- “She Asked for Help for Postpartum Depression. The Nurse Called the Cops.” [Darby Saxbe, Slate] Under one Montana prosecutor’s announced policy, pregnant mother “proven to be using alcohol … might be monitored by law enforcement or sent to jail.” [Andrew Turck, Big Horn County News]
- “The Florida Supreme Court has agreed to decide whether a judge may be Facebook friends with lawyers who appear before the judge.” [Raymond McKoski, Orlando Sentinel]
- Nation’s highest military court unanimously tosses sexual assault conviction of Coast Guard enlisted man, finding juror selection stacked by higher-ups; of seven jurors, four were trained sexual assault victim advocates [Rowan Scarborough, Washington Times; decision]
- Report on legal landscape of cottage food industry [Jennifer McDonald, Institute for Justice] Deregulation efforts of Trump administration have yet to reach food sector [Baylen Linnekin]
- So large and so diverse is the 400-member lower house of the New Hampshire legislature that it appears to contain a sovereign citizen believer [Jack Smith IV, Mic]
- “Stash House Stings: When the Government Can Invent Crimes and Criminals” [Trevor Burrus and Reilly Stephens]
Search Results for ‘cottage food’
FDA backs down on wood aging of cheese
Yes! Following an enormous outcry from cheese makers, commentators, and the general public, the agency beats a hasty retreat. Commentator/ Pepperdine lawprof Greg McNeil has the details at Forbes (and his earlier commentary on the legalities of the agency’s action is also informative). Earlier here.
In a classic bureaucratic move, the agency denied it had actually issued a new policy (technically true, if you accept the premise that a policy letter from its chief person in charge of cheese regulation is not the same as a formally adopted new policy) and left itself the discretion to adopt such a policy in future if it wishes (merely declaring itself open to persuasion that wood shelving might prove compatible with the FSMA).
McNeal:
This is also a lesson for people in other regulated industries. When government officials make pronouncements that don’t seem grounded in law or policy, and threaten your livelihood with an enforcement action, you must organize and fight back. While specialized industries may think that nobody cares, the fight over aged cheese proves that people’s voices can be heard…
There is a less optimistic version, however. It happens that a large number of editors, commentators, and others among the chattering classes are both personally interested in the availability of fine cheese and familiar enough with the process by which it is made to be un-cowed by claims of superior agency expertise. That might also be true of a few other issues here and there — cottage food sold at farmer’s markets, artisanal brewing practices — but it’s inevitably not going to be true of hundreds of other issues that arise under the new Food Safety Modernization Act. In a similar way, the outcry against CPSIA, the Consumer Product Safety Improvement Act, rose to a politically effective level only on a selected few issues (publishers and libraries got a fix so that older children’s books would not have to be trashed; youth motorsports eventually obtained an exemption, and so forth) but large numbers of smaller children’s products and specialties whose makers had less of a political voice simply disappeared.
More: Andrew Coulson, Cato, and on the trade aspects, K. William Watson; Chuck Ross, Daily Caller (quoting me at length for which thanks). On the FDA’s new statement: “Typical bureaucratic doublespeak that seems meant to maximize uncertainty for the regulated community” [Eric Bott of Wisconsin Manufacturers and Commerce] “This was the worst possible outcome. It reinforces elites’ view that regulators are reasonable and wise and will fix mistakes.” [@random_eddie] “Pay no attention to the Leviathan behind the cheesecloth” [Scott Lincicome, in an exchange after a writer at Slate observed that “Libertarians aren’t the only ones” who might want to keep board-aged cheese legal] (Vox, Reason, Carly Ledbetter/HuffPo; & welcome Instapundit, Alexander Cohen/Atlas Society, Q and O readers)
November 20 roundup
- KlearGear and the consumer non-disparagement clause that ate (or tried to eat) Chicago [Popehat and followup]
- “House Passes Bill That Would Open Asbestos Trusts To Scrutiny” [Daniel Fisher/Forbes, Chamber-backed Legal NewsLine]
- Randy Maniloff interviews Judge Richard Posner on his new book Reflections on Judging [Coverage Opinions]
- In a custody fight, anything can happen: “Dad Accused of ‘Unfit Parenting’ for Refusing to Take His Son to McDonalds” [TIME]
- “Released after serving 10 years on false rape accusation –then wrongly arrested for not registering as sex offender” [Chicago Tribune via @radleybalko]
- Institute for Justice launches campaign to challenge local restrictions on food with suits over sale of cottage baked goods, front-yard vegetable gardens, advertising of raw milk [AP/Yahoo, “National Food Freedom Initiative“]
- Alabama regulators add hassle factor when business tries to move into the state [Coyote]
ADA filing mills: get those facts straight!
Taking advantage of the liberal (and lucrative) provisions of disabled-rights law in the Golden State, wheelchair user Jerry Doran has filed “more than 200 lawsuits in state and federal court against restaurants and other public establishments throughout California, alleging insufficient disability access. He has filed so many suits, in fact, that he has begun to lose track,” notes George Wallace at Declarations and Exclusions. Last month U.S. District Court Judge Cormac J. Carney returned judgment in favor of a Del Taco restaurant in Mission Viejo — 500 miles from where Doran lives — against Doran’s claim of having suffered improper lack of accommodation. Wallace (Jul. 18) takes up the tale:
Although there was no question that Mr. Doran is disabled, Judge Carney was ultimately unable to persuade himself that there was evidence sufficient to prove that Doran had actually sustained any harm at, or had ever actually been to, the Mission Viejo Del Taco.
After describing and praising the purposes of the ADA, Judge Carney’s Memorandum Decision [PDF] notes that it is a tool prone to misuse:
Despite the important mission of the ADA, there are those individuals who would abuse its private cause of action provision by filing lawsuits solely with the intent to profit financially. This potential for abuse of the ADA has been well documented in the Central District of California . . . . Courts have referred to this proliferation of ADA lawsuits as a ‘cottage industry’ and have labeled plaintiffs who file these lawsuits ‘professional plaintiffs,’ ‘serial plaintiffs,’ and ‘professional pawns.’
* * *
The consequences of this abuse of the ADA are severe: businesses and insurers are harmed, the integrity of the bar is called into question, and the public’s confidence in the courts is impaired. . . . Simply put, this litigation abuse of the ADA results in the exact harmful consequences that Congress sought to eradicate by passing the ADA. As more than one court has observed, the result of this abusive litigation is that ‘the means for enforcing the ADA (attorney’s fees) have become more important and more desirable than the end (accessibility for disabled individuals).’
Most of the remainder of the opinion focuses on the discrepancies in Doran’s responses to interrogatories, his responses to questions in deposition three weeks later, and his testimony at trial, in which key details — such as how often and when he had actually visited the Mission Viejo Del Taco — slipped and slid uncontrollably. Highlights:
* Doran first went to Del Taco #415 in Spring of 2002 or in Spring of 2003, unless his first visit was in 1988.
* Prior to filing suit, he went to the location twice, or perhaps three times, or possibly just once, although he may have gone there on as many as five or six occasions.
* “Mr. Doran’s complaint refers to objects — display racks and vending machines — which do not even exist at Del Taco restaurant #415.”
* “When Mr. Doran stated that he ordered an enchilada to eat during his alleged visit, he must have been testifying about a trip to a Taco Bell restaurant since Taco Bell — and not Del Taco — serves enchiladas.”
* “When describing the barriers he encountered at Del Taco restaurant #415, Mr. Doran stated that the hand dryers in the restroom were located too high. . . . Because Del Taco restaurant #415 does not have hand dryers in its restrooms, it is clear that Mr. Doran was testifying about a visit to another restaurant, or place of public accommodation, when asked to identify the barriers he encountered.”
* “When asked if there were any fast food chains that Mr. Doran frequented that he had not sued, he replied that he had not sued Kentucky Fried Chicken. In fact, Mr. Doran has sued Kentucky Fried Chicken. When asked to try again, Mr. Doran replied that he had not sued Jack in the Box. Although apparently unbeknownst to him, Mr. Doran has sued Jack in the Box also.”
(Doran v. Del Taco, opinion in PDF format courtesy Decs & Excs; post, Jul. 18). For more on the dubious practices of ADA filing mills, see our disabled rights page.
October 2002 archives
October 9-10 — Rumblings in Mississippi. Two big stories out of the Magnolia State: the legislature on Monday passed, and Gov. Ronnie Musgrove indicates that he will sign, a compromise malpractice reform bill intended to relieve the state’s worst-in-the-nation medical liability crisis. Among its terms: capping non-economic damages at $500,000, restricting venue to the county where alleged wrongdoing occurred, and requiring that plaintiffs line up an expert before a suit can proceed. (Patrice Sawyer and Julie Goodman, “Legislature passes civil justice reform”, Jackson Clarion-Ledger, Oct. 8). It also curtails but does not eliminate joint and several liability in medical cases and shortens some time limits for suing. (“Other provisions”, sidebar; Jackson Clarion-Ledger editorial, Oct. 8).
In a separate story that will bear close watching as it unfolds, “Federal authorities are investigating whether state court judges took out loans that were repaid by nationally prominent trial lawyers from South Mississippi whose cases the judges handle. Investigators believe the judges, including state Supreme Court Justice Oliver Diaz Jr. of Biloxi, borrowed thousands of dollars from The Peoples Bank, which has headquarters in Biloxi, and Merchants & Marine Bank in Jackson County. Plaintiffs’ attorneys who try multimillion-dollar cases before the judges subsequently repaid the loans, investigators believe. Paul Minor of Ocean Springs and Richard ‘Dickie’ Scruggs of Pascagoula are being investigated by the FBI and U.S. Attorney’s Office in Jackson, according to a source close to the investigation.” Scruggs, of course, is among the most powerful lawyers in the country and did more than any other figure to engineer the $200-billion-plus settlement between the tobacco industry and state governments; he is also the brother-in-law of Sen. Minority Leader Trent Lott (R-Miss.) Scruggs “has said that he expects to earn about $844 million from tobacco settlements” while Minor expects to receive something like $70 million from tobacco settlements. (Anita Lee, Tom Wilemon and Beth Musgrave, “Loans to Judges Probed”, Biloxi Sun-Herald, Oct. 7; Jerry Mitchell, “Judges’ loans focus of probe”, Jackson Clarion-Ledger, Oct. 8; “Coast newspaper reports lawyer-judge link to loans being checked”, AP/Alabama Live, Oct. 7). Scruggs “denies that he repaid loans for Diaz or any other judge.” (“Investigation Targets Lawyers, Judges & Loans”, WLOX, Oct. 7). Update Oct. 11-13 more allegations; May 7, 2003 investigation widens. (DURABLE LINK)
October 9-10 — Trial lawyers and politics: Michigan, Texas. Two legal reform groups have released studies documenting the flow of trial lawyer money into their states’ politics. Michigan Lawsuit Abuse Watch reveals that the state’s personal injury lawyers “have contributed a total of $426,280 to [Democratic gubernatorial nominee Jennifer] Granholm’s campaign. This is more than the $394,209 she has received from the PACs of all other Michigan special interest groups backing her. Personal injury lawyers have given just $2,900 to Granholm’s opponent, Dick Posthumus.” And Texas Trial Lawyer Watch has a new report out on the gargantuan sums spent by lawyers in that state, with special emphasis on the lengths to which the attorneys are willing to go to conceal their generosity (“Hiding Their Influence“, PDF format) (DURABLE LINK)
October 9-10 — Latest sacked-Santa suit. In Edinburgh, Scotland an actor “hired to play Santa Claus at a shopping centre who was sacked for his allegedly lugubrious manner is suing his former employers for more than £1,500.” Television actor Colin Brown, 50, says he had fulfilled the role for many years past with no complaints of insufficient jolliness. “He is also seeking £10 compensation for a 12-inch square cushion he supplied for the padding and £30 for his size nine wellington boots.” (Edward Black, “Sacked Santa sues ex-employers”, The Scotsman, Oct. 8). For further annals of Santa employment litigation, see Oct. 12 and Dec. 13-14, 2000. (DURABLE LINK)
October 7-8 — Malpractice-crisis latest: let ’em become CPAs. Detailed report in the St. Louis Post-Dispatch of malpractice woes in Missouri and (especially) in adjoining counties of Illinois known for litigiousness, Madison and St. Clair, where “doctors are handing off more patients needing risky procedures to St. Louis medical centers. Doctors in the two counties pay double the premiums of most surrounding Illinois counties because of the flurry of claims filed there,” according to the head of underwriting at the doctors’-mutual insurer that writes more than half of Illinois policies. Insurance is becoming unaffordable for many doctors with records considered less than pristine, such as those with past claims that were resolved for token payments or even for no payment at all.
In litigious Belleville, Ill., patients can obtain a long list of medical services only by heading over to St. Louis. “Several years ago, Belleville physicians decided to transfer all critically ill children to St. Louis Children’s Hospital or Cardinal Glennon Children’s Hospital. Anne Thomure, public relations director for Memorial Hospital in Belleville, said many of these young patients could have gotten comparable care in the community, but liability risks were deemed too great”. “Trauma is routinely sent to St. Louis because of the medical-legal climate,” said one doctor. Other Belleville doctors have stopped handling high-risk pregnancies, administering clot-busting TPA to stroke patients, and performing surgery on complex elbow fractures, which often lead to complications. Many neurosurgeons are shunning brain surgery in favor of relatively safe spinal procedures. Dr. Kathy Maupin “said almost every doctor involved in trauma care gets sued, because outcomes are unpredictable and patients do not have a pre-existing relationship with the doctors.” Don’t miss this priceless quote from the other side, from “Bruce Cook, a personal injury lawyer in Belleville” who “has little sympathy for doctors lamenting liability coverage costs.” “Perhaps the doctors retiring early are the doctors who are sued too much,” he said. “Perhaps they should have been accountants.” (Judith VandeWater, “Insurance rates pinch doctors, care”, St. Louis Post-Dispatch, Oct. 6).
The Bloviator (Sept. 27) summarizes the terms of the federal malpractice-reform bill, H.R. 4600 Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2002″, which passed the House Sept. 26 but is considered unlikely to make it past the litigation lobby’s grip on the U.S. Senate. Last Thursday, Pennsylvania doctors held rallies in Philadelphia and Scranton to protest the state legislature’s inaction on malpractice reform (AP/New York Times, undated; MedRants, Oct. 4; Politically Active Physicians Association, organization of Pa. doctors). New York doctors may not be holding demonstrations yet, but according to William Tucker in the New York Post, they pay the highest malpractice premiums in the country. From “1994 to 1999, the average New York jury verdict tripled, from $1.7 million to $6 million. Empire State physicians settled $633 million in malpractice claims in 2000, 80 percent more than second-place Pennsylvania ($352 million) and triple third-place California ($200 million, for twice the population)”. California, unlike New York and Pennsylvania, has a strong cap on noneconomic damages. (New York Post, Sept. 26).
The disarray in Mississippi’s malpractice system “extends to the state’s ambulance companies and their workers”, reports AP. (Matthew Volz, “Paramedics face malpractice suits, too”, AP/Jackson Clarion-Ledger, Sept. 19). A past president of the Mississippi Trial Lawyers Association pooh-poohs the concerns, saying he “cannot recall off the top of my head a single substantial or even moderate verdict against an ambulance company in the state of Mississippi” — note how by framing the issue as one of verdicts only, he gets to sidestep the question of how often ambulance operators are named in complaints resolved before that point. On the Mississippi legislature’s lack of seriousness in pursuing tort reform, see the Clarion-Ledger‘s editorial, Sept. 25.
A study from the American Association of Neurological Surgeons and other neurosurgery groups finds that liability woes have plunged that specialty into a state of emergency across the country. (Sept. 25 study in PDF format, press release, resource page). And while litigation lobby stalwarts such as the misnamed “Center for Justice and Democracy” have tried to scapegoat malpractice insurance providers as the source of the crisis (Sept. 25), a report last month from the U.S. Department of Health and Human Services thoroughly refutes that contention, pointing out that: 1) states that have enacted serious liability limits are not undergoing a crisis; 2) actuarial data show a sharp upturn in the past few years in large medical claims in unreformed states, as well as in the high verdicts which influence the magnitude of settlements; 3) medical malpractice insurers have not generally suffered major losses due to speculative or volative investments, and a relatively small share of their investment is in the stock market; 4) the decreasing competitiveness of the insurance market is itself a reflection of the liability-driven increase in claims expense; and 5) liability reforms in states like California have not made it impossible to sue — the number of claims has not been declining there lately — but have kept medical care affordable, notwithstanding the influence of the much-cited “insurance cycle”. (“Update on the Medical Litigation Crisis: Not the Result of the ‘Insurance Cycle'”, HHS, Sept. 25). (DURABLE LINK)
October 7-8 — “Judge Throws Out ‘Harry Potter’ Copyright Suit”. “”A federal judge has sanctioned an author $50,000 for submitting false evidence in an unsuccessful copyright lawsuit against the publisher of the blockbuster ‘Harry Potter’ series of children’s books. Southern District of New York Judge Allen G. Schwartz found that Nancy Stouffer had knowingly submitted fraudulent documents to the court in an attempt to bolster claims that the author of the ‘Harry Potter’ series, J.K. Rowling, copied several ideas from Stouffer’s unsuccessful children’s stories.” In addition to the $50,000 sanctions, Judge Schwartz ordered Stouffer to pay Rowling’s and her publisher’s attorneys’ fees and costs. Stouffer’s lawyer says he is considering appellate options. (Tom Perrotta, “Judge Throws Out ‘Harry Potter’ Copyright Suit”, New York Law Journal, Sept. 19). (DURABLE LINK)
October 7-8 — Cutting edge of discrimination law. Near Seattle, the Puyallup School District has agreed to settle a two-year-old civil rights suit by paying $7.5 million and instituting diversity training, administrative and curriculum changes to encourage racial diversity. Four black families had sued the school district in 1999 saying it “tolerated and encouraged a racially hostile environment. ‘One specific complaint was against the use of racial slurs in exams and class discussion of books like ‘Huckleberry Finn’ and ‘The Grapes of Wrath.”” (Mike Roarke and Candace Heckman, “Civil rights suit settled in Puyallup schools”, Seattle Post-Intelligencer, Sept. 18 (via Scott Norvell, FoxNews.com, Sept. 23). And the Denny’s restaurant chain says it is looking into contentions that one of its outlets in Springfield, Ill. is behaving in a racially discriminatory manner by not staying open all night. The restaurant in question “recently started locking its doors between 3 and 5 a.m. Sundays, reportedly because a large number of patrons, many of whom have been at nearby clubs that close at 3 a.m., were descending on the restaurant and causing problems, including not paying for food.” The president of the local NAACP branch is hinting at a lawsuit: “Denny’s [on the East Side] will stay open, or other Denny’s worldwide will close from 3 a.m. to 5 a.m.,’ he said. ‘If there’s one Denny’s out there that is closing from 3 a.m. to 5 a.m., then either they’re going to do it worldwide, or they’ll remain open 24 hours.” (Jayette Bolinski, “Denny’s accused of discrimination”, State Journal-Register (Springfield, Ill.), Sept. 12). (DURABLE LINK)
October 7-8 — Blue-ribbon excuses. New York City: “A lawyer representing a couple accused of taking part in three-way sex on a train says they were helping road safety.” Vincent Siccardi says his clients “should be praised for taking the train instead of driving while drunk. Mr Siccardi told the New York Post: ‘Here are two responsible people. They were at a party. They were drinking. It shows that they are responsible. If more people did that, we’d have fewer problems on the road.'” (“Lawyer says couple accused of sex on train were helping road safety”, Ananova.com, Oct. 1). (DURABLE LINK)
October 4-6 — Breaking: L.A. jury docks Philip Morris $28 billion. The plaintiff had been smoking since age 17 and developed lung cancer; the sum awarded by the jury approximately equals the annual gross domestic product of Lithuania. The smooth lawyer who represented Mrs. Bullock, named Michael Piuze, has coaxed a whole series of bizarrely high verdicts out of West Coast juries. (Fox News, Oct. 4). (DURABLE LINK)
October 4-6 — Pets Warehouse owner sues Google. Robert Novak, owner of PetsWarehouse.com, has filed two earlier rounds of pro se lawsuits arising from his claim that his business was defamed in online discussion forums (see May 22 and May 27, 2002 and links from there). Now, in a third round, he is suing search engine Google and several other defendants. His complaint (PDF format) charges that Google failed to remove Usenet archive postings even after being informed that they were defamatory. It also demands damages for Google’s and other search engines’ use of keyword-based “sponsored links”, by which a user’s search on the phrase “pets warehouse” calls up advertising for another online pet store that has paid for the privilege. (Slashdot thread) (overview of case by defense attorney) Further update: Oct. 5, 2003. (DURABLE LINK)
October 4-6 — Commentary-fest. Henry Mark Holzer believes he’s identified the appropriate social response to the campaign for slave-reparations lawsuits: it’s called “Rule 11 sanctions”. (“The Achilles’ Heel of the Reparations Lawsuits”, FrontPage, Oct. 3). The Onion reports that record companies are suing radio stations to stop them from infringing their intellectual property by playing music over the air for free — oh wait, it’s just a parody (we think)(“RIAA Sues Radio Stations for Giving Away Free Music”, Oct. 2). And: “With the assistance and backing of trial lawyers, small and extreme groups are finding it increasingly easy to bypass and subvert the democratic process and impose their agenda on the rest of society by abusing litigation and manipulating the courts,” writes former Wyoming Sen. Malcolm Wallop (“Litigation: The Death of Democracy”, TownHall, Sept. 25). (DURABLE LINK)
October 4-6 — Lawsuit threats vs. campaign speech. “Television station managers in small communities across the nation are being forced this fall to adjudicate a barrage of demands from Democratic and Republican Party lawyers pressuring them to pull political advertisements in closely fought Congressional races — or face the risk of a defamation suit.” (Adam Nagourney and Adam Clymer, “Local Television Stations Become the New Arbiter of Political Fair Play,” New York Times, Oct. 2) (reg). (DURABLE LINK)
October 3 — Lawyers fret about bad image. Bar associations are resorting to all sorts of measures to try to counter the profession’s perceived unpopularity: the Wisconsin Bar has hired consultants “to institute a branding campaign based on focus group response”, while the Florida Bar has budgeted a contemplated $750,000 for its new “Dignity in Law” program (see Jul. 10) which targets 1,000 journalists and government officials described by the group’s president as “influential decision-makers” who will be sent “blast e-mails describing the great work that lawyers and judges do for our clients, in our courtroom and in our communities.” (We hope those 1,000 journalists and influentials have all previously opted into those “blast e-mails” — spam doesn’t make friends, you know.) “Prior to launching the campaign, the Florida Bar surveyed 880 journalists about their attitudes toward the legal profession and rated their stories as positive or negative. As the campaign continues, it will monitor their changing attitudes toward lawyers to measure the campaign’s effectiveness.” If we were Florida journalists, we’re not sure we’d be thrilled to learn that a group of dissatisfied newsmakers who wield writs had decided to “rate” and then “monitor” the tone of our coverage of them.
Meanwhile, on a national level: “Disenchanted with the public outcry against attorneys and the legal profession, Robert Clifford, who heads the American Bar Association’s Litigation Section and is a founding partner of Clifford Law Offices, a personal injury firm in Chicago, personally financed a $250,000 national telephone survey for the ABA of 750 households.” The results could hardly have been welcome. “Only 19 percent of the respondents expressed confidence in lawyers’ work compared with a 50 percent confidence rating for doctors.” (Physician readers, take note, and heart.) The survey effort “also included 10 focus groups in five cities including Chicago and Los Angeles whose respondents repeatedly described attorneys as ‘greedy, manipulative and corrupt.’ … The public lambasted criminal defense, personal injury and divorce lawyers”, praising only real estate and civil rights attorneys. (& see letter to the editor, Oct. 23)
To its credit, the National Law Journal‘s roundup of the matter airs not only the legal establishment’s view — which is that the profession is merely misunderstood and suffering from bad public relations — but also the views of critics both inside and outside the profession who think the best way to improve lawyers’ image would be, well, to start cleaning up the bad things that go on in legal practice. Tallahassee Democrat columnist Bill Cotterell, a critic of the Florida bar program, notes: “People don’t like lawyers gaming the system for personal profit — enormous profit — and not caring who gets hurt.” Cotterell “recommended adopting ‘a loser pays‘ system under which the losing plaintiff in a meritless suit would pay the defendant’s legal expenses.” And Catherine Crier, the Court TV host and former judge whose book “The Case Against Lawyers” is forthcoming momentarily, says bar p.r. campaigns “don’t do anything to address the underlying areas. I’d rather see a campaign that introduces ethics classes.’ Crier would prefer to see the law ‘eliminate contingency fees except in cases aimed at the poor and institute loser pays in all categories. In that way, good lawyers can proceed with dignity and pursue cases that are meritorious, and those pressing frivolous actions corrupting our system will no longer have a forum.'” Hear, hear! (Gary M. Stern, “Polishing the Image”, National Law Journal, Sept. 16). (DURABLE LINK)
October 1-2 — FTC cracks down on excessive legal fees. Here’s an important story that’s flown mostly under the radar: the new leadership of the Federal Trade Commission is taking pioneering steps to protect consumers from exploitative legal fees, under the same mandate by which it cracks down on deceptive or unfair overcharging by businesses generally. “So far this year, the FTC has challenged attorney fees in three proposed class action settlements, winning in two cases. It also has urged the Judicial Conference, which oversees the federal court system, to amend its class action rules in a way that could limit attorney fees, particularly in cases that rely on information already uncovered by government agencies. And the agency recently published a guide for consumers, ‘Need a Lawyer? Judge for Yourself,’ giving advice on how to pick a lawyer — and seek a lower fee. … Trial lawyers and their allies aren’t happy about the FTC initiative.” (Caroline E. Mayer, “FTC Seeks to Limit Attorney Fees in Class Action Suits”, Washington Post, Sept. 30). (DURABLE LINK)
October 1-2 — Australia: seized by the Spirit, wants church to compensate her. Loraine [elsewhere reported Lorraine] Daly, 40, is suing an Assemblies of God-affiliated church in Sydney, saying she was injured one Sunday in 1996 when, gripped by religious enthusiasm, she fell over onto a carpeted floor and was not caught by anyone. “The court was told by Ms Daly’s lawyer that the Sydney Christian Life Centre had been negligent in failing to ensure there were enough ‘catchers’ — people appointed by the church to cushion the fall of those experiencing what is referred to within the Pentecostal movement as being ‘slain in the spirit’. It was also claimed that the church had failed to ensure that the catchers were in position before the Rev Tim Hall started the prayer service which usually brought on such fainting episodes. And the church had not provided falling members of the congregation with a sufficiently padded area to prevent injury.” Ms. Daly wants up to A$750,000 in damages, including future loss of earnings and compensation for “disabilities including headaches, nausea, memory loss, impaired concentration and a feeling of vagueness. …The court also heard, however, that Ms Daly had previously suffered similar ailments after two car accidents in 1986 and 1993.” (Kelly Burke, “Fallen Christian puts faith in the law”, Sydney Morning Herald, Sept. 27). Update Oct. 25-27: judge rules against Ms. Daly. (DURABLE LINK)
October 1-2 — Updates. Judges pull the plug on various bright ideas discussed previously in these pages:
* A judge has dismissed attorney Peter Angelos’s effort to bring the cellphone industry to trial on the theory that using its wares causes brain tumors, ruling that the proffered scientific evidence for that proposition is insufficient (see Apr. 23 and Jan. 11, 2001) (Gretchen Parker, “Judge Dismisses $800M Cell Phone-Brain Tumor Suit “, AP/Washington Post, Sept. 30) (opinion in PDF format)
* In a unanimous decision written by Judge Alex Kozinski, a three-judge panel of the Ninth Circuit has ruled that Judge Vaughn Walker should not have interpreted the 1995 Private Securities Litigation Reform Act as a mandate to take an active lead in selecting plaintiffs’ counsel to run lucrative securities fraud cases. The decision, which may put the kibosh on “auction” methods by which courts induce plaintiff’s counsel to accept work at lower fees, was a victory for Milberg Weiss Bershad Hynes & Lerach in its quest to represent security holders in a suit against Copper Mountain Networks Inc. (Jason Hoppin, “9th Circuit Strikes Down Class Action Fee Experiment”, The Recorder, Sept. 17) (opinion in PDF format)(see Sept. 25, 2001)
* Well, that’s a relief: “A British Telecommunications Inc. patent issued prior to the advent of the Internet does not cover hyperlinking, a New York federal judge ruled … Tossing out British Telecom’s infringement suit against Prodigy Communications Corp., U.S. District Judge Colleen McMahon of the Southern District of New York said no jury could find that Prodigy infringes the patent by providing hyperlinks, the coded, highlighted text that links one Web page to another.” (see Feb. 13) (Brenda Sandburg, “Closely Watched Hyperlink Patent Case Tossed”, The Recorder, Aug. 23). (DURABLE LINK)
October 18-20 — EEOC: employer must accommodate “Church of Body Modification” beliefs. Massachusetts: “Last year Costco Wholesale Corp. fired Kimberly M. Cloutier of West Springfield for refusing to remove [her eyebrow] ring. She filed a $2 million suit against the corporation. Cloutier, 27, belongs to the Church of Body Modification, and maintains that her piercings, which include several earrings in each ear and a recently acquired lip ring, are worn as a sign of faith and help to unite her mind, body and soul. ‘It’s not just an aesthetic thing,’ Cloutier said. ‘It’s your body; you’re taking control of it.’
