Author Archive
Tobacco: Supreme Court shoots down feds on disgorgement
Just in from SCOTUSBlog, an embarrassing defeat for the tobacco-industry-bashers in both Clinton and Bush administrations on one of their key retroactive-liability demands:
The Court’s refusal to hear the Justice Department appeal in U.S. v. Philip Morris USA, Inc., et al. (05-92) takes off the table in the government’s mammoth lawsuit against the industry the most significant punishment that could be imposed if the tobacco companies are found to have violated federal anti-racketeering law (RICO). The Court gave no explanation for its denial of review; there were no recorded dissents.
For more, see Jun. 21 and links from there.
P.S. As Ted reminds us, this was an “interlocutory” appeal, i.e. one taken before a final judgment, and the Justices almost never agree to hear appeals at that stage; they might still be willing to consider the issue after the court below reaches judgment. That the Justice Department pursued appeal at this stage at all is a part of the embarrassment (and indicates the degree to which the Department is bending to political pressure). More: Jacob Sullum, Oct. 21.
Joys of bounty-hunting: internet sales tax
In Chicago, veteran class-action attorney Stephen Diamond has been profitably suing retailers that don’t collect state and local sales taxes from online customers:
Using a state whistle-blower law, Mr. Diamond since 2002 has filed about 95 suits in Cook County court here against retailers that failed to charge him taxes on Internet sales, alleging that they broke the law. In cases where the state of Illinois joins the suits and prevails, he is entitled to up to 25% of the financial damages, with the rest going to state coffers….
Because of settlement agreements between the retailers and the attorney general’s office, the state’s judges have agreed to keep the names of most of the retailers and the settlement amounts confidential.
The retailers, like their mail-order-catalogue counterparts, have in the past often taken the position that the responsibility for making sure sales tax is paid rests with the customer; disputes sometimes arise about whether a particular retailer has sufficient operations within a state to count as present within it for tax-collection purposes.
Mr. Diamond’s targets have included such firms as Wal-Mart, Office Depot and KB Toys. He has taken an interest in expanding his practice beyond Illinois to the three other states with laws allowing private citizens to enrich themselves this way, but his efforts in those cases have been less successful. After he filed about 30 tax suits in Tennessee, lawmakers there repealed their statute authorizing such suits, and passed the word to nearby Virginia which also repealed its similar law. That leaves Nevada, where he has filed 10 suits which the state attorney general has moved to dismiss. In Illinois, he would seem in little danger of being shut down any time soon: the office of state Attorney General Lisa Madigan, a key trial lawyer ally, has been willing to cooperate with his activities though disputing his right to as high a share of the booty as he would like. (Robert Guy Matthews, “Online Retailer Skips Sales Tax? You Might Sue”, Wall Street Journal, Oct. 14)(online subscribers only).
One car crash…
…eight distinct and different negligent pockets parties, according to the victims’ suit following a fiery crash on the highway near Six Flags St. Louis theme park. All are at fault, said the Dodo, and all must have penalties. (William C. Lhotka, “Relatives file wrongful death suits”, St. Louis Post-Dispatch, Sept. 2)(via Brian J. Noggle, who comments).
Book review: “J. Anthony Froude”
Not really any legal content here, but I’ve got a review in today’s Sunday New York Times Book Review of a new biography of a distinguished Victorian figure. First paragraph:
Among the leading British historians, few have suffered as steep a decline in public estimation as J. Anthony Froude. With Gibbon and Hume, Froude played a key role in the advance of religious doubt; with Macaulay, he shaped Britain’s view of itself as a nation whose greatness was intimately linked to the liberty of its political institutions. Even those who found him partisan and factually careless conceded his literary merit; in Lytton Strachey’s words, he gave to historical events the “thrilling lineaments of a great story, upon whose issue the most blasé reader is forced to hang entranced.” One of his latter-day admirers, the historian A. L. Rowse, has called him “the last great Victorian awaiting revival.”
The whole thing, again, is here.
P.S.: Herbert Paul’s 1905 biography of Froude, mentioned in the review, is available at Gutenberg.org. A Wikipedia entry on Froude is here.
