Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Illinois’

Madison County judge without a docket

In Madison County, Illinois, all of the circuit judges have been elected to the bench with the significant help of the plaintiffs’ bar, often going straight from a career at a plaintiffs’ firm (and then later retiring to a plaintiffs’ firm). Except one: Judge Don Weber was appointed to replace a retired judge in October 2005, and won’t stand for election until November.

Illinois law permits a party to move once as a matter of right for substitution of a different judge, and plaintiffs in at least thirty-five cases have done so in Weber’s case. “All the stars of the plaintiff’s bar – the Lakin Law Firm, SimmonsCooper, Stephen Tillery and Rex Carr – have joined the substitution blitz.” The Madison County Record quotes Jack Joseph of Chicago, a member of the civil practice committee of the Chicago Bar Association, as finding the practice “unfair to Judge Weber without giving him a chance to see if he is going to violate his oath in some way.” (Steve Korris, “Weber’s caseload yanked by plaintiff’s attorneys”, Jan. 25). But one might be suspicious that the true fear motivating the motions to substitute other judges is that Weber will uphold his oath.

Update: Belleville News-Democrat counts 53 plaintiffs and two defendants who’ve asked for substitution.

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A Million Little Plaintiffs III

Another class action over the James Frey affair; this one, in Seattle, seeks, inter alia, recovery for “lost time” spent reading the book, prompting the Bookslut blog to reconsider its opposition to tort reform. It is the third class action filed; an underpublicized class action was filed in California on the 13th, and we reported on the more prominent Illinois class action on Jan. 17. Of course, if “lost time” is actionable, everything is, and we might as well turn over the keys to the country to ATLA. Earlier: Jan. 12. Recommended reading: Michael Greve, Harm-Less Lawsuits?

Update: Eric Goldman has a copy of the complaint and more detail.

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Vexatious litigant jailed for contempt

“Former Steamboat Springs [Colo.] resident Kay Sieverding, who has been in jail since September, was released Wednesday after she agreed to dismiss her numerous federal lawsuits.” U.S. District Judge Edward Nottingham had ordered Sieverding committed to jail for contempt of court after she continued to file lawsuits he described as “frivolous”, “abusive” and “gibberish”, including refilings of lawsuits she had already lost. “Sieverding has filed lawsuits against not only her former neighbors but also Steamboat Springs officials, the local newspaper, several individual lawyers and the entire Colorado and American Bar Associations, among others. She has filed the lawsuits in Colorado U.S. District Court, and also in federal courts in Illinois, Minnesota, Kansas and the District of Columbia.. …The judge said he will issue an additional order prohibiting Kay Sieverding from filing any more lawsuits, anywhere in the United States, without an attorney or his permission.” (Karen Abbott, “Pledge gets woman out of jail”, Rocky Mountain News, Jan. 5; Alicia Caldwell, “Woman Held Over Lawsuits”, Denver Post, Dec. 19)(via Jonathan B. Wilson, here and here).

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Xbox 360 lawsuit bogus?

I’m sure you’re just shocked, shocked, to hear of shenanigans in an Illinois class action:

In [its] motion to dismiss, Microsoft notes that “Significantly, Plaintiff omits the fact that his Xbox 360, purchased in November 2005, is still covered by a 90-day warranty, under which Microsoft agreed to repair or replace it, or issue a refund. In fact, Plaintiff does not allege that he contacted anyone at Microsoft about the alleged defect, let alone that Microsoft refused to honor the terms of its warranty. Moreover, Plaintiff does not allege that his Xbox 360 ever malfunctioned. He alleges only that “members of the class have experienced malfunctions” with their Xbox 360s—not that he has.

A hearing will be held January 10.

(Update: broken link to the MS motion to dismiss fixed.)

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George Will on tobacco and the states

Reacting to the recent Philip Morris decision (PoL Dec. 15, etc.), the columnist is in righteous form:

The Illinois Supreme Court’s ruling stimulated the market for “tobacco-revenue munis.” Those are municipal bonds backed by tobacco revenue streams resulting from a real fraud — the Master Settlement Agreement. In 1998, 46 states conspired to seize $246 billion from companies that sell products made from a commodity — tobacco — the cultivation of which was then subsidized by the federal government….

The MSA is a deal struck between the state attorneys general and trial lawyers. For the latter, it was a financial windfall, netting about $13 billion in fees that sometimes amounted to tens of thousands of dollars per hour of work. For the former, it was a political windfall, enabling their states to finance this and that with billions paid by smokers, who are disproportionately low-income people….

The states’ ability to continue treating the tobacco industry as a “budgetary Alaska” — the last frontier for exploitation — depends on brisk sales of cigarettes far into the future. So all 50 states, which in 2004 reaped $12.3 billion in cigarette taxes, have an incentive to carefully calibrate these taxes so as to maximize revenue. They want high taxes, but not high enough to cause large numbers of smokers to quit the habit that is so lucrative to states.

(“The States’ Tobacco Addiction”, syndicated/Washington Post, Jan. 1)(more on tobacco litigation).

