Steve Shellhorn didn’t leave negative feedback after a not entirely satisfactory transaction on the online auction site, but “neutral” feedback can harm reputation too, according to the seller’s suit. Although a judge in the plaintiff’s Buncombe County, N.C. home court threw out the action, “It cost Shellhorn $500 to hire an attorney. ‘I’m very leery. I won’t leave feedback for people anymore,’ he said.” (Jesse Jones, KING5 News (Seattle), Apr. 24).
Archive for the ‘Uncategorized’ Category
“Require that employees get permission first before using their BlackBerrys after work hours”
Otherwise, the employer may just be setting itself up for wage-hour suits based on the premise that the after-hours use constitutes uncompensated overtime, says Mitch Danzig, “an attorney in the San Diego office of Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. Danzig advises his clients to give BlackBerrys only to employees who are exempt from overtime laws. ‘Plaintiffs’ firms are trolling for this,’ he said. ‘Now what you’re seeing on [plaintiffs’] firms’ Web sites are, “Have you been assigned a BlackBerry or a phone? If so, give us a call.”‘” (Ashby Jones, WSJ law blog, Apr. 22; Tresa Baldas, NLJ, Apr. 28). More: Jeffrey Hirsch, Workplace Prof Blog.
Update: judge quashes Seidel subpoena
[Bumped on breaking news: A federal court in New Hampshire has quashed the subpoena and ordered attorney Clifford Shoemaker to show cause why he should not be subjected to sanctions. Also: Orac. Earlier Monday post follows:]
Autism blogger Kathleen Seidel reports that the online free speech project at Public Citizen has agreed to provide her with legal assistance in responding to vaccine lawyer Clifford Shoemaker’s subpoena (see earlier coverage here, here, and here). One way to read this is as a fairly devastating commentary on just how weak Shoemaker’s position is, since there is ordinarily no more potent public presence on behalf of the plaintiff’s side in pharmaceutical litigation than Public Citizen. Seidel also has discovered that as a Shoemaker target she is in distinguished company:
I learned that on March 26, 2008 — the same afternoon that I was greeted at my doorstep with a demand for access to virtually the entire documentary record of my intellectual and financial life over the past four years — Dr. Marie McCormick, Sumner and Esther Feldberg Professor of Maternal and Child Health at the Harvard School of Public Health, and Professor of Pediatrics at Harvard Medical School, was subjected to a similar experience at her Massachusetts home.
From 2001 to 2004, Dr. McCormick chaired the Immunization Safety Review Committee of the Institute of Medicine (IOM), charged with analyzing and reporting on data regarding the safety of vaccination practices. …As a result of her voluntary work on the committee, Dr. McCormick has found herself a frequent target of suspicion by plaintiffs, their attorneys and advocates, and opponents of vaccines, who disagree with its conclusions, and whose legal and political positions are not supported by its reports.
McCormick’s lawyers are likewise seeking to quash the subpoena. Much more here (& Beck & Herrmann, Orac, Pharmalot).
Redirects: thanks to volunteer Andrew Grossman
This may be inside baseball for those who lack interest in blog mechanics, but since it is excellent news for Overlawyered and its readers, we’ll boast about it: volunteer Andrew Grossman has stepped forward to accomplish for us something we’d been dearly hoping to accomplish, namely installing redirects that will get several years’ worth of older (2003-2008) posts to display in current URL format. The underlying problem is that we’ve been through three iterations of Movable Type and each had a different way of creating the URL format for a post:
http://www.overlawyered.com/archives/001600.html (first method)
http://www.overlawyered.com/2004/11/rr_didnt_warn_not_to_walk_on_t.html (same post, second method)
http://www.overlawyered.com/2004/11/rr-didnt-warn-not-to-walk-on-t.html (same post, current method — note use of hyphens instead of underscores)
Simply discontinuing the old versions would cause thousands of old links, both incoming and internal, to break. But the continued existence of the old versions led to several kinds of problems: they could no longer be formatted properly, so they looked ugly if not unreadable; moreover, users of Google and other search engines would encounter two (or, more recently, three) textually identical versions of the same post, which was confusing at best. Hence the need for redirects.
Aside from his having done us this service, another reason to commend Andrew Grossman to your attention is his day job as Senior Legal Policy Analyst, Center for Legal and Judicial Studies at the Heritage Foundation. His writing interests there include “federal criminal law and the problem of ‘overcriminalization’ — the practice of turning minor civil offenses into serious criminal acts,” and other topics equally well matched with ours here, including the likely boon to litigation from Congress’s CPSC expansion, the ill-conceived ADA Restoration Act under consideration on the Hill, and Judge Posner’s summary approach to dubious expert witness testimony. We hope he’ll be guest blogging in this space before long.