“Cloutier filed suit against Costco in Springfield’s U.S. District Court after a finding in May by the U.S. Equal Employment Opportunity Commission that Costco probably violated religious discrimination laws when its West Springfield store fired Cloutier in July 2001. The commission’s area director in Boston, Robert L. Sanders, determined that Cloutier’s wearing of an eyebrow ring qualified as a religious practice under federal law, and that Costco refused to accommodate Cloutier.” (Marla A. Goldberg, “Eyebrow ring, firing spark $2 million suit”, MassLive/ Springfield Union-News, Oct. 16) (& see Megan McArdle, Oct. 21, and reader comments).Update Dec. 11, 2004: First Circuit federal appeals court grants summary judgment in favor of store. (DURABLE LINK)
October 18-20 — U.K.: “Dr. Botch” sues hospital for wrongful dismissal. “A surgeon who was struck off the medical register after being held responsible for the deaths of four women and the maiming of six others is suing his former hospital for wrongful dismissal. Steven Walker, nicknamed ‘Dr Botch’, is claiming up to £100,000 in compensation for lost wages and ‘unfair’ treatment after being sacked by the Victoria Blackpool Hospital in Lancashire last November.” (Rajeev Syal and Hazel Scotland, “‘Dr Botch’ issues writ against hospital in claim for £100,000”, Daily Telegraph (UK), Sept. 22). (DURABLE LINK)
October 18-20 — Enron: “Who Enabled the Enablers?”. “Congressional investigators and plaintiffs’ lawyers are closing in on Enron Corp.’s so-called enablers — the banks that made Enron’s suspect deals possible. But the lawyers on those deals haven’t received much attention. Yet.” (Paul Braverman, “Who Enabled the Enablers?”, The American Lawyer, Oct. 8). See also Otis Bilodeau, “Enron Report Casts Harsh Light on Lawyers”, Legal Times, Sept. 30; Otis Bilodeau, “More Lawyers Snared in Enron Trap”, Legal Times, Sept. 3; Susan Koniak, “Who Gave Lawyers a Pass?”, Forbes, Aug. 12. (DURABLE LINK)
October 16-17 — Ohio’s high-stakes court race. A key race to be decided at the polls next month could challenge the four-to-three margin by which a bloc of activist (to say the least) judges currently control the Ohio Supreme Court. Legal reformers’ hopes are riding on Republican Lt. Gov. Maureen O’Connor, running for a vacant seat on the court. Her opponent, Democrat Tim Black, “backed heavily by trial lawyers and labor unions,” is considered likely to vote with the current court majority (its deplorable record) which has expanded liability in many unprecedented ways, struck down democratically enacted tort reform and revived the city of Cincinnati’s lawsuit against the gun industry. (Jim Siegel, “Black vs. O’Connor could change Ohio Supreme Court”, Gannett/Newark, Ohio Advocate, Oct. 14). (DURABLE LINK)
October 16-17 — “Inundations of Electronic Resumes Pose Problems for Employers”. Employers are deluged with resumes arriving by email as well as on paper, each of which represents both a paperwork obligation and a potential source of liability. “Under the current federal standard, anyone who submits a resume electronically is a job applicant. Even people who are not looking at any job in particular or are clearly unsuited — say, a high school student applying for the position of chief executive — qualify. In and of itself, this would not be a concern, but the government also requires every company with more than 100 employees to track the race, gender and ethnicity of every one of these so-called job applicants.” Plaintiff’s lawyers can also demand that a defendant company produce these applications, and then proceed to troll through them for patterns suggesting disparate rejection of protected groups.
With the rise of Internet job postings, the numbers have exploded: “The Boeing Co. has projected that it will receive about 1.3 million resumes this year, compared with last year’s mere 790,000 resumes. Lockheed Martin Corp. has said it gets about 4,000 resumes a day, or upwards of 1.4 million annually.” “I know of a company that keeps a warehouse in Salt Lake City just to store resumes,” says chairwoman Cari Dominguez of the Equal Employment Opportunity Commission. “They’re just so afraid of throwing them away.” For two years the EEOC has been studying how to ease employers’ retention burdens by updating the definition of applicant, but it still hasn’t acted. (Tamara Loomis, New York Law Journal, Sept. 25). (DURABLE LINK)
October 16-17 — “Patient sues hospital for letting him out on night he killed”. Australia: “A man who stabbed his prospective sister-in-law to death hours after being discharged from a psychiatric hospital is suing Newcastle health authorities for damages.” Attorney Mark Lynch said that his client “should be ‘compensated for his premature discharge’ and the tragic events that followed.” After murdering Kelley-Anne Laws in 1995, Kevin William Presland, now 44, spent 2 years in jail and a psychiatric institution. (Leonie Lamont, “Patient sues hospital for letting him out on night he killed”, Sydney Morning Herald, Oct. 15). (DURABLE LINK)
October 16-17 — “Law to Protect Debtors Can Be a Windfall for Lawyers”. Mutiny among the bounty-hunted dept.: The Fair Debt Collection Practices Act is a federal law passed in 1977 to combat harassment and other abuses in debt collection. “In the last decade, the law has also given rise to what some say is an unintended consequence: thousands of federal lawsuits taking issue with the wording of collection letters. …..Successful plaintiffs in these cases are entitled to $1,000, but their lawyers can collect vastly larger sums,” such as $40,000 or $50,000 if the defendant resists, even if the dispute concerns only an arcane matter of wording. Federal judge Gerard L. Goettel has criticized the trend, noting, “There is nothing in the act to suggest that it was intended to create a cottage industry for the production of attorneys’ fees.” “Plaintiffs’ lawyers obtain leads for such suits by scouring the dockets in small claims courts for collection actions and by savvy questioning of people seeking to file bankruptcy actions, [Indianapolis lawyer Dean R. Brackenridge, who represents collection agencies and lawyers,] said. ‘It is oftentimes like Christmas morning,’ he said, imagining the scene in the bankruptcy lawyers’ offices. ‘They’re opening up a grocery sack of collection letters that may give rise to these lawsuits.'” (Adam Liptak, “Law to Protect Debtors Can Be a Windfall for Lawyers”, New York Times, Oct. 6). (DURABLE LINK)
October 16-17 — New York tobacco-fee challenge, cont’d. The Albany paper reports on Judge Charles Ramos’s probe into whether lawyers who helped handle the state of New York’s copycat suit in the tobacco litigation are entitled to an arbitration award of $625 million in fees (see Jul. 30-31). “The New York firms [asking a collective $14,000 an hour for their services] were politically well connected and regular campaign contributors to both Democrats, trial lawyers’ traditional allies, and to Republicans, including [former attorney general Dennis] Vacco and Gov. George Pataki. The Albany firm’s senior partner, Dale Thuillez, represented Pataki’s first inaugural committee. … Since the settlement, the firms have given a total of more than $200,000 to the campaign war chests of both parties.” (Andrew Tilghman, “Tobacco case legal fees under fire”, Albany Times-Union, Oct. 14). (DURABLE LINK)
October 15 — Incoherence of sexual harassment law. The case of men subjected to sexual taunts at the workplace by other men — have they suffered sexual harassment in the law’s eyes, or no? — reveals the lack of any real logical coherence in our current scheme of sexual harassment law. Several law profs seem to think that by taking due note of this incoherence they demonstrate the need to extend the scope of harassment law yet further, to suppress yet more forms of workplace speech and social interaction than currently. (Margaret Talbot, “Men Behaving Badly,” New York Times Magazine, Oct. 13)(reg)(see also Mark Kleiman blog, Oct. 13). In the case of Burns v. City of Detroit, still working its way through the courts per the latest we can find on Google, Michigan judges are expected to address the question of whether some forms of speech penalized by the current state of harassment law are in fact protected by the First Amendment to the Constitution. (Kingsley Browne, “Harassment law chills free speech”, Detroit News, Jul. 9, reprinted at Center for Individual Freedom site; Brian Dickerson, “Harassment law becomes a hot potato”, Detroit Free Press, Jun. 14 and “Harassment law headed for a tune-up”, Jun. 17; more from Center for Individual Freedom) (via Howard Bashman this summer, #1, 2, 3). (DURABLE LINK)
October 15 — Chocolate, gas-pump fumes, playground sand and so much more. Unanticipated (at least to non-lawyers) consequences of California’s Proposition 65, passed in 1986, mandating warning labels on all hazardous chemicals: “The last two years have seen bounty hunter lawsuits claiming that Californians are exposed to toxins from products such as picture frames, lightbulbs, Christmas lights, electrical tape, braces, game darts, stained-glass lamps, fire logs, exercise weights, hammers, terrariums, tools, cue chalk, cosmetics, even Slim-Fast,” according to attorney Jeffrey B. Margulies. Yes, cue chalk has always terrified us. (“New legal target: chocolate”, Orange County Register, Oct. 8). (DURABLE LINK)
October 15 — Judicial selection, the Gotham way. New York stands alone in its method of picking basic-level trial judges: “closed judicial nominating conventions followed by partisan elections. Party bosses rule.” The parties then engage in collusive cross-endorsements which operate to deny most City voters a meaningful choice. The results? According to the editorialists of the New York Daily News, an unusually high number of mediocre or downright bad jurists make it to the bench, while in Brooklyn, 10 of 60 sitting judges currently face ethics questions or actual charges. (“N.Y.’s unnatural selection” (editorial), Oct. 2). (DURABLE LINK)
October 14 — Australia on the front lines. The island nation, one of the staunchest members of the worldwide coalition fighting the battle against terrorism, now finds itself on the front lines of that battle, with more than 200 of its citizens still missing following the Bali attacks. “[T]his time terrorism has come to our doorstep, to the holiday home away from home that is Bali. The tourist destination familiar to most of us as a safe, cheap and friendly island of tolerance and fun has been turned into a charred graveyard. Horrifying images of bodies burned beyond description, seriously injured young men and women, and the street scenes of utter devastation recall a war zone….Certainly more Australians have been killed in Bali than in any other international disaster. … The Bali bombings expose the lie that the act of war on September 11, 2001, was simply an attack on Americans and American values. Bali proves that all freedom-loving peoples are at risk from terrorism, at home and abroad.” (“We must remain firm in face of terror” (editorial), The Australian, Oct. 14). More: “Thirteen Australians confirmed dead, 220 missing in Bali”, ABC.au, Oct. 14; Ben Martin, “Australia terror: Fearful wait”, The West Australian, Oct. 14; Matthew Moore, “US ambassador saw writing on wall a month ago”, Sydney Morning Herald, Oct. 14; Simon Kearney & Sarah Blake, “Terror Warning: Targets Named”, Sunday Telegraph, Oct. 13. For hard-hitting commentary on the ideological implications, check out maverick Aussie journalist Tim Blair. More good links: zem blog, Gweilo Diaries (mid-October entries). Update: As of Oct. 21 the likely death toll of the blasts was thought to be 190, including 103 Australians as well as numerous Indonesian nationals and citizens of such countries as Germany, Sweden, New Zealand and the United States. See Melbourne Age, Oct. 21. (DURABLE LINK)
October 14 — Rather die than commit profiling, cont’d. “A federal judge has cleared the way for a discrimination lawsuit filed by an Arab-American who was removed from a United Airlines flight three months after the Sept. 11 attacks. U.S. District Judge Florence-Marie Cooper ruled airlines do have a legal right to remove passengers who pose a security threat, but that does not allow them to discriminate on the basis of race, ethnicity or national origin.” (“Judge rules Arab-American taken off plane can sue United Airlines”, AP/Sacramento Bee, Oct. 12). The American Civil Liberties Union helped organize the suit. See also Eugene Volokh, Oct. 14. (DURABLE LINK)
October 14 — Macaulay on copyright law. In two speeches given in Parliament in 1841, the historian and statesman anticipated most of the issues worth thinking about on the issue of whether lawmakers should extend copyright long past the natural life of authors and other creators (courtesy Eric Flint, “Prime Palaver”)(more on TBM). (DURABLE LINK)
October 14 — “‘Pay-before-pumping rule called racist'”. Ohio: “North Randall Mayor Shelton Richardson fumes when he sees gas stations in his community that demand that customers pay before they pump, a practice he calls racist. The requirement is insulting and implies a presumption that customers will steal, he says. He wants to outlaw it. … No gas station in North Randall could require payment first if City Council adopts Richardson’s proposal to ban pay-first policies Monday night. … Prepayment is required around the clock at the 24-hour Shell station at the corner of Warrensville and Emery roads in North Randall. Manager Mike Jadallah said he would comply if the new law is approved. But he thinks he should be able to decide how he runs his business. ‘Is the city going to cover our losses?’ he asked.” (Kaye Spector, “Pay-before-pumping rule called racist”, Cleveland Plain Dealer, Oct. 12). (DURABLE LINK)
October 11-13 — “High court judge had use of condo owned by group that includes trial lawyer”. More eyebrow-raising allegations in the Mississippi favors-for-judges flap reported earlier this week: “A Gulf Coast condo owned by a partnership that includes prominent trial lawyer Richard ‘Dickie’ Scruggs has been used by Supreme Court Justice Oliver Diaz Jr., reports say.” “Mark Lumpkin, an associate in the firm of prominent Mississippi lawyer Paul Minor, said Wednesday that he lives in the condominium and has allowed Diaz to use it.” It seems the judge had recently divorced and needed a base for visitation with his kids, so it’s just good Southern hospitality, don’t you know. AP/Alabama Live, Oct. 10) See also Jerry Mitchell, “Probe could sway voters”, Jackson Clarion-Ledger, Oct. 9. More: Scruggs “denies that he repaid loans for Diaz or any other judge.” (“Investigation Targets Lawyers, Judges & Loans”, WLOX, Oct. 7; see Oct. 9-10). See also Nikki Davis Maute, “McRae won’t accept donation from lawyer”, Hattiesburg American, Oct. 10. (DURABLE LINK)
October 11-13 — Malpractice: Pennsylvania House votes to curb venue-shopping. The measure, which has yet to be approved by the state Senate or governor, requires plaintiffs in medical liability cases to file their suits in the county where the alleged negligent conduct occurred, rather than just heading to Philadelphia with its generous juries and indulgent judges. Doctors say it’s a start, while the state trial lawyers association is already promising a constitutional challenge — doesn’t this kind of measure violate the constitutional right to high verdicts, or something? (M. Bradford Grabowski, “Physicians react to ‘venue shopping’ bill”, Bucks County (Pa.) Courier Times, Oct. 9). (DURABLE LINK)
October 11-13 — “Wealthy candidates give Democrats hope”. Trial lawyer Harry Jacobs, who is reported to have a net worth of $42 million mostly from filing malpractice suits, is running for a Congressional seat in northern Florida. Jacksonville’s Wayne Hogan, who bagged $54 million in the state of Florida’s highly aromatic suit against the tobacco industry, “is trying to unseat Rep. John Mica, R-Winter Park. In West Virginia, attorney Jim Humphreys is running against incumbent Republican Shelley Moore Capito” in a rematch after her year-2000 upset win. (Bill Adair, St. Petersburg Times, Oct. 7). Update Nov. 7: all lose by wide margins. (DURABLE LINK)
October 11-13 — Quote of the day. “I have a few (trial lawyer) friends, but most of them abuse the system” — Ohio Supreme Court Justice Evelyn Stratton, quoted in David Benson, Mansfield (Ohio) News Journal, Oct. 9. (DURABLE LINK)
October 30-31 — “Give It Back to the Indians?” Just out: our editor has an article in the new issue of City Journal (Autumn) on how the sad history of Indian land claim litigation in the Northeast — in which, over the past 25 years, the courts have allowed tribes to revive territorial claims thought to have been resolved as long ago as the presidency of George Washington — may prefigure the misery in store if our legal system gives the go-ahead to lawsuits over slavery reparations. (DURABLE LINK)
October 30-31 — Deflating Spitzer’s crusade. Long but incisive article by Michael Lewis challenging the much-bruited notion that Wall Street skullduggery was mainly responsible for the boom and bust in tech stocks, and specifically deflating the pretensions of New York Attorney General Eliot Spitzer, who’s positioned himself at the forefront of the resulting legal crusade. Among Lewis’s key points: 1) the boom was no mere artifact of Wall Street hype, big firms like Merrill Lynch having mostly followed the investing public into tech mania rather than leading them there; 2) the line between visionary rethinking of current business practice and hallucinatory speculation was nowhere near as clear at the time as it seems in hindsight; 3) the supposedly occult conflict of interest between research and underwriting was hidden in such plain sight that anyone paying half-attention to the Street should have been aware of it; 4) the boom — even given its bust — did a great deal of social good; 5) the quest to clean up the stock-touting process obscures from the public the real lesson it would do well to absorb, which is that stock-picking advice from brokerages is generally useless whether sincere or not; 6) it’s not hard to read emails as establishing guilt if you let lawyers cherry-pick a few of them out of thousands while dropping their context. (Michael Lewis, “In Defense of the Boom”, New York Times Magazine, Oct. 27). For a contrasting view, calling Lewis’s article “nonsense”, see Peter Eavis, “The Billboard: Boom Boom”, New York Press, Oct. 28. On how Spitzer came into possession of the Merrill Lynch emails that enabled him to stage-manage much of this summer’s news flow, see Nicholas Varchaver, “Lawyers Target More Than Merrill”, Fortune, Jun. 10 (a plaintiffs’ lawyer evidently sent them over after settling a suit with the brokerage; the resulting Spitzer-driven publicity brought a bonanza of new cases to the lawyer’s door). (DURABLE LINK)
October 30-31 — Mistrial in Providence lead-paint case. “The six-member jury sent a note to the judge shortly after 2 p.m. that it could not reach a unanimous decision on whether the paints constituted a public nuisance.” (“Mistrial declared in landmark lead paint trial”, Providence Journal, Oct. 29; AP/Law.com, Oct. 30). “Four jurors [on the six-person panel] sided with the paint companies and two voted for the state. … About one minute after the mistrial became public, the stock prices of several defendants began shooting up …. The Sherwin-Williams Co. alone increased in value by nearly half a billion dollars.” (Peter B. Lord, “Trailblazing lead paint trial ends in deadlock”, Providence Journal, Oct. 30). So it’s back to surface-prep work for the closely watched effort to cover the world with litigation (see Oct. 28), and trial lawyers can’t be happy about the fact that their chief ally in the matter, Rhode Island attorney general Sheldon Whitehouse, will be departing office shortly. Have they painted themselves into a corner? Whitehouse for his part blames the paint companies for being “litigious”, recalling the famous French saying: “It is a very vicious animal. When attacked, it defends itself.” Update: see also “The Hand of Providence” (editorial), Wall Street Journal, Oct 31, reprinted at Texans for Lawsuit Reform site. (DURABLE LINK)
October 30-31 — “Nannies to sue for racial bias”. Great Britain: “Familes who hire nannies, cleaners and gardeners in their own homes face being sued for racial discrimination under a major shake-up of race relations laws. … Under plans to be published by the Home Office in the next fortnight, the Race Relations Act is expected to be tightened to include private householders as part of sweeping changes expected to trigger a flood of new tribunal cases. Householders could be taken to tribunals if they behave in a racist manner towards domestic help, for example, by refusing to hire a black carer for children. … The only exemption would be if they can show a ‘genuine occupational requirement’ to hire someone of a particular racial group — such as an elderly Muslim woman who wanted a home help who was also a Muslim. Critics will argue that the change could cause a legal nightmare for ordinary families, who could face bills for damages running into thousands of pounds unless they read up on the intricacies of employment law.”
Initial opposition to the new proposals appears to be tepid at best: thus the Conservative party’s shadow industry minister merely voices doubts about whether the measure is “likely to be effective,” while a spokesman for the Confederation of British Industry “said it would broadly welcome the changes,” though the CBI did express misgivings about another of the proposals in the antibias package, under which “for the first time the burden of proof in all employment tribunals would …be shifted so that it is effectively up to employers to prove they are not racist, rather than workers to prove that there was discrimination, so long as there is a prima facie case to answer.” (Gaby Hinsliff, The Observer (U.K.), Oct. 20). (DURABLE LINK)
October 30-31 — Monday: 13,555 pages served on Overlawyered.com. October 28 was one of our busiest days yet on the site, with traffic boosted by reader interest in our link roundups on the Moscow hostage episode (especially the WSJ‘s “Best of the Web” mention) on top of the 4,000-6,000 pages that we’re accustomed to serve on a more ordinary weekday. Thanks for your support!
P.S. Oops! Our unfamiliarity with our new statistics program led us to overcount: the Oct. 28 figure should have instead been 9,800 pages served, and the “regular” range 3,500-5,000. Still pretty good. (DURABLE LINK)
October 28-29 — Welcome WSJ Best of the Web readers. Readers looking for our earlier coverage of the Moscow theater siege will find it here and here.
MORE COVERAGE: Among accounts of the theater storming based on firsthand interviews are Alice Lagnado, “As dawn neared, a light mist suddenly came down”, Times (U.K.), Oct. 28, and Mark MacKinnon, “‘All they had to do was push the button'”, Globe and Mail (Canada), Oct. 28. The Bush White House declined to blame the Russian authorities for the hostage toll, saying responsibility rests with the captors: “The Russian government and the Russian people are victims of this tragedy, and the tragedy was caused as a result of the terrorists who took hostages and booby-trapped the building and created dire circumstances,” said spokesman Ari Fleischer. ( “White House: Blame Lies With Captors”, AP/Yahoo, Oct. 27). Other commentaries: Kieran Healy (Oct. 27), Mark Kleiman (Oct. 27); Mark Riebling reader comments. (DURABLE LINK)
October 28-29 — Ambulances, paramedics sued more. “A growing ambulance industry is learning that malpractice suits are not just for doctors anymore. … [one defense lawyer] says there’s a tough lesson to be learned in all ambulance cases. ‘You can do everything right, and you can still get sued.'” Includes a revealing quote from a Boston plaintiff’s lawyer about how he tries to get jurors so upset at alleged bumbling by ambulance operators that they “make short work” of the crucial question of whether that conduct was actually responsible for the patient’s injury. (Tresa Baldas, “Mean Streets”, National Law Journal, Oct. 23). (DURABLE LINK)
October 28-29 — Anticipatory law enforcement. Following the lead of some other jurisdictions, the city of Cincinnati has adopted new ordinances targeting men who patronize prostitutes (“johns”) by allowing the city to seize their cars. The ordinances don’t take effect until next month, which hasn’t kept the city police department’s vice unit from carrying out a significant number of car impoundments already, 13 in one week. “Even though the ordinances haven’t gone into effect yet, [Lt. John] Gallespie said the cars were impounded ‘for safekeeping.'” (Craig Garretson, “Police seize ‘johns’ cars”, Cincinnati Post, Oct. 21). (DURABLE LINK)
October 28-29 — R.I. lead paint case goes to jury. Rhode Island’s lawsuit against the lead paint industry, a concoction of ambitious trial lawyers and the politicians they love, has now gone to a jury after a two-month trial that’s been curiously underpublicized considering the case’s implications for American industry (“Jury deliberates for second day in lead paint case”, AP/CNN, Oct. 25). The state “is pursuing the novel claim that the defendant manufacturers and distributors of lead paint or lead created a public nuisance and should be held responsible for cleaning up what’s remaining in thousands of buildings in the state. The first phase of the trial will consider only one question — whether the presence of lead paint in Rhode Island buildings constitutes a public nuisance.” If the jury votes in favor of that theory, later phases of trial will consider such issues as fault and damages. (Margaret Cronin Fisk, “Rhode Island to Try First State Suit Over Lead Paint”, National Law Journal, Aug. 19).
Perhaps the best journalistic treatment we’ve seen of this travesty is found in a Forbes cover story from last year that is available now in fee-based archives (Michael Freedman, “Turning Lead Into Gold”, Forbes, May 14, 2001). The article explores how the nation’s richest tort law firm, Charleston, S.C.-based tobacco-asbestos powerhouse Ness Motley, moved into Rhode Island and quickly made itself the state’s largest political contributor, around the same time as it was picking up a contingency fee contract from state attorney general Sheldon Whitehouse to represent the state in the lead paint litigation. (Whitehouse proceeded to run for governor this year, but lost narrowly in the Democratic primary). To date, while trial lawyers have recruited numerous cities, counties and school districts around the country to sue paint makers, they have not persuaded any other states to join Rhode Island in its action (see our commentary of Jun. 7, 2001). At the same time, there are plenty of reasons to mistrust the contention that a “lead poisoning epidemic” can somehow be blamed for educational failure and crime among young people in inner-city neighborhoods like South Providence, R.I. Levels of lead exposure once typical of American children have now been retrospectively redefined as “poisoning”, thus ensuring the sense of a continuing crisis (see our commentary of Jun. 8-10, 2001). See also Steven Malanga, “Lead Paint Scam”, New York Post, Jun. 24. Update Oct. 30-31: judge declares mistrial after jury deadlock. (DURABLE LINK)
October 28-29 — Looking back on EEOC v. Sears. Among the most monumental and hard-fought discrimination lawsuits ever was the Equal Employment Opportunity Commission’s years-long courtroom crusade against Sears, Roebuck during the 1980s over the statistical “underrepresentation” of women in some of its employment categories, such as hardware and commission sales. (Sears won, and the case became one of the Commission’s most humiliating defeats.) In one of the controversies spawned by the case, Barnard College historian Rosalind Rosenberg was attacked by many colleagues in the field of women’s studies for supposedly betraying women’s equality by allowing her scholarship to be used in the retailer’s defense. Now John Rosenberg, who was formerly married to Rosalind Rosenberg and who also worked in the Sears defense, offers a partial memoir of the episode (Oct. 25) on a new weblog titled Discriminations in which his focus will be “on the theory and practice of discrimination, and how it is reported and analyzed.” (The piece begins with an introductory riff concerning UC Irvine history professor Jon Weiner, one of those assailing Rosalind Rosenberg in the mid-1980s controversy; Weiner recently caused many a jaw to drop by stepping forward in the Nation to defend disgraced Arming America author Michael Bellesiles.) (via InstaPundit). (DURABLE LINK)
October 28-29 — Satirical-disclaimer Hall of Fame. Lawyer-driven warning labels and disclaimer notices are easy to play for laughs, and readers often bring funny satires to our attention (like Dave Barry’s). Few are worked out in as much detail, however, as this splash page on the website of The Chaser, an Australian humor magazine (scroll down): “Maintain good posture at all times while reading … may cause paper cuts … Please avoid mixing The Chaser with water and glue, which could … cause some readers to be caught in a papier mache death trap. … The Chaser is flammable. Do not set fire to your copy of The Chaser, whether with a match, cigarette lighter … [or] shining a magnifying glass on a particular little spot. … Do not shred The Chaser and use it as confetti. … We make no guarantees as to the longevity of any marital unions formed whilst using The Chaser in any part of the ceremony …”. And a whole lot more — give it a look. (DURABLE LINK)
October 26-27 — Moscow hostage crisis, updated. According to Russian authorities, at least 118 hostages were killed and more than 700 were freed after security forces stormed the theater; most of the 50 terrorist captors were also killed and all or nearly all of the rest captured. After the terrorists started executing hostages, the crowd of captives had begun to flee in panic; security forces had also pumped a kind of sleeping gas into the theater. (“Moscow Hostage Death Toll Up to 118”, AP/ABC News, Oct. 27; “Russian forces storm siege theatre”, BBC, Oct. 26; Moscow Times). Contradicting earlier accounts from authorities, “Moscow’s chief physician said Sunday that all but one of the 117 hostages who died … were killed by the effects of gas used to subdue their captors.” (AP/Washington Post, Oct. 27). “If the theatre had not been stormed, all hostages would have been killed, the Interfax journalist who was among the hostages, Olga Chernyak, said.” (Interfax/Moscow Times, Oct. 26, and scroll for more entries). More links: AP/ABC News, Oct. 26; Washington Post, Oct. 27; BBC, Oct. 27; Damian Penny. Dilacerator offers a commentary (Oct. 26), as does Natalie Solent (Oct. 27). Thanks to InstaPundit and Eugene Volokh for their links to our extensive coverage below.
