Posts Tagged ‘AAJ’

Pearsonesque $2 billion consumer-fraud lawsuit against Ford

The Ford Explorer is a sport utility vehicle. Judge Roy Pearson, excited by the $67 million he anticipates receiving for his pants, is bringing a lawsuit in California claiming that every California Explorer owner is entitled a total of $2 billion from Ford because the Explorer is allegedly prone to rolling over, using the California version of the law that Pearson is bringing his pants-suit over. Note that the damages are not for an actual rollover, just damages because of the “fraud” that the vehicle might roll over, though at least some models of the Explorer are in fact less dangerous than an average SUV in rollovers, and safer than the average vehicle in other types of accidents. (IIHS reports that the average fatality rate for mid-sized 2-door SUVs is 63 per million vehicles, and the average fatality rate for the 2-door Ford Explorer is 49 per million vehicles—and that latter number includes crashes caused by defective Firestone tires. Note that this is publicly available information: where is the fraud?)

Oh, sorry, it’s not Roy Pearson, it’s Arkansas attorney Tab Turner who is bringing the lawsuit. [Hudson Sangree, “SUV rollovers put Ford’s future in judge’s hands”, Sacramento Bee, May 24; official class notice from Sacramento County Court]

But because ATLA and Kia Franklin have condemned Roy Pearson’s lawsuit as a frivolous abuse of justice, I am sure that they will have no compunction against issuing the same criticism against millionaire trial lawyer Tab Turner for bringing a much larger and socially harmful lawsuit that might bankrupt Ford on the same bogus “consumer fraud” legal theory that Pearson used. Of course, there’s a difference between Pearson and Turner: Turner is asking for more money, and his claim has less factual basis.

The Litigation Lobby’s “frivolous” bait-and-switch: the Judge Roy Pearson pants-suit

Second Milberg Weiss Justice Fellow, same as the first? Bizarro-Overlawyered twists itself into contortions over the infamous $54 million Judge Pearson pants-suit. Cyrus Dugger’s replacement as Milberg Weiss Justice Fellow, Kia Franklin, recognizes that the anti-reform cause can’t be seen endorsing the patently-ridiculous lawsuit that is the laughingstock of the world. So, she dances over the issue: yes, this case is frivolous, but frivolous cases are rare, so there are no lessons to learn from the fact that a small business was forced to pay tens of thousands of dollars litigating an overbroad consumer-fraud claim, to the point that it was willing to pay $12,000 over a pair of pants to make the lawsuit go away and stop the financial bleeding.

Her evidence is a Public Citizen study—but she ignores our 2006 post noting that Public Citizen got its math wrong, and even distorts the distorted statistic beyond what Public Citizen claimed. (Public Citizen gerrymandered its claim to falsely say businesses were 69% more likely to be sanctioned for frivolousness than individual tort plaintiffs, but Franklin misreads that to say individuals, which is false even by Public Citizen’s numbers, which found by its own measure that individuals were sanctioned for frivolousness 86% more often than corporations. Note also the difference between the inaccurate “more likely” and “more often.”)

The really funny thing is that, under the Public Citizen narrow definition of “frivolous lawsuit” used in its study, Judge Pearson’s suit is not frivolous! When politicians speak of “frivolous” cases, they use it in the everyday English sense of “silly”: they mean the meritless cases, where, because of far-fetched legal theories, junk science, or overbroad liability rules, plaintiffs seek or realize recovery far beyond what makes good social policy—cases like Roy Pearson’s. Public Citizen’s study, however, in a typical litigation-lobby bait-and-switch (see, e.g., the Kerry/Edwards malpractice reform plan), defines “frivolous” with the narrow technical legal definition so that it can conclude (like Franklin) that frivolous litigation is “rare” and thus not a problem. (Amazing how many problems disappear when you assume them away.) The definition is so narrow that Pearson’s suit is outside of it: Pearson defeated motions to dismiss and for summary judgment, and received a $12,000 offer of judgment. (Pearson is apparently sufficiently emotionally troubled that he thinks he has a better shot seeking tens of millions from a couple of immigrant Korean dry cleaners than the thousands of dollars offered in settlement for a pair of pants, even though the judge who will be ruling on his case has given him plenty of hints that he has no hope of success.) The Pearson suit would have been excluded from Public Citizen’s count of frivolous suits for a second reason: Public Citizen ignored pro se lawsuits brought by attorneys like Pearson in its count of frivolous suits, as it had to to deflate the number of sanctions issued against individual tort plaintiffs and falsely claim that corporations are sanctioned more often.

