Posts Tagged ‘Jack Weinstein’

December 10 roundup

Bloomberg gun lawsuits will go on

Last year, New York City Mayor Bloomberg filed federal lawsuits against bunches of gun stores across the country; we’ve covered these suits extensively. (See, e.g. May 2006, Jun. 2006, Sep. 2006). NYC sent people to stores in places such as Georgia, Ohio, Virginia and South Carolina; these city agents then conducted “stings” in which they made supposedly illegal firearms purchases. Bloomberg then sued these stores, claiming that the guns were ending up in New York City and that the stores should for some reason be liable for this.

Somehow, despite the fact that whatever illegal sales took place did so in Georgia, Ohio, Virginia and South Carolina, the suit ended up in the Brooklyn courtroom of federal Judge Jack Weinstein, the man who has never seen a products liability case he couldn’t endorse. The gun stores moved to dismiss the suits on the grounds that New York courts have no jurisdiction.

Last week, Weinstein rejected the gun stores’ motion in a 99 page opinion (PDF) replete with anti-gun rhetoric (about criminals who “terrorize” the city and descriptions of guns as “Saturday Night Specials”) and citations to his own decisions in previous gun-litigation cases (Jul. 2003) So the suits will continue; a trial date has been set for January.

Republican presidential-non-candidate Fred Thompson doesn’t think much more of these suits than we do.

First Lawful Commerce in Arms Act challenge

Eastern District of New York Judge Jack Weinstein heard the first challenge to the Lawful Commerce in Arms Act Monday. Tom Perrotta of the New York Law Journal reports that Weinstein was dismissive of the constitutional arguments, but possibly open to the plaintiffs’ attempt to expand an exception in the Act into a loophole that would encompass virtually all litigation against gun manufacturers. (NYC Claims Exception in New Federal Law Allows Gun Suit, Nov. 23). See also Nov. 9; Apr. 13, 2004.

Vietnamese Agent Orange case dismissed

In a 233-page ruling, federal judge Jack Weinstein has dismissed a lawsuit on behalf of Vietnamese plaintiffs demanding compensation over the use of the defoliant Agent Orange during the Vietnam War. (William Glaberson, “Agent Orange Case for Millions of Vietnamese Is Dismissed”, New York Times, Mar. 10). As Julian Ku puts it, “If the plaintiffs can’t convince Judge Weinstein, who can they convince?” The case is separate from one that has been allowed to proceed seeking compensation on behalf of U.S. veterans, despite a settlement brokered and approved by Judge Weinstein years ago which had been widely thought to have resolved that category of claim (see Jul. 4, 2003).

Update: N.Y. high court derails Blue Cross anti-tobacco suit

Several years ago, in a controversial ruling, activist federal judge Jack Weinstein ruled that health insurance plans in New York could sue tobacco companies for cost recoupment under state consumer protection law. The result, in 2000, was a jury verdict of $17 million to which Weinstein added an award of $32 million in attorney’s fees (see Mar. 6-7, 2002). However, the state’s highest court, the Court of Appeals, has now declared that the basis of the case is invalid: the Blues can’t invoke the consumer protection act. That will probably mean the suit’s dismissal. Health insurers do have a separate right to sue under older principles of “subrogation”, but the tobacco companies have robust defenses against that variety of action. (John Caher, “Insurer Loses Bid for Direct Recovery in Test Case Against Cigarette Makers”, New York Law Journal, Oct. 20). Two other Blue Cross actions in other states have also been dismissed. On dismissal of union health plans’ suits against tobacco companies, see Jan. 11, 2000.

And what about similar actions on behalf of government health insurers, as in the state-Medicaid legislation? Well, the handwriting would seem to be on the wall that those cases are not exactly founded on a good legal theory of recovery either — the trouble being that in the mean time the muscle of the state AGs and their lawyers nonetheless managed to extract hundreds of billions in tobacco lucre.