More: London’s Telegraph reports that it “has learned that a number of Arab fighters, believed to be of Saudi Arabian and Yemeni origin, were among the group that seized control of the theatre. ‘There were definitely Arab terrorists in the building with links to al-Qa’eda,’ said a senior Western diplomat. … Russian officials said that the hostage-takers had made several calls to the United Arab Emirates during the siege.” (Christina Lamb and Ben Aris, “Russians probe al-Qa’eda link as Moscow siege ends with 150 dead”, Sunday Telegraph (UK), Oct. 27). Although the Moscow terrorists (like those who carried out the hijacking of United Flight 93) had magnified public terror by allowing their captives to use cell phones to call their families, the tactic once again backfired, because the resulting exchange of information made it easier to thwart the terror plans: see Preston Mendenhall, “Cell phones were rebels’ downfall”, MS/NBC, Oct. 26. And Russia’s Gazeta reports that: “A 27-year-old resident of Chechnya has been detained by Moscow law enforcers on suspicion of having carried out the October 19 car bomb attack on a McDonald’s restaurant” in which one was killed and seven injured. Authorities had previously sought to blame the bombing on gangland rivalries, but “in the light of the recent events in Moscow, the prosecutor’s office does not rule out that the explosion may have been a terrorist attack.” (“Suspect detained in McDonald’s blast inquiry”, Gazeta.ru, Oct. 25). (DURABLE LINK)
October 25-27 — Updates. New developments in cases we’ve followed:
* “Manhattan Supreme Court Justice Charles E. Ramos on Tuesday froze further payments on a $625 million arbitration award to the six law firms that represented New York state in its litigation against the tobacco industry until he finishes reviewing the reasonableness of the sum.” (Daniel Wise, “Judge Freezes $625M Tobacco Award to Law Firms”, New York Law Journal, Oct. 23) (see Jul. 30-31).
* “The Canadian Transportation Agency has dismissed the complaint of an obese Calgary woman who argued her size was a disability and that airlines shouldn’t make her pay extra for a larger seat. ‘Being unable to fit in a seat should not be enough evidence of the existence of a disability as many people experience discomfort in the seat,’ the agency said in a decision released Wednesday. Calgary law professor Linda McKay-Panos, who described herself in documents as ‘morbidly obese,’ launched the process in 1997 after having to pay Air Canada for 1.5 seats because of her size.” (Judy Monchuk, “Federal board nixes Calgary woman’s bid for seat-price break for obese flyers”, Canadian Press, Oct. 23)(see Dec. 20, 2000). And in the United Kingdom, a “woman injured while squeezed next to an obese passenger on a trans-Atlantic flight has been given £13,000 ($20,000)” by Virgin Atlantic Airways. (“Woman squashed by plane passenger”, CNN, Oct. 22).
* In Paris, a panel of three judges has declared French writer Michel Houellebecq not guilty of inciting racial hatred after he was sued by four Muslim groups for delivering remarks contemptuous of Islam (“French author cleared of race hate”, BBC, Oct. 22)(see Aug. 23-25, Sept. 18-19).
* “A three-judge panel of the Michigan Court of Appeals has tossed a $29.2 million civil court judgment against The Jenny Jones Show, after deciding the syndicated chatfest should not be held liable for protecting a guest who was gunned down after revealing he had a crush on another man.” (Josh Grossberg, “‘Jenny Jones’ Vindicated”, E! Online, Oct. 23). The case is another setback for controversial Michigan attorney Geoffrey Fieger, who promptly launched a characteristically intemperate attack on the appeals judges (Stephen W. Huber, “Court tosses $29M award against ‘Jenny Jones Show'”, Oakland (Mich.) Press, Oct. 24) (see May 31, 2001). More: Michigan’s LitiGator (Oct. 25).
* “Voting 2-1, the 3rd U.S. Circuit Court of Appeals has ruled that the Southeastern Pennsylvania Transit Authority’s (SEPTA) physical fitness test for job applicants of its transit police force is perfectly legal — even though it has a ‘disparate impact’ on women — because it serves as a true measure of ‘the minimum qualifications necessary for the successful performance of the job.’ …the plaintiffs claimed that the test discriminates against women because it requires all applicants for the SEPTA police force to run 1.5 miles in 12 minutes.” (Shannon P. Duffy, “3rd Circuit Rules Fitness Test for Police Force Applicants Legal”, The Legal Intelligencer, Oct. 16) (see Sept. 15, 1999, Oct. 5-7, 2001). “Interestingly, two female appellate judges joined in the opinion rejecting this claim of sex discrimination, while a male appellate judge dissented,” notes Howard Bashman (Oct. 15).
* In Australia, a judge has ruled against the Pentecostal worshiper who sued claiming a “church had been negligent by not providing someone to catch her when she was ‘slain in the spirit'” during a 1996 service, causing her to fall down and strike her head on a carpeted concrete floor. (Kelly Burke, “Church not liable for Lord’s early fallers”, Sydney Morning Herald, Oct. 19)(see Oct. 1-2). (DURABLE LINK)
October 24 — Pa. statehouse race: either way, Big Law wins. “In a race that will easily break Pennsylvania gubernatorial spending records, the top givers are lawyers, by far. … [Republican Mike] Fisher has received $125,000 since June from two law firms he named, as attorney general, to handle a state lawsuit against tobacco companies.” (see Jan. 10, 2000). “But the firms, which split $50 million in legal fees, have hedged their bets by also donating $107,000 to [Democrat Ed] Rendell.” And the Pennsylvania Trial Lawyers Association has endorsed Rendell, who is considered less likely than Fisher to support curbs on medical malpractice lawsuits. (Tom Infield and Rose Ciotta, “Lawyers top givers to Fisher, Rendell”, Philadelphia Inquirer, Oct. 22). As mayor of Philadelphia, Rendell also made himself a booster of the abusive campaign of municipal litigation against gun manufacturers, though he held back from filing an actual suit given the unpopularity of such a move with the non-urban voters needed to win a statewide race in Pennsylvania (see Dec. 22, 2000). (DURABLE LINK)
October 24 — Suit: schoolkids shouldn’t attend rodeo. Two animal rights groups have filed suit “asking a San Francisco Superior Court judge to keep Bay Area schoolchildren from going to the free Grand National Rodeo day for students, which will be held at the Cow Palace on Thursday and may be repeated next year.” As many as 9,000 students are expected to attend the event. “Gina Snow, a spokeswoman for the San Francisco Unified School District, said children are only allowed to attend with parental permission, and that the decisions to participate are made by individual teachers.” Attorney David Blatte of Berkeley “focuses all his work on ‘animal law'”. (Dan Reed, “Suit: Rodeo bad for kids”, San Jose Mercury News, Oct. 23). And Matthew Scully’s new book Dominion, a conservative’s defense of animal welfare, “asks all the right questions about animal rights, even if it doesn’t canvass all the possible answers”, according to the summary of a review by Christopher Hitchens in The Atlantic (“Political Animals”, Nov.) (DURABLE LINK)
October 24 — “California Court Upholds $290 Million Injury Jury Award Against Ford”. “The California Supreme Court let stand on Wednesday a $290 million personal injury jury award levied against Ford Motor Co. stemming from a Bronco rollover accident in 1993. The justices, without publicly commenting, decided at their private weekly conference to uphold what Ford, in court briefs, called the nation’s largest personal injury award ever affirmed by an appellate court.” (Quicken/AP, Oct. 23; Mike McKee, “California Justices Let Stand $290M Award Against Ford”, The Recorder, Oct. 24). When the original trial verdict was reported, we looked in some detail (Aug. 24 and Sept. 17-19, 1999; see also Aug. 27, 2002) at the very curious influences that held sway during the jury’s deliberations, including one juror’s lurid dream revealing Ford’s guilt, and another’s misrecollection of a “60 Minutes” episode which purportedly proved the company’s bad faith. (DURABLE LINK)
October 24 — Russia’s fight, and ours. “Gunmen identifying themselves as Chechens took more than 700 people hostage inside a Moscow theater Wednesday night, threatening to kill some of the hostages and telling police they had mined portions of the building.” (“Chechen gunmen seize Moscow theater”, CNN, Oct. 23; Michael Wines, “Chechens Seize Moscow Theater, Taking as Many as 600 Hostages”, New York Times, Oct. 24 (reg); AP/ABC, “Rebels Take Moscow Audience Hostage”, Oct. 23). “Local media said children, Muslims and foreigners who could show their passports were allowed to leave the building. The reports could not be confirmed.” (Natalia Yefimova, Torrey Clark and Lyuba Pronina, “Armed Chechens Seize Moscow Theater”, Moscow Times, Oct. 24). Chechen militants have repeatedly seized civilian hostages in groups of hundreds and even thousands, as well as claiming credit for railway-station bombings in Russia (“Chechen rebels’ hostage history”, BBC, Oct. 24; “Chechen rebels hold at least 1,000 hostages in hospital”, CNN, Jan. 9, 1996; Adnan Malik, “Hijackers Free Women and Kids”, AP, Mar. 15, 2001; “Separatists’ history of hostages and horror”, Sydney Morning Herald, Oct. 24). Since 9/11 U.S. officials have been less inclined to dispute “Russia’s long-standing claim that the Chechen rebellion, which spills over into neighboring Caucasus republics, is not just a local independence movement, but has become a full-blown subsidiary of the global Islamic terror network headed by [Osama] bin Laden.” (Fred Weir, “A new terror-war front: the Caucasus”, Christian Science Monitor, Feb. 26). Also see, on the al-Qaeda-Chechnya connection, Mark Riebling and R. P. Eddy, “Jihad@Work”, National Review Online, Oct. 24, and BBC, Oct. 23. The Moscow Times has a list of the names of the Westerners who are being held hostage, who include three Americans, two Britons, two Australians, and a Canadian, as well as various others (Kevin O’Flynn, “Europeans, Americans Inside Theater”, Oct. 25). Asparagirl (Oct. 23) wouldn’t be surprised if it happened here.
More: In “footage aired by Qatar’s al-Jazeera satellite TV”, a chador-clad woman who said she was one of the Chechen hostage-takers said: “We have chosen to die in Moscow and we will kill hundreds of infidels.” (“We’ll kill hundreds of infidels: Hostage-taker”, AFP/Times of India, Oct. 24). “‘I swear by God we are more keen on dying than you are keen on living,’ a black-clad male said in the broadcast believed to have been recorded on Wednesday.” Another hostage-taker, while denying that the terrorists were operating as part of al-Qaeda, told the BBC: “We have come to die. …we want to be in paradise.” (BBC, “Hostage-takers ‘ready to die'”, Oct. 25). The Russian press is treating the unfolding events as “Russia’s Sept. 11”. (BBC, Oct. 25). In an echo that Americans will find familiar, “Many channels have broadcast chilling messages from the hostages themselves, calling from their mobile phones.” (“Distant war comes to Moscow”, BBC, Oct. 24).
According to London’s Evening Standard, the terrorists are disinclined to release any more of their foreign hostages because they suspect that international interest in the episode might wane if they did so. (“Britons still held in Moscow siege”, Oct. 25). Reportedly one of the American hostages, Sandy Alan Booker, 49, who was vacationing in Moscow, hails from Oklahoma City, Okla. (“Chechen Gunmen Threaten to Begin Killing Hostages at Dawn”, AP/FoxNews, Oct. 25). Update: Russian security forces storm theater, ending siege, with more than 100 hostages killed along with most of the captors: see Oct. 26.
FURTHER: Some London, Broadway and European theater owners have stepped up security, but Andre Ptaszynski, chief executive of Andrew Lloyd Webber’s chain of 14 London theaters, virtually boasts of not taking such threats seriously, explaining that an outrage by the Irish Republican Army against the West End is considered unlikely; apparently Ptaszynski is unable to think of any other groups that might harbor terrorist designs on London. (Matt Wolf, “Some Theaters on Alert After Siege”, AP/Yahoo, Oct. 25; “London theatres increase security”, BBC, Oct. 25 (via Jen Taliaferro). Riebling and Eddy, in NRO, note: “the tactics of Chechen jihadists are regarded by the FBI as a possible indicator of al Qaeda methods in the U.S.” (DURABLE LINK)
October 23 — Batch of reader letters. We’ve been remiss in keeping up with the inbox, but here are eight letters on subjects that include lawyers’ penchant for doing things expensively, a sane damage award in Ireland, Enron’s lawyers, lawsuits over avocados and anchovies, suitable targets of gamblers’ suits, George W. Bush’s record on tort reform, whether free speech should have a racism exception, and Western wildfires. More letters are on deck for later, too. (DURABLE LINK)
October 23 — Artificial hearts experimental? Who knew? “The widow of artificial-heart recipient James Quinn yesterday sued the maker of the device, the hospital where it was implanted, and the patient advocate who helped Quinn decide to have the surgery.” The 51-year-old man survived more than eight months after receiving the mechanical heart last November, but his “initially remarkable recovery was followed by months in the hospital.” The suit says Quinn had “no quality of life and his essential human dignity had been taken from him.” “Irene Quinn said yesterday that she and her husband did not know what they were getting into when they joined the clinical trial. They thought the machine would save his life, she said. She said they should have been told more about what earlier patients had experienced and that it should have been made more clear just how experimental the device was.” (Stacey Burling, “Widow sues artificial-heart maker”, Philadelphia Inquirer, Oct. 17; “Lawsuit over artificial heart”, CBS News, Oct. 17; MedRants, Oct. 18). (DURABLE LINK)
October 22 — “Judge: Disabilities Act doesn’t cover Web”. An important ruling, but one that’s unlikely to be the last word, on a controversy we’ve covered extensively in the past: “A federal judge ruled Friday that Southwest Airlines does not have to revamp its Web site to make it more accessible to the blind. In the first case of its kind, U.S. District Judge Patricia Seitz said the Americans with Disabilities Act (ADA) applies only to physical spaces, such as restaurants and movie theaters, and not to the Internet.” Quotes our editor who mentions the possible headaches the ADA could pose even to a modest site like this one, if it turns out to apply to the web. (Declan McCullagh, CNet/News.com, Oct. 21)(opinion). More: Matthew Haggman, “Judge Tosses Suit That Said ADA Applies to Business Web Sites”, Miami Daily Business Review, Oct. 25. (DURABLE LINK)
October 22 — “Nanny Bloomberg”. This site’s editor also has an op-ed in the Wall Street Journal today on the New York mayor’s crusade against smoking in bars. It’s available only to online subscribers of the Journal, unfortunately. (DURABLE LINK)
October 22 — “‘Penney’s prevails in shopper suit”. A Tennessee Court of Appeals judge has upheld a lower court’s rejection of a $600,000 lawsuit by Carolyn and Robert L. Wells against the retailer J.C. Penney. Mrs. Wells had told the court that she had been shopping for collectible crystal figurines on sale at a Penney store in Shelby County when an ill-mannered fellow shopper wrested two crystal bears from her hands, inflicting injuries on her shoulder, neck and back. However, Judge Holly K. Lillard said that the confrontation, which “demonstrates the dangers of the cutthroat arena of after-Christmas bargain shopping,” was one whose particulars the store could not have foreseen. (Tom Sharp, AP/GoMemphis.com, Oct. 12). (DURABLE LINK)
October 21 — Rethinking grandparent visitation. Among the litigation-encouraging developments in family law in recent years has been the rise of laws enabling grandparents to sue demanding rights to visit their grandchildren even against the wishes of a fit parent. But both courts and lawmakers are growing disenchanted with such laws. One Seattle attorney charges that grandparents with time on their hands engage in “recreational litigation”. (Annie Hsia, “About Grandma’s Visits …”, National Law Journal, Oct. 14). (DURABLE LINK)
October 21 — “Judicial Hellholes”. After surveying its members, the American Tort Reform Association presents a report describing the most frequently identified “Judicial Hellholes”, localities in which litigation abuse is common and civil defendants find it hard to get a fair trial. On the list are Alameda, Los Angeles and San Francisco counties, California; notorious counties in Mississippi, Illinois, and Texas; and others. Is your hometown court on the list? (“Bringing Justice to Judicial Hellholes 2002”, report in PDF format). (DURABLE LINK)
October 21 — “Our friends are at war, too”. “The first soldier to die in combat in Afghanistan was an Australian. … We’re not just fellow infidels, but brothers on a field of battle that stretches from Manhattan to Bali. If the American media don’t understand that, then the American president needs to remind them.” (Mark Steyn, “Our friends are at war, too”, Chicago Sun-Times, Oct. 20). See Oct. 14; also Tom Allard and Mark Baker, “PM’s vow: we’ll get the bastards”, Sydney Morning Herald, Oct. 21; Tim Blair, “Killing terrorists wipes out terror”, The Australian, Oct. 17; Virginia Postrel (scroll to Oct. 17 and Oct. 16 posts). (DURABLE LINK)
October 21 — “Demand for more ugly people on TV”. “Lecturer Trond Andresen of the Norwegian Institute of Technology in Trondheim accuses the media of discriminating against the ugly and emphasizing beautiful people whenever possible. Andresen wants higher ugly quotas on television. ‘Ugly people should be spotlighted in the media in the same way that the media wishes to emphasize persons from ethnic minorities,’ Andresen, a lecture at the Department of Engineering Cybernetics, said to newspaper Bergens Tidende.” (Aftenposten, Oct. 17). (DURABLE LINK)
January 2000 archives
January 15-16 — “Blatant end-runs around the democratic process”. “If I had my way, there’d be laws restricting cigarettes and handguns,” writes former Secretary of Labor Robert Reich, a prominent liberal, in this widely noted piece in the new American Prospect. But “[f]ed up with trying to move legislation, the White House is launching lawsuits to succeed where legislation failed. The strategy may work, but at the cost of making our frail democracy even weaker.”
The legal grounds for both the tobacco and gun suits “are stretches, to say the least. If any agreement to mislead any segment of the public is a ‘conspiracy’ under RICO, then America’s entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon.” The federal gun case prefigures liability for the makers of such products as “alcohol and beer, fatty foods, and sharp cooking utensils.”
“These novel legal theories give the administration extraordinary discretion to decide who’s misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust….But the biggest problem is that these lawsuits are blatant end-runs around the democratic process…. In short, the answer is to make democracy work better, not give up on it”. (Robert Reich, “Smoking, guns”, The American Prospect, Jan. 17).
January 15-16 — “Public paranoia, and other losses”. George Williams of Cut Off, Louisiana is suing the Fair Grounds Corp. and assorted other defendants over two winning trifecta bets he placed at an off-track betting parlor which paid $80.80 and $36.60 when the television monitor suggested that the actual payout should be $121.20 and $41.80 respectively. The suit charges the race track and various other defendants with wire fraud, mail fraud, theft and breach of contract, and claims damages for “mental anguish and emotional distress, loss of enjoyment of life, embarrassment, humiliation, loss of sleep, public paranoia, and other losses.” Williams’ attorney, Corey Orgeron of Cut Off, “said he simply wants to get to the bottom of the discrepancies between what Williams thought he won and what he was actually paid. ‘It very easily could be nothing more than simple negligence,’ Orgeron said. ‘I don’t think there was any criminal intent.'” Then why’d he throw in the charges of fraud, theft, and so on? (Joe Gyan Jr., “Man accuses OTB parlor of fraud”, Baton Rouge Advocate, Jan. 8) (& letter to the editor, Jan. 16, 2001).
January 15-16 — Poetry corner: Benjamin Franklin. Thanks to Tama Starr for suggesting this one:
The Benefit of Going to LAW
Two Beggars travelling along,
One blind, the other lame,
Pick’d up an Oyster on the Way
To which they both laid claim:
The matter rose so high, that they
Resolv’d to go to Law,
As often richer Fools have done,
Who quarrel for a Straw.
A Lawyer took it strait in hand,
Who know his Business was,
To mind nor one nor t’other side,
But make the best o’ th’ Cause;
As always in the Law’s the Case:
So he his Judgment gave,
And Lawyer-like he thus resolv’d
What each of them should have;
Blind Plaintiff, lame Defendant, share
The Friendly Laws’ impartial Care,
A Shell for him, a Shell for thee,
The Middle is the LAWYER’S FEE.
— Benjamin Franklin, Poor Richard’s Almanack, 1733 (& see Jan. 26-27 update).
January 15-16 — Welcome HealthScout visitors. In an article on the “Internet addiction” defense (see Jan. 13-14) and other creative legal theories, the online health news service concludes: “If you wonder whether America’s legal system is getting out of control, check out Overlawyered.com (yes, that’s its real name) to read more about the Columbine case and other questionable legal tactics.” (Serena Gordon, “‘The Web Made Me Do It!'”, HealthScout, Jan. 13). Check out our subpage on law and medicine.
January 13-14 — Latest excuse syndromes. A Florida teenager accused of making a threat of violence in an email to Columbine High School was suffering from “Internet intoxication”, his lawyer plans to argue. Michael Ian Campbell was “role-playing” when he sent a message threatening to “finish” what Eric Harris and Dylan Klebold began in their massacre last April, according to Miami attorney Ellis Rubin. In earlier cases, Rubin offered “television intoxication” as a defense for a teenager eventually convicted of murdering an elderly neighbor, and defended a woman who eventually pleaded guilty to prostitution by saying that the antidepressant Prozac had turned her into a nymphomaniac. Meanwhile, a black Pennsylvania man accused of bank robbery is offering an insanity defense, saying that he had been driven to mental derangement by the racism of the white culture around him. “Police said [Brian] Gamble dressed as a woman when he went into the bank on July 3 and robbed tellers at gunpoint.” (Steve Gutterman, “Internet Defense in Columbine Case”, Washington Post, Jan. 12; “Robbery suspect claims racism made him insane”, AP/CNN, Dec. 23).
January 13-14 — “Litigation Bug Bites Into Democracy”. “Fueled by the success of the class-action war on Big Tobacco, class-action ‘lawfare,’ if you will, is also now being waged against — among others — gun manufacturers, makers of lead paint, Microsoft, the health maintenance organization industry, makers of genetically altered seed, the vitamin industry and the airlines.” Chicago Tribune editorial also points out, regarding charges that American businesses poured too much money into averting even minor Y2K glitches, that of course they were terrified out of any reasonable cost-benefit calculation: “it wasn’t just fear of the millennium bug. It was fear of lawyers waiting to pounce. Didn’t spend enough money to fix your computers, eh? Created a public safety problem, did you? Surely you knew your negligence would disrupt us. We’ll see you in court.” (editorial, Jan. 10).
January 13-14 — Huge jump in biggest jury verdicts. Survey by Lawyers’ Weekly USA finds the ten biggest jury awards to individual plaintiffs approached an aggregate $9 billion in 1999, nearly tripling from the amount in 1998. “Something totally unparalleled in history is going on in our legal system,” says the weekly’s publisher, not without a touch of magniloquence. Besides the Anderson (Chevy Malibu) verdict against GM, set by the jury at $4.9 billion and reduced by a judge to $1.1 billion (see Dec. 16, Aug. 27, July 10 commentaries), the other billion-dollar case was an award of $1.2 billion to the family of 32-year-old Jennifer Cowart, who died of burn injuries after a go-cart accident at a Pensacola, Fla. amusement park. (AP/FindLaw, Jan. 11).
January 13-14 — Watch your speech in Laguna Beach. The use of slurs, catcalls and other “hate speech” on the street is not in itself unlawful, but police in Laguna Beach, Calif. have begun documenting episodes of such verbal nastiness anyway on the theory that perpetrators often “graduate” to physical violence later on — a sort of gateway theory, as they call it in the drug war. Police Chief James Spreine said the database of hate-speech incidents will help his department identify suspects in serious crimes — raising the danger that constitutionally protected speech, although not to be punished itself, will bring with it something akin to official suspect status when unknown parties commit bias crimes later on (Mayrav Saar and Barbara Diamond, “Laguna Beach police will document hateful speech”, Orange County Register, Jan. 12).
January 13-14 — “Americans Turn To Lawyers To Cure Nation’s Social Ills”. Uh, speak for yourself, would you mind, please? Last week’s flattering news-side Wall Street Journal profile of class-action impresario Michael Hausfeld (anti-guns, anti-HMOs, anti-biotech) got the most basic premise wrong about the class action biz when it said that “more and more frequently, they [referring to “people” or “society”] turn to courts when the traditional avenues of politics or activism seem obstructed.” But the “people” don’t hire class action lawyers; more typically those lawyers hire themselves, and if necessary go out and find a representative plaintiff to sue for. Of course these lawyers would love to establish that their activities simply coincide with what the public wants them to do, but why is the Journal‘s news side lending them a hand by assuming what is to be proven? (Paul Barrett, “Americans Turn To Lawyers To Cure Nation’s Social Ills”, Wall Street Journal, Jan. 4)
January 13-14 — Your fortune awaits in Internet law. Five years ago this Ohioan was toiling away as a computer operator for a sleep clinic, but now he’s moved on to a career in the fast-growing world of Internet law — representing a client who cybersquatted on such domain names as “dolphins.com” and “jets.com” and now wants major bucks from the football folks on the grounds that they interfered with his sale of the names. “Mr. DeGidio sees such issues as fertile ground for dispute.” (George J. Tanber, “Web challenges kindle this attorney’s interest”, Toledo Blade, Jan. 10).
January 13-14 —Overlawyered.com announcement list now hosted at ListBot. It was getting too big to be managed any other way — besides, this way you can volunteer fun demographic information about yourself. To join the list, look for the red Listbot button in the column at left and enter your email address.
January 13-14 —Correction: surname of Pennsylvania AG. Our January 10 report mistook the surname of Attorney General Mike Fisher of Pennsylvania. We’ve fixed it now. Our apologies.
January 12 — Finally! Reform may be in the wind for New York City’s patronage-ridden courts, following a burgeoning scandal in Brooklyn. Two top officials resigned last month from the law committee of the Brooklyn Democratic Party, complaining that despite their “unquestioned loyalty” to the party they’d been cut out of lucrative court assignments. The letter painted a damning picture of the operations of the city’s notoriously buddy-buddy system of fiduciary appointments, by which judges appoint clubhouse lawyers to fee-intensive positions managing the estates of decedents, orphans, failed businesses, foreclosed properties and other entities that can’t tend to their own affairs. Mayor Rudy Giuliani promptly called for reform to purge the system of its continuing machine taint, and now the state’s chief judge, Judith Kaye, has announced that she’s appointing an investigator with subpoena power to uncover improprieties and make the fiduciary appointment process worthy of public confidence. If that works, our friend Augeas has some stables that need cleaning out. Update Dec. 20, 2001: investigation results in report exposing abuses.
SOURCES: Alan Feuer, “2 Brooklyn Lawyers, Ex-Insiders, Outline a Court Patronage System”, New York Times, Jan. 5; Thomas J. Lueck, “Giuliani Urges Chief Judge to End Patronage in Courts”, New York Times, Jan. 6; Winnie Hu, “Political Favoritism by Judges Faces an Investigation”, New York Times, Jan. 11 (all Times links now dead); John Caher, “NYS Courts to Probe Judicial Appointments of Lawyers”, New York Law Journal, Jan. 11; Tracey Tully, “Judge To Probe Patronage”, New York Daily News, Jan. 11; Frederic U. Dicker and Maggie Haberman, “Top Judge Orders Probe of B’klyn Patronage Scandal”, New York Post, not dated.
January 12 — Disabled accommodation in testing. Sunday’s L.A. Times notices the trend: “The number of students who get extra time to complete the SAT because of a claimed learning disability has soared by more than 50% in recent years, with the bulk of the growth coming from exclusive private schools and public schools in mostly wealthy, white suburbs.” (Kenneth R. Weiss, “New Test-Taking Skill: Working the System”, Los Angeles Times, Jan. 9; see our editor’s “Standard Accommodations“, Reason, February 1999.) The U.S. Department of Justice has sued the Law Schools Admissions Council for allegedly following overly rigid rules in responding to physically disabled applicants’ requests for extra time on the Law School Admissions Test. “We are extremely disappointed that the Department of Justice has decided to litigate this matter and even more disappointed that they issued a press release about the lawsuit before serving us with the complaint,” says the Council’s president. (Shannon P. Duffy, “Disabled Students Denied Accommodation to Take LSAT, Suit Says”, The Legal Intelligencer (Philadelphia), Dec. 9). Columnist Robyn Blumner isn’t the only one reminded of the Kurt Vonnegut story, “Harrison Bergeron”. (“The high cost of equality: our freedom”, St. Petersburg Times, Dec. 19).
