Posts Tagged ‘Jack Weinstein’

March 2002 archives


March 8-10 — Will EU silence the pipes? Some Scottish members of the European parliament are warning that new noise regulations could make it unlawful to play their nation’s musical instrument: lowering maximum noise levels to 87 decibels, as is being proposed, could “silence the bagpipes for the first time since Culloden”. “If this goes through then the Queen will have to be without her piper every morning who wakes her up at Buckingham Palace,” said Jim Banks, the head of the Piping Centre in Glasgow. “It is just daft.” An EU spokeswoman denied that the authorities in Brussels wished to suppress bagpipes, but a Tory MEP said the application of the rules to employment contexts could result in the end of professional pipe bands. Two years ago the British defense ministry announced that the din of military brass bands was in violation of job-safety noise limits (see Dec. 22, 2000) (Hamish Macdonell, “EU threat to noisy bagpipes”, The Scotsman, Mar. 6)(more on bagpipers in trouble: June 21, 2001).

March 8-10 — Inability to get along with co-workers. An assembly worker with bipolar disorder “fired in 1996 following a series of conflicts with her fellow employees and what court papers termed ‘her confrontational and irrational behavior’ with her supervisor” is entitled to sue her employer under the Americans with Disabilities Act since the ability to interact or get along with others is “a major life activity”, a federal judge ruled in New York. The employer had responded to the woman’s lawsuit with a counterclaim against her, charging that her erratic and hostile behavior had cost it $500,000 in losses to its operations, but Judge Frederic Block suggested that its counterclaim was “in terrorem tactics” and “a naked form of retaliation” against “a vulnerable plaintiff who suffers from a significant mental impairment, for filing her lawsuit,” and suggested that he might impose sanctions on the company for so foolishly imagining that the accusation game might work in both directions. (Mark Hamblett, “Plaintiff With Bipolar Disorder Protected Under ADA”, New York Law Journal, March 4).

March 8-10 — Near and dear to their hearts. Florida trial lawyers are up in arms over the merest suggestion, from a committee on jury innovations, that it might be time to start rethinking their cherished right to kick prospective jurors off panels without offering reasons or explanations. Thomas Scarritt, chair of the Florida bar’s trial lawyers section, “called any discussion of eliminating peremptory challenges ‘a dangerous move.’ Scarritt told the [state supreme] court ‘that is a subject that is near and dear to the hearts of trial lawyers and we do not think there should be any change whatsoever.'” (Susan R. Miller, “Juror Power?”, Miami Daily Business Review, Feb. 6).

March 8-10 — Crestfallen at the news. “Obviously, we’re disappointed.” — Len Selfon, director of benefits programs for the Vietnam Veterans of America, on word that the Institute of Medicine had found no evidence that the herbicide Agent Orange, to which many veterans were exposed, has contributed to the risk of a form of leukemia in children (“Washington in Brief: Science Panel Retreats On Agent Orange Risks”, Washington Post, Feb. 28) (via Health Facts and Fears (American Council on Science and Health), March 5).

March 6-7 — Updates. Stories that kept on developing:

* “A judge dismissed a lawsuit Monday that claimed several video game and movie makers shared blame for the 1999 Columbine High School massacre. … [Federal judge Lewis] Babcock said there was no way the makers of violent games and movies could have reasonably foreseen that their products would cause the Columbine shooting or any other violent acts. ‘Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence,’ Babcock wrote.” (“Columbine Family’s Lawsuit Against Video Game Makers Dismissed”, AP/Tampa Bay Online, Mar. 5)(see April 24, 2001).

* A Southwest Texas University student who bared her breasts at a wet T-shirt contest in Mexico over spring break 2000 has won a $5 million default judgment against the makers of a Wild Party Girls video who used the resulting topless picture of her in their promotions. She continues to pursue a lawsuit against the E! cable network for airing the “Too Hot for TV” ads with her image. (“Woman in ‘too hot for TV’ suit gets $5 million”, Cox/AZCentral, Feb. 27) (Update Apr. 15: default judgment thrown out). And the quest for a very private Mardi Gras continues as a Florida State University business major “has sued producers of the ‘Girls Gone Wild’ videos, claiming they invaded her privacy and used her image without permission. … [She] admits in her lawsuit that she was among the women on the streets and balconies of the French Quarter last year who removed their tops in exchange for Mardi Gras beads and trinkets.” (Janet McConnaughey, “Coed files suit over nude video”, AP/Polk County Online, Jan. 23)(see Sept. 28, 2001). At Metafilter, user “Mikewas” has some advice (Oct. 1) for how a defense lawyer might try such cases after first determining whether the local jury is of liberal or conservative leaning.

