Overlawyered: Chronicling The High Cost Of Our Legal System

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More on privacy-protecting lawyers

The Anthony Pellicano wiretap scandal grinds on: Per a new report in the New York Times, attorney Terry Christiansen was happy to feed investor Kirk Kerkorian information obtained by Pellicano’s wiretaps on Kerkorian’s ex-wife, though no one has charged the investor with knowing about the taps. A lawyer for Christiansen terms the report “totally unfounded” and “a pack of lies”. (David M. Halbfinger and Allison Hope Weiner, “Lawyer Gave Information to Kerkorian”, Jan. 10).

Not entirely unrelatedly, a front-page report in the Wall Street Journal last month takes note that “Hewlett-Packard Co.’s much-criticized campaign this year to trace boardroom leaks has made ‘pretexting’ a dirty word in corporate circles. But the H-P project was far from the first to rely on pretexting, which generally involves impersonating people to get their phone or financial records, a review of recent business history shows. The practice for years has been almost a commonplace tool, resorted to in efforts ranging from commercial litigation to divorce fights to the search for deadbeat borrowers.” (John R. Emshwiller, “Hewlett-Packard Was Far From First To Try ‘Pretexting'”, Dec. 16). Hmmm… which profession is it that regularly gets involved in commercial litigation, divorce fights, and the search for deadbeat borrowers? Former HP general counsel Ann Baskins resigned after her role in failing to prevent the pretexting scandal came to light. How much company would Baskins have if the legal profession suddenly got serious about ‘fessing up to the practice? (Paul McNamara, “A deep look at the role HP’s top lawyer played in spy scandal”, Network World, Dec. 21; Sue Reisinger, “Did Ann Baskins See No Evil at HP?”, Corporate Counsel, Dec. 18).

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Yanking RIAA’s chain

Lawyers representing the recording industry have long been accustomed to demand $750 per downloaded song from alleged infringers, which cumulates into terrifying aggregate liability for many an individual defendant. In a case called UMG v. Lindor, attorney Ray Beckerman is advancing the argument that awards should instead be limited to the industry’s actual losses. (Capping awards at the level of actual damages — imagine that!) He’s also asking for discovery into the industry’s wholesale pricing arrangements by way of ascertaining what those actual damages might be. The industry really, really doesn’t want to disclose that information, so this should be interesting. (Eric Bangeman, “RIAA fights to keep wholesale pricing secret”, Jan. 3; Nick Farrell, “RIAA’s price secrets probed”, The Inquirer, Jan. 5).

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Accept no imitations

Now, this is ridiculous: at the URL http://www.overlawyered.blogspot.com/ (no, I’m not going to give it a live link) someone or other has erected a pseudo-blog under the heading, “Overlawyered”, followed by a verbatim swipe of the paragraph (“Overlawyered explores an American legal system…”) which for years stood atop this site’s sidebar and currently stands atop our “about us” page. The imitation-Overlawyered blog has relatively little content, but one of its entries (dated May 05, 2006) consists of excerpts swiped verbatim from a post of Ted’s of Feb. 16, 2006 on this site about a South Texas legal case.

Other content on the pseudo-Overlawyered site suggests that the author(s) take an interest in the South Texas legal scene, and have established a large group of blogspot entities which blogroll each other under the banner of “Team Kenedeno” (more at http://teamkenedeno.blogspot.com/). These interlocking sites often sport not very accurate names such as corpuschristicallertimes.blogspot.com, microsoftdotcom.blogspot.com, and exxonmobile.blogspot.com, and at least one of them (at http://wattslawfirm.blogspot.com/) also contains a more extensive verbatim swipe from Ted’s Feb. 16, 2006 post, mentioned above.

I looked around for a while, but failed to find any appropriate “report abuse” procedure on the Blogspot/Blogger site. The nearest thing was a “Flag Objectionable Content” button which apparently triggers a review for hate speech, obscenity, etc., but does not offer any way of reporting the rather different problem arising here. Reader suggestions are welcome.

Update from Ted: “We’ve contacted the appropriate people. Thanks for everyone’s help.”