January 12 — Ontario judge okays hockey-fan lawsuit. Justice Michel Charbonneau ruled that a lawsuit by season-ticket holders against player Alexei Yashin (see Oct. 20 commentary) can proceed even though the law in the area is “relatively undeveloped”. “This is groundbreaking because this is the first time we can examine an athlete’s state of mind regarding fans,” said attorney Arthur Cogan. “Does he ever think about fans’ interests?” Next up: lawsuits by inconvenienced customers against workers who go out on unauthorized strikes? (Kevin Allen, “Yashin to face fans’ discontent”, USA Today, Jan. 6; “Judge: Fans’ lawsuit against Yashin can proceed”, CBS SportsLine, Jan. 5).
January 12 — Warn and be sued. “When Gwinnett County police officer Gordon Garner III told clinical psychologist Anthony V. Stone during a fitness-for-duty interview that he had had a vision of killing his captain, and thoughts about killing eight to 10 others including the chief and a county commissioner, Stone took it seriously.” He “consulted a lawyer for the Georgia Psychological Association, Susan Garrett, who advised him he had a duty to warn the individuals Garner had named”, according to court papers. Two weeks after the initial interview, he did warn them — walking right into a lawsuit from Garner for breach of confidentiality which culminated last month in a jury award of $280,000. Sued if you do, sued if you don’t? “In previous reported cases in Georgia, mental health professionals have been sued for failing to warn third parties that they might be in danger; Stone was sued for issuing that precise warning.” (Trisha Renaud, “Ex-Cop Wins Rare Confidentiality Case”, Fulton County Daily Record, Jan. 5).
January 11 — Health plans rebuffed in bid to sue cigarette makers. Now we find out! Helping close the door on the premise of the state Medicaid suits (after that $246 billion horse has already escaped from the barn), the Supreme Court yesterday let stand lower-court rulings denying union health plans the right to sue tobacco companies to recoup smoking-related health outlays. (“Union health plans lose round with cigarette makers”, AP/FindLaw, Jan. 10; Joan Biskupic, “Court Rejects Union Tobacco Suits”, Washington Post, Jan. 11). For a brief run-down of why these third-party payor claims have no law on their side, we recommend Judge Frank Easterbrook’s enjoyably abrasive 7th Circuit opinion, issued in November, dismissing suits filed by union funds and Blue Cross/Blue Shield plans in Illinois.
January 11 — Microsoft temps can sue for stock options. “In another victory for temporary workers at Microsoft, the Supreme Court today let stand a ruling that greatly expanded the number of employees who could sue the software giant to purchase stock options and get other benefits.” If you’re an employer who was counting on the old notion of freedom of contract to hold temps and independent-contractor employees to the benefits they bargained for, be afraid. (James V. Grimaldi, “High court rules 15,000 Microsoft temps can sue”, Seattle Times, Jan. 10; Dan Richman, “Microsoft ‘Permatemps” Win”, Seattle Post-Intelligencer, Jan. 11) (see also Aug. 19 commentary).
January 11 — “Update from the Year 2050”. The protagonist of this 1984-like tale wakes up to tepid home-brewed coffee: “Today, no house could be programmed to prepare scalding fluids. No ice cubes either: People choked on them and died. As Plaintiff in Chief Rodham Bush liked to say, ‘Extremes are unhealthy.'”. It was in the 00’s decade that the lawyers really took over: “By piling lawsuit atop lawsuit, the attorneys could bankrupt any company that tried to fight them….Politicians had discovered that by joining in the lawsuits, the government could take a cut of the settlements.” Now there was just one big company left, McNikeSoft, which efficiently settled hundreds of thousands of suits a day on the Litigation Exchange, and which the lawyers refrained from bankrupting because that would end the game. “Profits flowed efficiently from the real economy directly to the attorneys. Everybody was happy.” Hurry up and read this new satire by Jonathan Rauch before the folks he skewers find some way to sue him for writing it (National Journal, Jan. 7 — see Reason archive)
January 11 — Can they get a patent on that? “Two top executives and two high-level officers at a consulting firm that serves lawyers and insurance companies were indicted by a federal grand jury [in November] on charges of designing a computer program that automatically inflated the bills it sent to clients.” The indictment charges that a computer programmer at the firm, S.T. Hudson International Inc. of Wayne, Pa., “developed a program he called the ‘gooser’… which automatically multiplied every hour worked by a consultant by 1.15 and then added an extra half hour to the total hours,” with resulting overpayments by clients and affiliated companies totaling more than $320,000. (Shannon P. Duffy, “Consulting Firm Indicted for Inflating Bills Sent to Lawyers”, Legal Intelligencer (Philadelphia), Nov. 30).
January 11 — “Dear Abby: Please help…” “…I fell in love with a married man. He claimed he loved me. My husband caught us and now has filed for divorce. My lover called it quits and ran back to his wife.
“Can I sue my lover for breach of promise because he promised to get a divorce and marry me?” — Destroyed in the U.S.A.
“Dear Destroyed: I recommend against initiating such a lawsuit.”
— An entry, reprinted in its entirety, from “Dear Abby“, January 2.
January 11 — Welcome, Yahoo and About.com visitors. Our page on overlawyered schools has recently won listings at Yahoo “Full Coverage: Education Curriculum and Policy” and J. D. Tuccille’s popular Civil Liberties section at About.com.
January 10 — Pokémon litigation roundup. The Burger King Corporation last month recalled about 25 million pull-apart plastic balls containing the cartoon characters, which had been distributed as premiums with childrens’ meals, after a young child apparently suffocated on half of one of them. The company offered a small order of french fries in exchange for each returned ball, which did not save it from class action lawyers in Dallas who dashed at once to court, their named client a local mother whose son was entirely unharmed by the balls but who (or so the premise of the suit went) considered the french fries inadequate compensation for the toys’ return. (“Burger King Hit With Pokémon Lawsuit”, Reuters/FindLaw, Dec. 30; Jenny Burg, “Dallas Mom Sues Burger King Over Poke Balls”, Texas Lawyer, Jan. 5).
In other Pokémon litigation news, showman Uri Geller, whose act is best known for his purported ability to bend spoons by the power of remote mind control, is threatening to sue the makers of the cards over the inclusion of the character Kadabra, which is shown wielding a spoon and which boasts “special mental powers: It plagues bystanders with a mysterious pain in the brain'”, to quote the New York Post. Japanese children are said to have nicknamed the character “Uri Geller”; “There’s no way that they’re allowed to do this,” Geller says his lawyer told him. (Lisa Brownlee, “Pokémon card trick makes magic man mad”, New York Post, Dec. 30). And the American Lawyer has now given a write-up to the recent imbroglio (see Oct. 13 commentary) in which class-actioneers Milberg Weiss Bershad Hynes & Lerach filed a lawsuit charging that the trading cards are a form of unlawful gambling, without realizing that a company it represented owned the licensing rights to the characters — with the result that it sued its own client for treble damages for alleged racketeering. (Sherrie Nachman, “Cartoon Conflicts”, American Lawyer, Dec. 20) (earlier Pokémon coverage: Dec. 16, Oct. 13, Oct. 1-3).
January 10 — Pennsylvania tobacco fees: such a bargain! “One lawyer spent 12 minutes reading the Wall Street Journal and billed $62. Another charged $290 for the hour he took identifying and ordering books.” Lawyers’ bills like that might stand in need of a little revising, you might think — but in the case of the Pennsylvania tobacco fees the revision was upward, from $7.1 million to a negotiated deal of $50 million. On a per-capita basis that still ranks among the lowest tobacco fees in the country, but eyebrows have been raised by the fact that the prominent and generally business-oriented law firms that handled the work for the state, Buchanan Ingersoll of Pittsburgh and Duane, Morris & Heckscher of Philadelphia, were selected in what critics say was not an open or competitive process, and happened to be major campaign contributors of Attorney General Mike Fisher, the one doing the selecting (Fisher also made the key decisions in the eventual negotiated fee settlement). “Obviously,” says one critic, Philadelphia attorney Lawrence Hoyle, Jr., “it was a political kind of deal.”
“The $50 million that Duane, Morris and Buchanan Ingersoll will share over the next five years dwarfs the combined total of the Ridge administration’s bills for outside legal counsel last year: about $35 million to 241 law firms, with none getting more than $2.3 million.” And by the time Pennsylvania sued, other states had developed the legal theories on which the case rested. Tobacco-fee zillionaire Joseph Rice, who represented many states in the affair, agrees that the late-filing Keystone State did not face as much legal risk as states that filed earlier, but says: “I don’t think we should quibble about it.” But then, he would say that, wouldn’t he? (Glen Justice, “In tobacco suit, grumblings over legal fees”, Philadelphia Inquirer, Oct. 4)(& see Oct. 24, 2002).
January 10 — Back pay obtained for illegal aliens. Scoring an early win for its new policy of backing lawsuits by undocumented workers over the loss of jobs it was unlawful for them to hold in the first place, the federal government has extracted a $72,000 settlement from a Holiday Inn Express Hotel and Suites in Minnesota on behalf of nine illegal Mexican immigrants. The National Labor Relations Board and Equal Employment Opportunity Commission had charged the hotel with firing the workers because they were leading a union organizing drive, along with other employment and labor law infractions. The workers are still in the country and are resisting a deportation order. (“Hotel Settles Illegal Aliens Case”, AP/FindLaw, Jan. 7) (see Oct. 29, Oct. 28 commentary).
January 8-9 — OSHA at-home worker directive. No wonder the AFL-CIO spoke favorably of this abortive (see Jan. 6, Jan. 5) proposal; as recently as the 1980s it was calling for an outright ban on telecommuting. Communications Workers of America president Mort Bahr, for example, warned that allowing stay-home employment was dangerous “particularly if that worker wants to work at home”. (Quoted in James Bovard, “How Fair Are Fair Labor Standards?”, Cato Inst./Regulation mag.) “Traditionally, unions have opposed telecommuting/work-at-home programs because they fear that such programs represent a return to cottage industry piecework. A distributed workforce makes it more difficult for unions to organize, represent members, and police collective bargaining agreements”. (“Telecommuting and Unions”, Telecommute America California Style).
Curiously, the only newspaper we could find that commented favorably on the new OSHA intervention was Silicon Valley’s own San Jose Mercury News (link now dead) (cynics might point out that since at-home tech workers in Bakersfield, Boise and Bangalore directly compete with the face-to-face Valley culture, they’re not exactly the Merc‘s constituency). At other papers it was a more or less uniform hail of dead cats: the Washington Post, USA Today, Wall Street Journal, Hartford Courant (“Bureaucrats Gone Berserk”), Los Angeles Times, Dallas Morning News, Boston Globe, Chicago Tribune, Detroit News, Cincinnati Post, Denver Post, Washington Times, Arizona Republic, Birmingham News, as well as Sen. Kit Bond, the American Electronics Association (EE Times) and commentators Steve Chapman (quotes our editor), Dick Feagler, Marjie Lundstrom, Bruce Harmon (Bridge News), and Ken Smith (many of these links via Junk Science)(many links now dead).
When the OSHA letter hit the nation’s front pages, reports the Washington Post, “A number of companies immediately put on hold plans to expand telecommuting privileges to employees”. But the letter was hardly a frolic or detour on the part of some low-level Munchkin: the agency spent two years on it, and it was “considered a declaration of existing policy by OSHA officials”. Among the possible real-world effects of the letter, the Post quotes a Labor Department official as saying, is to have been “used by courts to make it easier to hold employers accountable for injuries that occur in home offices” — i.e., in litigation. And “since Labor Department officials had originally regarded the letter [as] a statement of existing policy, it is unclear whether withdrawing the letter had much practical effect.” (Frank Swoboda, “Labor Chief Retreats on Home Offices”, Washington Post, Jan. 6)
January 8-9 — Right to win unlimited carnival prizes. Florida’s Busch Gardens has put a limit of ten a year on the number of prizes — stuffed animals, football jackets and the like — that its patrons can win at its carnival games. One of the park’s frequent patrons, Herman James, is so adept at the games that he says he makes a side business of reselling the many prizes he wins. Now Mr. James is suing the park, saying the ten-prize-a-year limit is unfair to him. The park denies that its limit is directed specifically at Mr. James. (“Man sues Florida’s Busch Gardens for the right to win unlimited prizes”, AP/Court TV, Jan. 5)
January 8-9 — Shenanigans on the bayou. Someone — who was it? — posed as a staff person with the clerk of court’s office and placed calls to potential jurors’ residences, inquiring about their plans, while a multimillion-dollar asbestos case was going through its jury-selection stage this fall in Plaquemine, La. Soon ugly charges were flying back and forth between Exxon Corp. and prominent Dallas plaintiff’s firm Baron & Budd. The case has been referred to the Office of Disciplinary Counsel, which regulates the state’s lawyers, but it’s expected to be at least a year before the ODC completes its investigation. A year? They sure take their time down there (Angela Ward, “Baron & Budd’s Bayou Blues”, Texas Lawyer, Nov. 11).
January 8-9 — No warning given to cousin-spouses. 22-year-old Leslie Zambrana and her husband Alfredo are seeking millions of dollars in a lawsuit against the University of Miami School of Medicine, Jackson Memorial Hospital and a health clinic for failing to warn them that their daughter might be born with Down’s Syndrome, the genetic disorder whose effects include mental retardation. The suit contends that even though Leslie told the clinic’s physician that she and her husband, the baby’s father, are first cousins to each other, she was not administered a recommended “triple screen” blood test for high-risk mothers that might have detected the syndrome and caused her to seek an abortion. The couple’s grandparents are also first cousins to each other. (Jay Weaver, “Married cousins sue over baby’s disability”, Miami Herald, Jan. 3).
January 7 — Hire that felon, or else. Our editor’s December Reason column, now online, looks at what happened after the state of Wisconsin passed a first-of-its-kind law forbidding employers in most circumstances from discriminating against job applicants on the grounds of those applicants’ criminal records. Among the consequences: the cash settlement won by the notorious “Halloween killer” from a company that declined to hire him on his release from prison, and a case where the Milwaukee school system learned it was not free to deny a job to a man convicted of felony child endangerment. (Walter Olson, “Reasonable Doubts: Felon Protection”, Reason, Dec. 1999) (see also our Sept. 24 commentary).
January 7 — Protests just aren’t what they used to be. We reported in our November 3 installment on how flag-burning protesters in at least one sizable American city (Las Vegas) are now legally required to take out advance environmental permits — smoke emissions into the atmosphere, and all that. Now John Leo, in a U.S. News column on the way many campus newspapers have faced intimidation and thefts of their stock after printing material that offends identity groups, tells what happened after “the Ohio State Lantern [ran] a comic strip poking fun at the women’s studies department….A noisy crowd took their protest to the front porch of cartoonist Bob Hewitt and attempted to burn a bra, but thanks to consumer protection regulations, the flame-retarding brassiere failed to ignite.” (John Leo, “The 1999 Sheldon”, U.S. News, Jan. 3)
January 7 — GQ on Gov. Bush, Karl Rove and litigation reform. The new January issue of GQ profiles Karl Rove, key strategist in the George W. Bush campaign and “easily the team’s most pivotal player after W. himself.” Aside from the intrinsic interest of the following passage, it allows our editor to get away with more shameless self-promotion about how his book The Litigation Explosion (buy it now!) gets read in high places:
“Of the four issues he ran on in ’94 [education, welfare, juvenile justice, tort reform], I can honestly say I played a role in only one of them,” Rove told interviewer Robert Draper. “I’m a huge tort-reform advocate, and I said, ‘See what you’ve talked about here — a thread of responsibility runs through all of these. We have a society where people are being held responsible for their actions not to the degree of their responsibility but to the degree of their monetary worth, and someone’s life’s work can disappear overnight because he happens to have deep pockets and gets hit by junk and frivolous lawsuits.’ And I gave him Wally Olson’s book [The Litigation Explosion] and a couple of others. He had feelings about the topic, but he hadn’t thought about it. And look — that’s the way the best candidates are. They need people around them to execute the mechanics of the campaign, the tactical considerations . And the strategy is born out of their heart, soul and gut.” (Robert Draper, “W’s Brain”, GQ, Jan. 2000 — not online)
January 6 — “Accord tossed: Class members ‘got nothing'”. A panel of the Seventh Circuit U.S. Court of Appeals has thrown out a settlement in a class-action suit over the mailing by Equifax Check Services Inc. of allegedly unlawful debt collection letters. Judge Frank Easterbrook, joined by Judges Richard Posner and Ilana Diamond Rovner, said the settlement provided no tangible benefit for the 214,000 class members while funneling fees, later determined to be $78,000, to the lawyer for the class. Equifax agreed to stop using a form letter and to donate $5,500 to a law school consumer clinic; “Crawford and his attorney were paid handsomely to go away; the other class members received nothing (not even any value from the $5,500 ‘donation’) and lost the right to pursue class relief,” Judge Easterbrook wrote. (opinion, Cases Nos. 99-1973 & 99-2122, decided January 3; Patricia Manson, “Accord tossed: Class members ‘got nothing'”, Chicago Daily Law Bulletin, Jan. 4)
January 6 — Haunted house too scary. “A woman suing Universal Studios contends the theme park operator’s annual Halloween Horror Nights haunted house attraction was too scary and caused her emotional distress.” Cleanthi Brooks, 57, says that when she and her granddaughter were visiting the Florida park in 1998, an employee wielding a (chainless) chainsaw chased them toward an exit, with the result that they slipped on a wet spot and suffered unspecified physical injuries. (Tim Barker, “Universal fall leads to lawsuit”, Orlando Sentinel, Jan. 5; “Woman sues haunted house over injuries, emotional distress”, AP/FindLaw, Jan. 5)
January 6 — OSHA backs off on home office regulation. Moving quickly to nip mounting public outrage, Secretary of Labor Alexis Herman now explains that the Occupational Safety and Health Administration never intended to bring home working conditions under full-fledged federal regulation — why, the idea never even crossed their minds! The advisory letter to that effect has been withdrawn, but Republicans on the Hill are promising hearings. (“Labor Department does about-face on home office letter”, AP/CNN, Jan. 5; see yesterday’s commentary)
January 6 — Backyard trash burning. Researchers from the Environmental Protection Agency and the New York State Department of Health report that the burning of ordinary trash by households, still a common practice in many rural areas, is an unexpectedly important likely source of release into the atmosphere of polychlorinated compounds such as dioxin, long a subject of regulatory scrutiny because of their potential toxicity. A family of four burning trash in a barrel on their property “can potentially put as much dioxin and furan into the air as a well-controlled municipal waste incinerator serving tens of thousands of households”. (“Backyard Burning Identified As Potential Major Source Of Dioxins”, American Chemical Society/Science Daily, Jan. 4)
January 5 — Beyond parody: “OSHA Covers At-Home Workers”. “Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site, according to a Labor Department advisory,” reports the Washington Post. The policy covers not only telecommuters but even the parent who briefly takes work home to be with a sick child. “Although the advisory does not provide specifics, in effect it means that employers are responsible for making sure an employee has ergonomically correct furniture, such as chairs and computer tables, as well as proper lighting, heating, cooling and ventilation systems in the home office.” Employers may also be responsible for identifying and repairing such hazards as, for example, rickety stairs that lead down to a basement home office. They “must also provide any needed training to comply with OSHA standards, and may have to ensure that the home work space has emergency medical plans and a first-aid kit.”
The new directive “makes sense”, says AFL-CIO health and safety director Peg Seminario: “Employers have to provide employees a workplace free from hazards.” Pat Cleary, vice president for human resources policy at the National Association of Manufacturers, takes a different view: “This is nuts”. And at Slate “Breakfast Table”, Matt Cooper is almost equally succinct: “This is one of those regulatory rulings that sets liberalism back a generation.” Washington lawyer Eugene Scalia calls the development “part of a string of recent initiatives intended to court union leaders as the presidential primaries approach.”
Sources: Frank Swoboda and Kirstin Downey Grimsley, “OSHA Covers At-Home Workers”, Washington Post, Jan. 4; Slate “Breakfast Table”, Jan. 4 (third item); “Workplace Rules Protect Home Office”, AP/FindLaw, Jan. 4; “Workplace Safety Rules Cover Telecommuters — OSHA”, Reuters/Excite, Jan. 4; Eugene Scalia, “Gore, Unions Invite OSHA to Your Home” (op-ed), Wall Street Journal, Jan. 5 (online subscription required).
Sequel: faced with mounting public outrage, the Department of Labor announced within 24 hours that it was withdrawing the new directive and rethinking its policy (see January 6 commentary)
January 5 — Calif. state funds used to compile tobacco “enemies list”. The Daily News of Los Angeles reported last month that the Americans for Nonsmokers Rights Foundation, a Berkeley advocacy group, has received $1.2 million from the state of California over the past four years to track and counter critics of “tobacco control”. Among its activities: “[m]onitoring people who attended and spoke on tobacco issues at city council meetings in cities throughout the state”, “[i]nvestigating a federal judge in North Carolina who issued a ruling in a case involving second-hand smoke,” and “[i]ncorrectly accusing John Nelson, a spokesman for former Assembly Speaker Curt Pringle, of being on the payroll of the tobacco industry. After Nelson complained, the foundation apologized.”
A state official acknowledges that the private foundation has been asked to monitor groups that have “interfered in tobacco control activities” — such “interference” taking the form, for example, of opposing municipal smoking-ban ordinances. Steve Thompson, vice president for government affairs of the California Medical Association, called the program “a political surveillance operation on people that this group perceived as unsympathetic to the anti-smoking movement.” Among those who learned that his name was on the resulting lists was Los Angeles attorney Bradley Hertz, who led the opposition to an anti-smoking ordinance in Long Beach but says he was erroneously listed in the advocacy group’s reports as a participant in pro-tobacco efforts on a statewide level; Hertz says that in his view public funds should not be used to “spy on citizens”. Jon Coupal, president of the Howard Jarvis Taxpayers Association, went further, charging that the dossier-compiling “smack[ed] of Gestapo tactics…. Taxpayers are actually financing an abuse of government power.” However, some on the other side dismissed the criticism and said they found nothing improper about the program. “To protect the public interest, there must be independent monitoring of these front groups — the job cannot be left to newspapers or public officials,” said Sen. Tom Hayden (D-Los Angeles).
In North Carolina, many attorneys “leapt to the defense” of U.S. District Judge William Osteen, who the Nonsmokers Rights group targeted with an exposé after he handed down a 1998 ruling overturning a federal report on secondhand smoke. “To me it’s just one more example of a focused interest group trying to intimidate judges,” said the recently retired chief justice of the N.C. Supreme Court, Burley Mitchell. “It’s part of the meanness that’s crept into public life at all levels.”
Sources: Terri Hardy, “Smokers’ Spy Tax; Using Tax Funds for ‘Enemies List’ Not What Public Intended, Critics Say”, Daily News (Los Angeles), Dec. 6; and “Group Assailed for Sloppy Work; Man Says Organization Hurt His Reputation When it Got Facts Wrong”, sidebar to above, same date (fee-based archive, search Daily News file on “Nonsmokers Rights Foundation”); same, reprinted as “Tax-funded group had ‘enemies list'”, Orange County Register, Dec. 6 (fee-based archive, see above); David Rice, “Lawyers back N.C. judge on anti-smoking group’s ‘hit’ list”, Winston-Salem (N.C.) Journal, Dec. 9, link now dead. See also “Tobacco industry influence and income on decline in California”, press release, Oct. 12, for an account of “research” at the Univ. of California, S.F., into constitutionally protected advocacy and campaign contributions from tobacco sources; the work was funded by the tax-supported National Cancer Institute as well as the American Cancer Society.
January 5 — New page on Overlawyered.com: cyberlaw. The legal woes of such class-action defendants as Microsoft and Toshiba, liability for improper linking and non-handicap-compliant web design, domain-name squabbles, state-of-the-art ways for your litigators to sift through your enemies’ and competitors’ internal emails, and other news of the growing inroads being made against America’s most successful business, high-tech, by its second most successful business, litigation.
January 4 — Gun-buying rush. “More than a million Americans asked for background checks so they could buy guns in December, a surge insiders say has something to do with Millennium mania, but more to do with pending litigation,” Reuters reports. “Current and pending litigation…is making many consumers rush to buy arms before any anti-gun verdicts or new laws further restrict their purchase,” in the view of a spokesman for gunmaker Sturm, Ruger & Co. Better exercise those Second Amendment rights before mayors, trial lawyers and Clinton cabinet secretaries take ’em away for good! Yet such a result is far from the outcome of any democratic decision process; indeed, senior analyst H. Sterling Burnett of the National Center for Policy Analysis) cites the results of a poll conducted by the Tarrance Group finding firearms manufacturer liability a singularly unpopular idea — “only 5 percent [of respondents] feel that manufacturers or retailers should be held responsible for firearm misuse”.
A second Reuters report, from London, suggests the havoc litigation can wreak on its targets’ businesses through its sheer uncertainty, independent of outcome. British-based conglomerate Tomkins PLC would like to sell its U.S. handgun maker Smith & Wesson, according to the Financial Mail on Sunday. But the newspaper “said the prospect of class action lawsuits against gun makers in the United States could block any sale of Smith & Wesson. ‘Tomkins will (sell Smith & Wesson) if it can, but until the lawsuits are settled, it may be difficult to sell,’ [a] source close to Tomkins was quoted as saying.”
Sources: “Century End, Lawsuit Threats Spark Gun Sales Spike”, Reuters/FindLaw, Dec. 28; H. Sterling Burnett, “Latest Gun Lawsuits Leading Us Down a Slippery Slope,” Houston Chronicle, Dec. 11, 1999; Burnett, NCPA op-ed, Dec. 12; “U.S. gun maker sale mulled”, Reuters/CNNfn, Jan. 2.
January 4 — Lawsuits over failing grades. In Bath Township, Ohio, 15-year-old Elizabeth Smith and her mother Betsy Smith have sued the Revere School District and 11 teachers over the girl’s failing grades. The suit, which seeks $6 million, says the school’s grading practices punished the girl for her frequent lateness and absences even though “Elizabeth has chronic tonsillitis that caused her to miss school, and she has had to stay home in the mornings to put her twin siblings on their elementary school bus because her mom, a single parent, had to be at work,” said her lawyer, James Childs. And Kerry Grandahl has sued the Massachusetts College of Pharmacy and Allied Health Sciences after her dismissal for poor exam scores, charging that under the Americans with Disabilities Act the school should have accommodated her “exam phobia,” which she says was triggered by depression. Because the exam room was noisy and thronged with other students, Kerry “could hardly concentrate, much less remember what she knew,” according to the suit filed by attorney Nicholas Kelley, which faults the school for not allowing her to take exams in smaller rooms with her own monitors. (Donna J. Robb, “Student fails over failing grades”, Cleveland Plain Dealer, Dec. 8; Shelley Murphy, “Ex-student sues college for ignoring ‘test phobia'”, Boston Globe, Dec. 21).
January 4 — Expert witnesses and their ghostwriters. Critics have long voiced alarm about the way American lawyers can orchestrate the testimony of expert witnesses they hire. In a recent case in Michigan a federal magistrate judge threw out the testimony of an expert hired by plaintiffs in a “vanishing-premium” case against Jackson National Life Insurance Co. The magistrate found that the report filed by actuary Philip Bieluch avowing his opinion as to the facts of the Jackson case had improperly reused verbiage from a report he had filed for the same lawyers in a separate case in Iowa, and was “substantially similar” to the language of a report filed by an entirely different expert in a Louisiana case. U.S. Magistrate Judge Joseph Scoville concluded that the lawyers themselves had furnished Bieluch with the wordings: “This is one of the most egregious cases of providing witness-for-hire testimony that I’ve ever seen, and at some point the courts have to say that enough is enough,” he said. The plaintiff’s executive committee in the Jackson National litigation included representatives of four firms, including well-known class-action powerhouse Milberg Weiss Bershad Hynes & Lerach. (Emily Heller, “An Insurance Expert Is Bounced”, National Law Journal, Oct. 28).
January 3 — Lawyers for famine and wilderness-busting? “Pitched on its environmental merits, the class-action lawsuit filed [last month] against Monsanto would be thrown out in short order,” argues Peter Huber of the Manhattan Institute. “So the lawyers dressed it up as an antitrust case instead.” Class-action high rollers such as Washington’s Michael Hausfeld have lent their assistance to longtime ludfly Jeremy Rifkin in organizing the suit. “They aren’t trying to save free markets from a monopoly, and the last thing they want is more competition in this field. What Mr. Rifkin is after is something even less competitive than a monopoly. He wants nobody in the genetic technology business at all.” If that happens, lawyers will have managed to stop today’s best hope — given the new methods’ success in boosting crop yields — for enabling the Third World to feed itself without pushing its agriculture into yet more wilderness.