* ” In what is being described as a major victory for the so-called ‘visitability’ movement, two cities in disparate parts of the country [last month] started requiring all new homes to be accessible to the handicapped.” Besides the expected passage of such an ordinance in Naperville, Ill. (see Feb. 6), a new ordinance in Pima County, Arizona “includes the significant additional requirement of a zero-step entrance.” “I thought homes were for the owners,” says University of Chicago law professor Richard Epstein. A suburban Chicago homebuilder says the added expense could run as high as $3,000 a house: “it’s real easy to spend somebody else’s money,” adds J. Mark Harrison, executive director of the Home Builders Association of Illinois. (“Activists Win New Rules Requiring Handicapped-Accessible Private Homes”, FoxNews.com, Feb. 10).

March 6-7 — Quest for deep pockets in Ga. crematory scandal. “But while relatives focus their anger on the Marshes, their lawyers have deeper pockets in mind — the funeral homes that sent bodies to Tri-State. The reason is simple: Funeral homes have more insurance. Lawyers know the Marshes’ assets are likely to be eaten up in criminal court defending Ray Brent Marsh, the man charged with theft by deception in the Tri-State case. That leaves the funeral homes, who carry multimillion-dollar liability policies.” (Duane D. Stanford, “Big bucks at stake as lawsuits hit funeral homes that sent bodies to Tri-State Crematory”, Atlanta Journal-Constitution, Mar. 3).

March 6-7 — Washington eyes your 401(k). At Reason Online, Mike Lynch explains why the Enron collapse doesn’t prove what members of Congress keep saying it does about the supposed laxity of pension regulation (“Political Returns”, April) (see Feb. 15).

March 6-7 — Dewey deserve that much? Dig deeper into your pockets, smokers: federal judge Jack Weinstein of the Eastern District of New York “has awarded nearly $38 million in legal fees to New York-based Dewey Ballantine for representing Blue Cross and Blue Shield in a suit against the tobacco industry — more than twice the amount of a jury verdict in the case last year.” (Tom Perrotta, “Dewey Ballantine Given $38 Million Fee Award”, New York Law Journal, Mar. 1). (Update Oct. 23, 2004: New York high court derails award and underlying case.) And Loyola University law professor Dane Ciolino has dropped his challenge of the $575 million in legal fees private lawyers got for representing the state of Louisiana in the national tobacco settlement. Terms were confidential; Ciolino said he is not receiving personal benefit from the deal. “When they signed on to represent the state, the lawyers from 13 different firms became Louisiana assistant attorneys general. The lawyers claimed they acted as independent contractors, not government employees.” (Marsha Shuler, “Tobacco fee challenge dropped”, Baton Rouge Advocate, Feb. 15).

March 5 — Scenes from a malpractice crisis. “In Las Vegas, more than 10% of the doctors are expected by summer to quit or relocate, plunging the city toward crisis. … In California — where juries hearing malpractice lawsuits are limited to maximum awards of $250,000 for pain and suffering — [ob/gyn Dr. Cheryl] Edwards’ insurance premium this year is $17,000 [it had been $150,000 when she practiced in Nevada]. Because of 1975 tort reform, doctors in California are largely unaffected by increasing insurance rates. But the situation is dire in states such as Nevada where there is no monetary cap.”

“Doctors in Oregon have been told to brace for ‘breathtaking’ increases in malpractice insurance premiums in coming weeks. … When the Oregon Supreme Court in 1999 rejected as unconstitutional a $500,000 lid on pain- and- suffering awards in malpractice cases, jury awards of $8 million, $10 million and $17 million swiftly followed. … The Arizona border town of Bisbee has lost its hospital maternity ward because four of the town’s six obstetricians can no longer afford to practice. … Both trauma centers in Wheeling, W.Va., have closed because their neurosurgeons couldn’t pay their new malpractice premiums. The trauma center at Abington Memorial Hospital outside Philadelphia faces closure next month as its doctors scramble to find affordable insurance.” (Tom Gorman, “Physicians Fold Under Malpractice Fee Burden”, Los Angeles Times, Mar. 4; also (same story) Boston Globe; Joelle Babula, “Malpractice Crisis: Trauma unit faces cuts”, Las Vegas Review-Journal, Feb. 7). In Mississippi, where trial lawyers hold great sway in many courts and recently blocked tort reform in the state legislature, an 18-doctor group of emergency physicians in Hattiesburg two years ago “paid $140,000 for malpractice insurance. Last year, the premium went to $250,000. The next annual premium would be $437,500 or $475,000…” (“Cost to cover errors in ER to rise for doctors”, Hattiesburg American, Jan. 26). See also Geekemglory blog, Dec. 13. (DURABLE LINK)

March 5 — Case for declaring wars, cont’d. “The framers had good reason to separate the dangerous power to declare (and finance) war from the power to command the armed forces.” Unfortunately, Congress nowadays tends to abdicate its responsibility by delegating to the White House discretion on whether to institute hostilities. (Sheldon Richman, “Anything to declare?”, Foundation for Economic Education, Feb. 16) (see Sept. 13, 2001) (via Free-Market.Net).