Judge Weinstein shepherds gun lawsuit

As if to confirm this website’s worst fears (Mar. 31, 2003 and Mar. 24, 2003), federal Judge Jack Weinstein of the Eastern District of New York is permitting the City of New York to proceed with a “public nuisance” suit against the gun industry. If that theory sounds eerily familiar, it is because a Manhattan appellate state court threw out an essentially identical public nuisance lawsuit by the state of New York against the gun industry in the Sturm, Ruger case, noting that New York state law did not countenance such attenuated theories of liability (Jun. 30 and Jul. 4). The district court opinion is a marvelous example of how an unprecedented theory of liability lifts itself up by the bootstraps: the decision relies heavily on Judge Weinstein’s previous opinions and the Ninth Circuit’s unreasoned Ileto v. Glock decision (Dec. 3 and Nov. 20); while claiming that Sturm, Ruger supports it, the decision ignores language (and related precedent) in that opinion that would preclude the City’s theory of liability. (Tom Perotta, “Federal Judge Keeps New York City’s Gun Suit Alive”, New York Law Journal, Apr. 13; City of New York v. Beretta opinion).

Update: Clayton Cramer comments.

Read On…

Another New York gun lawsuit dismissed

Upholding an advisory jury’s verdict in favor of the firearms industry, federal judge Jack Weinstein has dismissed the NAACP’s public nuisance lawsuit against 68 gun manufacturers and distributors, discussed earlier in this space. The National Association for the Advancement of Colored People had asked the court to declare the manufacturers and distributors liable for creating a public nuisance under New York law. Rather than monetary damages, the NAACP sought “sweeping restrictions on buyers and sellers of handguns.” (Tom Hays, “Judge Dismisses NAACP Gun Lawsuit,” Assoc. Press, July 21, 2003). Judge Weinstein said that “while the NAACP’s evidence showed some gun retailers were careless in allowing a large number of handguns to enter the illegal market, the group did not prove its members suffered unique harm.” (“Court dismisses NAACP gun suit,” Reuters, July 21, 2003). His 175-page opinion is available here.

Judge Weinstein’s ruling follows by a month a Manhattan appellate court’s decision affirming the dismissal of state Attorney General Eliot Spitzer’s lawsuit against gun manufacturers, also brought on public nuisance grounds.

New York gun suits

As earlier discussed by Walter, a Manhattan appellate court has affirmed the dismissal of Attorney General Eliot Spitzer’s state lawsuit against gun manufacturers. Spitzer had sued under a theory of “public nuisance.” The opinion is now on-line and the court’s language is interesting:

[P]laintiff would have us summarily ignore: […]

2) the importance and fairness of considering such concepts as remoteness, duty, proximate cause and the significance of the indisputable intervention of unlawful and frequently violent acts of criminals — over whom defendants have absolutely no control — who actually, directly, and most often intentionally, cause the cited harm;

3) the significance and unfairness of holding defendants accountable even though their commercial activity is wholly lawful and currently heavily regulated, and that their products are non-defective; and

4) the plain fact that courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micro-manage the manufacturing, marketing, distribution and sale of handguns.

An identical federal suit filed by the NAACP is pending before Judge Jack Weinstein in Brooklyn. (Samuel Maull, “Appeals court affirms dismissal of state’s lawsuit against gun makers,” AP, June 24).

Weinstein is perhaps best known for his work on the Agent Orange class action settlement, which the U.S. Supreme Court recently allowed to be reopened when it split 4-4 in its review of a Second Circuit opinion holding that the settlement did not preclude veterans from seeking additional damages. There are obvious implications, since now class action defendants risk losing the benefits of finality in the Second Circuit. (Tony Mauro, “Vets Win Chance At Agent Orange Damages,” Legal Times, June 10).
(Full disclosure: My firm filed an amicus brief on behalf of the Product Liability Advisory Council in Dow Chemical v. Stephenson.)