Overlawyered: Chronicling The High Cost Of Our Legal System

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Update: court OKs “ghost blurber” case, Sony likely to settle

After a California court of appeals ruled that a class action could go forward against Sony Pictures over its use of quotes from “ghost blurber” David Manning, the company said it was preparing to settle the case. (see Jun. 12, 2001). Judge Reuben Ortega, dissenting from his colleagues’ decision to let the suit proceed, wrote: “This is the most frivolous case with which I have ever had to deal. Imagine the great contribution this case will make to our quality of life and to justice in America. … A new day will dawn from which time no one will ever again be fooled by a promotion touting a movie as the greatest artistic accomplishment of the ages. From that day on, all persons will be able to absolutely rely on the truth and accuracy of movie ads. No longer will people be seen lurching like mindless zombies toward the movie theatre, compelled by a puff piece. … I cannot see breathing life into this farce. We should be occupying ourselves with resolving legitimate disputes instead of laughable cases designed not to gain anything for the plaintiffs, but rather to generate fees for the only true beneficiaries of this disgrace, the attorneys.” (opinion in PDF format).

Last year, Sony agreed to pay the state of Connecticut $325,000 following an investigation by grandstanding state AG Richard Blumenthal. The Connecticut connection that Blumenthal seized on? Well, it was that the (fictitious) Manning had been said to work for a (real) newspaper in Connecticut, the Ridgefield Press. “When the scandal was revealed, the Ridgefield Press demanded only an apology from Sony, which it got. ‘We’re not interested in grubbing money,’ [executive editor Jack] Sanders said. ‘A lot of people suggested we sue, but we’re not that kind of people. We just hope they don’t subpoena us to fly out and testify, unless they’re going to pay for transportation.'” (Emanuella Grinberg, “Moviegoers to settle with studio after being lured by phony critic”, CourtTV, Mar. 8). Update Aug. 3, 2005: Sony settles for $1.5 million.

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Cheeseburger seconds

“Given that a 2003 Gallup Poll found that 89 percent of Americans don’t believe in blaming the fast-food industry for obesity, you’d think the bill is unnecessary. I take this vote as Washington’s way of recognizing that in America, a bad idea, given enough time, will gain support, take root and become law.” (Debra Saunders, “If you are what you eat, then sue”, San Francisco Chronicle, Mar. 12). “Victor Schwartz, a leading expert on tort law who has been advising the National Restaurant Association, says these lawsuits still face formidable obstacles. He thinks a greater danger to the industry is that at some point state attorneys general will start filing lawsuits demanding compensation for Medicaid expenses, as they did with tobacco.” (Jacob Sullum, “Fast Food Damnation”, syndicated/Reason, Mar. 5). Blogger Kevin Drum (Calpundit) is torn and, he says, open to argument: “On the one hand, I don’t think much of using civil damage suits aimed at a specific industry as a way of changing social policy. Down that road lies madness. But at the same time, I also don’t think much of Congress exempting specific industries from the civil justice system. That can lead to some madness of its own.” (Mar. 11). Vice Squad (Mar. 11) has links on various topics including McDonald’s elimination of its Supersize offerings and developments in the U.K. on food regulation. The roll call on Wednesday’s vote is here. (See Mar. 11 and links from there.) More: in a commentary for Knight-Ridder, Fort Worth editorialist Linda P. Campbell defends the suits (“A helping of tort with your fast food”, Nov. 12, 2003). Restaurants are feeling the heat (Kim Severson, “Make it a super size, then call your lawyer”, San Francisco Chronicle, Oct. 12, 2003).

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Nuestros hermanos

For flowers or other expressions of support to the people of Spain, the address is:

His Excellency Inocencio Aris
Spanish Embassy
2375 Pennsylvania Ave. N.W.
Washington, D.C. 20037
Phone (202) 452-0100

For a list of Spanish consulates around the United States, click here. (via Dean Esmay, among others). Update: Glenn Reynolds has photos and eyewitness accounts of demonstrations of support for Spain in Washington, D.C. (more net reaction)

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Cheeseburger bill passes House

By a vote of 276 to 139 with most Democrats opposed, the House gave its approval to a bill that would bar lawsuits against the food industry over obesity. (Christopher Lee, “House bill bans suits blaming eateries for obesity”, Washington Post/San Francisco Chronicle, Mar. 11). The bill faces an uncertain future in the Senate; similar legislation is pending in many state legislatures and has passed in Louisiana. Jacob Sullum at Reason “Hit & Run” has two good commentaries on the bill. It’s “disconcerting to see Congress instructing state courts to dismiss patently absurd lawsuits. I worry that it’s not really necessary. I worry more that it is,” Sullum writes. (Mar. 9). Sullum also catches GW law prof John Banzhaf talking out of both sides of his mouth about whether obesity lawsuits have been successful (Mar. 10).