“Next tobacco” watch: many Wall Street suits fizzle
After the stock market’s tech-driven bubble popped a few years back, lawyers advertised heavily for burned-investor clients, hoping to reap billions at the expense of Wall Street firms whose research had been exposed as shoddy or worse. But expectations have deflated, and now Pensacola, Fla.’s Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, whose doings are often chronicled in this space, has settled about 300 or so investor claims against Merrill Lynch “for approximately three cents on the dollar”. Although it is far from unusual for plaintiffs to recover sums in arbitration, lawyers have had trouble proving that most of their clients relied on the tainted research in making investment decisions. A Merrill Lynch spokesman claims the firm has “overwhelmingly prevailed in these cases”, while a plaintiff’s lawyer counters that “we are not doing too badly”. (Susanne Craig, “Heard on the Street: Payouts low in research suits”, Wall Street Journal/Pittsburgh Post-Gazette, Oct. 13). More: Jul. 10, 2003.
Drowns while fleeing cops, family sues for $50M
New Jersey: “A $50 million lawsuit is being filed against Hoboken and its police department by the parents of a 16-year-old boy who drowned in the Hudson River shortly after escaping from Hoboken Police Headquarters.” On Oct. 5, 2004 Vincent “Woody” McConnell Jr. was arrested on an outstanding warrant and on being taken in asked if he could use the public rest room at the station house. According to police, he then unscrewed the security grate on the small window in the rest room and escaped; with cops in pursuit, he climbed a railing, “escaped from an officer holding his arm and jumped into the water,” which has dangerous currents at that point in the river. Friends of McConnell say they don’t believe he would have jumped. He’s being represented by attorney Robert Bianchi. (Michelangelo Conte, “Suit Blames Cops”, Jersey Journal, Oct. 12).
Font size, redesign, newsletter, cont’d
As regular readers may have noticed, we’ve tried out a variety of design tweaks over the last week. In response to reader requests, we’ve also installed a simple font size switcher toward the top of the right-hand column, which however works only for users of the Internet Explorer browser. Users of Firefox, Opera and most other browsers can alter font sizes relatively easily by executing simple commands from their mouse or keyboards. To enlarge the fonts on a page viewed in Firefox, for example, press Ctrl-+ (“Control” key simultaneously with plus sign).
Our thanks also for the patience of bulletin subscribers: Google Groups took more than twelve hours to deliver many copies of last night’s newsletters, and some users (including ourselves) have run into technical difficulties lately with the Google Groups site. To change your subscription, visit this site (requires Google registration). And should you ever wish to unsubscribe from the newsletter without going on the Web, just send an email from the relevant account to Overlawyered-unsubscribe – [ at] – googlegroups – [dot]- com.
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Latest newsletter
Our free periodic newsletter went out to subscribers last night, summarizing recent postings in terse yet wry style. There is some evidence, however, that the mailing has still not reached many subscribers. To read the latest installment — or to join or leave the list, change your address, etc. — visit this page (requires Google registration).
“Trailblazing Anti-Tobacco Litigator Agrees to Disbarment”
No need for a public accounting dept.:
In a rare case of thievery at a large New Jersey firm, tobacco litigation pioneer Alan Darnell admitted that he misappropriated money from his partners and clients at Woodbridge’s Wilentz, Goldman & Spitzer and has volunteered for disbarment.
The reporter’s description of thievery in Garden State legal circles as “rare”, in case you were wondering, turns out to mean it’s not often the lawyers are caught misappropriating their own partners’ or clients’ funds in prohibited ways.
By bowing out of the profession before the investigation was complete, Darnell saved himself and 140-lawyer Wilentz Goldman from a public airing of the details of what money he took, whom he took it from and what he did with it.
Oh, well then that’s okay. Mustn’t risk giving the general public a peek at such matters, after all.
Darnell, who was known for filing asbestos and pharmaceutical claims, “was a leading member of the Wilentz Goldman team that represented plaintiffs in mass tort and product liability cases. …Big tobacco was his biggest target.” Wilentz, Goldman & Spitzer is perhaps the state’s best-known plaintiff’s firm (one of its ads) and is also renowned for its political connections, which have brought it much lucrative state business.
The state’s Office of Attorney Ethics will also be sealing the records of its investigation of Darnell, and it doesn’t appear that there are further legal proceedings against him in the offing. Remember this story next time lawyers denounce the alleged conspiracy of silence regarding doctors’ misconduct (Henry Gottlieb, New Jersey Law Journal, Oct. 6).