“Corporate law’s version of Jarndyce v. Jarndyce — Cede & Co. v. Technicolor, Inc. (a.k.a., Cinerama, Inc. v. Technicolor, Inc.) — has dragged on for over two decades” and has now reached (perhaps) final completion in the Delaware chancery court. Professor Bainbridge has details (Mar. 11).
“As [energy company] Mirant’s Chapter 11 unfolds in North Texas, the region’s bankruptcy bar is keenly aware that the region is playing for high stakes. The area has been trying for years to bag a big-ticket bankruptcy. Its first catch was Mirant, the 10th-largest bankruptcy in U.S. history. It’s been very, very good to Fort Worth.” Large-firm bankruptcies are enormously lucrative to lawyers, other professionals and support industries, but the competition for a business once dominated by Manhattan and Delaware puts pressure on judges to issue rulings pleasing to the managers and lawyers of debtor companies. “Judges who don’t deliver are dooming themselves and their local peers to backwater status: Let a big bankrupt company leave unhappy, and nobody else will come back.” In the 1980s, one-third of big bankruptcies were filed away from the bankrupt firm’s headquarters, an indicator of forum-shopping; since then the figure has risen to two-thirds (Margaret Newkirk, “Courts compete to bag big cases”, Atlanta Journal-Constitution, Feb. 29).
The latest land claim assertion, by the Delaware Nation, is openly meant to be traded off for casino rights. The law firm of Cozen & O’Connor is representing the tribe in the action, which targets not only crayon-maker Binney & Smith but 19 hapless homeowners as well as a couple of small businesses and several layers of Pennsylvania government. We wrote about Indian land claim litigation a year and a half ago. (Shannon P. Duffy, “Indian Tribe Sues Over Pennsylvania Land”, The Legal Intelligencer, Jan. 20). Update: court dismissed case in late 2004 (PDF).
Housing Secretary Mel Martinez recently quit to run for a Florida Senate seat, but if elected he might not compile the kind of legislative record expected of Florida Republicans. “Martinez was president of the Academy of Florida Trial Lawyers in the late 1980s and was registered to lobby for the group in Tallahassee. It was a time when that powerful interest group had just defeated the medical lobby in a costly and high-profile initiative campaign aimed at capping fees in personal injury cases, known as Amendment 10. … In addition, Martinez has personally donated money to a variety of Democratic candidates over the years, including Delaware Sen. Joe Biden and former Florida insurance commissioner Bill Gunter.” Resistance to Martinez in the GOP primary is likely to be spirited, especially since one of his leading rivals, former U.S. Rep. Bill McCollum, is already raising the trial lawyer connection as an issue. (Bill Adair and Steve Bousquet, “Martinez quits Cabinet, is poised for Senate run”, St. Petersburg Times, Dec. 10; Steve Bousquet, “Storm brews over GOP Senate primary”, Dec. 15). Update Sept. 3: Martinez wins primary.
Through most of the 20th Century the preferred model in American court organization was that of the generalist court in which a given corps of judges applied a standard set of procedures to handle a wide, not to say bewildering, variety of cases. In the past couple of decades, however, there has been renewed interest in the idea of establishing specialized courts to handle some types of recurring or distinctive cases: intellectual property, complex mass torts, low-level drug offenses, and so forth. “More than a dozen states, including Massachusetts, Rhode Island and Connecticut, have introduced specialization into their courts to deal with business disputes. Some programs are recent and some, like those in New York and Delaware, have been operating for decades.” Removing complex commercial litigation to its own docket can assist in the development of greater judicial expertise, useful procedural innovation and more consistent law; it can also help unclog the schedules of courts that handle more conventional cases, according to its advocates. The success of specialized business courts is now encouraging other states to consider adopting the model, as is now the subject of discussion in Maine. (Andrew Grainger (New England Legal Foundation), “Business specialization in court system a good idea”, Portland Press-Herald, Oct. 31)(& letter to the editor, Dec. 6).
“Texas’s giant legal reform” (offer-of-settlement variant), Jun. 18-19, 2003.
“Blog-appreciated” (Larry Sullivan, Delaware Law Office), Jan. 17-19, 2003.
“Lawyers fret about bad image” (Catherine Crier), Oct. 3, 2002; “Welcome Boortz.com listeners” (broadcaster Neal Boortz endorses), Mar. 1, 2002; “Election roundup” (New York Press’s Russ Smith: “simple solution”, Oct. 23, 2000; “Oh, to be in England” (comedian Dennis Miller praises fee shifting on ABC’s “Politically Incorrect”), Jun. 19, 2000; “Loser-pays endorsed by Martina” (tennis great Navratilova), Jul. 12, 1999.
“‘Patient pays price for suing over cold’” (U.K.), Sept. 20-22, 2002; Texas doctors’ work stoppage” (insurance for M.D.s to countersue), Apr. 11, 2002; “‘Valley doctors caught in “lawsuit war zone”‘“, May 3, 2001.
Sanctions, counterclaims, 2001: “Lawyers’ immunity confirmed“, Nov. 15; “‘Attorney
Ordered To Pay Fees for “Rambo” Tactics’“, Oct. 5-7. 2000: “Don’t meet with her alone” (malicious prosecution counterclaim in harassment case), Nov. 1; “Update” (instructor who sued “course critique” site agrees to pay fees), Oct. 10; “Judge tells EEOC to pay employer’s fees“, Oct. 5; “Denny’s fights back against false suits“, Sept. 29-Oct. 1; “The doctor strikes back” (neurosurgeon countersues), Jun. 14-15; “Scorched-earth divorce tactics? Pay up” (Mass. decisions), Jan. 31. 1999: “Even the chance of loser-pays helps keep ’em honest” (costs levied against pilots’ union), Aug. 12.
“‘The love children of Flight 261’“, Apr. 10, 2001.
“Securities law: time for loser-pays“, Mar. 2-4, 2001.
“Loser-pays activism” (John Kasich’s New Century Project), Nov. 8, 2000.
“Losers should pay” (columnist Thomas Sowell; environmental injunctions and bonding requirements), Aug. 4-7, 2000.
“Costs of veggie-libel laws” (Oprah Winfrey sued: “the more she wins, the more she loses”), March 20, 2000.
“Bush unveils legal reform plan” (includes offer-of-settlement fee shift idea), Feb. 18, 2000.
“‘Trial lawyers on trial’” (Trevor Armbrister, Readers’ Digest), Dec. 23-26, 1999.
“News flash: Bill Clinton endorses loser-pays!” (at least for himself), Dec. 20, 1999.
“Victory in Florida” (lawyers in gun suits use infliction of legal costs as tactic), Dec. 14, 1999.
“Marbled Murrelet v. Babbitt: heads I win, tails let’s call it even” (environmentalists benefit from “one-way” fee shifts), Sept. 8, 1999 (& see National Law Journal, Dec. 14, 1999).
The essay on loser-pays formerly attached to this archive listing has been moved here.