“Perhaps the most ridiculous aspect of this whole farce,” writes “Moneybox” columnist James Surowiecki at Slate, “is Rifkin’s use of the word ‘populist’ to describe the suit” — which, after all, seeks to shift power away from elected officials and farming populations and into the hands of elite lawyers and activists who effectively appointed themselves. Surowiecki calls the action and its arguments “spurious”, a “publicity stunt” and “a haphazard and scattershot collection of charges that might have been designed to demonstrate the excesses to which the U.S. legal system can be driven.”
Meanwhile, the world’s most prominent environmental group, the million-donor, supposedly respectable Greenpeace, has been openly conducting property-destroying sabotage against biotech installations in the United Kingdom; the “direct action” bug has now crossed the Atlantic, and last year vandals struck more than a dozen crop sites in the United States.
Sources: Philip Brasher, “Antitrust lawsuit to fight biotech farming”, AP/Spokane Spokesman-Review, Sept. 14; “Rifkin sues Frankenfood giant”, Reuters/Wired News, Dec. 14, link now dead; Peter Huber, “Ecological Eugenics”, Wall Street Journal, Dec. 20, now reprinted at Manhattan Institute site; James Surowiecki, “Jeremy Rifkin’s Spurious Suit Against Monsanto”, Slate, Dec. 20; Michael Fumento, “Crop busters”, Reason, January; anti-biotech site Genetech.
January 3 — Overlawyered.com forums on hold for now. Over the holiday weekend we attempted to install an upgrade for this site’s bulletin board software. Bad move: we managed instead to knock out the forums entirely, and haven’t even succeeded in figuring out yet what went wrong. We’d like to keep the forums idea going, but are mulling over a number of options at this point, including the possibility of forums hosted off-site, which might lessen the demand on our already overstretched techie skills. Advice from experienced forum-managers is welcome.
January 3 — This side of parodies. Calls for a ban on lawyer jokes as hate speech? A Million Lawyer March on Washington to protest anti-attorney stereotyping? Well, maybe not yet, but it can be hard to pick out which elements of this whimsical column are based on fact and which parts are invention. (Richard Dooling, “When you prick us…”, National Law Journal, Oct. 11).
January 31 — Scorched-earth divorce tactics? Pay up. Lawyers in Massachusetts are assessing the impact of two recent cases in which, departing from usual practice, courts have penalized family-law litigants for engaging in carpet-bombing tactics by ordering them to pay attorneys’ fees to their victimized opponents. In one case, Basel v. Basel, a husband was ordered to pay $100,000 of his wife’s legal bill after he unsuccessfully accused her of being a drunk, a drug addict, and a child abuser; the judge ruled that he’d engaged in a “calculated campaign of outrageous behavior to destroy (his) wife’s credibility” and called his portrayal of his wife “nefarious” and “fraudulent”. “By the time it was over,” the Boston Globe reports, “the lengthy litigation had cost more than $600,000 in legal fees, half of which was paid by [the husband’s] parents.”
Peter Zupcofska, vice chairman of the Boston Bar Association’s family law section, said the ruling by Worcester probate judge Joseph Lian Jr. could signal a new departure in the state of matrimonial practice: “if the litigation that’s waged is clearly done to harass, harangue, and intimidate the other party, and to create a kind of economic slavery by utilizing vast amounts of marital funds in a really destructive way,” he said, “then the judge is going to do something to redress that imbalance.” In another recent Bay State case, Krock v. Krock, a probate judge awarded $81,000 in fees against a wife found to have engaged in wrongful litigation. “You can no longer assume that having money gives you the right to wage these frivolous, scorched-earth campaigns without risking paying the price for the other side,” said Boston family law practitioner Elaine Epstein. “And if you do, you do so at your own peril.” (Sacha Pfeiffer, “A warning to battling spouses”, Boston Globe, Jan. 23).
January 31 — Coils of forfeiture law. For Joe Bonilla, the good news is his acquittal three months ago on charges of drunken driving. The bad news is that New York City has no plans to give back the $46,000 Ford Expedition he was driving when cops pulled him over. Bonilla, a 34-year-old construction worker, is paying $689 a month on the vehicle, which he’d been driving for only two days when stopped last May on his way home, he says, from a late screening of the movie “Shakespeare in Love”. A Bronx judge declared him not guilty on the charge, but that doesn’t mean he can have his car back, the city says. (Tara George, “He’s Not Guilty of DWI, But Cops Still Have Car”, New York Daily News, Jan. 25) (more on forfeiture: Oct. 7, F.E.A.R., Reason, Fumento).
January 31 — Do as we say…. Serious fire code violations are threatening to snarl plans to open a $1-million public facility in Charleston, W.V. It’s kinda embarrassing since the facility is itself a fire station. “Not only is a firewall improperly installed inside the $1 million station house, but there are no smoke alarms in the sleeping quarters.” (Todd C. Frankel, “Fire station also lacking smoke alarms”, Charleston Daily Mail, Jan. 19).
January 31 — Showdown in Michigan. Battle royal shaping up this November in the Wolverine State, whose Supreme Court, since a series of appointments by Republican Gov. John Engler, has been assuming a national leadership role in rolling back litigation excesses. Trial lawyers, unionists and others are furiously plotting revenge when the judges stand for their retention elections. A Detroit News editorial provides a quick rundown on what promise to be some of this year’s most closely watched judicial races (Jeffrey Hadden, “State Supreme Court in partisan Catch-22”, Detroit News, Jan. 18).
January 29-30 — Update: OSHA in full retreat on home office issue. The Occupational Safety and Health Administration announced on Wednesday that it will not, after all, seek to regulate hazardous conditions in workers’ home offices, such as rickety stairs, ergonomically inappropriate chairs, or inadequate lighting. Accepting the agency’s spin, the New York Times‘s Steven Greenhouse reports the new stance as a “clarification” meant to dispel “confusion”. Translation: the agency has baldly reversed its earlier policy. When OSHA’s November advisory letter came to public notice earlier this month, the Washington Post summarized its contents this way: “Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site.” (see Jan. 5, Jan. 6, Jan. 8-9 commentaries). Under the new policy, the word “not” will simply be inserted before the word “responsible” in that sentence. (At least as regards home offices: manufacturing activities conducted at home will still come under its jurisdiction, the agency says.)
Why did the earlier OSHA directive cause such an uproar? According to the Times‘ Greenhouse, it “alarmed thousands of corporate executives and angered many lawmakers, particularly Republicans” who began “using it” as a political issue — very naughty of them to do such a thing, we may be sure. But as most other news outlets reported, word of the policy had scared not just bosses but innumerable telecommuters themselves, who not unreasonably expected that the new policy would result in (at a minimum) more red tape for them and quite possibly a chill on their employers’ willingness to permit telecommuting at all. And while opposition from Republicans might come as scant surprise, the newsier angle was the lack of support from the measure from many elected Democrats; even a spokeswoman for Rep. Richard Gephardt said it “seemed excessive”.
OSHA director Charles N. Jeffress announced that the “bottom line” remained what it had “always been”: “OSHA will respect the privacy of the home and expects that employers will as well.” Translation: the agency was stung so badly by the public reaction to its initiative that it’s going to pretend it never proposed it in the first place (Steven Greenhouse, “Home Office Isn’t Liability For Firms, U.S. Decides”, New York Times, Jan. 28; Frank Swoboda, “OSHA Exempts White-Collar Telecommuters”, Washington Post, Jan. 27; “OSHA Exempts Home Offices”, Reuters/FindLaw, Jan. 27).
January 29-30 — Update: judge angered by obstructive SEPTA defense. After last month’s $50 million jury award against the Philadelphia transit authority over the maiming of 4-year-old Shareif Hall on an escalator, Judge Frederica Massiah-Jackson expressed anger over SEPTA’s mishandling of physical evidence and failure to provide relevant documents requested by the plaintiffs. The agency settled the case for $7.4 million and pledged to improve both its escalators and its litigation behavior in the future. (Claudia Ginanni, “Judge Fines SEPTA $1 Million; Authority Held in Contempt for Withholding Evidence”, The Legal Intelligencer, Dec. 23; “SEPTA Settles Escalator Suit for $7.4 Million”, Jan. 6; see Dec. 17-19 commentary).
January 28 — Law prof wants to regulate newspaper editorials. Libertarians have long warned that laws curbing private buying of campaign ads constitute a dangerous incursion on free speech and are likely to pave the way for further inroads. In last June’s Texas Law Review, Associate Professor Richard L. Hasen of Loyola University Law School (Los Angeles) proceeds to prove them correct by endorsing government regulation of newspaper editorials. He writes: “If we are truly committed to equalizing the influence of money of elections, how do we treat the press? Principles of political equality could dictate that a Bill Gates should not be permitted to spend unlimited sums in support of a candidate. But different rules [now] apply to Rupert Murdoch just because he has channeled his money through media outlets that he owns… The principle of political equality means that the press too should be regulated when it editorializes for or against candidates.”
Hasen happily looks forward to the day when the Supreme Court can be persuaded to overturn Buckley v. Valeo and the way will be clear for such regulation of the expression of opinion in newspapers: “op-ed pieces or commentaries expressly advocating the election or defeat of a candidate for federal office could no longer be directly paid for by the media corporation’s funds. Instead, they would have to be paid for either by an individual (such as the CEO of the media corporation) or by a PAC set up by the media corporation for this purpose. The media corporation should be required to charge the CEO or the PAC the same rates that other advertising customers pay for space on the op-ed page.” (Quoted by Stuart Taylor, Jr., “The Media Should Beware of What It Embraces”, National Journal, Jan. 1, no longer online; see also Richard Hasen, “Double Standard,” Brill’s Content, Feb. 1999).
January 28 — From our mail sack: unclear on the concept. To judge from the summaries of our search-engine traffic, a nontrivial number of visitors land on this website each day because they’re looking to get in on class-action lawsuits. We fear that we do not always succeed in giving full satisfaction to these visitors. For example, last week the following note arrived in our inbox, signed K.E.: “Please send me the website or address re the Toshiba settlement. I need to file. Why was this not on your site where it could readily be found?”
January 28 — Strippers in court. A group of San Francisco exotic dancers sued their employers last month, saying they’d been improperly categorized as independent contractors with the result that they were denied overtime pay and were unfairly forced to purchase their own “supplies”, in the form of expensive drinks. (National Law Journal, “The Week in Review: The Flux”, Dec. 27-Jan. 3). In Canada, a judge has ruled against Loredana Silion, 24, in her petition for a work permit to perform as an exotic dancer. While Ms. Silion had danced in a nightclub in her native Rumania, the job there involved only topless dancing, which the judge ruled was not a close enough match in skills for the task of dancing at Toronto’s Sunset Strip club, where nothing at all is worn. (Marina Jimenez, “Stripper told she’s not naked enough to work in Canada”, National Post, Jan. 14). And exotic dancer Doddie L. Smith has now sued an Arizona plastic surgeon, saying the doctor’s augmentation surgery left her breasts “too high” with the result that she is “unable to be a ‘featured dancer’ at exotic dance clubs, model as a centerfold in adult magazines, or promote her modeling career”. Estimated wage loss: $100,000. (Gretchen Schuldt, “Exotic dancer claims doctor botched breast surgery”, Milwaukee Journal Sentinel, Jan. 12) (Update: more on strippers in court: May 23, July 26-27).
January 26-27 — Florida ADA complaint binge. Invoking the Americans with Disabilities Act, “a half-dozen non-profit corporations and associated individuals [ ] have filed more than 600 federal suits in Miami, Fort Lauderdale and West Palm Beach” charging building owners and service providers with failing to make their facilities accessible to the handicapped, according to Miami’s legal publication, the Daily Business Review. Targets of the complaints, large and small, range from Kmart and Carnival Cruises down to local funeral homes and the little Coconut Court Motel in Fort Lauderdale, as well as nonprofits and public entities such as the local Baptist hospital and the city of Pompano Beach. A six-lawyer Miami Beach law firm, Fuller, Mallah & Associates, has spearheaded the assault, helping form three nonprofits that account for most of the filings. Indeed, no less than 323 of the cases name as plaintiff 72-year-old wheelchair user Ernst Rosenkrantz. “When pressed to explain how he hooked up with the law firm, Rosenkrantz said law firm partner John D. Mallah is his nephew.” However, “Mallah didn’t mention that relationship when asked about Rosenkrantz in an earlier interview,” notes reporter Dan Christiansen.
Most cases settle when the charged business agrees to make some modification to its facilities and pay the complainant’s legal fees — $275 an hour plus expenses in Mallah’s case. The ADA allows complainants to file suit without warning the target, and it displays considerable solicitude for the welfare of lawyers filing cases: “the attorney’s fees provisions are such that even if they get [nothing more than] the telephone volume controls changed, they automatically win the case,” says one defense lawyer. First Union, the large bank, says it refuses on principle to settle cases filed by the group: “The fees that are being charged seem to be way out of line to the amount of work that they do,” says one of its lawyers, besides which the bank had been moving forward on its own with an ADA compliance program. Rep. Mark Foley (R-Fla.) has asked the U.S. Department of Justice to investigate mass ADA filings in Broward County. (Dan Christiansen, “Besieged by Suits”, Miami Daily Business Review, Dec. 21). (Feb. 15 update: Congressmen introduce legislation) (DURABLE LINK)
January 26-27 — Seattle police: sued if they do… The constabulary of the northwest metropolis now faces a slew of lawsuits over its handling of the World Trade Organization protests in late November and early December. According to the Post-Intelligencer, the claims divide into two broad groups: those accusing the city of cracking down on the protesters too hard, and those accusing it of not cracking down hard enough. (Mike Barber, “Police sued for doing too little, too much”, Seattle Post-Intelligencer, Jan. 25).
January 26-27 — Feelings of nausea? Get in line. In 1997 a barge accident and chemical spill on the Mississippi sent a foul-smelling haze over much of Baton Rouge, La. A steering committee of attorneys formed to sue for compensation for local residents over symptoms such as “nausea, severe headaches and fatigue” experienced after smelling the odors. And did the claims ever start to roll in: by November of last year 13,000 forms had already been submitted, according to one lawyer, and the pace became even more frenetic as the Jan. 14 final deadline approached for filing claims. Long lines stretched around the block outside the old federal building; one woman said she waited six hours to get in the door, while more than 100 others were turned away at the end of the day, to come back the next day if at all; and many grumblings were heard about missing work. (Adrian Angelette, “Long line awaits claimants in chemical leak suit”, Baton Rouge Advocate, Jan. 14).(DURABLE LINK)
January 26-27 — From our mail sack: the lawyer’s oyster. Regarding our Jan. 15-16 “Poetry Corner” reprint of “The Benefit of Going to Law”, from Benjamin Franklin’s Poor Richard’s Almanack, 1733, New York attorney John Brewer writes: “Just a few days after noting the verse by Ben Franklin you had posted on your site, I came across an earlier and more concise exposition of the same image, viz.:
“Two find an Oyster, which they will not part,
Both will have all or none, the Lawyer’s art
Must end the strife; he fits their humour well,
Eats up the fish, and gives them each a shell.
“According to the recently published Oxford Companion to the Year (“An exploration of calendar customs and time-reckoning”), this appeared in the 1665 edition of Poor Robin’s Almanack (note possible Franklin influence of the name), as one of four such bits of doggerel marking the traditional four law terms. The oyster stanza was for Michaelmas Term.
“You might also find salient the verse for Hilary Term:
Anoint thy Lawyer, grease him in the fist,
And he will plead for thee e’en what thou list;
He’ll make thy cause strong though the same were weak,
But if thy purse be dumb, his tongue can’t speak.
“The verses for Easter and Trinity Terms are similarly on the theme of the costliness of going to law and its financial benefit to none but the bar, but have somewhat less punch and clarity of expression.”
January 25 — Feds’ tobacco hypocrisy, cont’d: Indian “smoke shops”. It seems when the Clinton Administration isn’t filing lawsuits to brand tobacco-marketing as “racketeering” (see Sept. 23 commentary), it’s quietly staking taxpayer money to help its constituents get into the business. A Senate Small Business Committee probe has found that since 1997 the Department of Housing and Urban Development has laid out $4.2 million to enable four Indian tribes to build “smoke shops” that sell discounted cigarettes free from state taxes. Why, one wonders, should subsidies be needed to facilitate an intrinsically high-profit activity that might be likened to lawful smuggling? And of course the source of this largesse is the very same HUD whose Secretary Andrew Cuomo has so loudly endorsed lawsuits against gun sellers whose wares are said to inflict spillover damage on other localities’ public health. A crowning hypocrisy is that some of the tribes that derive income from smoke shops are themselves now suing tobacco companies (see July 14 commentary).
The Senate committee uncovered six instances in which tribes obtained HUD subsidies to open smoke shops, five in Oklahoma and one in Nevada, but it is likely that the true number is larger. For example, this site’s editor, in his March Reason column (not yet in subscribers’ mailboxes, but previewing at the Reason site), identified another similar-sounding case: in 1997 HUD furnished the Reno Sparks Indian Colony with $450,000 “to build a smoke shop along Interstate 80 near the California border,” according to the Bend, Oregon, Bulletin. (Wendy Koch, “Tribes get funds to build ‘smoke shops'”, USA Today, Jan. 24; Walter Olson, “The Year in Double Takes”, Reason, March). (DURABLE LINK)
January 25 — Line forms on the right for chance to suffer this tort. A woman has won $5,135 in damages from owners for having been locked overnight in an Irish pub. “Marian Gahan fell asleep on the toilet in Searsons Pub in central Dublin, and did not wake until 2 a.m., by which time the pub was closed”. She argued that the pub managers should have checked the toilets before locking up. The trial had to be adjourned early on when Ms. Gahan’s barrister, Eileen McAuley, burst into uncontrollable fits of laughter while recounting her own client’s case. (“Woman locked in pub wins $5,135 damages”, Reuters/Excite, Jan. 18; “Tears and laughter at trauma in toilet”, Irish Times, Oct. 21).
January 25 — Recommended reading. On the unnerving ease with which charges of abuse and violence can be pulled from a hat to provide legal assistance in a divorce (Dan Lynch, “We’ll see how blind justice is”, Albany Times-Union, Jan. 19); on the war underway in legal academia over many scholars’ acceptance of the idea that the Second Amendment does indeed protect individual gun rights (Chris Mooney, “Showdown”, Lingua Franca, February); on the chill to workplace banter now that harassment law has gotten well established in Britain (Roland White, “Careless talk makes the office world go round”, The Times (London), Jan. 23).
January 25 — Latest lose-on-substance, win-on-retaliation employment claim. It’s pretty common, actually: the suit-prone worker flatly loses on his original claim of discrimination, but his claim for “retaliation” comes through to save the day because after the job relationship had turned adversarial the employer was shown to have treated him less favorably than before. Bad, bad employer! This time a Delaware jury decided that Eunice Lafate had not in fact been passed over for a promotion at Chase Manhattan because of her race, but awarded her $600,000 anyway on her retaliation charges; after filing the complaint, she said, she’d been cut out of management meetings and given less favorable evaluations. (Jim DeSouza, “Jury Wants Chase Manhattan to Pay $600,000 for Retaliating Against Employee”, Delaware Law Weekly, Dec. 9)(see also Sept. 29 commentary).
January 24 — Latest shallow-end pool-dive case. In Massachusetts, the state’s Supreme Judicial Court has agreed to hear the appeal of Joseph O’Sullivan, who was visiting his girlfriend’s grandparents in Methuen and decided to dive into the shallow end of their pool. An experienced swimmer and 21 years old at the time, O’Sullivan was not paralyzed but did crack two vertebrae and proceeded to sue the grandparents for not stopping him or providing warnings. Boston Globe columnist Derrick Z. Jackson takes a dim view of O’Sullivan’s case, and the lower court did not find it persuasive either (“A shallow case for the SJC”, Jan. 12).
January 24 — “Mormon actress sues over profanity”. Christina Axson-Flynn, 20, is suing the University of Utah, charging that the theater department insisted that she use foul language in character portrayals even though they knew it violated her religious principles to do so. The department disputes the contentions in her suit, which asks for unspecified damages. (Yahoo/AP, Jan. 14; Jim Rayburn, “U. theater department sued over language”, Deseret News (Salt Lake City), Jan. 14). Update Feb. 16, 2004: appeals court lets suit proceed.
January 24 — “Ambulance chaser” label ruled defamatory. The Second Circuit federal court of appeals has ruled that a New York attorney can sue over a printed description of him as an “ambulance chaser” given to taking only “slam dunk cases”. The American Association of University Women and its related AAUW Legal Advocacy Fund had put out a directory in 1997 which listed 275 attorneys practicing in its fields of interest. Appended to the contact information for attorney Leonard Flamm was the following description: “Mr. Flamm handles sex discrimination cases in the area of pay equity, harassment and promotion. Note: At least one plaintiff has described Flamm as an ‘ambulance chaser’ with an interest only in ‘slam dunk cases.'” U.S. District Judge Denny Chin had dismissed Mr. Flamm’s resulting lawsuit against AAUW, ruling that the comments, although “beyond the pale” and “seriously derogatory”, were protected as expressions of opinion under the First Amendment. On appeal, however, a panel led by Judge Thomas Meskill reinstated the action, noting that the objectionable passage might be read as implying specific factual assertions relating to unethical solicitation of business, that it appeared in italics, and that the other entries in the directory were generally of a factual rather than opinion-based nature. (Mark Hamblett, New York Law Journal, Jan. 6).
January 24 — No clash between clauses. Cincinnati attorney Richard Ganulin has filed a notice of appeal after a federal court dismissed his lawsuit claiming that the government’s observing of Christmas as a public holiday violates the Bill of Rights’ Establishment Clause. Last month U.S. District Judge Susan Dlott rejected Ganulin’s action, ruling that Congress was “merely acknowledging the secular cultural aspects of Christmas by declaring Christmas to be a legal public holiday. … A government practice need not be exclusively secular to survive”. She also prefaced her opinion with a bit of free verse: “The court will uphold /Seemingly contradictory causes /Decreeing “The Establishment” and “Santa” /Both worthwhile Claus(es).” (Ben L. Kaufman, “Challenge to Christmas holiday appealed”, Cincinnati Enquirer, Jan. 10).
January 21-23 — “Tracking the trial lawyers”: a contributions database. American Tort Reform Foundation today unveils a handy interactive database for keeping track of which lawyers have been donating to which politicians and parties. You can search by lawyer, by law firm, by recipient politician or institution, and more. Hours of alarming fun (“Follow the Money“).
January 21-23 — From our mail sack. Julia Vitullo-Martin of the Vera Institute of Justice writes, regarding our Jan. 18 report on the strange-warning-labels contest:
“I can tell you were never a teenage girl that you think the advice ‘never
iron clothes while they’re being worn’ is wacky. We used to do this in high school all the time. We’d be in a big hurry — having wasted hours trying on & discarding one another’s clothes — and would finally find the right thing to wear only to notice that the sleeve, say, was wrinkled. Why take it off? Just retract your arm & iron. The occasional small burn never deterred us that I can recall.
“I do like your newsletter.”
January 21-23 — Y2K roundup: poor things! Lack of century-end catastrophes is a “calamity” of its own for lawyers who’d been set to file suits galore demanding damages for outages and data loss. “Lawyers were licking their chops,” Madelyn Flanagan of the Independent Insurance Agents of America told the Washington Post‘s David Segal. “I think the whole world is relieved.” (David Segal, “A Y2K Glitch For Lawyers: Few Lawsuits”, Washington Post, Jan. 10.) Ross & Co., a British solicitors’ firm that had been planning a big Y2K practice, still hopes for the best: “It Ain’t Over Till the Fat Lady Sues“, claims its website. (“Lawyers still gearing up for millennium bug attack”, FindLaw/Reuters, Jan. 20). Don’t count us out yet either, says Philadelphia attorney Ronald Weikers (softwarelitigation.com), who’s hoping the state of Delaware will sue manufacturers over a glitch that knocked out 800 slot machines for three days, thus preventing the state from slurping up locals’ spare coins over that period. Then there are the remediation-cost suits: thus the commonwealth of Puerto Rico, which made the transition “without a murmur”, is considering suing tech firms over the $80 million it says it spent to upgrade systems. (“Puerto Rico Government Considers Suing Over $80 Million In Y2K Work”, DowJones.com, Jan. 4) The reliable Ralph Nader has chimed in with his reasons for blaming everything on the deep pockets (“Y2Pay”, San Francisco Bay Guardian, Dec. 29.) And here come the backlash suits: the Independent of London reports that one company has sued outside consultants for exaggerating the risk from the calendar rollover (Robert Verkaik, “Y2K consultants sued by firm for exaggerating risk”, The Independent, Jan. 11). (DURABLE LINK)
January 21-23 — Cartoon that made us laugh. By Ruben Bolling, for Salon: “….We can’t take those off the market! Dangerous products are a gold mine for the government!” (Jan. 20 — full cartoon)
January 21-23 — Civil disabilities of freethinkers. Imagine letting a murderer go free because you’d excluded the crime’s only witness from testifying on the grounds that as a religious unbeliever he could not take a proper oath. Absurd? Yet such notions survive today in the constitution of the state of Arkansas: “No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.” Along with Arkansas, the constitutions of Maryland, North and South Carolina, Pennsylvania, Tennessee, and Texas retain historic provisions that contemplate or mandate the exclusion of unbelievers — and in some cases, minority religionists who reject the idea of a retributive afterlife — from public office, admission as witnesses in court, or both. Thus Article IX, Sec. 2, of the Tennessee constitution: “No person who denies the being of God, or a future state of rewards and punishments shall hold any office in the civil department of this state.” Widely considered unenforceable today, such provisions might at some point resume practical importance given today’s highly visible movement to re-infuse religious sentiment into government; in the meantime, they symbolically relegate to second-class citizenship those who hold one set of opinions. “The Arkansas anti-atheist provision survived a federal court challenge as recently as 1982”. (Tom Flynn, “Outlawing Unbelief”, Free Inquiry, Winter 1999). (DURABLE LINK)
January 20 — The joy of tobacco fees. In his January Reason column, this website’s editor pulls together what we now know about the $246 billion state-Medicaid tobacco settlements, including: the role of the settlement in imposing a cartel structure on the industry and chilling entry by new competitors; the happy situation of some lawyers who are in line to collect hundreds of millions of dollars when they simply “piggybacked” on others’ legal work, with little independent contribution of their own; and the often more-than-casual ties between tobacco lawyers and the state attorneys general who hired them, to say nothing of such influentials as President Bill Clinton and Senate Majority Leader Trent Lott (both of whose brothers-in-law were in on the tobacco plaintiffs’ side). Maybe it’s time to retire Credit Mobilier and Teapot Dome as synonyms for low points in American business-government interaction. (Walter Olson, “Puff, the Magic Settlement”, Reason, January).
January 20 — “The case for age discrimination”. You do it, Supreme Court justices do it, we all do it: generalize about people based on their ages. It’s clear that most age-based discrimination isn’t “invidious” in the original sense of race bias, and it’s only rational for an employer to avoid investing in costly retraining for a worker who’s likely to retire soon. So how’d we wind up with a law on the books purporting to ban this universal practice, anyway? (Dan Seligman, “The case for age discrimination”, Forbes, Dec. 13).
January 20 — Watchdogs could use watching. Beginning in 1993 Brian D. Paonessa employed an active solicitation campaign in conjunction with various Florida law firms to sign up hundreds of securities investors to pursue arbitration claims against Prudential Securities Inc. Not prominently featured in Paonessa’s marketing, apparently, was the fact that federal securities regulators were on his own tail on charges that he’d pocketed $149,500 in “ill-gotten gains” at the expense of investor clients. Since then, as the busy rainmaker has become embroiled in legal disputes over alleged fee-splitting arrangements with the law firms, some colorful charges have made it onto the public record. (Stephen Van Drake, “Florida Fee-Sharing Suit May Open Door to Direct-Solicitation Scrutiny”, Miami Daily Business Review, Oct. 11).
January 20 — Gotham’s plea-bargain mills. “Last year each judge sitting in the New York City Criminal Court, on average, handled nearly 5,000 cases. With calendars that huge, the system is reduced to a plea bargain mill, with no true trial capability offering balance to the process. It’s no secret. Everyone — including the repeat offender — knows this.” — New York chief judge Judith Kaye, State of the Judiciary Address, Jan. 10 (New York Law Journal site).
January 19 — “Private job bias lawsuits tripled in 1990s”. “Aided by new federal laws, private lawsuits alleging discrimination in the workplace more than tripled during in the 1990s, the Justice Department said.” According to the Department’s Bureau of Justice Statistics, “job bias lawsuits filed in U.S. District Courts soared from 6,936 in 1990 to 21,540 in 1998….The percentage of winning plaintiffs awarded $10 million or more rose from 1 percent in 1990 to 9 percent in 1998.” (AP/FindLaw, Jan. 17; Bureau of Justice Statistics abstract and link to full report, “Civil Rights Complaints in U.S. District Courts, 1990-98”).