March 5 — “Man awarded $60,000 for falling over barrier”. Australia: “A surfer who fell and injured his back when he stepped over a guard rail to urinate has been awarded more than [A]$60,000 in compensation. Paul Andrew Jackson was aged 35 when he crossed a bicycle bridge on the Pacific Highway at Kanahooka, in Wollongong South, and stepped over a barrier to relieve himself in what he thought was ground level bush.” (The Age (Melbourne), Mar. 4). Update Mar. 8-9, 2003: award overturned.

March 4 — 9/11: grab for the gems. Lawyers have sued large Manhattan jewel dealer STS Jewels Inc., the Tanzanian Mineral Dealers Association and other defendants, seeking to attach proceeds from the sale of the popular gemstone tanzanite on behalf of victims of Sept. 11 terror. Muslim radicals with links to Al-Qaeda are widely believed to have engaged in trading in the gem, which is extensively smuggled out of Tanzania, the East African country where it is mined. “Yesterday, representatives of STS and the Tanzanian Mineral Dealers Association vehemently denied any connection between their industry and al Qaeda. ‘My sympathies to the victims, but this is ridiculous,’ said STS owner Sunil Agrawal.” Among lawyers involved in filing the action are Texas asbestos lawyer Mark Lanier, corporate defense lawyer Paul Hanly and celebrity lawyer Ed Hayes. (Jerry Markon, “Tanzanite Dealers Named in Suit Brought by the Families of Victims”, Wall Street Journal, Feb. 15 (online subscribers only)). See also Ralph R. Reiland, “Lawyers Lust for 9-11 Gold” (The American Enterprise, Feb. 18). And a great Stuart Taylor, Jr. column from January that we somehow missed back then: “How 9/11 Shines a Spotlight on Litigation Lottery”, (National Journal/The Atlantic, Jan. 8).

March 4 — No reply. Lawyers from Jacoby & Meyers have filed a class action suit against online payments firm PayPal alleging all manner of atrocities in its customer service. “PayPal’s spokesman said he could not comment on the suit because his company is in the midst of a [legally mandated] post-IPO [initial public offering] quiet period.” You get to accuse them, and they can’t answer back — isn’t it fun being a lawyer? (Cheryl Meyer, “Class Action Filed Against PayPal”, The Deal, Feb. 25).

March 4 — A menace in principle. Under a law that took effect in New Hampshire last year, police are required to arrest and hold until arraignment anyone accused of violating a domestic protective order. So when a woman in the town of Farmington charged her estranged husband with placing harassing phone calls, they had to haul him in, even after a visit to his house revealed that he is blind, uses a wheelchair, and is on dialysis, leaving him not much of a credible threat to anybody. “Police had to wait three hours for an ambulance to bring [him] to the jail, but the jail wouldn’t hold him because of potential liability.” (“State domestic violence law puts police in bind”, AP/Manchester Union-Leader, Feb. 25) (via Free-Market.Net).

March 1-3 — Should have arrested him faster. “A convicted sex offender wanted in Florida who fled into the Maine woods from police is complaining that he got frostbite and lost a few toes because he wasn’t arrested fast enough. Harvey Taylor, 48, who spent at least three nights in the woods in Mattawamkeag after running from a Penobscot County Sheriff’s detective a few weeks ago, is threatening to sue the detective for not arresting him promptly.” (Mary Anne Lagasse, Flight from law leads to frostbite, threat of lawsuit”, Bangor Daily News, Feb. 27).

March 1-3 — Too much Nintendo. “A Louisiana woman is suing Nintendo, alleging her 30-year-old son suffered seizures after playing video games for eight hours a day, six days a week.” (AP/Minneapolis Star Tribune, Feb. 24; Brett Barrouquere, “Woman sues Nintendo in death of her son, 30”, Baton Rouge Advocate, Feb. 23).

March 1-3 — Batch of reader letters. We’ve fallen far behind both on posting reader letters and in answering our mail (and unfortunately we can’t answer all of it). Still, we’ve managed to put up a batch of letters from the closing weeks of last year. Topics include safe deposit boxes at the WTC, a federal judge’s decision striking down high school sports schedules that put boys’ and girls’ sports in different seasons, and discrimination against motorcyclists.

