidate Ron Paul believes that the recessed economy is a blessing in disguise.  Meanwhile, Paul continues to accept the franking privilege and his salary from taxpayers.

What are you resolving to accomplish in the new year?

Defendants Plead the Doctrine of “Pining for the Fjords” in Complete Bar of All Claims

Ex-jailhouse inmate Thomas Goodrich has filed a pro se federal suit against the Delaware Department of Corrections and the former warden of Young Correctional Institute seeking redress for the death of “Freddy,” a valuable parrot.  In his complaint, Goodrich alleges that he was held for 12 days on a misdemeanor warrant without being allowed to contact anyone to arrange for Freddy’s feeding.  Young seeks damages for the value of the parrot itself, as well as punitive damages against all defendants.  It is unknown whether People for the Ethical Treatment of Animals will seek to intervene in the suit, but a PETA representative has expressed strong displeasure over Freddy’s death, suggesting that perhaps jail would be appropriate for officials who allegedly caused the bird’s demise.

While it’s always a good idea to view allegations in lawsuits, particularly pro se suits, with skepticism, Goodrich’s complaint does allege a Kafkaesque ordeal over a minor warrant, in which Goodrich was not allowed to use a telephone, or to contact an attorney, or to contact family members to arrange security of $200.  Finally, Goodrich alleges, he was able to get in touch with the outside world when after 10 days some friendly person gave him a postage stamp.

Unfortunately, by that time Freddy was an ex-parrot.

Daily Roundup 2008-12-28

Daily Roundup sounds better than Microblog, if you ask me.

Tomorrow, I predict that somewhere, someone will be sued.

Fat is the New Black

Progressive members of the City Council of Binghamton New York have expanded the boundaries of civil rights in their fair city to include protection for citizens on the basis of sexual orientation, nothing shocking in a university town.  What is surprising is that the law also protects Binghamton citizens from discrimination in employment, housing, education, and public accommodation on the basis of height and weight.  Presumably in the future, Binghamton bean poles will have to yield to their shorter peers for slots on basketball teams, and the horizontally expansive will be able to demand wider doors and sturdier seats in restaurants and shops.

According to the law’s chief proponent, Binghamton Council member Sean Massey, it is a “sad fact” that a law protecting the undertall or the overweight is necessary, and even if it isn’t, “It’s simply the right thing to do. … It is the human thing to do.”

While it’s not at all clear to me, from a simple google search, that Binghamton was experiencing a tide of discrimination against the short, the tall, the fat, or the cadaverous before the passage of this law, it’s also unclear how this law will in fact promote its author’s vision of Harrison Bergeronlike equality of outcome for people of nonstandard body configuration.  Will morbidly obese firemen be able to sue the city for discrimination if they are not provided assistance in climbing ladders and carrying victims?  Will students whose body mass makes them unappealing by conventional standards of good looks now demand appointment as homecoming kings and queens on the ground that they are denied a fair shot in student elections?  And how, exactly, will the city determine that someone was denied housing on the basis of height or weight?  While one assumes that signs reading “Fat people need not apply” are being removed from apartments all over Binghamton, apart from that what does this accomplish, other than making the Binghamton City Council feel good?  Gannett: “Council Passes Rights Law”, Weekly Standard: “The Politics of Fat”, thanks to dispatches from TJICistan for the pointer.

Microblog 2008-12-27

Con artists, lawyers, and people who deserve a punch in the face:

  • The best stings, cons, and capers of 2008, as chosen by Wired.  Particularly clever: the FBI’s reverse con of dozens of identity thieves.  And who knew that phone phreaks still exist in the age of the internet?
  • Rod Blagojevich’s attorney seeks to compel testimony from high officials in the incoming administration to resist impeachment, while Patrick Fitzgerald asks Illinois lawmakers to hold back to avoid jeopardizing his criminal case.  Question: assuming Blagojevich is guilty, which is more important, that his impeachment proceed promptly, or that his criminal case proceed without political interference?  Alternative question: Which is more important, good (or at least less corrupt) government in Illinois, or another notch on Fitzgerald’s belt? Final alternative question: if the Obama team was more involved than its own report suggests, why not let things drag out and get the whole story?
  • A blog devoted to people who deserve a punch in the face (potentially offensive images, not-work-safe language). Special favorites: “B**** who talks on cellphone at Holocaust Museum” (yes, I have seen this), and “Passive aggressive emoticon user”;
  • The heroism and defiance of the crew of the USS Pueblo, released from North Korean captivity a little over forty years ago today.  If you click on a link anywhere in this post, make it this one (edit: bad link fixed);
  • Contrary to suggestions from Esquire, Barack Obama is unlikely to end the war on some drugs;
  • Is OSHA unconstitutional? Is seizing privately owned steel mills unconstitutional?  Legal Theory calls this paper “very highly recommended” and I agree;
  • Should Jewish (and for that matter Muslim, Hindu, or Buddhist) military chaplains be required to wear a cross? The Navy says yes.  I say that if we’re going to bail out Chrysler we can afford a few pins which depict commandment tablets or crescents See below for a more interesting discussion from Ron Coleman and others, on something I completely misread;
  • The right to have children is fundamental, but we remove dogs from conditions that aren’t as overcrowded as those of the Duggar family of Arkansas;
  • Extraordinary Popular Delusions and the Madness of Crowds:  It’s not just the best book on economic bubbles and downturns ever written. It could be the title of this article on how a leading author on scientific skepticism was fleeced by Bernard Madoff. (Via Crime and Federalism);
  • Speaking of delusions, more details on the methods through which attorney Marc Dreier allegedly stole millions emerge in this Bloomberg story.

Walter Olson will be back soon enough, but I’ll note that I have come to appreciate just how good a blogger he is, and how hard Walter works in keeping this site going over the past few days.  Perhaps you might show him your appreciation? Vote early, and vote often.

White House Counsel Learns of Strange New Technology Known as “Search Engine”

Fred Fielding, counsel to President Bush, is an old lion of Washington, the sort of man who would have been portrayed as a wise elder statesman when books like “Advise and Consent” were popular, and people were less cynical about their government.  He is also, apparently, about as computer literate as my grandmother, and as inclined to engage in substantive research.

The WSJ Law Blog has summaries of reporting by the New York Times and the Los Angeles Times on how Fielding became involved in the decision to pardon New York real estate conman Isaac Toussie, a pardon that the President purported to revoke when details of Toussie’s crimes (I don’t say alleged, because they’re still crimes) and donations by Toussie’s father to Republican candidates became known.  While I don’t know what actually went on with the Toussie pardon, the appearance is certainly one of impropriety, and the White House claims it didn’t have full information about the Toussie case when the decision was made.

So why was the decision made?  Apparently Toussie’s counsel, Bradford Berenson of Sidley Austin and formerly of the office of White House counsel, bypassed the Justice Department attorneys who review pardons and went directly to Fielding.  Apparently Berenson’s word was good enough, without input or investigation from the Justice Department.  Apparently no one in Fielding’s office had ever heard of “google”. It took me, by no means as good a lawyer as Fielding, thirty seconds to find this: “Homeowners’ Suit Says They Are Victims in Deceptive Sales Scheme” (even now that Toussie’s google footprint has grown enormously since Tuesday), and ten seconds to find this $30,800 donation by Toussie’s father to McCain Victory Committee.

At the very least, had Fielding asked an intern to google the name Toussie for an hour or two, he could have produced quite a dossier to counter the wiles of Brad Berenson.  Perhaps better information about Toussie and his father, already publicly available, would have set a few bells ringing in Fielding’s mind.

To be honest, I don’t care that much about the Toussie pardon, though I dislike it.  What I do care about is the upcoming nomination hearings on Obama Attorney General designate Eric Holder.  I care about Holder’s hearing because Holder is no friend to free speech, no friend of the right to bear arms, and in general seems to favor government intrusion into virtually everything.   Holder came out of the Clinton-Reno Justice Department, which before Alberto Gonzales set a high standard for thuggishness, overreach, and political gamesmanship.

While I’m not fool enough to think that Holder’s nomination will be rejected, I had been hoping that Holder would take a shellacking over his role in the even more egregious Clinton decision to pardon fraud artist and fugitive Marc Rich.  Holder would be nominated but, I hoped, chastened and aware that he would be watched.  Now Fielding has handed Holder an arrow which will surely be fired back at Senate critics: “Mistakes were made Senator Specter, but this was an anomaly and it occurred with only hours to go before President Clinton would leave office.  Why even Mr. Fred Fielding, the well-respected counsel of the outgoing administration and a man I greatly admire, has taken his lumps over one ill-considered pardon in the waning days of the Bush administration.”

Of course, all of this will be a tempest in a teapot when Bush issues pardons on January 19.

Edit: 12/28/2008 – Reader Margaret Love of the District of Columbia Bar, who I suspect knows more about this subject than I ever will, emails with the following historical information, reprinted with Ms. Love’s permission:

Read On…