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Patent troll, meet Rule 11

Just sending out batches of letters claiming infringement and demanding money may no longer be a workable business plan:

Based in the British Virgin Islands, Eon-Net is run by an evangelical minister-cum-inventor, who holds several patents (including one on a device for collecting “canine waste”). In March 2005 the company filed a patent suit in New Jersey against Flagstar, a $16 billion savings bank based in Michigan. The bank was one of 32 companies sued separately by Eon-Net for infringing a patent that, the company claims, covers technology that allows online shoppers to enter information into Web sites and have it transferred to the Web retailer’s computer. Eon-Net, which also has pending litigation against JetBlue Airways and Liz Claiborne Inc., had successfully extracted settlement money from ING Bank and Sony Corp. over the same patent.

Eon-Net’s enforcement method involved filing a complaint followed by a letter offering a settlement ranging from $25,000 to $75,000.

Flagstar decided to fight the suit, and its attorney, Melissa Baily of Quinn Emanuel, noticed that Eon-Net’s lawyers “had used nearly identical complaints and demand letters in all 32 suits,” suggesting a lack of careful advance investigation. Although Rule 11 sanctions are especially hard to obtain in the Ninth Circuit, Western District of Washington Judge Marsha Pechman agreed that the suit was both baseless and made without reasonable inquiry and, after ruling in favor of Flagstar on summary judgment in the case itself, ordered Eon-Net and its attorney, Jean-Marc Zimmerman, to pay the bank’s defense costs, estimated at more than $100,000. (Xenia P. Kobylarz, “Patent Trolls Put on Notice Over Generic Infringement Letters”, IP Law & Business, Dec. 14).

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Reader feedback

A reader from Australia writes, apropos of no post in particular:

Guys, I broadly agree with your website — personal injury litigation is out of control.

As a lawyer though, I think you’re missing the other side of the coin: that the system for necessary cases, ie suing someone who owes you money, is too long, and too complex. In my view the inefficiency of the legal system is a far bigger problem. Perhaps you could highlight this in some stories?

After all, having a quick efficient legal system to enforce the law is crucial in a modern economy.

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Skinny models with lawyers

The Council of Fashion Designers of America will issue guidelines discouraging anorexia-suggestive degrees of emaciation but won’t attempt to enforce any binding rules. “Those people could sue, in America they could sue everywhere for prejudice or discrimination,” said council president Stan Herman when the issue came up in the fall. “I wouldn’t touch it with a 10-foot pole.” (“New York fashion group to issue guidelines on skinny models”, AFP/Breitbart, Jan. 8; “Skinny model ban ‘discrimination'”, AFP/News.com.au, Sept. 16).

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$5M asked after cop chase leads to fiery crash

“Gail McDoe admits her 16-year-old son never should have been driving that car in 2005. He was the one who set off the chase with police, ending in a fiery crash that killed him.” Nonetheless, her $5 million lawsuit against the city of Newburgh, N.Y. alleges that cops should not have been so aggressive in chasing Dionte Jones and should have acted more quickly to attempt a rescue after he flipped his car into a gas field full of fuels and hazardous chemicals. The city’s in-house lawyer says an investigation indicates Jones died instantly and would not have been helped by a rescue attempt. (John Doherty, “Mother wants Newburgh police to share burden of son’s death”, Middletown Times Herald-Record, Jan. 6).

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Fight over daughter’s surname lasts 2 1/2 years

Chad M. Doherty wasn’t married to Christy M. Wizner when their daughter was born in April 2004, but he nonetheless wanted the child to bear the surname Doherty and objected to the mother’s bestowing on her instead the surname Wizner. Both sides lawyered up and have been duking it out in court ever since. A trial judge ruled in the father’s favor, finding it of significance that Wizner was the name of the mother’s former spouse but not the mother’s birth surname. The Oregon Court of Appeals, invoking an 11-factor balancing test, reversed the ruling and allowed the mother’s choice to prevail. The mother says she wants the girl to bear the same surname as her older siblings. (Ashbel S. Green, “For a baby name with appeal, try appeals court”, The Oregonian, Jan. 1).

P.S. I see J. Craig Williams got this first (Jan. 3)(via Blawg Review #90 at Minor Wisdom).

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