January 19 — Santa came late. Faced with outages and high volume, the e-tailing operation of Toys-R-Us failed to deliver many toys by Christmas as promised. Now Seattle attorney Steve Berman has filed a lawsuit seeking class-action status to represent all customers who did not receive their shipments by Dec. 25. According to George magazine’s profile of tobacco lawyers last year (see Aug. 21-22), Berman’s firm is in line to receive roughly $2 billion from representing states in the tobacco settlement — enough to stake a very large number of bets like this one, should he see fit. The named plaintiff is Kimberly Alguard of Lynnwood, Washington. (“ToysRUs.com Sued: Santa Failed”, Reuters/WiredNews, Jan. 12).
January 19 — The costs of disclosure. In 1992 Tacoma, Wash. attorney Doug Schafer fielded what seemed a routine request from businessman-client Bill Hamilton to draw up incorporation papers for a new venture. But the details Hamilton provided convinced Schafer that his client was involved with Tacoma lawyer Grant Anderson in dishonest business dealings arising from Anderson’s milking of an estate. To make things worse — and raising the stakes considerably — Anderson shortly thereafter was elevated to a Superior Court judgeship.
What should a lawyer do in those circumstances? Schafer later decided to go public and seek an investigation of the judge and the transaction, thus beginning a struggle whose eventual results included an order by the Washington Supreme Court throwing Judge Anderson off the bench (for “egregious” misconduct) and a $500,000 recovery by a hospital in a lawsuit against the judge and others over their conduct. But in the state of Washington — as in a majority of other states — a lawyer has no right to breach his obligation of confidentiality to clients even when the result is to bolster public integrity or provide a remedy to defrauded parties. And so next month Doug Schafer will appear before a panel of the Washington State Bar Association to defend himself against disciplinary charges. Moreover, the reputation he’s picked up as a single-minded scourge of the corruption he perceives in the system has helped devastate his legal career, while Judge Anderson, though forced off the bench, has as yet faced no other consequences from bar enforcers, though an investigation is ongoing. (Bob Van Voris, “The High Cost of Disclosure”, National Law Journal, Jan. 4; Mary Lou Cooper, “The Cadillac Judge”, Washington Law & Politics, Sept. 1998; Tacoma News-Tribune coverage, 1998, 1999; Schafer’s website). Update Jul. 26, 2003: Washington Supreme Court suspends Schafer for six months.
January 19 — 175,000 pages served on Overlawyered.com. Thanks for your support!
January 18 — “Never iron clothes while they’re being worn”. That’s the winning entry in Michigan Lawsuit Abuse Watch’s third annual Wacky Warning Label Contest. Bonnie Hay of Plano, Texas, found the warning on an iron. Second place was awarded to a Traverse City, Mich. man’s discovery of “Not for highway use” on his 13-inch wheelbarrow tire, and third place went to “This product is not to be used in bathrooms” on a bathroom heater. M-LAW president Robert B. Dorigo Jones said the contest had a serious point, to illustrate manufacturers’ growing fear of lawsuits and the retreat of principles of individual responsibility. Finalists in earlier years’ contests have included sleeping pills labeled “May cause drowsiness”; a cardboard sunshield to keep sun off a car’s dashboard that warned “Do not drive with sunshield in place”; and a cartridge for a laser printer that warned the consumer not to eat the toner. (CNN/AP, Jan. 13; M-LAW; contest results).
January 18 — Courts mull qui tam constitutionality. The Civil War-era False Claims Act provides stringent civil penalties for anyone who submits inflated or false bills to government procurement officials, and the “relator” provisions of that act allow any private citizen to bring suit to enforce the law and obtain damages for the United States. The relator — who may be an employee of the defendant enterprise, or a complete stranger — can then by law collect a share of between 15 and 30 percent in any recovery obtained by the government, with no need to prove an injury to himself. Qui tam actions have soared in number in recent years, actively solicited by lawyers seeking rich contingency payouts (the law was liberalized in 1986 to provide treble damages). For their part, businesses, hospitals and universities complain that the quality of accusations filed against them is often low (see Sept. 9 commentary) and that the law can actually encourage bad behavior by bounty-hunting employees who (for example) may fail to report billing irregularities promptly to higher management finding it more lucrative to let them mount and then file a legal complaint. In Pennsylvania, eyebrows were raised when one entrepreneur pitched his services to a hospital as a consultant for the prevention of false claims, and then, having been turned down for that job, proceeded to sue that hospital and 99 others as relator based on a statistical analysis of their billing patterns.
Recently the qui tam provisions have come under heightened scrutiny. On November 15, writing for a panel of the Fifth Circuit U.S. Court of Appeals, Judge Jerry Smith struck down as unconstitutional the portions of the act that authorize actions by uninjured parties in the absence of a go-ahead from Washington, ruling that such suits encroach on the Constitutionally guaranteed separation of powers by impairing the executive branch’s right to control litigation that goes on in the name of government interests. The case will be reheard by the full Circuit. Moreover, the decision may have had immediate repercussions at the U.S. Supreme Court, which had already agreed to consider whether the state of Vermont can be sued by one of its own former staff attorneys, acting as relator, for allegedly exaggerating the proportion of its employees’ time that was allocable to federally reimburseable environmental programs. Apparently responding to the Fifth Circuit decision, the Court ordered the lawyers in the Vermont case to brief the issue of whether the relator provisions are unconstitutional. Even if the Court does not go that far, it might rule that the application of the law to states as defendants violates the Constitution. Justice Stephen Breyer called it “one thing” to allow individuals to sue private federal contractors and “quite another” to “set an army of people loose on the states.” Update: The Court later upheld the constitutionality of the act’s relator provisions, but ruled that state governments cannot be named as defendants (Francis J. Serbaroli, “Supreme Court Clarifies, Broadens Antifraud Laws”, New York Law Journal, July 27, reprinted at Cadwalader, Wickersham & Taft site) See also April 30, 2001, July 30, 2001.
SOURCES: Peter Aronson, “Whistleblower Breaks New Ground”, National Law Journal, Oct. 27; Susan Borreson, “5th Circuit Slams Qui Tam Suit”, Texas Lawyer, Nov. 22; Vermont Agency of Natural Resources v. United States ex rel. Stevens, Supreme Court case 98-1828; Kenneth Jost, “Qui Tam Comes To the High Court”, The Recorder/CalLaw, Nov. 30; Charles Tiefer, “Don’t Quit on Qui Tam”, Law News Network, Nov. 29. MORE BACKGROUND: Fried, Frank; Steven G. Bradbury, “The Unconstitutionality of Qui Tam Suits”, Federalist Society Federalism and Separation of Powers Working Group Newsletter, v. 1, no. 1; Mark Koehn and Donald J. Kochan, “Stand Down”, Legal Times, Dec. 6, 1999, reprinted at Federalist Society site; Dan L. Burk, “False Claims Act Can Hamper Science With ‘Bounty Hunter’ Suits”, The Scientist, Sept. 4, 1995; Ridgway W. Hall Jr. and Mark Koehn, “Countering False Claims Act Litigation Based on Environmental Noncompliance”, National Legal Center for the Public Interest, Sept. 1999 (PDF format). Pro-qui tam sites, many of which double as client intake sites for law firms, include those of Taxpayers Against Fraud; Phillips & Cohen; Ashcraft & Gerel; Miller, Alfano & Raspanti; QuiTamOnline.com; and Chamberlain & Kaufman.
January 18 — Columnist-fest. Pointed opinions on issues that aren’t going away:
* Major League Baseball, meet Soviet psychiatry? Charles Krauthammer on the John Rocker case, and why it’s dangerous to view racism and general unpleasantness of opinion as suitable candidates for mental-health treatment (“Screwball psychologizing”, Washington Post, Jan. 14)
* John Leo on how courts and legislatures often seize on ambiguous enabling language as a blank check for vast social engineering: vague provisions in state constitutions get turned into an excuse to equalize school funding or strike down tort reform, domestic violence gets federalized on the grounds that it affects interstate commerce, and more. (“By dubious means”, U.S. News & World Report, Jan. 24).
* Clarence Page asks why states fight so hard to keep convicts in prison even after newly emergent DNA evidence clears them of the original rap. Do prosecutors and wardens care more about maintaining high inmate body counts, or about doing justice? (“When Innocence Isn’t Good Enough”, Chicago Tribune, Jan. 3).
January 17 — New York court nixes market-share liability for paint. In a setback for lawyers hoping to make lead paint their next mass-tort breakthrough, a New York appeals court has rejected the plaintiffs’ request that “market-share liability” be applied to the industry. This theory allows claimants to dispense with the need to show whose products they were exposed to, in favor of simply collecting from all defendants who sold the item, in proportions based on their market share. In explaining why such methods of assigning liability would be unjust, the court observed that paint makers did not have exclusive control over risks arising from their products, that makers sold at different times and to different markets, and that the composition of paint differed substantially from one maker to the next. (Jim O’Hara, “Court Sinks Lead Poisoning Case”, Syracuse Online, Jan. 10).
January 17 — Montreal Gazette “Lawsuit of the year”. “Two bagpipers sued Swissair for lost income from tourists at Peggy’s Cove because of the plane crash that killed 229 people in September of 1998. They claim their income declined dramatically while the lighthouse area was closed to the public.” (“Technology”, Dec. 31; Richard Dooley, “Swissair responds to bagpipers’ lawsuit”, Halifax Daily News, June 22, 1999).
January 17 — Dot-coms as perfect defendants. They’re flush with venture-capitalist and IPO cash, they’re run by hormone-crazed kids who bring a party atmosphere to the office, and they haven’t developed big human resources bureaucracies to make sure nothing inappropriate goes on. Why, they’re the perfect sexual harassment defendants! New York contingency-fee attorney David Jaroslawicz, a veteran of securities class actions and now “an aspiring scourge of the Internet“, hopes to spearhead a resulting “Silicon Alley sex-suit wave”. He has filed three suits on behalf of disgruntled female employees, including two against free-access provider Juno.com, one of which has been dismissed, and a third against Internet-TV producer Pseudo.com.
Asked why he happened to ask for the same amount, $10 million, in both lawsuits against Juno, Jaroslawicz says the damage request “is ‘arbitrary, whatever the secretary types in’ — just as long as it has enough zeros”. You ‘put in some high absurd number, because you can always take less,’ Mr. Jaroslawicz explained.” (Renee Kaplan, “The Sexual Harassment Suit Comes to Silicon Alley”, New York Observer, Jan. 17).
January 17 — New improvement to the Overlawyered.com site: better search capability. This weekend we installed the PicoSearch internal search engine, which you’ll find to be a big leap forward from our previous search system: fast results displayed in context, fuzzy logic to catch near-misses, no ads, search boxes available on key pages, and so forth. In addition, the database indexed now includes our editor’s home page (with a wide selection of articles, mostly on legal themes). Give it a test run, either by visiting our search page or just by typing your search into the box in the left column and hitting “return”.
August 1999 archives
August 14-15 — The stuffed-grape-leaf standard. “Ellen Vargyas, senior counsel at the National Women’s Law Center, said the $300,000 in damages, per incident, awarded to victims of sexual harassment, as specified in the 1991 Civil Rights Act, ‘are not exactly what I would call a pot of gold.’…To me, $300,000 is not only a pot of gold, but it equals the bottom-line value of approximately 480,000 grape leaves, stuffed and rolled. When you roll and stuff grape leaves for a living, or toss pizza crusts for ten hours a day, money has a way of taking on new meaning. ‘Let’s see, you mean if I lose this lawsuit, I will have to roll and stuff grape leaves nonstop from now until I’m 68?'” — Sarah J. McCarthy, Pittsburgh restaurant owner (reprinted in Voice of a Few Americans/Common Sense webzine; originally appeared in the Chicago Tribune April 3, 1995). (full story)
August 14-15 — Our award-winning errors. The “404 Not Found” message, or error page, is the one you encounter if you try to enter a misspelled, obsolete, or otherwise non-working address on a website, such as http://overlawyered.com/sue_for_fun.html. We’re pleased to announce that ours won the Cool 404 of the Day award (August 5) (link down at last check) from Cool404.com and also found its way into the 404 Research Lab‘s listing of Great 404s of the Web.
August 14-15 — ABA delegates defeat measure aimed at curbing “pay-to-play”. In something of a surprise, delegates narrowly (by less than 20 votes) turned down a proposed addition to the non-binding Model Rules of Professional Responsibility which would have declared it improper for lawyers or law firms to donate or raise funds for elected officials in exchange for legal work (see August 11 entry below). “‘It’s very, very tough [to change things] because lawyers are effectively the source of money for judicial campaigns’ and the campaigns of other state officials, including state treasurers,” according to Geoffrey Hazard, professor of law at the University of Pennsylvania and chairman pro tem of an ABA commission on ethics rules changes. Edward W. Madeira Jr. of Philadelphia’s Pepper, Hamilton is disappointed because the practice reinforces, in a reporter’s words, “public perception that judges favor the individuals and groups that contribute to their campaign funds.” (Janet Conley, Fulton County Daily Record — full story).
August 13 — “Somebody might trip.” At 80 St. Mark’s Place in New York’s East Village, in front of a locally famed repertory film theater, is a stretch of cement where stars like Gloria Swanson, Joan Crawford and Myrna Loy have left their hand prints, shoe prints and signatures over the years in a mini-homage to L.A.’s Hollywood Boulevard. Last year city inspectors decided the stretch of sidewalk was out of code compliance, and demanded that theater owner Florence Otway pave it over or remove it to be replaced by a conventional sidewalk. City spokesman Mark Patterson pointed out that its surface was uneven: “Somebody might trip,” he said, adding, “We don’t want people to trip and fall. The city might be liable.” (James Barron, “A Walk of Fame’s Melodramatic Turn”, today’s New York Times — link now dead). New York City, which pays out hundreds of millions a year in injury litigation, for many years has been the target of a huge number of sidewalk slip-and-fall claims; Richard Miniter wrote in 1996 that trial lawyers have fingered nearly 90 percent of the city’s blocks as having sidewalks that are in their view hazardous.
August 13 — Don’t link or I’ll sue! In a notorious 1997 episode, the Ticketmaster company asserted a legal right to forbid other websites from “deep linking” to order forms that resided on interior pages of its site, a practice that allowed visitors to bypass introductory pages containing ads Ticketmaster wanted them to see. Taken seriously, the notion of requiring linkers to come in only through a site’s front door would eviscerate much of the usefulness of the web (including sites like this); for example, unable as a routine matter to point to particular news stories, we’d have to point instead at the publisher’s top page and advise readers to start a cumbersome search for the content. So it’s worrisome that legal complaints over deep linking have reportedly led to a series of out-of-court settlements in which defendants have agreed to link only to a site’s top page.
The equities might seem to shift when a link points not to a integral page on the foreign site, but to just one of the resources composing that page, such as a graphic or an audio/video clip. If BigWebCo pays a composer to develop soothing background music for its site, can I really obtain the same background music for my site gratis by pointing at their audio file, imposing more work on their servers while I’m at it? The latest dispute, between Universal Pictures and a site called Movie-List that features trailers of forthcoming movies, may now have been resolved after either a clarification or a rethinking of Universal’s position, depending on how you read the correspondence between the parties that Movie-List’s proprietor, Jean-Pierre Bazinet of Ottawa, has posted. Universal litigation counsel Carolyn Hampton alarmingly wrote Bazinet that “you are not permitted to link to other sites that contain our copyrighted material without our authorization”. However, in later correspondence, Hampton said the company objected only to Movie-List’s linking directly to the video clips of trailers on its servers, and that it was free to link to the full webpage from which the clip was accessible, a resolution that Bazinet accepted. A noteworthy feature of the correspondence was the terrified attitude of Movie-List’s internet service provider, Simple-Net, which didn’t want to risk itself getting sued by the giant studio: “The situation is now that you must abide WHATEVER Universal insists upon,” it wrote Bazinet. “If not, we will have no choice but to suspend your site.” (see July 21 entry).
In his weekly column yesterday, Salon’s Scott Rosenberg warned against developing “a climate in which every Web author needs to check with every link target before putting up a page,” asking, “What about individual users — is “deep bookmarking” to become a problem too? How about passing around a “deep link” on a mailing list?” Other coverage and commentary on the issue has appeared in Wired.com, IT-Director.com, and from attorney Jeffrey Kuester.
August 12 — Age-bias law expands. It’s already easy to violate age-discrimination law without meaning to, and it keeps getting easier. California Gov. Gray Davis has signed a bill that makes it unlawful to target more highly compensated workers for layoffs — baldly rational though that policy may often be as an economic matter — on the grounds that high compensation is often a proxy for age. (AP, Aug. 4, link now dead). And the August 16 Time (not online) reports that trial is expected to begin soon on Michael Sisler’s suit against the Bergen Commercial Bank in Paramus, N.J., for discriminating against him based on his youth (he was given a vice presidency at the tender age of 25, but things didn’t work out). Most age-bias laws cover only workers over 40 and are “one-way”, providing a right to sue over preferences shown to younger but not older rivals, but New Jersey’s high court ruled in February (opinion) that the more ways to sue the merrier. (AP/Phila. Inquirer, Feb. 25, link now dead). Time’s John Cloud writes that eighteen other states have statutes that could be construed the same way as New Jersey’s: “next time you tell the new kid down the hall that he needs to pay his dues, you could end up paying them for him”.
August 12 — Even the chance of loser-pays helps keep ’em honest. It happened in response to some contempt of court that the judge found fairly egregious, and in a bankruptcy setting, where judges have unusual leeway, but it still reminds us that there’s nothing inevitable or foreordained about our being the one Western democracy that refuses to make litigants pay when they inflict harm on their opponents: U.S. Bankruptcy Judge Mary Walrath of Wilmington, Del. has ordered the pilot’s union to pick up Continental Airlines’ legal fees for having tried to relitigate claims settled in the airline’s 1993 reorganization. The pilots had rolled the dice in hopes of a $1-billion-dollar back pay bonanza based on seniority claims. (Delaware Law Weekly, July 28 —full story)
August 12 — Leave the Scouts alone. As happens often, the Chicago Tribune runs the most sensible editorial on last week’s New Jersey high court ruling, urging the Scouts to reconsider their policy of barring gays from membership but saying in the mean time the law’s role is to respect their freedom of association. Overlawyered.com‘s editor is quoted making similar points in Wendy Davis’s New Jersey Law Journal write-up.
August 11 — “Your perfect birth control…blocked?” Highly recommended: the September Glamour, which hit the stands yesterday with a major article by Leslie Laurence on trial lawyers’ devastating assault on Norplant, the long-lasting contraceptive that consists of tiny hormone-releasing rods inserted under the skin of a woman’s upper arm. Despite health professionals’ widespread view that the device is a valuable one whose risks are low, lawyers using billboards, TV ads and media scare campaigns have recruited an astounding 50,000 women to sue the manufacturer, concentrating originally on silicone-disease theories (since the device contains that substance) and then, after the collapse of the scientific basis for those theories, switching to claims based on side effects common to all hormonal contraceptives, such as weight gain and irregular bleeding. Glamour reports that many plaintiffs sued based on vaguely described side effects they’d never reported to their doctors, and that some, even after signing up to sue, continued to recommend the device to friends, said they were glad they’d used it, and went back to their doctors to have another set put in.
Norplant litigation has gone badly for the plaintiffs — “It was like she just wanted to hit the lotto” said a juror in Brownsville, Texas, after one verdict for the defense — but the legal success has come at devastating cost to the manufacturer, American Home Products, which might still at some point find their best option to be buying out the suits for some large sum despite their flimsy basis. One result, says the magazine, is a continued departure of capital from the contraceptive field; few firms will invest in researching new birth-control methods when it’s so easy to get caught up in a legal catastrophe. Leading entrepreneurial firms on the plaintiff’s side include Charleston, S.C.’s Ness, Motley, Loadholt, Richardson & Poole, with 17,000 cases, and Houston’s O’Quinn and Laminack, with more than 3,500 (see item for August 4, below) “If his side wins,” the article concludes of O’Quinn associate Arturo Gonzalez, “millions of women will lose.” The article is not online, but you can read a related piece by Fordham law professor Marc Arkin.
August 11 — Cited in Andrew Tobias’s online column. After starting with a classic list of wacky warning labels (“Warning: contains nuts” on a package of peanuts is one favorite; then there’s the packaging on an iron, “Do not iron clothes on body”) the personal-finance expert observes that “one reason for all this obsessive labeling is fear of lawsuits” and suggests this site as a resource for those who think things might have gotten out of hand. It’s only fair to point out in return that few have made a greater contribution toward public understanding of the absurdly overlawyered area of auto insurance than Andrew Tobias himself: see the discussion in his recent book My Vast Fortune, and don’t miss his devastating article in the October 1996 Worth on the politically fateful entanglements between trial lawyers and some well-known consumer advocates.
August 11 — No comparison. Speaking of which, an article in today’s New York Times (link now dead) on Japan’s famed sokaiya corporate shakedown-artists reports that they’re attempting to refurbish their image. The sokaiya have long been known for gathering dirt about business practices and publicizing it at shareholder meetings and elsewhere, a threat companies can avert only by making handsome payments to their syndicates. Now veteran sokaiya Kaoru Ogawa is trying to recharacterize his activities: “I’m the Japanese Ralph Nader,” he says. Times reporter Stephanie Strom calls the comparison “a stretch”.
August 11 — ABA thinks it can discourage “pay-to-play”. The vote, slated for the Atlanta meeting, was on a model rule aimed at curbing lawyers’ practice of contributing to politicians in exchange for official work. [The proposal was narrowly defeated in a delegate vote; see entry for August 14-15]. “[Currently if outside counsel] are going to be considered for legal work they have to be counted among the campaign contributors,” said Richard Phillips, head of the ABA’s business law section. “It’s a poor way to compete for legal work and it’s very destructive of the integrity of the government process”. One question is whether there’s hope of enforcing such a standard now that contingency fees for government work can turn lawyers into overnight billionaires — an immensely more lucrative and thus more tempting kind of patronage than the hourly-fee transactional work that raised the original concerns. (Reuters, link now dead)
August 10 — Like calling the Orkin man to talk about bugs. Descending further into self-parody at its annual convention in Atlanta, the American Bar Association summons O.J. Simpson defense lawyer Johnnie Cochran for a panel discussion on truth in the legal profession, as well as potential disbaree Bill Clinton to lecture Senators on the perils to the administration of justice of not confirming his nominees to the bench as promptly as he’d like. Cochran impresses attendees by sending an 18-page biography that “lists everything from a soap opera appearance to being named one of the most glamorous men in history”, Reuters reports. By contrast, Harvard law professor David Wilkins, who directs the law school’s Program on the Legal Profession, submitted a three-paragraph bio. (Fox News (link now dead)/New York Times).
In other convention news, ABA head Philip Anderson publicly compared city gun suits to the civil rights cause of the 1950s (overturning Plessy v. Ferguson, scoring a payday with help from the mayor’s trial-lawyer friends — hey, what’s the big difference?). (Fox News — link now dead). The present state of tort law gives municipalities no claim against gun makers, but lawyers have lately made up a variety of new theories they’d like to present to courts that would hold gun makers retroactively liable. Anderson criticized efforts by state lawmakers to interfere with this process, suggesting the emergent new maxim that now seems to hold sway at places like the A.B.A.: any lawyer should be able to concoct any new theory that allows for the extraction of money from anyone else, and whether such a new theory succeeds will be resolved by way of interactions between the Third Branch (the judiciary) and the Fourth (the trial lawyers) This diverges sharply from the traditional separation-of-powers precepts still preserved in musty library stacks, under which legislators counted as a surprisingly important authority on what was and was not to be made legal.
August 10 — You made me defame myself. Even plaintiff’s employment lawyers can get a bit sheepish explaining the theory behind the “doctrine of compelled self-publication,” which works as follows: the employer takes every conceivable step to avoid liability for “workplace defamation”, including not breathing a word to co-workers about the reasons it’s letting an employee go, and successfully forbidding any discussion of the circumstances afterward with reference-checkers or other outsiders, who instead get fobbed off with blandly neutral formulas. But it still loses the ensuing defamation lawsuit, on the grounds that the employee himself spread the allegedly false rumors about his bad performance, having felt forced to do so in order to explain his situation in later job applications. “If you’re the one spreading false information, it looks strange” to turn around and sue a former employer for defamation, concedes Hartford practitioner Jonathan Gould. But the theory has worked for complainants, including a hospital security guard who got $200,000, and Danbury, Ct. lawyer Christine M. Ellis predicts it will be a “wonderful tool” in suing for employees. (Scott Brede, “When Candidness Is a Catch-22“, Connecticut Law Tribune, July 7).
August 9 — More things you can’t have. Latest food items to become unavailable due to fears of liability, according to Wall Street Journal news articles in July: parents’ care packages of food to kids at camp (“[c]amps worry about getting sued should a child get sick from an allergic reaction or from rotten brownies,” as well as raising other objections; July 28); burgers cooked medium-rare in restaurants (diners at establishments in San Francisco and Carnegie, Pa. were recently allowed to obtain pink burgers by signing written liability releases, but other restaurants won’t make even that concession, though E. Coli poses relatively little risk to adults in good health; July 15). (New York Press editor Russ Smith commented on the summer-camp report; scroll down to near bottom of his column.)
August 9 — How to make it as a litigious NYC tenant. “The writer of this book lived rent free in New York City and was paid $55,000 from his landlord!!!”. That’s the pitch from the pseudonymous author (“Tenant X”) of an 88-page booklet entitled Tenant Power, which for $15 will offer advice on how to make life unhappy for someone so unwise as to have rented you an apartment (have the walls of your apartment drilled to test for asbestos; if finally evicted, tell the judge you need to get back in to retrieve medicine). The August 4-10 Village Voice has qualms about the booklet but not on any moral grounds; instead it’s upset that much of the advice isn’t fully accurate. (Full story).
August 9 — Hate-crime laws: why they aren’t liberal. Heidi M. Hurd, professor of law and philosophy at the University of Pennsylvania, told the House Judiciary Committee last Wednesday (8/4) that such laws “revolutionize” traditional criminal-law mens rea standards in order to convey society’s disapproval of hateful character traits and beliefs. That goal is distinctively non-liberal, she argues: “Political liberals allow that the State may use its power to make us act in ways that are right; but they generally insist that the State may not use its power to impose a particular conception of the good life on its citizens. It may not legislate virtue or suppress vice. It may not invade the realm of private beliefs, desires, hatreds, biases, hopes, ambitions, etc. In short, it may make our actions good, but it may not make us good actors.
“Those who favor hate crime legislation, and its implicit license to use the power of the state to suppress vice and encourage virtue, have to admit that they are not liberals. They are, rather, ‘political perfectionists,’ who view the legitimate power of the state as extending to legislation that will nurture in us charitable, kind, courageous dispositions, and eliminate selfish, cowardly, cruel dispositions. Political perfectionism is not without impressive defenders. But the power that it bequeaths to the State is breathtaking….such legislation suggests that the state has abandoned the constraints of liberalism and extended its power to affect not only what we do, but who we are.” (Full testimony)
August 7-8 — Weekend reading. Pixels to take to the beach or cottage:
* Alex Beam in the August Atlantic takes a look at “the extreme sport of First Amendment law” — litigation by celebrities who sue tabloids like the Enquirer and the Globe for libel, invasion of privacy and sundry other torts. Sign of the overlawyered times: some tabloid-haunted celebs insist their wedding guests sign a nondisclosure agreement if they want to be admitted to the ceremony. “That’s so tasteful,” scoffs Gerson Zweifach of Williams & Connolly, who represents tabloid defendants. “You open up the Tiffany invitation and this contract falls out of the envelope.”
* Aside from their professional interest to writers and editors, word counts carry significant consequences for litigators because of the rigid limit on the length of their briefs. Lawyers for a man fighting extradition to Canada on kidnaping charges recently faced possible sanctions for having filed a brief before the Seventh Circuit which they said was 13,824 words long, just under the 14,000-word limit for appellate briefs set by Fed. R. App. 32(a)(7), but which in fact contained 15,056 words, well over the limit. The judges looked into the question and found that Microsoft Word, unlike its competitor WordPerfect, fails to count footnotes when asked to give a word count for a block of highlighted text. Microsoft is promising a fix, Declan McCullagh reports in the August 4 Wired, and in the mean time the court agreed the lawyers didn’t merit sanctions.
* Overlawyered.com‘s editor devoted his July Reason column to the question of why American attorneys are so unpopular these days: was it unsporting for Jurassic Park audiences to burst into applause when the dinosaur ate the lawyer?