One activist quoted in the new coverage is Ben Kelley, who in cooperation with Prof. Richard Daynard has taken a prominent role in organizing conferences advising lawyers on how to sue the food industry (see Elizabeth Lee, Andrew Mollison, “Food fans weigh in”, Atlanta Journal-Constitution, Mar. 10). It turns out that this is none other than the same Ben Kelley we covered ten years ago when we examined how litigation consultants working with trial lawyers have successfully promoted bogus media coverage of alleged auto hazards, including NBC’s famous use of hidden incendiary devices to portray GM trucks as prone to explode (Walter Olson, “It Didn’t Start With Dateline NBC”, National Review, Jun. 21, 1993.) The pro-foodmaker Center for Consumer Freedom has more on Kelley’s recent activities: see Dan Mindus, “McLawsuit Lies”, National Review, Oct. 29; “Trial Lawyers Up Demands On Food Companies”, Oct. 30; “Update: Obesity War Loses Discredited General”, Nov. 4.

MedPundit Sydney Smith thinks (Mar. 10) that the much-headlined new study purporting to find that obesity claims more lives than smoking “is, all things considered, a very weak study. Certainly too weak to be the foundation of sweeping public policy.” For more of our coverage of obesity litigation, see Aug. 11, Jun. 20, Sept. 4, Aug. 6, Jul. 21, Jul. 3, Jul. 3 again, Jul. 1, Jun. 24, and a great deal more here. More: Radley Balko dissents from the bill on federalist grounds (Mar. 11)(& letter to the editor, Mar. 18).

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USA Today on magnet jurisdictions

USA Today has a front-page story on magnet jurisdictions. (Martin Kasindorf, “Robin Hood is alive in court”, Mar. 8). It leaves unrebutted the false claim by Public Citizen’s Joan Claybrook that “federal courts are judicial hellholes” because “the 7th U.S. Circuit Court of Appeals in Chicago recently denied class-action status to people who allegedly were harmed when Firestone tires blew out on their Ford Explorer SUVs”; the class that the Seventh Circuit rejected was a nationwide class of all Explorer owners, including those who had suffered no harm. Consumers who were injured by Firestone tires have many lawsuits pending unaffected by the Seventh Circuit’s decision; indeed, as the Seventh Circuit pointed out, anyone who had a significant injury would likely have been advised to opt out of a class action rather than risk having their claim subsumed by the class action. (In re Bridgestone/Firestone, Inc. Tires Products Liability Litigation opinion; see also Jul. 8).

It is telling that Ms. Claybrook is suggesting that a court that refuses to countenance a class action on behalf of people who have suffered no harm is “anti-consumer”–it demonstrates that to her, “pro-consumer” means a pure wealth transfer from shareholders to lawyers.

USA Today also understates the problem of Madison County (see Sept. 26, Jan. 5, etc.): it’s not just that class actions have gone to 107 in 2003 from 60 in 2001; in 1998, there were only three class actions filed in Madison County. “There’s some merit to the accusations of bias in Madison County, says retired circuit judge John DeLaurenti, who heard cases there for 27 years until 2000. ‘I don’t know if it’s a judicial hellhole, but just figure it out,’ he says. ‘When people come from hither and thither to file these cases, there’s gotta be an inducement, doesn’t there? They’re not coming to see beautiful Madison County.'”

Disclosure: My law firm represented Ford in the Firestone class action litigation before the Seventh Circuit; my colleague, John Beisner, is quoted by USA Today.