We’re excited to see Franklin join the world of reformers and recognize that many more lawsuits are frivolous than what Public Citizen recognizes. We encourage her to read the data and arguments of those she mistakenly claims to oppose, and to scrutinize those she mistakenly thinks are her allies a bit more closely. Why is it alright for wealthy white trial lawyers to extort billions from big business using the same ad terrorem tactics (and even the same consumer-protection laws!) as a poor African-American pro se did to extort $12,000 from a small business? We encourage Franklin to examine the Association of Trial Lawyers of America’s racial double-standard.

And since Franklin agrees that the Pearson lawsuit is frivolous, we are eager to hear how she would define a frivolous lawsuit, and hope that she uses that definition consistently for both the Milberg Weisses of the world as well as African-American city employees.

June 11 roundup

Updating earlier stories:

  • The Judge Pearson consumer fraud suit starts today. It’s exceedingly silly, but ATLA’s attack on Judge Pearson is hypocritical: the only difference between this consumer fraud suit and the consumer fraud suits ATLA supports is that it’s an African-American pro se going against a shallow pocket instead of a well-funded bunch of millionaires going against a deep pocket. The Fisher blog @ WaPo notes a publicity-stunt settlement offer. [via TaxProf blog]
  • Wesley Snipes playing the race card in his tax evasion prosecution would have more resonance if his white co-defendant weren’t still in jail while he’s out on bail. [Tax Prof; earlier, Nov. 22]
  • “Party mom host set for Virginia jail term” for daring to ensure high school students didn’t drink and drive by providing a safe haven for underage drinking. Earlier: June 2005. [WaPo]
  • Sorry, schadenfreude fans: Fred Baron settles with Baron & Budd. [Texas Lawyer; earlier Sep. 4]
  • Blackmail-through-civil discovery lawyer Ted Roberts (Mar. 19 and links therein) seeks new trial. [Texas Lawyer]
  • Second Circuit doesn’t quite yet decide Ehrenfeld v. Bin Mahfouz libel tourism suit (Oct. 2003). [Bashman roundup of links]
  • NFL drops claims to trademarking “The Big Game” as a euphemism for the trademarked “Super Bowl” (Jan. 31) [Lattman]
  • More on the Supreme Court’s “fake mental retardation to get out of the death penalty” decision, Atkins v. Virginia (Feb. 2005; Sep. 2003). [LA Times]
  • What does Overlawyered favorite Rex deGeorge (Sep. 2004) have to do with The Apprentice? [Real Estalker]

June 5 roundup

  • Everyone’s got an opinion on Dr. Flea’s trial-blogging fiasco [Beldar, Childs, Adler @ Volokh (lively comments including Ted), Turkewitz (who also provides huge link roundups here and here), KevinMD]
  • Sidebar: some other doctor-bloggers have shut down or curtailed posting lately amid pressures from disapproving employers and patient-privacy legal worries [KevinMD first, second posts; Distractible Mind, Blogaholic]
  • Amusement park unwisely allows “extremely large” woman to occupy two seats on the roller coaster, and everyone lands with a thump in court [Morris County, N.J. Daily Record via Childs]
  • Prosecutors all over are trying to live down the “Duke effect” [NLJ]; how to prevent the next such debacle [Cernovich]
  • Bad for their image: trial lawyers’ AAJ (formerly ATLA) files ethics complaint against Judge Roy Pearson Jr., of $65 million lost-pants-suit infamy [Legal Times]
  • More suits assert rights to “virtual property” in Second Life, World of Warcraft online simulations [Parloff]
  • Plea deals and immunity in the Conrad Black affair [Steyn, OC Register]
  • Another round in case of local blog sent nastygram for allegedly defaming the city of Pomona, Calif. [Foothill Cities; earlier]
  • “There once was a guy named Lerach…” — Milberg prosecution has reached the limerick stage [WSJ Law Blog comments]
  • Government of India plans to fight Americans’ claims of intellectual property over yoga postures [Times Online; earlier here and here]
  • After car-deer collision, lawyer goes after local residents who allegedly made accident more likely by feeding the creatures [seven years ago on Overlawyered]

Updates – May 17

Updating a few of the earlier stories covered around here:

  • Maybe it’s not so gay after all: Rebekah Rice, the California high school student who sued her school after they disciplined her for saying “That’s so gay,” has lost her lawsuit.