August 7-8 — Not so uncontroversial. Who could be against the proposed “Victims’ Rights Amendment” to the Constitution? Plenty of sensible people, it seems, including Beth Wilkinson, a member of the prosecution team in the Oklahoma City bombing case, who writes in yesterday’s Washington Post (August 6; link now dead) that following the procedures prescribed in that amendment could have substantially impaired the chance of getting convictions against bombers Timothy McVeigh and Terry Nichols. Chicago Tribune columnist Steve Chapman (July 22 column; link now dead) points out that many crimes (such as a bank robbery where there are many customers present) place a large number of bystanders in harm’s way, “each of whom [under the proposal, apparently] has to be kept informed, allowed to make his views known, and invited to attend every public proceeding related to the case until the perpetrator has been released from prison, which could be five or 10 years later….If you want a bureaucrat’s full-employment act, here it is.” The measure has been endorsed by Bill Clinton, Bob Dole and Al Gore, among many others.
August 6 — Courts actually begin to define “harassment”; activists in shock. Proponents of expansive harassment law publicly hailed last year’s Supreme Court ruling in Oncale v. Sundowner Offshore Services as a victory for their side because it allowed workers to sue over misbehavior by co-workers of their own sex. But Justice Scalia’s opinion also took pains to clarify for the first time what does and does not qualify as harassment: the complained-of conduct must be directed at the worker “because of” his or her sex, ordinary horseplay isn’t enough, and the role of the courts isn’t to enforce a general civility code in the workplace. This report by the Chicago Tribune‘s Jan Crawford Greenburg (reprinted in St. Louis Post-Dispatch; link now dead) quotes Lambda Legal Defense and Education Fund legal director Beatrice Dohrn as saying her colleagues were aware the latter language might be significant but decided to focus on portions of the decision “we hoped would be picked up on,” a franker-than-usual acknowledgment of the way advocacy groups try to spin the coverage of high court cases. But many lower federal courts noticed Scalia’s language and, it seems, are taking it seriously by screening out cases that fail to meet the standard. That trend meets with peals of outrage, recorded here, from plaintiff’s-side attorneys who liked things better when the question of what constitutes harassment was more poorly defined, since that improved their chances of getting every case to a jury. Notable background fact: Scalia in Oncale spoke for a unanimous Court.
August 6 — News judgment. Last week it was announced that arbitrators had awarded more than $2 billion in legal fees to tobacco lawyers representing just two of the fifty states, Mississippi and Massachusetts. Mississippi’s $1.4 billion award is slated to cram nearly $340 million into the pockets of Pascagoula attorney Richard Scruggs, brother-in-law of U.S. Senate leader Trent Lott, while on Tuesday the Boston Globe‘s Brian MacQuarrie reported that a preliminary analysis of that state’s $775 million fee award “indicates attorneys may be paid nearly $5,000 per hour for their work”.
How has the New York Times, newspaper of record, chosen to cover these revelations? Its total coverage of the arbitration awards has consisted of a 150-word Associated Press dispatch that ran on page 25 of Sunday’s edition, which itself included nothing critical of the awards except to note at the end that tobacco companies found them excessive. Perhaps the Times was too busy preparing to let fly with another round of advocacy from its reporter William Glaberson, who’s argued that public concern about the power of trial lawyers is based on mere “myth” and “fantasy” concocted by conspiratorial tort reformers.
August 6 — The Jarndyce v. Jarndyce of prison litigation. Twenty-eight years after the episode from which it arose, the wrangling over corrections officers’ actions during the Attica uprising drags on, with the Second Circuit sending Blyden v. Mancusi back for a new trial. (New York Law Journal, August 4 — full story)
August 6 — Michigan high court upholds malpractice reform. Not all state supreme courts are looking for ways to frustrate legislators’ efforts to bring litigation under control. (Detroit News editorial).
August 5 — “Settlement bonds”: are guns next? When trial lawyers started lining up pliant mayors to sue the gun industry, everyone kept insisting that the big issue wasn’t money: this was really a public-spirited endeavor aimed at changing the industry’s practices. In Monday’s (August 3) issue of The Bond Buyer, however (online to subscribers only), editor Kieran Beer says a number of Wall Streeters are now seriously talking up the prospects for the issuance of “bonds backed by gun-settlement payments to municipalities,” on the model of the tobacco-settlement bonds that are expected to be floated soon. The idea behind settlement bonds is to allow the politicians and lawyers — who, according to the settlement’s facial terms, would be entitled to receive a stream of payments spread out over decades — to scarf down billions immediately in exchange for signing over the flow of future payments to the financiers.
Bond Buyer editor Beer is somewhat skeptical about the chances for gun bonds to work in practice. He points out that there’s bound to be far less money in guns than in tobacco, and also doubts that the settling parties “will agree to a healthy trade in gun sales in order to insure a revenue stream for gun-settlement bonds,” which is, he notes, the “kind of deal that was struck with big tobacco” (in itself an observation which virtually none of the backers of the tobacco deal have been willing to admit for the public record). On the gun round, attorney Ken Bond of Squire, Sanders & Dempsey says that for optimal results “[t]here should be capital markets people holding the hands of the litigation people so that settlement payments are picked up at the point of sale” rather than having to be extracted from corporate treasuries — another telltale sign that what is being negotiated here is more akin to a new tax than to a damages settlement (see July 29, below).
In the old days, Wall Street earned its commissions by arranging financing for productive enterprise; now it chases the fast buck by facilitating the expropriation of the industries it once helped build.
August 5 — Spreading to the U.K. “Martin Holdgate, chairman of the Royal Geographical Society, had some harsh things to say about our new litigation or ‘blame’ culture last week. He argued that our children were becoming softies as teachers no longer dared take them on adventure expeditions, for fear of parental lawsuits in the event of an accident. ‘Blame culture and an eagerness for litigation have trickled down to the children themselves,’ he said.” (Auberon Waugh in yesterday’s Daily Telegraph (London); full column).
August 5 — Progress of the Overlawyered.com site. As we complete our fifth week, word continues to spread about this site, and traffic continues to grow. One of the first larger sites to link to us was About.com (formerly The Mining Company), which selected us as a resource in its category for Current Events — Law. Not long afterward we were picked as a resource on FindLaw/LawCrawler, one of the most widely used legal search tools, as part of their Litigation category.
August 4 — No spotlight on me, thanks. As one of the wealthiest and most successful plaintiff’s lawyers ever, Houston’s John O’Quinn (breast implants, tobacco, politics) has been known to call press conferences at which he’s leveled charges highly damaging to his opponents’ reputations, accusing them (for example) of conspiring to “remain silent, conceal or suppress information” about problems with their products and operations. So what happened June 4 when O’Quinn was himself sued by a group of unhappy former breast-implant clients seeking class-action status against him? As Brenda Jeffreys reported in the June 14 Texas Lawyer, O’Quinn “didn’t hesitate before pummeling the class action lawyers with a libel suit” charging the lawyers with “encourag[ing] the news media to disseminate false, slanderous and libelous comments about Plaintiff” — said encouragement consisting of their press release about the lawsuit, and the press conference they were planning that would have explained it further.
Had the lawyers challenging O’Quinn succeeded in holding their press conference, interesting questions might have been aired. Their suit charges that a group of women numbering at least 2,000 were wrongfully overcharged tens of millions of dollars in claimed expenses, and that the firm of O’Quinn and Laminack breached its fiduciary duty to them; it sought a fee forfeiture totaling $580 million. But O’Quinn’s firm rushed to court to ask for a temporary restraining order to prevent the lawyers from holding a press event, and on June 7, while a judge was considering that motion, they agreed to a gag order and called off the conference they’d scheduled for that day. The whole process — from the first public notice of the suit to the gag order in hand — had taken only three days. “O’Quinn’s quick action may have prevented a firestorm of public attention to the class action suit,” writes the Texas Lawyer‘s Jeffreys. It is not recorded whether any of the defendants O’Quinn has sued have ever tried, let alone succeeded in, such a tactic against him.
August 4 — For your own good. Boone County (Ky.) High School, in suburban Cincinnati, has added new clauses to its dress code prohibiting students from wearing clothing that it deems unsafe, such as sandals without back straps that might increase their chance of tripping in a stairway or corridor, yesterday’s Cincinnati Enquirer reports. Also banned are excessive jean lengths, again because students might trip on them. “We’re not trying to take away anyone’s personal freedom,” declared assistant principal Ken Spurlock. Seventeen-year-old Malia Novak said she could live with the new rules though they would mean dropping many favorite pairs of shoes from her school wardrobe, but said, “I think people probably trip because they’re clumsy, not because of their shoes”.
The rules will serve students as good training for life in a broader society whose institutions, whether from sheer paternalism or for fear of being sued, are ever more anxious to suppress behavior by which people might hurt themselves. Boone also bans the carrying of book bags and backpacks unless they are made of mesh or a transparent material, thus following the example of many other schools which treat their students as perpetually under suspicion of being little Dylan-Klebolds-in-training.
August 3 — No need for speed. The state courts in New York have a reputation as among the nation’s slowest, and apparently some local lawyers like things that way. Matt Fleischer writes in the August 2 New York Observer (link now broken) that a plan by the state’s top administrative judge to speed up case resolution is meeting with heated resistance from bar associations and legal practitioners. Some lawyers worry about logistical snafus, but others — well, others just seem to like to keep the option of dragging things out. Managing attorney Poppy Quattlebaum at Cadwalader, Wickersham & Taft warned that faster resolution of cases might be more stressful on parties and result in higher lawyers’ bills. Veteran plaintiff’s attorney Harvey Weitz called the scheme “a needless intrusion into our offices” and pointed to lead-paint suits as the sort of area where he did not necessarily want to move to trial quickly. “You want to take those cases to trial when the injuries begin to manifest themselves; it’s almost the later the better,” he said. (A cynic might see the same process as holding an inventory of client kids, aware that a certain percentage will develop troubles in their lives, such as poor grades or behavioral problems, that can be retrospectively blamed on paint exposure.)
Meeting with equal resistance is a plan by Chief Administrative Judge Jonathan Lippman to eliminate the current case assignment system, which often shuffles cases from judge to judge, in favor of assigning each case from the start to one jurist who will be responsible for it through resolution. “In the federal system,” explains Fordham law professor Matthew Diller, “the litigants always know they have to answer to the same judge, so when they engage in shenanigans, they know they’re going to be right in front of the same judge.” “They prefer judge-shopping, that’s what it’s all about,” Ross Sandler, who directs the Center for New York City Law at New York Law School, told Fleischer.
Court-watchers sometimes use backlog figures as a way of getting a handle on the delay problem, but judges have their own ways of gaming those numbers. “Inventory can be worked down in many wonderful ways,” said Judge Elliot Wilk. “I have between 500 cases and 1,500 cases. I can get my inventory from 1,500 to 500 in a week. How? I trust other judges know this: You mark ‘presumed settled.’ You haven’t heard from the parties, they probably settled but didn’t call.”
August 3 — All have lost, and all must have damages. From the July 20 Texas Lawyer comes this tale (“Strange Days Indeed“, by Janet Elliott) of the state of personal responsibility in today’s courts: Crown Life Insurance Co. of Canada was one of numerous insurance companies tarred by the “vanishing-premium” fiasco of the 1980s, in which a speculative form of insurance predicated on the continuation of high interest rates was pitched to unwary prospects but quickly lost its value when rates plunged instead. Litigation on behalf of 22,000 U.S. policyholders eventually resulted in a $27 million settlement. But a separate suit against Crown was wending its way forward in Texas courts, on behalf of William Casteel, one of its own salesmen who maintained that he, too, was a victim. Why? Because he’d sold so many of the policies in his local community that he became a local pariah when they blew up. His lawyer argued that Casteel “became suicidal and was treated for depression” after friends and fellow churchgoers, upset over his role in sweet-talking them into purchasing the policies, ostracized him. A Texas jury proceeded to order Crown to pay Casteel $36 million, a figure built up from $6 million in mental anguish and $1.5 million in lost income, subject to trebling under the state’s consumer-fraud statute, prejudgment interest and attorneys’ fees.
In other words, one of the salesmen who carried out the alleged deception was judged to deserve more from the parent company than all 22,000 victimized customers rolled together. The verdict did not last long, at least in its full $36 million plenitude: a district judge overrruled it on grounds Casteel had no standing to sue as a victimized insurance “consumer”, an appeals court reinstated it but threw out its emotional-damage component, and the Texas Supreme Court last month ordered an entirely new trial. Much to the frustration of the defendants, however, it left intact the new right of Lone Star State insurance agents to sue for “deceptive practices” they themselves helped implement.
August 2 — Polly in Margaritaville. The St. Petersburg Times reported last month (July 2) that Theodore Nobbe had won acquittal from felony charges that could have sent him to prison for five years. The offense he was charged with? Dunking the head of a friend’s parrot in his tequila-based drink several times, allegedly to see if it would get drunk. The incident took place in August of last year at the local Bombay Bicycle Club when a fellow patron reported she’d seen Nobbe and a friend engaging in the psittacine abuse. Nobbe denied it, and the evidence was not the strongest: no one besides the complainant witnessed the alleged plying of the bird with liquor, but a police officer said the creature’s upper portions seemed damp when he was called to the scene, and a Humane Society officer said that when the bird was later brought into the shelter it ate voraciously, a pattern consistent, she averred, with its having the “drunken munchies”. Animal-rights advocates jammed prosecution switchboards demanding that the book be thrown at Nobbe, a 27-year-old Clearwater resident who’d had no previous problems with the law. Prosecutors said they had to charge him with felony as opposed to misdemeanor animal abuse because that’s what the law specifies for “repeated” acts of abuse — and multiple dunkings counted as that. In recent years, to little organized protest, animal-rights advocates have successfully lobbied for criminal statutes on animal abuse to be made more and more stringent.
August 2 — Our first month; new site improvements. Thanks to the many repeat visitors who’ve brought our total pages-served to more than five thousand in our first month. Two more new features debut today, along with some new navigational and cosmetic odds-and-ends. First, there’s an easy-to-use form on the left side of the front page which lets you recommend this site to a friend. Just enter your name, your email and your friend’s, press “send”, and a message is on its way. The form works not only for general recommending of the site as a whole to people who might enjoy it, but also for calling your friends’ attention to a particular entry — just use the added-comments box to say, “Check out today’s parrot story”, or “I told you you couldn’t make me mow the lawn — see July 26”.
In addition, we’ve now put up a page with an explanation of Overlawyered.com‘s format to help newcomers figure out more quickly how to get the most out of the site, paired with some more technical notes for those who want to cite us, link to us, or link to us with graphics. Repeat visitors may also notice that the site now incorporates a pink-rectangle-with-black-letters logo button which usually when pressed will return you to the top page. Real devotees may also notice other differences in the “navigational bar” to the left of the main text, which has been streamlined for some pages and made more detailed for others.
July 31-August 1 — Weekend reading. Pixels to take to the beach or cottage:
* The Boston Globe‘s July 26 article (link now dead) on how the practice of asking people to sign liability release forms is “creeping into nearly every aspect of American life”, even things like the modern equivalent of an old-fashioned New England barn-raising. Reporter Bruce Mohl quotes lawyers who’d like to ban many such liability disclaimers or say that courts should just not enforce them (translation: how dare people try to escape from the system we’ve made for them?).
* Jonathan Rauch’s new National Journal column (July 23) based on his interviews with a forensic psychiatrist, a specialty in much demand these days thanks in part to all the harassment and discrimination suits in which “your damages go way up if you can show emotional distress, incapacitating trauma, or other psychological injury”. After hearing a series of case histories, Rauch concludes that “a lot of workplace disputes that belong in the sandbox are winding up in the courts”.
* LawNewsNet‘s June 17 account of how the Utah law firm of Snow, Nuffer, Engstrom & Drake went to the execution sale of a former client — the forced sale of his assets to satisfy creditors — and bought up his right to sue it for legal malpractice (a judge later struck down the deal).
July 31-August 1 — Personal hell. How common are false charges of sexual abuse, and how often do they succeed in ruining the lives of innocent targets? Two powerful items from the July 26 New York Post leave you wondering. An editorial (alternate URL) tells of New York state psychologist Mark Komlosi, charged by a malicious co-worker with sexually abusing his mentally retarded patients. The story eventually fell apart, but Komlosi went through a personal hell in which the ruin of his career — he wound up putting in time as a doorman and a salesman — was only the start. In an unrelated column, the Post‘s Steve Dunleavy casts fresh doubt (alternate URL) on the credibility of the accuser in 1998’s famous “cyber-sex” rape case, where defendant Oliver Jovanovic was convicted and given 15 years to life; he’s served a little more than a year so far. (update Dec. 23: appeals court overturns Jovanovic’s conviction).
August 31 — Death by mainstreaming. Had safety been the primary concern, Joshua Smurphat of Sunnyvale, Calif., 12 years old and mentally retarded, would probably not have been allowed onto the Drop Zone Stunt Tower ride from which he fell to his death August 22 at the Great America amusement park in Santa Clara. Mechanical failure has been ruled out, and ride designers say that once patrons have been strapped in, it’s physically impossible for them to fall out — provided they obey instructions to remain in their original posture. Even if Joshua’s harness was insecurely fastened, a possibility investigators are still checking into, an ordinary 12-year-old would be apt to notice the problem, but as Jeffrey Lewis, a director of the local United Cerebral Palsy organization, cautions: “in many cases, a consequence of mental retardation is the lack of danger awareness.”
However, both the federal Americans with Disabilities Act (ADA) and California disabled-rights law prohibit amusement parks from “discriminating” against persons with mental incapacities by turning them away from rides, or attaching special preconditions to their participation, so long as they meet otherwise applicable requirements such as height and chronological age. “Certainly they couldn’t say that somebody who had a cognitive disability couldn’t participate in a ride,” Sacramento disabled-rights attorney Eric Gelber told the San Jose Mercury-News, apparently well pleased with that result. “We take our obligation to accommodate all of our guests, regardless of disability, very seriously,” said a park spokesman, in what might serve as an epitaph for the unfortunate young man. (Aug. 26; related follow-up, Aug. 28; links now dead).
August 31 — New Overlawyered.com page: Unsafe on any docket. “Crashworthiness” cases have made big headlines this summer, with two California juries voting awards of $5 billion against GM (Chevy Malibu) and $290 million against Ford (Bronco) and the Massachusetts high court upholding a $19.2 million verdict against Chrysler for a Plymouth minivan accident that the plaintiffs blamed on brake locking. We’ve accordingly devoted the ninth in our series of topical surveys to the area, assembling some historical background and links about the Audi 5000 and its supposed penchant for sudden acceleration, the 1993 episode in which Dateline NBC producers got caught practicing what you might call sure-fire journalism, and similar controversies, not neglecting the case that litigation advocates would much prefer to talk about, that of the Ford Pinto.
August 31 — The “we sue Microsoft” business plan. A Bridgeport, Connecticut jury on July 17 returned a verdict in favor of Microsoft in a private antitrust suit brought by a small company named Bristol Technologies. Interviews afterward indicated that jurors had been angered by internal Bristol emails and memos revealing the smaller company’s not-exactly-reluctant attitude toward litigation. A May 1998 message from a company director to Bristol chief executive Keith Blackwell referred to the approaching lawsuit as “the ‘We sue Microsoft for money’ business plan.” Meanwhile, “[a] memo from a Manhattan public relations firm hired by Bristol described a $75,000-plus ‘David v. Goliath Strategic Communications Game Plan’ to attack Microsoft in the press,” reports Karen Donovan in the August 2 National Law Journal. “Then came an e-mail from Keith’s wife, Jean, days after the suit was filed in August. Its subject: ‘Extend the Story, Increase the Pain.'” “The whole scenario was kind of disgusting,” said juror Robert LaBella of Stamford (followup — Thomas Scheffey, “Microsoft, Bristol and Money”, Connecticut Law Tribune, Aug. 23). Update Nov. 30, 2000: judge increases verdict to $1 million, Bristol requests new trial.
August 30 — Do as we say (I). Latest employer to face a big class action under the antediluvian Fair Labor Standards Act for not paying overtime to some of its highly responsible employees (lawyers, in this case): the U.S. Department of Justice. (San Jose Mercury-News, Aug. 25; AP/Mpls. Star-Tribune, Aug. 26). Don’t miss the Detroit News editorial (Aug. 28). Update Jul. 18, 2004: court rejects case.
August 30 — Do as we say (II): gun-suit hypocrisy in Detroit. The Motor City’s police chief confirmed last week that just before suing private gun makers for allegedly not doing enough to curb distribution of their wares, the city itself sold an astounding 13-plus tons of used police weapons to a private dealer. That puts Detroit ahead of even New Orleans and Boston (see Aug. 25 entry, below), in the tonnage and perhaps also the hypocrisy competition when it comes to weapons distribution. Should the city be liable each time one of those surplus guns gets used for a criminal or suicidal purpose? (Detroit Free Press, Aug. 25).
Since its filing, letters to the editor from local residents have flayed Detroit’s gun suit for “holding an innocent party responsible for someone else’s criminal activity” and have suggested that, if the city is going to endorse that sort of logic, “victims of crime in the city of Detroit should file suit against the city for its failure to protect those in the city” (Free Press letters, Jan. 8, May 1). More than one letter-writer has suggested, by way of trying to come up with a reduction to absurdity, that the logical culmination would be to hold Detroit’s own hometown industry, the automakers, liable for the activities of drunk drivers. But as July’s Chevy Malibu verdict shows (see August 27, below, and July 10) that’s exactly what the trial lawyers are already doing with considerable success. It’s not easy to think up a reduction to absurdity of our litigation system that isn’t already well on its way to being implemented in all seriousness.
August 30 — “Tort reform spurs lawsuit filings”. Alabama courthouses work overtime as lawyers file suits in droves to beat the deadline for the application of legislated limits to punitive damages and forum-shopping (Huntsville Times, Aug. 24).
August 30 — Taco Bell not liable for Ganges purification pilgrimage. A judge in Lancaster County, Nebraska has declined to order the Taco Bell restaurant chain to pay for trips to India for Siva Rama Krishna Valluru and his wife, Sailaja. Devout vegetarians as part of their practice of Hinduism, the couple was dismayed to discover that a rice side dish they had been eating contained meat. They had argued that swallowing flesh constituted a sin the expiation of which required them to bathe in the Ganges River as part of a purification ritual, but Judge Jean Lovell said such expenses did not count as reasonably foreseeable (Lincoln, Neb. Journal-Star, Aug. 27; AP/Bergen County, N.J. Record, Aug. 28).
August 30 — “Scholar’s shift in thinking angers liberals”. Harvard’s Laurence Tribe upsets colleagues by concluding that the Constitution’s Second Amendment may not, after all, be a meaningless inkblot. Instead he “posits that it includes an individual right, ‘admittedly of uncertain scope,’ to ‘possess and use firearms in the defense of themselves and their homes.” Heresy! (Tony Mauro, USA Today, Aug. 27).
August 28-29 — Speech police go after opinion articles, editorial cartoons. Columnist Stephen Chapman writes that the faculty union at Daley College was recently hauled before the city of Chicago’s Commission on Human Relations, which has the power to levy fines and issue injunctions. Its sin? Publishing an article critical of affirmative action in its newsletter. The college’s Board of Trustees, which filed the complaint, accused the author of the offending piece, Prof. James Bell, of jeopardizing “the rights of students and staff at Daley to equal access” by “mak[ing] students uncomfortable in an institution where comfort is essential for learning.” In June, after two years, the commission finally dismissed the complaint on the grounds that Daley College was not a “public accommodation”. Also in June, however, Chapman reports, the Department of Human Rights in St. Paul, Minn., filed a complaint against the local newspaper accusing it of racial discrimination for having run an editorial cartoon on college athletics that offended many local blacks. After a public outcry, it backed off (St. Paul Pioneer Press, June 10; AP/Freedom Forum, Jun. 23). Chapman quotes UCLA law professor Eugene Volokh warning that such complaints are only too logical a consequence of today’s “hostile-environment” law, a topic on which Volokh maintains a highly informative website. (column link now dead)
August 28-29 — Weekend reading. Pixels to take out on the canoe or Airstream:
* What goes around comes around: the estate of the famously litigious inventor Jerome Lemelson gets hit with a suit from his former employer saying that it actually owns the rights to many of his patents. Critics accused the late Mr. Lemelson of specializing in “submarine” patents whose applications would lie dormant in the Patent Office for years, then suddenly surface when other companies had made progress on the technology in question. (Victoria Slind-Flor, National Law Journal, August 24; see also lemelsonpatents.com, a website put up by lawyers who’ve tangled with the Lemelson estate.)
* “Why, why, would the American Bar Association honor a scandalous leader who has just been found in contempt of court, and whose disbarment is being considered even now?” Or Webster Hubbell, convicted of stealing from his clients? “What kind of advertisement for the profession of law is that?…[Y]ou can’t embarrass an honest profession. Seduced by the glitz of high office and maybe its own partisan prejudices, the bar got what it deserved” — Paul Greenberg, Arkansas Democrat-Gazette (full column). Meanwhile, Judge Richard Posner’s An Affair of State: The Investigation, Impeachment, and Trial of President Clinton sounds like the book to read in the coming month, to judge from reviews by Stuart Taylor Jr. (National Journal) and James Stewart (New York Observer).
* Time for social conservatives to get off their coercive, government-infatuated Culture War kick: “The problem with cultural conservatism is that it despairs not of culture, but humanity. Its votaries consider us all a bunch of suggestible imbeciles, and they view capitalism as a scam…As it turns out, though, people are pretty reasonable….We’re not in danger of ‘an accelerating descent into barbarism and the destruction, sooner or later, of free society itself.’ …Censorship merely would bollix things up by inviting censors to abuse power and everyone else to become dependent and lazy.” — columnist and Fox News host Tony Snow (link now dead).
August 27 — L.A. judge cuts award against GM to $1.2 billion. From the automaker’s motion for a new trial, we finally learn what the other driver’s name was (Moreno), how drunk he was (“.20 several hours later”), and what happened after the plaintiff’s lawyers succeeded in getting the judge to exclude from the trial any mention of Moreno’s intoxication or the fact that he’d been convicted and imprisoned for felony drunk driving over this crash (“Having moved to exclude it, plaintiffs told the jury, falsely, that his guilt consisted of ‘five seconds of bad judgment’,” whereupon the jury allocated to Moreno only 5 percent of the guilt for the injuries) (GM statement) (earlier Overlawyered.com commentary)(auto-safety litigation generally).
Plaintiffs also successfully fought to exclude evidence that the federal government’s real-world highway statistics show the Malibu among the safest cars of its time in crashes, and that testing had raised safety concerns about the alternate placement of the gas tank sought by the plaintiffs. Reuters now quotes GM as saying that 98 percent of American cars in the 1970s had their gas tanks in the same position as the Malibu’s. (“Judge Tells GM To Pay Record $1.2 Bln Liability”, link now dead). The company also says (Wall Street Journal news report today by Frederic Biddle, online subscribers only) that “there was absolutely no difference in cost” between the two designs.
While Reuters (link now dead) fairly summarizes many of the above facts, you’re in trouble if your local paper relies on the Associated Press. AP correspondent David Germain’s dispatches make it hard to figure out why GM thinks it has a case, merely depicting the automaker as trying to “be let off the hook” (link now dead) and quoting plaintiff’s attorney Brian Panish as saying, of the gas tanks, that “[t]he only people in the whole world who think they’re safe are General Motors and their lawyers” (link now dead), a temptingly checkable assertion left unchecked. Incidentally, Yahoo features Overlawyered.com‘s July 10 commentary as a resource in its Full Coverage feature on the case.
August 27 — Best little forum-shopping in Texas. Two more stories illustrate why lawyers appreciate the Lone Star State for a kind of shopping not found at Neiman-Marcus. Mark Ballard in the National Law Journal relates how plaintiffs have brought a long succession of high-stakes cases to sleepy Texarkana, Texas “for only one reason: Judge David Folsom. The 52-year-old Clinton appointee is the only federal judge in Texarkana. Thus, every suit filed here goes before him.” Find a local resident or institution to stand in as your named plaintiff, and you’re home free: Folsom says he can’t recall ever granting a change of venue, though they’re often requested by defendants who wonder why they’ve been dragged to rural northeast Texas when neither they nor the subject matter of the litigation have any particular connection to that part of the world. An old pal of Bill Clinton’s from Arkansas days, Folsom presided over the $17.3 billion settlement of Texas’s Medicaid class action against the tobacco industry. That case certainly pepped up the local economy: the Texarkana Chamber of Commerce estimates that tobacco lawyers and their staffs spent $6.1 million during the proceedings. (Aug. 26).