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Courts compete for bankruptcy cases

“As [energy company] Mirant’s Chapter 11 unfolds in North Texas, the region’s bankruptcy bar is keenly aware that the region is playing for high stakes. The area has been trying for years to bag a big-ticket bankruptcy. Its first catch was Mirant, the 10th-largest bankruptcy in U.S. history. It’s been very, very good to Fort Worth.” Large-firm bankruptcies are enormously lucrative to lawyers, other professionals and support industries, but the competition for a business once dominated by Manhattan and Delaware puts pressure on judges to issue rulings pleasing to the managers and lawyers of debtor companies. “Judges who don’t deliver are dooming themselves and their local peers to backwater status: Let a big bankrupt company leave unhappy, and nobody else will come back.” In the 1980s, one-third of big bankruptcies were filed away from the bankrupt firm’s headquarters, an indicator of forum-shopping; since then the figure has risen to two-thirds (Margaret Newkirk, “Courts compete to bag big cases”, Atlanta Journal-Constitution, Feb. 29).

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Banquet hall liable for gang shooting

The Troostwood Banquet Hall rented out its space to a man who was holding a dance. People who lease the hall are required to provide uniformed security officers, but on November 26, 2002, that didn’t stop a gang member from firing shots into a crowd, killing 17-year-old Kristi Carroll. A Jackson County jury held the owner of building liable. The plaintiffs’ lawyer, Michael Fletcher, “told jurors to remember that police had been called to the two square blocks around the banquet hall 200 times in the past two years,” so apparently business owners in high-crime areas are now responsible for the crime that occurs on or near their premises. (Joe Lambe, “Jury awards $5 million in slaying”, Kansas City Star, Mar. 5; “Police investigate teen’s death”, AP, Nov. 26, 2002).

Lawsuit: illegal to create “empty space”

Kelly McGinley, a Christian radio broadcaster in Mobile, Alabama, sued over the removal of a monument of the Ten Commandments on the grounds that the empty space left behind acted as a monument to “nontheism,” thus violating the Establishment Clause of the First Amendment. It will be no surprise that the lawsuit was dismissed at the district court level and that the dismissal was affirmed by the Eleventh Circuit. (Stan Bailey, “Judges say monument lawsuit lacks merit”, Birmingham News, Mar. 6; McGinley v. Houston).

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QFC mad cow class action

In other grocery lawsuit news: you may remember back in December that a single Canadian cow was found to have mad cow disease, and as a safety precaution, tens of thousands of pounds of beef were voluntarily recalled in addition to the 10,510 pounds the USDA ordered recalled. Well, it seems that a Seattle-area woman, Jill Crowson, is bringing a class action against supermarket chain QFC. Says the suit, it wasn’t enough for QFC to merely pull the meat from its shelves, post signs, and make public announcements; even though coverage of the lone mad cow dominated headlines for a week, QFC should also have taken the individual step of contacting customers who purchased beef to warn them–and presumably have managed to accomplish this instantaneously on Christmas Eve, since QFC learned about the beef on December 24 and Ms. Crowson ate it on December 25.

Now, it’s exceedingly unlikely that Ms. Crowson or her family has suffered any injury from her Christmas-day tacos. First, it’s unlikely that Ms. Crowson had any meat from the infected cow; second, it’s extremely unlikely (and there is no evidence) that one will contract variant Creutzfeldt-Jakob Disease from the muscle meat of a cow (the real danger is the relatively unpopular brain and spinal cord); third, even those who do eat infected brain and spinal tissue are unlikely to contract vCJD, which has stricken 150 people out of the millions exposed worldwide. Ms. Crowson probably suffered more risk driving to and from the grocery store or her lawyer’s office. Nevertheless, she wishes damages for the ”stress and fear” of vCJD–though if such longshot risks cause her such anxiety, one would think she would do more due diligence in life. (Lewis Kamb, “QFC says it acted appropriately in beef recall”, Seattle Post-Intelligencer, Mar. 6; “Seattle family sues grocery chain over mad cow claim”, AP, Mar. 6; Kyung M. Song, “Clyde Hill woman sues QFC over suspect meat”, Seattle Times, Mar. 6; complaint; QFC statement).

Read On…

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Hillsdale College “Imprimis”

I’m happy to announce that my speech last month at Hillsdale College in Michigan has been reprinted as the March issue of the college publication “Imprimis”, which reaches a very large (1 million+) readership. (Walter Olson, “The Threat from Lawyers is No Joke”, current issue, will rotate off top page — when that happens, search archive for March 2004)(or permalink printable version)

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