    “All of us have probably felt at some time that we were unfairly punished by a callous teacher, or picked on and teased by boorish and uncaring bullies. Unfortunately, this is part of what teenagers endure in becoming adults,” the judge wrote in a 20-page ruling. “The law, with all its majesty and might, is simply too crude and imprecise an instrument to satisfactorily soothe deeply hurt feelings.”

    Moreover, the judge picked up on the same irony we noted when we first covered the story:

    “If the Rice family had not told everyone that Rebekah had been given a referral for saying ‘That’s so gay’ then no one else would have know it either, and she would not have been referred to as the ‘That’s so gay girl,'” the judge wrote.

    (Update to the update: Matthew Heller has the opinion.)

  • Contrary to what we had speculated, it appears that Pants Judge Roy Pearson still has a job and may continue to do so. According to an unnamed D.C. official, and exemplifying the attitude with which the tort reform movement is fighting, “I don’t think it’s appropriate not to reappoint someone just because they file a lawsuit. You can’t retaliate against someone for exercising their constitutional, First Amendment right to file a lawsuit to vindicate their rights.” (No, but you can retaliate against someone for filing a frivolous lawsuit.) Meanwhile, as a face-saving publicity stunt, the American Trial Lawyers Association filed an ethics complaint against Pearson; really, Pearson isn’t doing anything that ATLA doesn’t endorse in other situations.
  • Remember Ted and Mary Roberts, the husband-and-wife team of San Antonio lawyers who hatched a blackmail scheme in which the wife had sex with married men and the husband threatened to sue them unless they paid him to keep quiet? (Ted’s been convicted; Mary is awaiting trial.) The bankruptcy trustee, acting on behalf of their estate, had sued the local San Antonio Express News for violating their privacy by reporting on their scheme; Howard Bashman reports that the Fifth Circuit affirmed dismissal of the lawsuit by a lower court. So the newspaper won a complete legal victory — but truthfully reporting on a criminal scheme by prominent lawyers nevertheless must have cost them six figures’ worth of legal expenses.
  • O.J. Simpson will not be suing the Kentucky steakhouse that wouldn’t serve him. His lawyer — the one who rushed to announce that O.J. was a victim and that the steakhouse “screwed with the wrong guy” — now tries to blame the owner for “using the episode for publicity.” (Originally, May 10.)
  • The bogus Equal vs. Splenda unfair competition lawsuit (Mar. 8) over Splenda’s “Made From Sugar, So It Tastes Like Sugar” slogan settled on undisclosed terms, moments before a jury announced its verdict. Although we don’t know the terms of the settlement, it shouldn’t be too hard to figure out the non-monetary part: just check whether Splenda changes its advertising.

Kim Strassel on “trial lawyer earmarks”

In Opinion Journal:

Even the tort bar understands how deeply loathed it is by the American public. The Association of Trial Lawyers of America didn’t last year change its name to the bland “American Association for Justice” for nothing.

So no, even the old liberal lawsuit bulls such as Henry Waxman or [Barney] Frank won’t start calling for the repeal of the 2005 Class Action Fairness Act, or for other blatant legislative assists to the trial bar. Instead, Democrats intend to reward the legal industry with more subtle payoffs. The most obvious gift will be a moratorium on further legal reform. Beyond that, Democrats will rely on two tried-and-tested tools to aid and abet the legal community. They’ve employed both in the past few weeks. …

A Democratic Congress means far more regulation, and any new regulation is an opportunity to insert a line or two giving the tort bar greater rights to sue. These provisions will be subtle and technical, designed to escape notice. But just in case they do raise a red flag, they’ll also be tucked into bipartisan or must-pass legislation (such as the Iraq supplemental), making it that much harder for Republicans or President Bush to shoot them down.

It’s a measure of how well Republicans played tort abuse to their political advantage that Democrats today are reluctant to brazenly flack for the legal class. If the GOP wants to keep it that way, it will have to start working harder to expose the quiet ways in which the left is now helping trial lawyers bilk the system.