March 1-3 — Entitled to jobs that kill? On Wednesday the Supreme Court heard argument on the case of Echabazal vs. Chevron, which poses the question: “Does the Americans with Disabilities Act force employers to hire disabled workers for a job, even when the position could cause injury or death to the worker?” The Bush administration and business groups are trying to advance what turns out to be the controversial proposition that “employers have an interest in keeping their employees from being hurt or killed.” (Michael Kirkland, “Are disabled entitled to jobs that kill?”, UPI, Feb. 27; Warren Richey, “Can a disabled worker put himself at risk?”, Christian Science Monitor, Feb. 27; Marcia Coyle, “Rejecting a Worker”, National Law Journal, Feb. 26)(see Nov. 5, 2001). Update: Court unanimously rules for defense (see Jun. 19-20, 2002).

March 1-3 — Launder mania. Rushed through Congress in the weeks after Sept. 11, the USA Patriot Act “requires every financial institution — not just traditional banks — to monitor and to report suspicious customers to federal officials.” The paperwork and compliance burdens will be enormous, but there is little assurance that the program will make much difference in preventing terrorism, which tends to be accomplished on relatively small budgets. (Krysten Crawford, “On the Home Front”, Corporate Counsel, Jan. 22) (see Nov. 29, 2001).

March 1-3 — Welcome Boortz.com listeners. Popular Atlanta-based broadcaster Neal Boortz calls this site “one of my frequent stops” in researching his show (Feb. 27). He sure does have a lot of listeners — our traffic on Wednesday, when he did a segment paying us this tribute and endorsing loser-pays, was among the best ever.

Another noteworthy bit from his commentary: “Day after day people file lawsuits just to ‘see if we can get the other side to pay something.’ I’ve been there, folks. I’ve seen it. I was a member of the Georgia Trial Lawyers Association and the American Association of Trial Lawyers. I went to the conventions. I sat in the meetings. I participated in those discussions where lawyers would say ‘I know we don’t have a case — but maybe they would rather fork over a hundred thousand or so rather than taking the chance of going to trial. Hell, their expenses alone would be more than we’re asking!'”.


March 20-21 — No more restaurant doggie bags. In Australia, the restaurant doggie bag is in decline because of fears that patrons will store food at improper temperatures, allowing the growth of food-poisoning bacteria. “The Australian Leisure and Hospitality Group, which has 142 hotel restaurants across the country, has banned patrons from taking home leftovers. Victoria has already brought in anti-doggie-bag legislation, with other states tipped to follow before the end of the year, Mr Deakin said. ‘If we are the cooker of the food we are liable,’ he said.” (“Restaurants ban doggie bags”, The Advertiser (Adelaide), Mar. 18). Meanwhile, in the U.K.: “Some restaurants in Britain are forcing customers who like their meat rare to sign a disclaimer form before eating due to fears of the risk of E. coli and salmonella poisoning, the Sunday Times newspaper reported.” (“British Eaters Who Like Rare Meat Sign Disclaimers”, Reuters/Yahoo, Mar. 18).

March 20-21 — “School told to rehire cocaine abuser”. Florida: “Escambia County Schools must rehire a school employee who reported to work with cocaine in his system – 50 times above the cutoff level for a positive drug test. Robert K. Sites III, 37, initially was terminated after arriving at Brentwood Middle School on Aug. 10 in an agitated and nervous state. A ‘reasonable suspicion’ drug test revealed cocaine metabolites in his system. An independent arbitrator ruled this month that a penalty less severe than termination was warranted and wants Sites rehired with full pay and benefits.” (Lisa Osburn, Pensacola News Journal, Mar. 15). Under zero tolerance rules, of course, schools can suspend or even expel a student for possessing aspirin or other ordinary over-the-counter drugs.

March 20-21 — Lawyer: deep-pocket defendants are real culprits in identity theft. Perpetrators of the fast-growing crime of “identity theft” sometimes use fraud, stealth or dumpster-diving to obtain data on potential victims from businesses in the form of credit card or employment data. “Companies that contribute to identity theft by failing to protect their customers’ and employees’ Social Security numbers and other personal information could be held liable, some observers warn. Although relatively few cases of this type have been filed so far, some observers predict that with the incidence of identity theft rising, more frustrated victims will successfully sue companies that fail to protect this information … Sean B. Hoar, Eugene, Ore.-based assistant U.S. attorney for the District of Oregon, said he has spoken to groups of plaintiffs attorneys on the topic and the reaction has been ‘My gosh, this is a huge new area for civil litigation because of the likely liability that will be incurred.’ ‘I think that victims of identity theft are becoming much more cognizant of the fact that they have been hurt more by the negligent or careless acts of the companies than they are by the criminals,’ said Mari Frank, a Laguna Niguel, Calif.-based attorney who has specialized in the area of identity theft since she became a victim herself in 1996.” (Judy Greenwald, “ID theft suits in the cards”, Business Insurance, Mar. 4, subscriber-based site).