Derby pie
Not only can you not sell the Kentucky dessert unless you are Kern’s Kitchen, Inc., but you’d better not offer any “Bluegrass Bourbon Pie” and get all winky-winky with your customers about it, either. Wikipedia discusses the litigation history. (Charlie Pearl, “Still playing the pie game”, Frankfort State-Journal, Apr. 17)(via Catallaxy.net).
Californian vexatious-litigant roundup
It looks as if, barring intervention by the U.S. Supreme Court, serial ADA litigant Jarek Molski and his lawyer Thomas Frankovich, longtime Overlawyered favorites both, won’t be filing any more accessibility lawsuits in California’s populous Central District. The Ninth Circuit’s decision not to disturb an order to that effect by the late Judge Edward Rafeedie, however, came by a surprisingly narrow margin, with nine judges dissenting. Among them, Judge Marsha Berzon said Rafeedie should not have acted unilaterally to bar the two from suing throughout the district, while Alex Kozinski went so far as to maintain that Rafeedie had failed to offer evidence in suggesting “that Molski is a liar and a bit of a thief”. The majority of judges, however — and the Ninth is among the last circuits anyone would accuse of an excessive wish to shut down litigation — disagreed. (Dan Levine, “9th Circuit Judges Blast Order Barring ADA Lawyer”, The Recorder, Apr. 9). One final bit from the account in the Recorder might cause the reader’s jaw to drop open, as it did mine:
Rafeedie died of cancer late last month, but Frankovich still holds a grudge.
“What he did is morally reprehensible,” the attorney said Monday. “Acting morally reprehensible creates bad karma, and sometimes you have to pay the piper for bad karma.”
In other news of vexatious California litigants:
For years, self-described public-interest litigator Burton Wolfe has bragged that he was one of the few people to get off the state’s so-called vexatious litigant list for self-represented plaintiffs who file frivolous lawsuits. Those who are put on the list can file “pro per,” or do-it-yourself, lawsuits only with a judge’s permission. But after enjoying a few years off the blacklist, the 75-year-old Wolfe has sued his way back onto the roster. … [His name was restored to the list after] he sued the San Francisco Food Bank and America’s Second Harvest for setting up what he calls a food “racket” in the privately owned low-income senior-housing Eastern Park Apartments where he lives.
(Lauren Smiley, “Vexatious Litigant Burton Wolfe Fighting Eviction After Threatening More Lawsuits”, San Francisco Weekly, Feb. 20). Perhaps the most celebrated of modern San Francisco’s vexatious litigants is Patricia A. McColm, who has been profiled in a number of news stories including Ken Garcia, “Woman who sues at drop of hat may get hers”, San Francisco Chronicle, June 6, 2000, reprinted at Forensic Psychiatric Associates site. Incidentally, the British court system is thoughtful enough to post its list of vexatious litigants online, an obvious aid to persons who might find themselves the target of threatened suits by persons on the list. But although the California courts have a webpage discussing the fact of their having a list, I could find no sign that they had posted the list itself online. Have any U.S. states (or Canadian provinces, etc.) done so?
“Lawsuit: Veterans Affairs has failed to prevent suicides”
The litigation seeks a court order forcing the federal veterans’ agency to step up its spending on mental health and counseling. The government’s response argues that
the courts have no authority to tell the VA how to operate and no business wading into the everyday management of a sprawling medical network that includes 153 medical centers nationwide.
The veterans are asking the judge “to administer the programs of the second largest Cabinet-level agency, a task for which Congress and the executive branch are better suited,” government lawyers wrote in court papers.
If the judge ordered an overhaul, he would be responsible for such things as employees workloads, hours of operations, facility locations, the number of medical professionals employed, and “even the decision whether to offer individual or group therapy to patients with” post-traumatic stress, the papers said.
(Paul Elias, AP/Palm Beach Post, Apr. 20). Update: Judge Samuel Conti dismisses suit as “misdirected” (Navy Times).
Update: Diet Coke sweetener class actions
We’ve been critical of would-be class action lawsuits claiming that Coca-Coca violates consumers’ rights by sweetening its fountain version of Diet Coke with a mixture of aspartame and saccharin, rather than aspartame alone as in the supermarket version. Now the Missouri Supreme Court has rejected class-action status for such a lawsuit, reversing a lower court; it “said the classification was overly broad, because it could have covered an indefinite number of people, many of whom did not really care how their Diet Coke was sweetened.” (AP/Kansas City Star, Apr. 15).
Further thoughts on pirates’ rights
Welcome KTRH listeners
I was a guest on the Houston radio station this morning discussing personal responsibility and our propensity to litigate. A few recent cases possibly on point: “Inmate Sues Jail, Blames It for His Escapes“; five of her friends as well as the inevitable bar sued after college student’s fatal alcohol binge; and lawyer gambles away client money at the tables, then sues casinos for not stopping her. (Corrected original post title which got the call letters wrong).