Fifteen years ago at Overlawyered: “Lawsuit Urban Legends”

From June 2003, itself expanding earlier material, with new links added to replace those broken:

The following advisory originally appeared Aug. 27, 2001 on Overlawyered in slightly different form. It is reprinted here because it is among the information most often requested by visitors to the site.

You’ve probably seen it in your inbox: a fast-circulating email, often labeled “Stella Awards”, which lists six awful-sounding damage awards (to a hubcap thief injured when the car drives off, a burglar trapped in a house who had to eat dog food, etc.). Circumstantial details such as dates, names, and places make the cases sound more real, but all signs indicate that the list is fictitious from beginning to end, reports the urban-legends site Snopes.com (Barbara Mikkelson, “Inboxer rebellion: tortuous torts“). Snopes also has posted detailed discussions of two of the other urban legends we get sent often, the “contraceptive jelly” yarn, which originated with a tabloid (“A woman sued a pharmacy from which she bought contraceptive jelly because she became pregnant even after eating the jelly (with toast).” — “Jelly babied“) and the cigar-arson fable (“A cigar aficionado insures his stogies against fire, then tries to collect from his insurance company after he smokes them.” — “Cigarson“). And the story about the man setting the cruise control in his new Winnebago recreational vehicle, leaving the driver’s seat, and then suing the company after the resulting accident? That’s an urban legend too. What we wonder is, why would people want to compile lists of made-up legal bizarreries when they can find a vast stockpile of all-too-real ones just by visiting this website [and in particular its personal responsibility archives, older and newer series]?

NAMES IN STORIES: The never-happened stories include tales about “Kathleen Robertson of Austin Texas” (trips on her toddler in furniture store); “Carl Truman of Los Angeles” (hubcap theft) “Terrence Dickson of Bristol Pennsylvania” (trapped in house), “Jerry Williams of Little Rock Arkansas” (bit by dog after shooting it with pellet gun), “Amber Carson of Lancaster, Pennsylvania” (slips on drink she threw), and “Kara Walton of Claymont, Delaware” (breaks teeth while sneaking through window into club). All these incidents, to repeat, appear to be completely fictitious and unrelated to any actual persons with these names.

Environment roundup

  • Organized efforts mount to blockade, shut down, and ban oil and gas infrastructure [David Roberts/Vox; Kevon Paynter] My two cents on Baltimore’s ban on new or expanded crude oil terminals, which follows moves against fuel infrastructure in Oakland and Portland [Free State Notes] Massachusetts judge approves “necessity defense” raised by protesters who blocked work on pipeline [Erin Mundahl, Inside Sources]
  • Related: calls to ban hydrocarbon (even gas) utility generation stir backlash among some Democrats [Amy Harder, Axios] And not illogically given the distributional effects [Ronald Bailey, Reason]
  • “$18 Billion Prize,” new stage play about Chevron/Ecuador case by Phelim McAleer and Jonathan Leaf, ruffles some Bay Area feathers [Daniel Kennard, National Review]
  • Questions about curious study of GMO safety [Dan Vergano, BuzzFeed]
  • “Creative Regulators and Environmental Protection,” Federalist Society panel video with C. Boyden Gray, Adam White, Robert Glicksman, Nathan Richardson, Caroline Cecot;
  • Europe optimizes its train system for passengers, while U.S. optimizes its for freight. Which is the greener choice? [Coyote]

Supreme Court: class actions can’t be brought back time after time

Class action tolling means suspending time limits on future lawsuits while a class action suit is pending. This is distinct from class action trolling which is when the Ninth Circuit adopts a deliriously liberal rule and dares the Supreme Court to reverse it.

Both phenomena were involved in today’s unanimous Supreme Court opinion in China Agritech v. Resh. In the 1974 case of American Pipe & Construction v. Utah the Court had adopted a rule permitting individual claimants to file otherwise-tardy actions after a court had declined to certify a class action. The American Pipe rule is itself decidedly indulgent toward the class action device, but it took the Ninth Circuit to take a crucial extra step off the Santa Monica pier by holding that the late-arriving claimants should themselves be able to ask for certification as a class action. After all, the first try at certification might have been based on a flawed legal strategy or incomplete factual record. Why not give our friends in the bar a second bite?

Or a third bite, or an nth: in fact the case that reached the high court was the third class action in a row attempted on the same underlying facts, a securities dispute. To almost everyone but the Ninth Circuit, the resulting danger was clear enough: without any real need to accept “no” for an answer, class action lawyers could just come back again and again with new tame plaintiffs until they find a judge willing to grant certification, the step that tends to guarantee a payday in the class action business.

Today’s unanimity is significant. On procedural and jurisdictional issues, at least, today’s liberal wing on the Court has sometimes been willing to unite with the Rehnquist-Scalia-Roberts wing to recognize and rein in the dangers of lawyer-driven overlitigation, the tactical use of lawsuits as a weapon, and so forth. Justice Ruth Bader Ginsburg, who wrote today’s opinion, has more than once joined and sometimes led such coalitions. By contrast, Justice Sonia Sotomayor has often been found alone and out on a limb in favor of a more litigation-friendly position, which happened again today: she joined in a concurrence agreeing that the Ninth Circuit had gone too far but seeking to limit the Court’s holding to securities suits governed by the Private Securities Litigation Reform Act of 1995 (PSLRA).