Meanwhile, lawyers have obtained a $30 million settlement in a Mexican bus-crash case, much more than what such a case would have brought if filed in Mexico, because they were able to find a Texas judge willing to impose not only a Texas forum but also Texas law. (To get some idea of the asymmetries involved, imagine a Mexican court applying that country’s law to a Texas accident.) AP quotes the plaintiff’s lawyer as openly boasting of having foiled the Mexican legal system’s duly considered policy of not handing out money as readily as ours does. The presumption of those other countries, thinking they can apply their law to accidents on their roads! (AP/Washington Post, Aug. 16; Texas Lawyer, Aug. 23).
August 27 — Company to settle 36,000-plus Norplant suits. The Dallas Morning News reports that American Home Products has agreed to pay what could exceed $50 million to buy partial repose (some suits will remain) from lawyers suing it over the silicone-implant contraceptive. The per-claimant sums aren’t very large ($1,500), but nuisance value multiplied by 36,000 gets into substantial money. For more details, see our August 11 commentary and today’s lead editorial in the Wall Street Journal (online to subscribers only). (Dallas Morning News, Aug. 26; Yahoo/Reuters).
August 26 — Playing rough in Alabama. Last week a Mobile grand jury indicted former Alabama Trial Lawyers Association president Garve Ivey Jr., of Jasper, and a private investigator who has worked with Ivey, Wes Chappell, on charges of bribery, witness tampering and criminal defamation. The charges arise from an episode last year in which a former prostitute named Melissa Myers stepped forward to accuse Republican lieutenant governor candidate Steve Windom of raping her. Windom was elected anyway, Myers’s story soon fell apart, and she began cooperating with authorities looking into the question of whether she had been backed by others in making the allegations. Windom had come under heavy fire from organized trial lawyers for having taken a leading role in support of tort reform; in Alabama, as in other Southern states, the lieutenant governor’s position is a powerful one in blocking or approving legislation. Ivey and Chappell deny the charges and say they look forward to their day in court, and Ivey has sued Windom personally as well: “We are filing our lawsuit in Walker County, my home, not Mobile.” (“Ivey refuses to testify before grand jury”, AP/Daily Mountain Eagle (Jasper, Al.), Oct. 21, 1998; John M. Sandlin, “Ivey sues Windom, indictment reported in Mobile”, Daily Mountain Eagle, Aug. 17; AP/Washington Post, Aug. 19) (see update Sept. 1). Update: a jury in June 2000 acquitted Chappell, acquitted Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor counts of witness tampering and criminal defamation; appeal planned (see Aug. 31, 2000). Further update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
August 26 — Rolling the dice. With Ralph Nader on the warpath against the gambling industry, can the lawsuits be far behind? Wait a minute — here they are! David Rovella in the August 2 National Law Journal reports that class action lawyers in Alabama and Wisconsin have filed suit against credit card companies for allowing their customers to run up debts at offshore Internet casinos. David T. Maple of Birmingham, Ala. lost $49.95 at one such game site but stands to recover a lot more than that as “name plaintiff”, which might mean he is off to a profitable betting career after all. Lawyers say they are hoping to recover billions of dollars in refunds, interest “and even damages” (full story). In a policy analysis for the Cato Institute, Chapman University School of Law assistant professor Tom W. Bell calls Internet gambling “Popular, Inexorable, and (Eventually) Legal“.
August 26 — New feature debuts on Overlawyered.com site. Today marks the launch of our fledgling library of online articles, originally published elsewhere and now reprinted by permission of their authors, discussing some of the problems of the U.S. legal system. The opening line-up includes 28 articles by Michael Fumento, Peter Huber, Jonathan Rauch and Overlawyered.com editor Walter Olson on topics ranging from employment law to medical malpractice litigation, from toxic-tort scares to free speech. We expect to add more authors and articles in the weeks ahead.
August 25 — Gun-suit hypocrisy, Boston style. Last week officials admitted that they failed to follow their own procedures when they disposed of surplus police guns with no strings attached, which leaves the city resembling a Rum-denouncing cleric caught bootlegging on the side, given that it’s suing gun makers for not making an effort to control what happened after guns left their hands (see July 14). “Somebody dropped the ball,” acknowledged Police Commissioner Paul Evans. Why not just end the embarrassment by dropping the suit? (Boston Globe, Aug. 17; link now dead)
August 25 — Calif. state bar improperly spent dues on politicking. The Pacific Legal Foundation had brought suit on behalf of 40 members of the bar in the Golden State. In the 1990 case of Keller v. State Bar, the U.S. Supreme Court unanimously ruled that state bars with compulsory membership must offer a refund to members of moneys spent on politicking to which they object. The California bar proceeded to announce that of the $450.00 dues it charged in 1989, a bare $3.00 was spent on ideological and political activities, a figure it arrived at by designating much of its Washington and Sacramento legislative effort as merely one of “advising” lawmakers which bills to pass. We don’t think so, rules Sacramento County superior court judge Morrison England Jr. after eight years of litigation (AP/Freedom Forum; Aug. 20).
August 25 — Lawyers grabbing too much of Swiss bank settlement, charge Holocaust survivors. Yes, it’s one of the sadder headlines of 1999, and no, it’s not one of the more surprising to many who’ve followed the issue. “Gizella Weisshaus, one of the first to sue the banks, said she no longer wanted to be associated with the lawsuit because it would leave too little money for survivors.” (AP: Washington Post, CNN (links now dead)).
August 25 — “Employee lawsuits increasing”. Survey of 353 companies by Society for Human Resource Management and law firm of Jackson Lewis finds slightly more than half have faced employment-related lawsuits, with nine of ten suits coming from former employees. “Another 37 percent of the companies responding to the survey were sued by a current employee, while 8 percent were sued by unsuccessful candidates for employment.” Partner George Wilkins of Cincinnati’s Dinsmore & Shohl says labor and employment is the fastest growing area at his firm. (John Eckberg, Cincinnati Enquirer, August 22; SHRM June 27 press release)
August 24 — The dream verdict. On July 12, three days after a Los Angeles jury voted $5 billion against GM in the Malibu case, a jury in Ceres, Ca. voted $290 million against Ford in a case where several members of Juan Romo’s family had been killed in a rollover accident in their Ford Bronco. Ford’s motion for a new trial, filed last week, sheds light on how such cases are tried in today’s American courtroom.
Plaintiff’s counsel had railed against the “giant,” “wealthy” Ford with its “lawyers back east in Dearborn.” (“I talked about this case was about…corporate greed and arrogance…It’s also about this. It’s about Mrs. Romo’s purse….She didn’t have furniture for crying out loud, and she’s giving money to the church and she’s putting it [in her purse] to provide for the education of her children.” Damages? “You’ve got to say a number that gets on the front page of every newspaper in the country.”
How to deal with the inconvenient circumstance that the Bronco design more than exceeded the standards set by the National Highway Traffic Safety Administration? Keep hammering away at the idea that federal standard-setting (presumably in contrast to jury persuasion) is a “political” process (“that political report called the Federal Register”; “NHTSA has…political appointees”; “You got a reading from a Federal Register as it goes out to the politicians.”)
California law allows affidavits to be taken from jurors after a verdict. According to Ford’s motion, these affidavits revealed that one of the jurors acknowledged she had prejudged the case and told fellow jurors they did not have to follow legal instructions because the case allowed them to “save the babies”. Of one attorney, she said he “really was trying to do something good, and that what he said should be considered as evidence.” And, several jurors testified, the same juror told them at great length about a gruesomely detailed dream she’d had — which she described, not without mystical overtones, as an “omen” — in which a Bronco repeatedly rolled over and killed all the jurors’ children, while the company’s line-up of attorneys and witnesses — armed with guns, no less — “stood by taunting the jurors by chanting ‘Where’s the proof, where’s the proof?’”
The juror affidavits also suggested that the panel was strongly influenced by crash exposés that had aired on “60 Minutes” and similar programs, attacking other Ford models that trial lawyers were suing over, which a second juror saw as proving that Ford had acted in bad faith in such cases. One of these shows, watched by more than one juror, was aired by CBS on May 19, only weeks before the verdict, and included material prejudicial to Ford that the court had excluded from evidence in the Romo case. The apparent influence of the TV coverage helps explain why trial lawyers have gone to such extraordinary lengths over the years, behind the scenes, to shape the coverage on such shows.
After the trial, Ford says, while it was in the process of interviewing jurors to gather affidavits in connection with this new trial motion, plaintiff’s lawyer Larry Drivon was thoughtful enough to send the jurors a free gift, consisting of his own book inveighing against big business (“The Civil War on Consumer Rights“), which happened to feature a whole chapter devoted to attacking none other than the Ford Motor Company. Included was a note and personal inscription to the jurors: “for all us who care.” Update Aug. 27, 2002: appeals court reinstates verdict, Ford seeks review by California high court. More developments; further update Nov. 26, 2003 (appeals court reduces verdict in light of U.S. Supreme Court guidance).
August 24 — Beyond the hired-gun syndrome. Good op-ed in Sunday’s (8/22) Washington Post by David L. Faigman of Hastings College of the Law discussing the Court Appointed Scientific Experts project of the American Association for the Advancement of Science (AAAS). Faigman’s book “Legal Alchemy: The Use and Misuse of Science in the Law” will be published in October by W.H. Freeman & Co.
August 23 — Fertilizer manufacturers not liable for World Trade Center bombing. The Third Circuit U.S. Court of Appeals has upheld the dismissal of a suit by the Port Authority of New York and New Jersey, which had demanded that manufacturers be made to pay damages for the 1993 terrorist bombing of the twin Manhattan towers on the grounds that the misuse of their wares to make fertilizer-and-fuel-oil bombs was “objectively foreseeable”. The appeals court found the lower court had correctly ruled that the manufacturers’ conduct could never be the “proximate cause” of the bombing: “The terrorists’ actions were superseding and intervening events breaking the chain of causation,” writes Judge Jane Roth. If applied consistently, such logic could be helpful to other manufacturers sued over criminal misuse of their products, such as gun makers. Also rejected was a theory that the fertilizer companies were negligent for not having instituted “know-your-customer” controls on buyers of their product — again, an issue that finds its parallel in the gun litigation. (Legal Intelligencer, Aug. 19) A press communiqué (link now dead) from the clearly bewildered government of Norway describes how two of that country’s leading industrial companies became defendants in the World Trade Center litigation, referring to “the Americans’ so-called product liability law”.
August 23 — You may already not be a winner. A Canadian court has turned away prisoner Allen Crawshaw’s lawsuit asking $10,000 of Corrections Canada for failing to mail his entry last year to the Reader’s Digest sweepstakes, which had a first prize of $1.4 million. Prison officials conceded they should have mailed the entry but denied that the loss of a chance of winning should entitle him to damages: “Did you ever see the odds of those?” said spokesman Dennis Finlay. Crawshaw, a former shop steward for the United Food and Commercial Workers at a British Columbia food plant, was convicted in 1994 of killing his boss after being angered by a one-day suspension over heated comments he’d made criticizing management; Crawshaw was “known [locally] as a peace activist”. (National Post, Aug. 11)
August 23 — Political Site of the Day. We’re pleased to announce that Overlawyered.com is today’s Political Site of the Day, an award service that has been picking 
daily sites for more than four years, practically as long as there’s been an Internet. A stroll through PSoD’s library of past sites is a good way to appreciate the spectacular diversity of the Net: within the space of two weeks we ran into the home sites of the Serbian/Yugoslavian royal family, PostalWatch (a watchdog group on behalf of those regulated by the Postal Service), How To Win a High School Election (“It doesn’t matter whether you’re popular or not…”), and Libertarian Rock, which will send you free stickers to protest curfew laws.
August 23 — “Beating up on ‘deadbeat dads’.” “Those who decry judicial tyranny and family destruction should pay more attention to family courts, for they are the arm of the state that routinely reaches farthest into the private lives of individuals and families,” notes Howard University political scientist Stephen Baskerville in an American Spectator article sharply correcting the usual let’s-lynch-’em view of “deadbeat dads”. The night after Bobby Sherrill came home from spending five months as an Iraqi hostage, the Washington Times reported, the sheriff was there to arrest him for not paying child support during his captivity. A Texas janitor wrongfully convicted of murder and then exonerated after ten years on death row was presented on release with a $50,000 bill for child support he didn’t pay while in prison.
Officials push through ever-more-punitive regulations against delinquent pops, then hop over to for-profit private collection firms, hired by their former agencies, that grow fat on the resulting business. It’s hard to go along with Baskerville in dubbing the deadbeat-dads problem a mere “myth”, but hard not to join him in worrying about “mass incarcerations without trial, charge, or counsel; an apparat that has systematized the invasion of private homes and the confiscation of children to a bureaucratic routine; [and] political leaders [who use] their public office as a platform to vilify private citizens who have been convicted of nothing and who have no opportunity to reply” (full story).
August 21-22 — The Marie Antoinette school of public relations. The June issue of George featured a lavish photo spread (“Puff Daddies”) of six lawyers who “have raked in more than $5 billion for their firms from tobacco litigation“. The backdrops weren’t the usual stuffy law libraries, either. They included the racing boat, conspicuously labeled “Gunsmoke”, of Pascagoula’s Richard Scruggs, brother-in-law of Senate majority leader Trent Lott (more than $1 billion in fees for representing Mississippi and other states); the twenty-horse equestrian estate of Charleston’s Joseph Rice (somewhere between $1 billion and $10 billion); the private putting green on the Pensacola estate of Fred Levin ($325 million); a foundation endowed by politically ambitious Michael Ciresi of Minnesota ($440 million; “some of the fees are excessive”, he cheerfully agrees); and the opulent bathtub where South Florida’s Robert Montgomery ($678 million), posed, fully clothed, under what the Palm Beach Post called “English artist David Jagger’s painting of a naked woman”. (Montgomery describes as “outrageous” Florida’s move to accept an $11.3 billion settlement without forking over a full one-quarter of it to lawyers as agreed). An ostensibly less material note was struck by Seattle’s Steve Berman (roughly $2 billion), who previously made it big filing shareholder class actions, and who says, “I got the notion in the ’60s that you can protest by growing your hair long or you can get trained in the methods of the establishment and use their own tools to beat them. There’s nothing better than beating them at their own game.”
Addressing an Americans for Tax Reform audience earlier this summer, Wall Street Journal editorialist John Fund said he marveled at the willingness of the legal tycoons to rub their critics’ noses in their taxpayer-leveraged success by cooperating in such displays. “Even the robber barons in the Nineteenth Century knew better than to do it that way. Is it that they don’t have anyone giving them p.r. advice? Or do they just think at this point they’re invulnerable?”
August 21-22 — Weekend reading. Pixels to take to the cabin or island:
* Next on the identity-politics agenda: “Partly due to the flurry of judicial and legislative activity pursuant to the Americans With Disabilities Act of 1990, disability studies, once an arcane field of literary theory, has begun to attract attention from both the media and the academy,” reports Norah Vincent in the August 18 Salon. Brown University professor Carol Poore asserts that “disability is actually preferable to ability in that able-bodiedness ‘is the precondition for being a tool of the ruling class.'” Some in the disabilities movement “maintain that, even if they were presented with a cure for their disabilities, they wouldn’t take it” (full story).
* Overlawyered.com‘s editor devotes his latest Reason column to the legal background of the Supreme Court’s Davis v. Monroe decision in May, the one that allowed schools and universities to be sued for not remedying “student-on-student” harassment. No federal law in fact creates a right to sue over sexual harassment in education; it’s an “implied private right of action”, which means basically that the courts get to make it up as they go along. (“Title IX’s Invisible Ink“, August/September).
* From the north comes word that the Canadian Broadcasting Standards Council has declined to take action against Global Television for its July 1998 broadcast of a 45-year-old Bugs Bunny cartoon. A feminist complainant had hauled Global before the tribunal over an episode of the “Bugs Bunny and Tweety” show, alleging that the wascally wabbit had uttered remarks demeaning to women (National Post, Fox News/Reuters, Boston Globe (links now dead))
August 20 — The long march through the courtrooms. From Counterpunch.org, the webzine of left-wingers Alexander Cockburn and Jeffrey St. Clair: “Hardly had she [Hillary Rodham] raised her foot to step over the threshold of radicalism than she turned back. She declined to go with the SNCC [Student Non-Violent Coordinating Committee], turned down an offer to work with Saul Alinsky as a community organizer in Chicago. Anderson quotes her political science prof at Wellesley, Alan Schecter, as saying that by the late 1960s his pupil had decided that the best radical strategy was to ‘”use the legal system” as an agent of change.’ She wasn’t alone in that calculation. The long march of the left through the courtrooms was under way: the world would become a better place, courtesy of courtroom briefs, complaints and class action suits.
“And so what we have seen, across the last three decades, is the left vanishing into the quicksands of regulation. All society’s problems could be fixed by a statute, a rule, a waiver, a program. Much of the antiwar left vanished into the consumer movement, the environmental movement and legal fixitry. The mass movement died and litigation — often successful — flourished amid the ruins” (“The First Lady Syndrome”, August 11 — full story)
August 20 — “Three insurers sued for $100 million”. $300 million, actually, since a Prince George’s County, Maryland court is being asked to mulct Allstate, GEICO and State Farm nine digits’ worth apiece for the offense of applying managed-care-style guidelines to limit policyholders’ personal medical claims after auto mishaps. This AP story commits a few of the usual journalistic sins: 1) it signals no awareness that the dollar demands in such cases can be arbitrarily picked for shock/news value, our legal system putting no price tag on exaggeration; 2) it ignores the probable role of the lawyers as parties-in-interest (though it does report that many of the individual policyholders’ claims are for less than $100); 3) it finesses the purely circular process by which anyone deems such filings newsworthy (the seven named customers would normally have had trouble getting even back-page local coverage, but instead scored big national headlines. Why? Because their lawyers asserted a right to speak for a large class of policyholders nationwide. Why would a court accord these particular lawyers that right? Well, they did get all this national publicity…) Best detail: “All of the plaintiffs have maintained their coverage with the companies despite the disputes.” Mad enough to sue, in other words, but not mad enough to switch companies (Yahoo/AP; link now dead).
August 20 — New Overlawyered.com pages: tobacco tycoons, litigation in the workplace. Two more newsworthy topics get their own subpages, bringing the number of topical pages to eight. Seven weeks old, this site has now served more than 15,000 pages, with our traffic rate nearly doubling this month from last. Thanks!
August 19 — Plus extra damages for having argued with us. In yesterday’s Washington Post, David Ignatius calls global warming a potential “plaintiff’s lawyer’s dream”, quoting former deputy energy secretary Lynn Coleman as saying that if doomsayers’ predictions prove accurate, lawyers could file trillions of dollars in claims against utilities, oil companies and others for weather-related effects. Significantly, Ignatius suggests (“the best analogy may be tobacco”) that future juries will be angered by some companies’ current boldness in debating the issue by way of counter-studies and newspaper ads. Apparently one “lesson of tobacco” is that it’s henceforth going to count as an independently punishable offense to defend one’s business in public controversy (link now dead).
August 19 — Click here to sue! Seattle-based Bendich, Stobaugh and Strong, P.C. specializes in employee class actions arguing that temp, freelance and independent-contractor employees were really “misclassified” and deserve retroactive raises and benefits, no matter what the two sides may have thought they were bargaining for at the time. Taking advantage of the Web, the firm makes it really easy to join its suits against Microsoft (see also Jan. 11, 2000 commentary), Arco, King County (Seattle) and Los Angeles County.
August 19 — NAACP’s “ludicrous” anti-gun suit. Ninety percent of murders of blacks are committed by other blacks, David Horowitz observes, but now litigation offers a handy way to blame the toll on distant white-owned gunmakers, advancing “a fantasy in which African-Americans are no longer responsible for anything negative they do, even to themselves”. (Salon, August 16 — full column).
August 19 — Another scare starts to fizzle. “For three years now, organizations ranging from environmental groups to Consumer Reports have been proclaiming the existence of a deadly wave of endocrine disrupters that cause cancer, infertility, and personality abnormalities,” writes Gregg Easterbrook in the August 30 New Republic. Now the National Academy of Sciences has studied the issue of environmental residues of these synthetic hormones and found much less than meets the eye in the scare reports. (full article). Score another one for skeptics Mike Fumento and Ron Bailey, as well as for the New York Times‘s much-hatcheted Gina Kolata, whose refusal to hype the endocrine-disrupter scare was a chief count in the campaign against her typified by Mark Dowie’s article in the July 6, 1998 Nation.
August 18 — Undislodgeable educators. Tenure laws make it hard in many states to remove even a badly underperforming teacher from the classroom, but hopes for reform rose when Bob Chase became president of the National Education Association with an agenda that included “peer review” methods like those pioneered by NEA’s Columbus, Ohio affiliate. “The goal of peer review is to help people succeed,” Chase has said. “But it could also speed up the process of dismissing a teacher who is not successful….We know that it sometimes takes five or six years to get rid of a teacher, and that is too long.”
But can peer review work if it’s just an overlay onto, rather than a substitute for, the laggard teacher’s right to challenge a dismissal by every current legal means? That question is posed by the case of Ivy Featherstone, a 25-year-veteran teacher in the Columbus schools whom administrators often observed reading the paper in class with his feet up on the desk while students snoozed. Two years of intensively applied peer review, followed by 16 days of hearings, led to the conclusion that Featherstone should be given a “negative release”, and he was suspended without pay. Duration of the process up to that point: three years, and it turned out things were just getting started. Featherstone was soon off to federal court to charge that the dismissal was racially discriminatory, and it’s taken four more years for a judge to dismiss that case — not on the merits, but on the grounds that Featherstone failed to take the procedural steps needed to preserve his rights to sue. (If he had, presumably, the case might still be in progress). The case gets written up in this week’s communiqué (week of August 16) from Mike Antonucci’s invaluable Education Intelligence Agency; subscriptions are free, and highly recommended to anyone with an interest in how schools work.
August 18 — Ohio case fallout. In a blistering editorial (no longer online), the Columbus Dispatch calls the state high court’s striking down of tort reform (see item for August 17, below) “an act of arrogance and an affront to the doctrine of separation of powers”. Meanwhile, furious business groups vow to make the next set of judicial elections a referendum on the court’s activism. Though with a nominal Republican majority, “the current seven-member tribunal has gained a reputation as a ‘plaintiffs’ court.’ Two Republican justices, Andrew Douglas and Paul E. Pfeifer, have become frequent swing voters with decisions endearing them to labor unions and trial lawyers.” (Joe Hallett, Columbus Dispatch, Aug. 17).
August 18 — “Dieters still want fen-phen”. The hazards of the drug are frightening; so are those of obesity, and Cincinnati Enquirer reporter Susan Vela found many local residents wishing the system still permitted them a choice. “It calmed the monster in my body,” said one woman who was able to get down to 136 on fen-phen but has gone up to 210 without it. “Who do I sue to get it back on the market? I’m suffering without it.” (Aug. 16; full story). An August 14 Washington Post editorial calls the recent Texas $23 million award against the drug’s manufacturer “a terrible signal, almost guaranteed to bring thousands more plaintiffs to court on flimsy evidence”.
August 17 — Ohio high court says forget tort reform; should unionists be cheering? By a one-vote margin, the Ohio Supreme Court basically notifies the state’s lawmakers that it won’t tolerate any attempts by them to say how the state’s liability law should operate. “Ohio legislators might as well shut up shop and go home,” said Linda Woggon of the Ohio Chamber of Commerce. The decision is the 90th in which a state court has invalidated efforts to curb litigation, according to sources at the American Tort Reform Association, which keeps the dismal count. (Columbus Dispatch (link now dead), Cleveland Plain Dealer, Cincinnati Enquirer coverage). Overlawyered.com intended to give the Ohio constitution a look-through to see whether it in fact contained a provision prohibiting legislatures from legislating, but found that as of this morning the state’s engine for searching the Ohio constitution was broken and returning error messages, which seemed kind of appropriate, actually.
The statute had been challenged not only by the Ohio Academy of Trial Lawyers (which argued its members would lose business) but also by the state AFL-CIO, whose president William A. Burga, quoted in the Columbus Dispatch, said “anyone who has been harmed or injured” deserves “their day in court and…a fair decision from a jury”. That’s kind of ironic, since unions themselves long ago procured for themselves a series of tort reforms far more favorable than anything being asked for by the business community, insulating them from the risk of unbounded jury awards at the hands of complainants who’ve been (say) roughed up by union pickets. In California, for example, state law already pointedly says that citizens’ “right to be free from any violence, or intimidation by threat of violence” does not apply in a context of “otherwise lawful labor picketing” (gee, thanks, guys!) and AB 1268 (Kuehl), now moving toward enactment in the labor/trial-lawyer-friendly state legislature, would curtail unions’ civil liability yet further, curbing the application of exemplary (punitive) damages and vicarious liability even if acts of violence are committed by unionists for the organization’s benefit.
So here’s the net effect: it’s just dandy and highly constitutional for legislators to immunize unions from the danger of adverse jury verdicts for acts of deliberate violence, but it suddenly becomes an unconstitutional invasion of jury prerogatives when they try to set any limits at all on the award of “noneconomic” damages, for categories like pain and suffering and emotional distress, in cases where businesses are charged with responsibility for accidental injuries. What do you think Mr. Burga of the Ohio AFL-CIO would say if someone “harmed or injured” crossing a picket line in Akron or Youngstown decided to claim a constitutional right to “their day in court and…a fair decision from a jury”? Would he still insist that legislatures have no constitutional power to limit liability?
August 17 — New Overlawyered.com page: The case for loser-pays. Despite continuing strong Main Street interest in the loser-pays idea, there’s been precious little in the way of Web resources on it, so we’ve made it the subject of the sixth and latest in our series of topical links pages. It’s the most basic, the most indispensable, and the most overdue of all legal reforms; if we can bring it even a little closer to enactment, our time will have been well spent.
August 17 — Correction. In the August 6 item, “Courts actually begin to define harassment“, summarizing a recent Chicago Tribune report on the ripple effects of last year’s Oncale decision, we erroneously reported that the Tribune article did not mention the Oncale Court’s unanimity. In fact, it did mention it. Our apologies.
August 16 — Think I’m too litigious? I’ll sue! (I). In Bakersfield, Calif., the developer of the Fairway Oaks community won’t sell new houses to attorneys because it considers them too likely to get into disputes. Attorney Timothy Liebaert said he was “shocked” and “very mad” to be turned away on the basis of such a generalization, so — how better to disprove it? — he’s suing them. However, occupation is not among the list of categories covered by California housing discrimination laws, and a Kern County judge proceeded to rule that there are legitimate business reasons for a developer to prefer non-lawyer customers. Fairway’s sponsors had previously sold to two attorneys among 500 home buyers and had gotten into a protracted dispute with one, though it had not gone to litigation. Liebaert has filed an appeal and plans to keep the case going on new theories, such as a claim that a developer, if it wants to pursue a policy of not selling to lawyers, is legally obliged to announce that policy in its ads. (Reuters/Fox News; Los Angeles Times, July 25)
In 1986 it was reported that two medical groups practicing obstetrics and gynecology in Brunswick, Ga., had refused to accept as patients attorney Amanda Williams, who had filed what the doctors considered meritless malpractice suits against some of their number, or her law clerk Sheryl Jolly. Williams said she found the policy “offensive” but said “they no doubt take it personally when I file a suit on behalf of a client”.
August 16 — Think I’m too litigious? I’ll sue! (II). Remind us to stay on the good side of attorney Michael Bidart of Claremont, Calif.’s Shernoff, Bidart, Darras & Arkin, who garnered big headlines in January when he convinced a San Bernardino County jury to vote $120.5 million against Aetna U.S. Healthcare for delaying approval of a bone-marrow transplant that he argued might have saved the life of patient David Goodrich. Aetna CEO Richard Huber, angered by the verdict, blamed it in part on the efforts of “a skillful ambulance-chasing lawyer”. And Bidart responded to this dastardly insult by…suing Huber last month for defamation in Los Angeles Superior Court. Legal correspondent Reynolds Holding comments in the San Francisco Chronicle (August 8) that Bidart is “apparently more adept at dishing publicity than taking it”.
August 16 — To restore individual responsibility, bring back contract principles. In this recent Policy Analysis from the Cato Institute, Professor Michael Krauss of George Mason U. School of Law says one major reason liability law has fallen into disrepute is that courts have supplanted contract with tort principles; it doesn’t matter whether you foresaw a risk and agreed to bear it, they’ll let you sue anyway. Formerly, the law sought to secure parties’ rights to shape their own relationships, the role of tort law being to secure persons against unconsensual invasion. Now reliable law has given way to “a general social insurance scheme”, particularly in areas like product liability and medical malpractice, with lamentable consequences: “our rights have been given increasingly less respect by government”. (Full paper)