Overlawyered: Chronicling The High Cost Of Our Legal System

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Alcohol isn’t tobacco, unfortunately for trial lawyers

Class action lawyers — led by David Boies III, son of famed litigator David Boies — continue to try to attack the alcohol industry the same way they did the tobacco industry, but with far less success. Back in June 2006 we reported that Boies the Younger had been racking up an impressive track record… of losing. His lawsuits are based on the marketing practices of the alcohol companies; the claim is that the advertising was aimed at (who else?) children. But the suits don’t allege any actual harms suffered by, well, anybody. Instead, they claim that the marketing caused the plaintiffs’ underage children to buy alcohol. Even with creative lawyering, the only damages that they could allege were that the kids spent their parents’ money on the alcohol.

The lower courts have laughed these suits out of court, and last month, in response to Boies’ appeals, the Sixth Circuit did the same (PDF), finding that the plaintiffs didn’t even have standing to bring the suits. And when they did so, they gave a little civics reminder of how our legal system is supposed to work:

In any event, if outlawing the actual sale and purchase is insufficient to remedy the alleged injuries (which is the premise underlying the plaintiffs’ theories), then outlawing mere advertising must be insufficient as well. Consequently, the plaintiffs cannot demonstrate redressability. If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not by judicial fiat.

In a rational world, this would be the end of these trial lawyer efforts. But since there’s no loser pays, our legal system doesn’t work that way. Trial lawyers can keep filing these over and over again in state after state, tweaking their arguments slightly from time to time, hoping to win the lottery; all they need to do is prevail once to earn back their entire investment in this litigation scheme. Whereas the alcohol companies have to win every one of these suits to avoid a backbreaking financial penalty.

Read On…

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Imus in the Courtroom, Update

In April, Don Imus infamously called the Rutgers Unversity women’s basketball team “nappy-headed hos.” After a week of controversy, criticism, and grovelling apologies, he was fired from his job by CBS radio. Imus threatened a lawsuit, and yesterday he settled with CBS. That should have been the end of the story. But of course, if it were, then how would the poor trial lawyers feed their families? Now that Imus’s settlement is final, he has money to burn. So, just a few hours after the settlement was announced, the first Rutgers player rushed to the courthouse to file suit against Imus and the other deep pockets:

“Imus lost four months of employment and gained $20 million and a new platform. But what about these young women? How does Imus’ big payday affect their self-esteem?” said Vaughn’s lawyer Richard Ancowitz.

The suit, which also named CBS, MSNBC and Imus sidekick Bernard McGuirk, did not ask for a dollar amount. There was no immediate comment from the defendants.

“The kind of sexist and bigoted attack these young women and Kia in particular suffered demands more than lip service,” Ancowitz said. “She wants the court to recognize that Imus slandered her.”

I haven’t seen a copy of the complaint yet, but it’s hard to imagine that it is anything other than utterly frivolous. Imus’s comments might have been nasty and uncalled for, but calling someone a “nappy headed ho” is not defamatory unless it is interpreted as an actual accusation that the person is a prostitute. No reasonable person could interpret it that way. That’s without even getting to the issue of lack of actual damages.

Update: AP provides the money quote from the complaint, and unless there’s a lot more they failed to mention, it’s exactly as frivolous as I expected:

The Vaughn suit claims that the comments were made in the context of a news or sports report and therefore Imus had certain standards to abide by but ignored them. The suit reprints the script from the “Imus in the Morning” show on which the comments were made.

“The … false, defamatory, sexually denigrating and slanderous statements and comments against the women athletes of said basketball team were heard, believed and understood by millions of listeners … as factual pronouncements concerning the character, chastity and reputation of the plaintiff,” the lawsuit says.

I’d tell you what I think of a lawyer that actually tries to make such a claim with a straight face, but I’m afraid he’d sue me for challenging his character, chastity, and reputation.

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Chemerinsky on the Supreme Court

Erwin Chemerinsky writes a not-especially honest review of the most recent Supreme Court term. He falsely characterizes the Roberts Court as “a solid conservative voting majority,” notwithstanding the numerous decisions where conservatives were not in the majority, or where the majority decision fell far short of conservative ideals. He characterizes the divided Philip Morris v. Williams decision as “conservative,” even though it was Breyer and Souter in the majority and Scalia and Thomas in the dissent. He complains that conservatives “defer to the government in the face of most claims of individual rights,” but gives no mention of last term’s Wisconsin Right to Life v. Federal Election Commission, where five conservative justices reasserted first amendment rights for political speech over the dissent of Breyer, Souter, Ginsburg, and Stevens, who wanted to preserve the government ban on speech. We’ll ignore that Chemerinsky takes the typical liberal tactic of characterizing legal rules as favoring either businesses or consumers/employees—we all know darn well that many “pro-business” legal rules favor consumers and employees as a group ex ante.

Chemerinsky is entitled to his left-wing opinion, though one might justifiably complain that he’s not entitled to his own facts. But what I certainly object to is the fact that this is being distributed and printed by the State Bar of California in the California Bar Journal, and advertised at the top of the State Bar of California website, since I am required to pay the California Bar hundreds of dollars a year, and have no way of getting a refund for the fishwrap mailed to me every month. This sort of partisan activity strikes me as a highly unethical use of my dues, and I hope someone in California is doing something about it.