March 20-21 — McElroy on wrongful life suits. FoxNews.com columnist Wendy McElroy surveys the burgeoning field of “wrongful life” and “wrongful birth” suits following “the birth of a disabled child whom the mother would have aborted had she received adequate medical information.” The concept has been familiar in American courts for years and has cropped up in France and Australia recently as well. “The human cost of this new litigation is terrible. Parents publicly tell a child that they wish he or she had never been born.” (Wendy McElroy, “Parents Sue Doctors for ‘Wrongful Birth’ of Disabled Child”, FoxNews.com, Mar. 19)(see Aug. 22, 2001).

March 19 — Teen beauty pageant lands in court. In suburban Detroit, the outcome of this year’s Miss Teen St. Clair Shores beauty pageant was tainted, according to parent Barbara Scheurman’s legal complaint on behalf of her 15-year-old daughter Jennifer, which is expected to reach a local court next month. The controversy concerns whether the winning contestant should have been allowed to redo her talent presentation; a $200 savings bond and crown was the prize. (Tony Scotta, “Shores pageant judge defends her ruling”, Macomb Daily, Mar. 13).

March 19 — So depressed he stole $300K. Minnesota prosecutors are charging appeals court judge Roland Amundson, 52, who has resigned from the bench, with stealing more than $300,000 from a trust fund that a father had left for his developmentally disabled daughter. The judge’s attorney, Ron Meshbesher, said his client plans to plead guilty and “attributed Amundson’s actions to depression that followed his mother’s death”. According to prosecutors, however, his honor was not too depressed to put part of the money to use “to buy bronze statues, marble flooring, antique chairs and other items for himself.” (Pam Louwagie and Randy Furst, “Judge charged with stealing $300,000 from woman’s trust”, Minneapolis Star Tribune, Feb. 27; Elizabeth Stawicki, “Court’s credibility damaged by Amundson, judges say”, Minnesota Public Radio, Mar. 11). Update July 1-2: sentenced to 69 months. (DURABLE LINK)

March 19 — “Bad movie, bad public policy”. Among reasons to skip the Denzel Washington vehicle John Q: “at the end of the movie, we see real footage of Hillary Clinton and Jesse Jackson advocating for expanded federal health insurance. Last time I checked, though, countries with government-run health plans were less likely to give dying kids organ transplants, or the powerful drugs needed to keep their bodies from rejecting the new organs after the operation.” (Robert Goldberg (Manhattan Institute), “Painful John Q“, National Review Online, Mar. 8).

March 18 — Injured in “human hockey puck” stunt. “An Avon man has sued the Colorado Avalanche hockey team for negligence, claiming he was seriously injured during a ‘human hockey puck’ event Dec. 13, 2000, at the Pepsi Center. Ryan Netzer claims that during one of the intermissions, he was selected to take part in the event, in which he was slung by a bungee cord across the ice rink on a metal sled, according to the lawsuit filed Wednesday in Denver District Court.” Joseph Bloch, Netzer’s lawyer, says the organizers omitted protective padding that was supposed to be on boards into which his client slammed, suffering two leg fractures. “Prior to the event, Netzer signed a waiver.” (Howard Pankratz, “Fan sues Avalanche over stunt injuries”, Denver Post, Mar. 15).

March 18 — Couldn’t order 7-Up in French. “A federal government employee is suing Air Canada for more than $500,000 because he could not order a 7-Up in French.” Michel Thibodeau, 34, has already won a favorable determination from the Commissioner of Official Languages over the incident on an Aug. 14, 2000 flight from Montreal to Ottawa which resulted in an altercation after Mr. Thibodeau, “who is fluently bilingual, was unable to use French to order a 7-Up”. He wants $525,000 and an apology. “‘I am not asking for a right here, I am exercising a right I already have,’ Mr. Thibodeau said shortly after filing his lawsuit.” (Ron Corbett, “Air Canada sued over language dispute”, Ottawa Citizen/National Post, Mar. 2).