The other means is by taxpayer-funded subpoenas and hearings to develop evidence and publicity for the trial bar.

Strassel claims that there is such an earmark created at the behest of ATLA, subtly providing an implied cause of action against chemical manufacturers in H.R. 1591, the soon-to-be-vetoed Iraq War supplemental funding bill. Indeed, the provision is difficult to find amidst the provisions for the milk income loss contract program and renewal grants for women’s business centers. I suspect Strassel is referring to the anti-preemption provision in Section 1501(a) of the bill, effectively permitting lawsuits against chemical facilities that comply with Department of Homeland Security regulations without once mentioning the word “lawsuit.” If there is a terrorist attack on a chemical facility, trial lawyers will have a deep pocket to blame.

Perhaps we, as a society, would agree with the Democratic Party and would prefer trial lawyers, instead of the Department of Homeland Security, to be in charge of chemical plant security. (Trial lawyers do have the advantage of getting to operate only in hindsight.) But shouldn’t that critical decision be made openly?

The Army, Navy, Air Force, Marines, and… ATLA?

In October 2000, Al Qaeda attacked the U.S.S. Cole while it was attempting to refuel in Yemen; 17 American sailors died and 39 more were injured. The United States may not have retaliated militarily at the time, but in a federal court in Norfolk, Virginia, the families of the victims are now suing… the government of Sudan, for $105 million. Sudan, claiming immunity, has refused to take part in the litigation; this likely means that the plaintiffs will prevail, because they have produced some evidence linking Sudan to the attacks:

“Sudan basically gave [al-Qaida] the breath of life it needed,” terrorism consultant and former journalist Douglas Farah testified in a videorecorded deposition. Sudan’s secretive Islamic banking system made it easy for al-Qaida to launder its money, Farah said. After U.N. sanctions squeezed Sudan in early 1992, he said, al-Qaida bought gold and conflict diamonds in Sierra Leone.

Sudan allowed al-Qaida to operate training camps where recruits from other nations were assembled, trained and returned to their own countries as sleeper cells, Vidino said. One such cell — a group of Yemenis trained in Sudan — carried out the Cole attack, he said.

After international pressure forced bin Laden to leave Sudan for Afghanistan in 1996, al-Qaida remained in Sudan — and remains today, Farah said. He said the explosives used to blow a hole in the Cole probably were transported by boat from Port Sudan to Aden across the Gulf of Aden, unexamined by customs officials. He said he could think of no other source for them.

In a videorecorded deposition, former CIA Director R. James Woolsey said Sudan’s involvement in the Cole bombing was “more likely than not” — the legal standard of proof in the civil lawsuit. Vidino and Farah said they did not believe al-Qaida could have attacked the Cole without Sudan’s help.

Now, to say the least, I certainly have no sympathy for the Sudanese government, let alone Al Qaeda. And the connection between Sudan and Al Qaeda is much closer than, for instance, the terrorism-related lawsuits against banks (covered on Overlawyered on Jan. 2006, Feb. 2006, and Oct. 2006.) And if the Sudanese government is to blame for an attack on a U.S. military vessel, I have no problem with seizing that country’s assets and retaliating militarily. But it seems that those ought to be political decisions, not legal ones. Shouldn’t our foreign policy be conducted by the president, the State Department and/or the military, not by a federal judge and some members of ATLA?

(By the way, according to the plaintiffs’ lawyer (you guessed it): “[M]oney has never really been the issue.” But you can’t blame activist lawyers or courts for this one; Congress has explicitly authorized these suits, by creating a “terrorist exception” to the standard rule of foreign government immunity from such lawsuits.)

Incidentally, the lawyer for the plaintiffs seems to specialize in cases such as these; he previously represented American hostages in a successful lawsuit against Iraq and American prisoners in a lawsuit against Libya.

By reader acclaim: “Woman holds door open for man at Pizza Hut…”

“…then sues both.” According to her lawyer, Tom Maag, Amanda Verett was holding open the door for co-defendant Clarence Jackson when he “grabbed the door in such a fashion that it caused the door to suddenly and sharply move,” resulting in injuries for which Ms. Verett wants upwards of $150,000 from Jackson, the restaurant, or some combination of both. It happened in Edwardsville, Ill., in lawsuit-famed Madison County, where Thomas Maag is a member of a famous family of lawyers (Oct. 29, 2004). (Steve Gonzalez, Madison County Record, Mar. 8).