(Earlier: Coleman; Bainbridge.)

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Some updates

  • Tab Turner’s Pearsonesque $2 billion lawsuit over Ford Explorer SUVs proceeds in California state court in Sacramento. [Sacramento Bee; earlier, June 18]
  • West Va. judge holds hearing over YouTube videos disclosing plaintiff depositions. [AP/Insurance Journal; earlier, August 4]
  • On Point has the complaint from Leroy Greer’s suit against 1-800-Flowers for failing to do enough to keep his wife ignorant of his flower purchases for his mistress.
  • Movable Type appears to have swallowed several comments from earlier this month (including at least one comment from me). Apologies to everyone affected.

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Allergic to cheese, sues McDonald’s for $10 million

Jeromy Jackson says he repeatedly told the McDonald’s in Morgantown, W.V. that he needed his two Quarter Pounders without cheese, because he was allergic to cheese; “From this point forward, Mr. Jackson repeatedly asked as to the status of his food and whether it had no cheese, and took multiple preventive steps to assure his food did not contain cheese,” his suit says. On biting into the sandwich, his suit alleges, he suffered a severe allergic reaction and had to be rushed to a hospital (Cara Bailey, “Man allergic to cheese seeks $10 million from McDonald’s”, West Virginia Record, Aug. 8).

James Taranto is not what you would call sympathetic toward the action (Aug. 9): “So apparently the ‘multiple preventive steps’ he took ‘to assure his food did not contain cheese’ did not include looking at the damn sandwich before eating it”.

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Updates – August 8

1. Yet another Roy Pearson update: the Washington Post, confirming a previous rumor, reports that he’s closer to losing his job. The Commission on Selection and Tenure of Administrative Law Judges (CSTALJ?) has voted to start the process of terminating him, by sending him a letter notifying him that he may not be reappointed to his job. Of course, the procedure alone makes the story a perfect fit for Overlawyered. Pearson can’t just be fired; that would be too easy. First, his boss had to make a formal recommendation. Then, the Commission had to decide to send that letter. And now?

Pearson is not out of work yet. The letter is a key step, though, alerting him that his reappointment is in jeopardy. He has 15 days to file a rebuttal and could push for reappointment by appearing before the commission at its next meeting in September.

The wonders of public employment. And then if he’s turned down, of course, he can sue!

Apparently trying to destroy a business by using the legal system to extort millions from the owners isn’t his big sin; his big sin is being rude to his boss:

Concerns about Pearson’s temperament as an administrative law judge preceded the publicity about the lawsuit this spring. The letter from the commission focuses on those concerns, addressing the lawsuit only briefly.

In e-mails sent to his fellow judges and cited in the letter, Pearson’s contempt for Chief Administrative Law Judge Tyrone T. Butler was evident. In one of the missives, he spoke of protecting himself from any attempt by Butler “to knife” him. In another, he questioned Butler’s competence and integrity.

Incidentally, he was serving a two year term, but if he wins reappointment, it will be for a ten year term.

2. Updating a story from Mar. 25, a federal judge has banned the navy from using sonar in training exercises:

Cooper said it was never easy to balance the interests of wildlife with those of national security. But in this case, she said, environmental lawyers have made a persuasive case that the potential harm to whales and other marine life outweighs any harm to the Navy while the court case proceeds.

Because, clearly, a bunch of lawyers are in the best position to design United States naval strategy.

(Other whale-sonar lawsuit coverage: May 17, Jul. 2006)

3. Remember the Kentucky Fen-Phen scandal? The one in which the class action attorneys were accused of misplacing $60 million of their clients’ money into their own pockets? (We’ve covered it May 20 and earlier) Well, a federal judge has now ruled that they need to repay $62.1 million to their clients. So far. Still to come: a ruling on punitive damages, a criminal trial, and the suit against Cincinnati attorney Stan Chesley, who’s accused of the same wrongdoing. (AP/Forbes)

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Update: My mother, the car

Mothers Against Drunk Driving (MADD), which is fairly described these days as neo-Prohibitionist, continues to promote the development of automobiles which will be mechanically inoperable in the presence of indicators of drunkenness. A new Nissan prototype includes alcohol sensors in both the driver and passenger seat. Passenger? (Classical Values, Aug. 4). Earlier: Aug. 19, 2005, May 28, 2006.

More from DUI Blog: “Imagine if even one of these gizmos malfunctions — at high speed.”

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New Yorker cartoon caption

In the new (Aug. 13) issue, the picture shows a dad in living room admonishing son: “We don’t want you inviting friends over to play. There are liability issues.”

More: reader James Fulford notes in comments:

This is visible online at at the New Yorker Store. You can buy a print or in some cases, the original art. In the same issue, there’s defensive medicine: “I don’t like the look of these. I better send them up to legal.” (A doctor holding x-rays and a patient sitting on the examination table.)

And the criminal defense bar:“Make eye contact with the jury, but not homicidal-maniac eye contact.” (Lawyer to client.)