March 18 — Columnist-fest. Perennial-favorite scribes come through for readers again:

* Those consumer-battering steel import quotas are just temporary, says President Bush, and if you believe that … (Steve Chapman, “Relief from imports, for as long as it takes”, Chicago Tribune, Mar. 14);

* Airport security checking is a “ridiculous charade” because of officialdom’s continued pretense that “the 80-year-old Irish nun, the Hispanic mother of two, the Japanese-American businessman, the House committee chairman with the titanium hip” are all just as likely hijacker candidates as the young Middle Eastern man (Charles Krauthammer, “The Case for Profiling”, Time, Mar. 18; see also “Profiles in Timidity” (editorial), Wall Street Journal, OpinionJournal.com, Jan. 25);

* Dave Kopel says the abusive municipal gun lawsuits have served to galvanize a firearms industry that has historically shied away from politics: “Pearl Harbor day for the gun industry was the day that [New Orleans mayor] Marc Morial filed his lawsuit”. (“Unintended Consequences”, National Review Online, Mar. 6). See also Jacob Sullum, “Too many guns?”, Reason Online, Jan. 4 (on “oversupply” gun-suit theories).

March 15-17 — Texas docs plan walkout. More than 600 physicians in the Rio Grande Valley of Texas are planning to walk off the job April 8 to protest the state’s malpractice climate (Juan Ozuna, “‘Walkout’ Planned by Physicians”, McAllen Monitor, Feb. 16; Mel Huff, “Doctors discuss fallout from lawsuit abuse”, Brownsville Herald, Feb. 21; “The Doctor is Out”, McAllen Monitor, Feb. 19; “Sick system”(editorial), Brownsville Herald, Feb. 22). In famously litigious Beaumont, only one neurosurgeon is left practicing, which Texas Medical Association vice president Kim Ross calls “a scary thing … What if a patient has a car wreck, needs a neurosurgeon, and there’s none available? It’s an hour to Houston. That ‘golden hour’ [when treatment is most beneficial] is lost.” (Vicki Lankarge, “Soaring malpractice premiums bleed doctors, rob consumers”, reprinted by Heartland Institute, Jan.) “Channel-surf wherever you will; sooner or later (probably sooner) you’ll encounter an attorney urging you to bring your problems to him or her. Some are shameless in their opportunism: Have you suffered from respiratory problems? Throat inflammation? Sinus woes? Come see me; let’s find somebody to sue.” More than half of Texas physicians had claims filed against them in 2000, the Dallas Morning News has found. (“Litigation explosion plagues physicians” (editorial), Corpus Christi Caller-Times, Jan. 24 (via CALA Houston)).

March 15-17 — “Before you cheer … ‘Sign here'”. There are few things that trial lawyers loathe with more passion than the liability waivers that schools have parents and students sign before going out for extracurricular activities such as field trips or cheerleading. They’re carrying on a state-by-state campaign to get courts to strike down such waivers, voluntarily entered or not. (Mark Clayton, Christian Science Monitor, Mar. 12).

March 15-17 — “Politicians’ Syllogism”.

“Step One: We must do something;

“Step Two: This is something;

“Step Three: Therefore we must do it.”

— Jonathan Lynn & Antony Jay in the British television series “Yes, Minister” (via Prog Review; site on show; Hugh Davies, “Celebrities and friends say fond farewell to Sir Nigel”, Daily Telegraph, Jan. 10 (memorial for show star Sir Nigel Hawthorne, who died Dec. 26)).

March 13-14 — “Greedy or Just Green?”. “In the last few days of December, Kamran Ghalchi sent more than 3,000 California businesses an unwelcome holiday greeting — legal notices claiming they were in violation of Proposition 65, a one-of-a-kind California law requiring warnings on products that contain potentially dangerous chemicals. More than half of Ghalchi’s December notices were filed against car dealers and other automotive businesses throughout the state. Warnings at gas stations are a familiar sight to Californians, but car dealers do not warn customers that buying a car could expose them to oil, gasoline and car exhaust. In a letter offering to settle with one dealer, Ghalchi demands $7,500 to settle right away: $750 of it in fines to the attorney general, the rest split evenly between Ghalchi and Citizens for Responsible Business, a new Proposition 65 enforcement group that is the plaintiff in all of Ghalchi’s December filings.”

Recent figures from Sacramento indicate that of “citizen suit” settlements by companies for failing to post Prop 65 warnings, less than eight percent of payouts go to the state, while two-thirds go to plaintiff’s attorneys’ fees and costs, and much of the remainder to freelance enforcement groups that work with the lawyers. Even California attorney general Bill Lockyer, no friend of business, detects “an odor of extortion around many of these notices that concerns me'”. (Bob Van Voris, National Law Journal, Feb. 26).

