Overlawyered: Chronicling The High Cost Of Our Legal System

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Legal hazards of rating air safety

From a Forbes article on safety problems in charter aviation:

Businesses pay [Joseph Moeggenberg’s] company, Aviation Research Group/U.S., or “Argus” in the trade, as much as $20,000 per month for full access to ratings reports on 848 charters, or $249 for a single report. Argus provides specifics about a flight, the jet’s history, the owner, whether the plane is double-booked from another charter, the pilot’s record and so on. It assigns a red, yellow or green light on safety (36% receive reds or yellows).

One charter outfit got a prescient “Does Not Qualify” rating from Argus: Aviation Charter of Eden Prairie, Minn., which flew U.S. Senator Paul Wellstone of Minnesota in a Beechcraft King Air A100 as he campaigned for reelection in October 2002. When a newspaper later reported that Aviation Charter got a bad rating, the company sued Argus for defamation but lost the case on summary judgment; the case is pending on appeal. The flight crashed at the Eveleth, Minn. airport in October 2002, killing all eight people aboard, including the senator, his wife and their adult daughter. Says Argus attorney Eric Heiberg of Minneapolis: “I can’t imagine we’re going to lose.”

(Seth Lubove, “Flight of Fear”, Forbes, May 9). An online summary of the case (Aug. 2004, courtesy Cousineau McGuire & Anderson; scroll to “Federal Courts — Defamation”) indicates that the court agreed that the rating contained inaccuracies which harmed Aviation Charter’s reputation, but found no proof that Argus had acted with malice or reckless disregard for the truth. Update Mar. 15, 2006: Eighth Circuit (in summer 2005) dismissed suit, ruling ratings subjective.

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Winn-Dixie, up North

According to UCLA lawprof Lynn LoPucki, about 60 percent of recent big corporate bankruptcies have been filed in courts away from the companies’ hometowns. Although not all motives for selecting a distant bankruptcy venue are improper, forum-shopping can assist incumbent managers in finding a court that will cede them broad control during a reorganization (including the payment of large “retention” bonuses), while lawyers and other professionals may seek to steer filings into courts that are indulgent about approving fee requests. Among the losers: many creditors, which in some cases may include the companies’ workers. An opponent dismisses the charges as “baseless and offensive”, but some judges agree that the indictment holds merit. The Southern supermarket chain Winn-Dixie filed in New York City, then after a furor agreed to move the proceedings to its home state of Florida. (Pamela A. MacLean, “Forum Shopping Alleged in Chapter 11 Cases”, National Law Journal, May 3). See, among other posts, Mar. 8, 2004. More: Larry Ribstein (Jun. 22) has some thoughts on the market for jurisdiction-shopping.

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Woman awarded $45,000 after dog kills cat

Seattle: “A woman who sued a neighbor after his dog mauled her cat to death has been awarded more than $45,000. Retired teacher Paula Roemer’s 12-year-old cat, Yofi, was attacked in her back yard in February 2004 by a chow belonging to her neighbor, Wallace Gray. The dog had repeatedly escaped in the past, according to the lawsuit.” (“Woman Gets $45K for Cat Killed by Dog”, AP/Las Vegas Sun, May 9). The award included $30,000 for the personal value of the cat — tying a record for a pet, according to her lawyer — plus $15,000 for emotional distress; Ms. Roemer “was so traumatized that she began having sleep disturbances and panic attacks, sank into depression and began smoking heavily, she wrote in a sworn declaration.” (Jessica Blanchard, “Woman awarded $45,000 in cat death”, Seattle Post-Intelligencer, May 9). More coverage: Seattle Times, KOMO-TV. Meanwhile, a timely op-ed spells out why damage awards reflecting pets’ sentimental value, by scaring away veterinarians and other caretakers, could lead to needless animal deaths. (Emily Laird, “See Spot Sue”, New York Times, May 8). A similar case has been made many times in this space: see Mar. 15 (letter to the editor) and links from there.

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Email boilerplate

If you ever receive email from lawyers — or from anyone who works at a law firm or in-house legal department — you’ll probably recognize some of the boilerplate formulas that Ernie the Attorney has fun with here (May 9). And: a follow-up from Ernie (May 10).

Patent Troll-Be-Gone?

Major software and hardware companies, tired of facing financial demands from companies organized for the purpose of buying up and suing over otherwise dormant patent rights, are calling for a change in patent law so that owners who are not using their patents would no longer have the right to sue for injunctions against alleged infringers (suits over damages could still be filed). Support for the idea is far from unanimous even among manufacturers, however. For more on the controversy over patent-licensing firms, see May 2, etc. (Brenda Sandburg, “A modest proposal”, The Recorder, May 9).

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Clarence Stowers

Should we name him this site’s Man of the Year? Last week, after finding the freshly cut fingertip of an employee in his frozen custard at a Wilmington, N.C. dessert stand, Mr. Stowers “refus[ed] to return the evidence so it could be reattached. And now it’s too late for doctors to do anything for 23-year-old Brandon Fizer.”

Soon after Stowers found the finger in a mouthful of chocolate soft-serve he bought Sunday at Kohl’s Frozen Custard in Wilmington, he put it in his freezer at home, taking it out only occasionally to show to television cameras.

He refused to give it to the shop’s owner, and refused to give it to a doctor who was treating Fizer, who accidentally stuck his hand in a mixing machine and had his right index finger lopped off at the first knuckle.

Medical experts say an attempt to reattach a severed finger can generally be made within six hours.

But according to the shop’s management, Stowers wouldn’t give it back when he was in the store 30 minutes after the accident.

“The general manager attempted to retrieve it and rush it to the hospital,” reads a statement posted Thursday on Kohl’s Web site. “Unfortunately, the customer refused to give it to her and declared that he would be calling the TV stations and an attorney as he exited the store.”

What attorney decided to represent Mr. Stowers? Glad you asked; it’s Lee Andrews of Greensboro, N.C., who

wouldn’t say if a lawsuit against Kohl’s is planned, saying he needed “to get some more facts.”

But Andrews said his client is concerned about possible disease in the fingertip and kept it because he wanted someone to test it for “all the diseases that are out here now.”

“He’s upset to the point that he’s been debilitated to some degree,” Andrews said. “Emotionally, it’s been very upsetting to him.”

(“Fight over finger found in custard”, AP/CNN, May 6).

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Mother’s Day custody special

Her kids are “too attached” to her, she was told by her soon-to-be-ex husband. Huh? Well, maybe there’s more to it than that: “His lawyer had advised him that to get what he wanted in the divorce, he would need to take a hard line on custody because that’s what mattered most to me.” (Katie Allison Granju, “Losing Custody of My Hope”, New York Times, May 8). And divorced British fathers crusade against a court system they see as stacked against them (Susan Dominus, “The Fathers’ Crusade”, New York Times Magazine, May 8).

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