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What’s new at Point of Law?

If you like this site, you’ll love our sister site, Point of Law, which explores similar issues, often in greater detail than we have room for here. Recently, at Point of Law:

And I’ve also been writing elsewhere: AEI has released my working paper on the Vioxx litigation in two parts: Part I and Part II.

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Federal mail fraud and RICO statutes

Prompted by the (ongoing) corruption trial of former Illinois governor George Ryan and co-defendant Larry Warner, University of Chicago lawprof Albert Alschuler has written a series of posts at the Chicago Law Faculty Blog using the trial “to illustrate the unfairness of the mail fraud and RICO statutes”. He notes that “prosecutors call the federal mail fraud statute ‘our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart’, with the closely related Racketeer Influenced and Corrupt Organizations Act (RICO) law second on the list of favorites.

In the Ryan case, the alleged misconduct to be brought out at trial “will cover a twelve-year period and range from failing to register as a lobbyist, to accepting secret consulting fees from a presidential campaign, to giving low-number license plates to campaign contributors.” Are all those things illegal? Well, they might be, ever since Congress added a vaguely worded new section to the mail fraud statute declaring that a scheme or artifice to defraud includes a scheme ‘to deprive another of the intangible right to honest services.’” The interpretations of this language have been so broad that even an elected official’s violation of his announced personal policy on a matter, not otherwise illegal, may be construed to deprive constituents of honest services.

In the Ryan case and others, prosecutors have used the intangible rights doctrine to stand federalism on its head. In effect, federal prosecutors prosecute state officials and private individuals for state crimes in the federal courts. Worse, they use the mail fraud statute to bootstrap minor state crimes and violations of non-criminal regulations into 20-year federal felonies. … Does every broken promise by a politician (“read my lips”) now constitute mail fraud?

The mail fraud statute, Alschuler argues in a third post, encourages “kitchen-sink” proceedings in which a vast assortment of dubious actions, not in fact closely related to each other, get treated as a single vast “scheme” for purposes of prosecution. Finally, a fourth post discusses RICO charges, which prosecutors can build up on a foundation of “predicate acts” that:

may extend over two or three decades. They may include crimes on which the statute of limitations has run, crimes that could not themselves be prosecuted in a federal court, crimes that could not be joined with one another in separate prosecutions, crimes of which the defendant already has been convicted and for which he has been punished, and even crimes of which he has been acquitted in a state court. The courts, if faithful to the statute, have no way to prevent this sprawl.

For our comments on the abuse of the RICO statute by the Clinton and Bush administrations in litigation against tobacco companies, see Sept. 23, 1999 and many other posts.

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Illinois State Bar Association takes action

The Illinois State Bar Association has found that people in focus groups are upset about the miscarriages of justice that occur in Madison County and corruption in the system, and have been motivated to take action. So are they going to clean up the system and support reform? No! Rather, they hope to have a million-dollar advertising campaign to improve the image of attorneys and engage in more market research. (Gail Applebaum, “State Bar may advertise to help lawyers”, St. Louis Post-Dispatch, Nov. 23). In the press account, ISBA official David Anderson disingenuously argues that Madison County isn’t a judicial hellhole because of the number of medical malpractice verdicts—ignoring that the number of med-mal verdicts has nothing to do with Madison County’s deservedly poor reputation.

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Joys of bounty-hunting: internet sales tax

In Chicago, veteran class-action attorney Stephen Diamond has been profitably suing retailers that don’t collect state and local sales taxes from online customers:

Using a state whistle-blower law, Mr. Diamond since 2002 has filed about 95 suits in Cook County court here against retailers that failed to charge him taxes on Internet sales, alleging that they broke the law. In cases where the state of Illinois joins the suits and prevails, he is entitled to up to 25% of the financial damages, with the rest going to state coffers….

Because of settlement agreements between the retailers and the attorney general’s office, the state’s judges have agreed to keep the names of most of the retailers and the settlement amounts confidential.

The retailers, like their mail-order-catalogue counterparts, have in the past often taken the position that the responsibility for making sure sales tax is paid rests with the customer; disputes sometimes arise about whether a particular retailer has sufficient operations within a state to count as present within it for tax-collection purposes.

Mr. Diamond’s targets have included such firms as Wal-Mart, Office Depot and KB Toys. He has taken an interest in expanding his practice beyond Illinois to the three other states with laws allowing private citizens to enrich themselves this way, but his efforts in those cases have been less successful. After he filed about 30 tax suits in Tennessee, lawmakers there repealed their statute authorizing such suits, and passed the word to nearby Virginia which also repealed its similar law. That leaves Nevada, where he has filed 10 suits which the state attorney general has moved to dismiss. In Illinois, he would seem in little danger of being shut down any time soon: the office of state Attorney General Lisa Madigan, a key trial lawyer ally, has been willing to cooperate with his activities though disputing his right to as high a share of the booty as he would like. (Robert Guy Matthews, “Online Retailer Skips Sales Tax? You Might Sue”, Wall Street Journal, Oct. 14)(online subscribers only).

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