March 13-14 — U.K. soldiers’ claim: brass didn’t warn of war trauma. In Great Britain, a high court lawsuit accuses the Ministry of Defence of “failing to adequately prepare service personnel for their inevitable exposure to the horrors of war”. Nearly 2,000 potential claimants have registered an interest in the action, which seeks to recover for post-traumatic stress disorder, according to Queen’s Counsel Stephen Irwin, arguing on their behalf. “Mr. Irwin said that the case was ‘enormous’, would take a very long time and would cost a ‘great deal of money'”. (“MoD sued over trauma from ‘horrors of war'”, London Times, Mar. 4; Joshua Rozenberg, “2,000 sue MoD over psychiatric injuries of war”, Daily Telegraph, Mar. 5)(see also “Britain’s delicate soldiery”, Dec. 22, 2000).

March 13-14 — Education reforms could serve as basis for new suits. “Robin Hood” lawsuits prevailing on courts to order equalization of spending between rich and poor public school districts have been a dismal failure even on their own terms, undermining local taxpayers’ willingness to shoulder property tax burdens. But undaunted by previous fiascos, activist education lawyers figure the answer is yet more litigation: they’re hoping to latch onto new federal mandates for uniform test scores as the basis for a renewed round of lawsuits arguing that underperforming schools have a constitutional right to more money. (Siobhan Gorman, “Can’t Beat ‘Em? Sue ‘Em!”, Washington Monthly, Dec. 2001).

March 13-14 — I’ve got a legally protected bunch of coconuts. “A Slidell businessman who painted 150 green-and-white coconuts to pass out at the city’s St. Patrick’s Day parade got a visit Thursday from a business partner of the Zulu Social Aid and Pleasure Club, which has been tossing gilded and glittery coconuts on Mardi Gras for decades. ‘The guy told me that as soon as I put paint on a coconut, I was infringing on their copyright,’ said Ronnie Dunaway, who owns Dunaway’s Olde Towne Market. ‘I was absolutely dumbfounded that there were laws about what you can and can’t do with a coconut.'” (Paul Rioux, “Zulu partners clamp down on copy-cat coconuts “, New Orleans Times-Picayune, Mar. 8).

March 12 — Texas trial lawyers back GOP PAC. Sneaky? In Houston, plaintiff’s lawyers traditionally aligned with the Democratic Party are funding a “Harris County GOP PAC” which has endorsed candidates in today’s Republican primary for Supreme Court, Congress, the state legislature, and county attorney. Though unaffiliated with the official Republican organization, the PAC has sent voters a slickly produced brochure whose “logo even mimics the official logo of the Harris County Republican Party, which features an elephant inside of a star”. (“Harris County GOP PAC funded by plaintiff’s lawyers”, Citizens Against Lawsuit Abuse Houston, undated March; John Williams, “Republicans want distance from PAC”, Houston Chronicle, Mar. 7).

March 12 — Liability concerns fell giant sequoia. “The Sonora Union High School District, owner of the property, had been concerned about liability if the 85-foot-tall tree fell on its own.” (Melanie Turner, “Giant sequoia felled despite legal wrangling”, Modesto Bee, Feb. 23) (via MaxPower blog, Feb. 17).

March 12 — A “Jenny Jones Show” question. Why do ads for injury lawyers so often air on the same TV shows as debt-restructuring ads aimed at viewers desperate for financial relief? — wonders blogger Patrick Ruffini (March 8).

March 11 — Fast-food roundup. The Chicago Tribune is reporting that McDonald’s Corp. is on the verge of settling lawsuits brought on behalf of vegetarians over its use of beef extract as a flavoring agent for French fries; the terms include “$10 million to charities that support vegetarianism and $2.4 million to plaintiffs’ attorneys.” Yum! (Ameet Sachdev, “McDonald’s nears deal on fries suit”, Chicago Tribune, March 7; AP/Fox News, Mar. 9; see May 4, 2001, and Rediff.com coverage: May 4, May 8, July 3, 2001). Public health activists are taking aim at the food industry’s sinister ploy of providing customers with big portions, in a contrast with the inflationary 1970s when activists denounced the same companies’ shock-horror practice of shrinking the size of the candy bar or taco (Randy Dotinga, “Super-Size Portion Causing U.S. Distortion”, HealthScoutNews/ Yahoo, Feb. 19). Whatever happened to the old notion of “leave some on the plate for Miss Manners”, anyway? On EnterStageRight.com, Steven Martinovich analyzes the next-tobacco-izing of snack food, quoting our editor on the subject (“The next moral crusade”, Feb. 25). Also see accounts on ConsumerFreedom.com: Jan. 24, Jan. 30, Feb. 5. And a lefty commentator for a British newspaper has concluded that our battle with the waistline is really all capitalism’s fault: Will Hutton, “Fat is a capitalist issue”, The Observer, Jan. 27.