P.S. The website of the Dennis & Verett Law Office of Edwardsville indicates that Amanda Bradley Verett was admitted to the Illinois Bar in 2003 and is a member of the Association of Trial Lawyers of America, now renamed the American Association for Justice. (hat tip: reader David Nowlan)

“100+ All-American Ideas: Stay Out of Court”

Belatedly noted: Reader’s Digest gives us another generous mention (latest in a long series of such) as part of a wider project cataloguing ideas and proposals that could make the country better (Sacha Zimmerman, Reader’s Digest, posted Sept. 14). For another generous mention from the Digest, see Jun. 12, linking to an article by reporter Michael Crowley. And we’ve also been slow to link another good piece from Digest reporter Crowley, on the problems introduced by jury consultants “paid to stack the deck” (Michael Crowley, “Jury Riggers”, Apr. 2006). Sample:

A recent guide published by the Association of Trial Lawyers of America warned lawyers about jurors who may show “personal responsibility bias.” These jurors, the guide said, feel that “people must be accountable for their conduct.” Now there’s a chilling outlook! The guide advises: “The only solution is to exclude them from the jury.” That is, get rid of anyone who might actually care about seeing justice done.

Damned if you do files: $400k for “profiling”

John Cerqueira was sitting next to two Israelis boisterously talking in English and Hebrew on a 2003 Boston-Fort Lauderdale American Airlines flight, when the flight crew decided that all three raised a concern. “Police determined that none of the men was a threat after questioning them, evacuating the plane, and rescreening all baggage.” Cerqueira complained that AA wouldn’t give him another flight, and sued for discrimination. A jury awarded $130k in compensatory damages and another $270k in punitives.

This is the first case of its kind to come before a jury since 9/11 (other plaintiffs with similar cases have settled out of court). The verdict has some flight crews fearful it will set a precedent and discourage concerned crews from taking action in the future.

Spokesman for the Allied Pilots Association (APA) Captain Denny Breslin told the Boston Herald, “[Ehlers] did what any one of us would have done, especially back in ’03. We’re human beings, not mind-readers. What would [the plaintiff] have us do? Ignore our concerns?”

Air Line Pilots Association spokesman Pete Janhunen said the verdict could impinge on a pilot’s authority granted by the FAA. “The pilot in command is responsible for everything that happens involving that flight. We need to ensure that the authority of the captain is protected so that they’re never intimidated or afraid to make the right call.”

(Shelley Murphy, “Jury awards airline passenger $400,000”, Boston Globe, Jan. 16; “Ejected Passenger Awarded $400K By Federal Jury”, Aero-News Net, Jan. 16; Laurel J. Sweet, “Pilots blast court’s ‘outrageous’ verdict: Defend ejection of suspicious passenger”, Boston Herald, Jan. 16). (NB: this John Cerqueira was not the much younger WTC hero who carried a wheelchair-bound woman 68 stories down and out of the North Tower.)

Update: It’s unclear from press coverage whether the lawsuit was over the initial questioning (which inconvenienced everyone) or the refusal to allow Cerqueira to board a second flight, which does seem less defensible. His lawyer’s comment implies both, however.

Second update: Matt Heller of Courthouse News has links to the American Airlines motion for judgment and joint pretrial statement. AA’s version of the story:

[Cerqueira] acted hostilely toward a flight attendant before boarding the flight, … boarded the flight out of turn, that plaintiff spent an inordinate amount of time in the lavatory facilities on board the flight before it departed, … appeared to be feigning sleep during the hectic boarding process, and … reacted inappropriately to flight crew instructions during an exit row safety briefing. AA further expects the evidence to show that the two passengers seated next to the plaintiff in the exit row approached the captain of the flight before boarding and made strange comments to him, that those passengers made odd comments to passengers aboard the flight, and that those passengers acted inappropriately during an exit row safety briefing.

…State Police and TSA believed it necessary to rescreen all of the passengers and to have bomb-sniffing dogs come aboard the aircraft after another passenger reported that one of the removed passengers had a box-cutter taken away from him at the security check point.

Update, January 2008: reversed by First Circuit. Further update Mar. 2, 2008: Cerqueira responds.