The Senate might want to quiz future liberal nominees – yes, there will be such – on whether they more favor the Ginsburg or the Sotomayor approach to these issues.

[cross-posted from Cato at Liberty]

Free speech roundup

  • Video now online of Nadine Strossen at Cato speaking on her new book Hate: Why We Should Resist It with Free Speech, Not Censorship. And John Samples kicks off series of blog posts about book [first, second]
  • Press vs. President: “the more tightly regulated media landscape of the early 1970s” played directly into Nixon’s hands [Matt Welch]
  • Romance writer’s bid to stop authors from using word ‘cocky’ fails in court [Alison Flood/Guardian, earlier]
  • “New law forces Google to suspend political ads in Washington state” [Timothy Lee, ArsTechnica]
  • “The Minnesota criminal harassment statute is equally dubious, applying when a person sends two or more tweets ‘with the intent to abuse, disturb, or cause distress.’ Really…?” [Venkat Balasubramani, Technology and Marketing Law Blog] “Crime in D.C. to Negligently Cause ‘Significant Mental Suffering’ by Saying Two Non-Political Things About Someone” [Eugene Volokh] “NY State Legislators Unanimously Pass A Cyberbullying Bill That Can’t Be Bothered To Define Cyberbullying” [Tim Cushing, TechDirt; Eric Turkowitz]
  • Blame failings of copyright law, not scholarly neglect, for long inattention to Zora Neale Hurston manuscript [Ted Genoways, Washington Post/Valley News]

“The beer that had to unprotect itself”

Protected geographical designation laws, which prevent the sale in some countries of articles like Champagne or Gouda cheese unless produced in the indicated locality, are sometimes defended as advancing consumers’ interest in fraud prevention or accuracy in labeling; it is also suspected that they can serve to curtail competition and protect incumbents even when no genuinely distinctive local contributions are at issue of soil, technique, etc. In 2000, Newcastle Breweries and Newcastle-upon-Tyne, England, obtained a designation on Newcastle Brown Ale, a popular product dating back to 1927, to prevent it from being sold unless manufactured in the city. That didn’t work out so well when the brewery moved to nearby Gateshead four years later. Dan Lewis, Now I Know:

EU regulators took notice and weren’t as forgiving as the brewers would have hoped. The owners of the Newcastle Brown Ale brand had two obvious choices: move back across the Tyne or change the name of the product. Neither was a good option, so the brewery decided to do something new: they applied to have the registration canceled. And as seen in this pdf, they were successful. In August 2007, the EU revoked Newcastle Brown Ale’s PGI status, allowing it to be made across the river — or anywhere else.

Today, Newcastle Brown Ale is made in neither Newcastle nor Gateshead. Heineken, which bought the Newcastle’s brewers in 2008, has since relocated operations to Amsterdam.

Revisiting Williamson County Regional Planning Commission v. Hamilton Bank

The plight of a Pennsylvania property owner faced with an onerous new ordinance on private graveyards gives the Supreme Court a chance to revisit and revise a 30-year-old decision that requires the targets of takings to go through state court litigation first before suing in federal court for compensation [Ilya Shapiro, Trevor Burrus, and Meggan DeWitt on Cato merits amicus in Knick v. Township of Scott, which follows a cert amicus earlier]

Michael Greve on Epic Systems and arbitration clauses

On the Supreme Court’s modern development of doctrine favorable to private arbitration, George Mason lawprof Michael Greve is as usual stimulating and surprising [Law and Liberty] And NYU lawprof Sam Estreicher writes that “class action lawsuits are the wrong way to settle employment disputes….Epic Systems may well prove beneficial to workers, a qualified blessing in disguise.” [Bloomberg via Jonathan Adler] More: Christopher Murray, Federalist Society “Courthouse Steps” podcast.

Medical roundup

  • Wrong on many other issues, the American Medical Association is right to resist an artificial 3-day limit on opiate prescriptions [Jeffrey Singer, Cato; Jacob Sullum]
  • “Does Ride-Sharing Substitute for Ambulances?” [Leon S. Moskatel and David J. G. Slusky, Cato Research Briefs in Economic Policy No. 114]
  • Fourth Circuit tosses Maryland law banning “price gouging” of “essential” generic drugs, finding that state violates Dormant Commerce Clause by presuming to control transactions entirely outside its boundaries [Zack Buck, Bill of Health; Stephen McConnell, Drug and Device Law]
  • President Trump signs “right to try” legislation expanding right of terminally ill patients to enter unapproved therapies; squaring this with existing FDA regulation may present knotty problems [Michael Cannon, Cato; Michael Maharrey (“In fact, victories in 40 state legislatures preceded Trump’s signing ceremony”); earlier here, here, and at Cato Unbound last year] More cautions from Jim Beck on liability angle [Drug and Device Law]
  • Florida, departing from other states’ practice, caps its outside lawyers’ recovery at $50 million: “Latest Wave Of State Opioid Lawsuits Shows Diverging Strategies And Lawyer Pay Scales” [Daniel Fisher, Forbes]
  • In medical innovation, “equality is a mediocre goal. Aim for progress.” [Tyler Cowen]

Legal muscle at last for kids’ lemonade stands

Yes, this is a marketing campaign, but oh what a marketing campaign: makers of Country Time lemonade pledge funding to pay the fines and legal fees of kids busted for setting up lemonade stands.

Our earlier coverage of stands’ legal hassles is here, here, here, here, and here. You can visit the campaign site here and view the video here.