March 11 — Parole board’s consideration of drug history could violate ADA. In a case filed by inmates at the state prison in Vacaville, Calif., a Ninth Circuit panel has ruled that parole boards may violate the Americans with Disabilities Act if they regard a prisoner’s history of drug addiction as a reason to accord any less favorable disposition to his request to be turned loose early, such history counting as a disability protected under the law. Sara Norman, a lawyer for the inmates, said the ruling “might also apply to those suffering mental disabilities covered by the ADA. … The panel also suggested that the ADA covers a panoply of law enforcement decision making, including arrests.” The case “could lead to a swell of court challenges”. (Jason Hoppin, “ADA Applies to Decisions About Parole, Says 9th Circuit”, The Recorder, Mar. 11).

March 11 — Editorial-fest. Sense is breaking out all over: “The government’s impulsive entrance into the victim-compensation business was born of a one-time mix of compassion and political expediency, but it sets an unaffordable precedent at a time when the nation faces the likelihood of more terrorist acts.” (“Why Is One Terrorism Victim Different from Another?” (editorial) USA Today, Mar. 8). The Washington Post, which has helped lead the case for reform of nationwide class action procedures, is back with another strong editorial on the subject (“Restoring class to class actions”, Mar. 9). And following the lead of its sister Fortune (see Feb. 18-19), Time is out with a piece asking why workers themselves should put up with the widespread abuse of asbestos litigation (“The Asbestos Pit”, Mar. 11).


March 29-31 — British judge rejects hot-drink suits. U.K. lawyers had hoped to replicate the success of the celebrated American case in which a jury voted Stella Liebeck $2.7 million (later reduced to just under $500,000, and settled out of court) after she spilled coffee in her lap. However, on Mar. 27 High Court Justice Richard Field ruled against lawsuits by 36 patrons whose lawyers had claimed that the burger chain failed to warn of risks of scalding, “served drinks that were too hot, [or] used inadequate cups … ‘I am quite satisfied that McDonald’s was entitled to assume that the consumer would know that the drink was hot and there are numerous commonplace ways of speeding up cooling, such as stirring and blowing,’ the judge said.” (“British Judge Rules McDonald’s Not Liable for Hot Drinks That Scald”, AP/TBO, Mar. 28; “Judge rules against McDonald’s scalding victims”, Daily Telegraph, Mar. 27).

March 29-31 — Florida’s ADA filing mills grind away. The clutch of Miami lawyers who’ve been making a tidy living filing disabled-accommodation claims against local entrepreneurs are moving their way up into central Florida, where they are suing tourist businesses along interstate corridors, reports the St. Petersburg Times (see July 20, 2001 and links from there). One motel owner hit with a complaint has agreed to pay off the plaintiff lawyer’s hefty “fee” in installments, but can’t tell a reporter how big it is, because as part of the settlement he is forbidden to disclose the amount. (“Big winners in disabled crusade? Lawyers”, St. Petersburg Times, Mar. 24).

March 29-31 — The lawyers who invented spam. “On April 12, 1994, Laurence Canter and Martha Siegel, two immigration lawyers from Arizona, flooded the Internet with a mass mailing promoting their law firm’s advisory services.” Widely reviled at the time, Canter is still quite unapologetic: “Yes, we generated a lot of business. The best I can recall we probably made somewhere between $100,000 to $200,000 related to that — which wasn’t remarkable in itself, except that the cost of doing it was negligible.” (Sharael Feist, “Spam creator tackles the meaty issue”, ZDNet News, Mar. 26).

March 27-28 — Judge orders woman to stop smoking at home. In Utica, N.Y., Justice Robert Julian has ordered Johnita DeMatteo, if she wants to continue visitation rights with her 13-year-old son, to stop smoking in her home or car, even in the boy’s absence. “While similar rulings have been made in cases where children are in poor health, Julian’s ruling is apparently the first involving a healthy child who is not allergic to smoke” or suffer from a condition like asthma that would be worsened by it. (Dareh Gregorian, “Judge Bars Mom from Smoking”, New York Post, Mar. 26; Samuel Maull, “Judge Imposes Smoking Ban on Mother”, AP/Washington Post, Mar. 25)(see Oct. 5 and Nov. 26, 2001). Following the publication of a new study suggesting the possibility of a link between smoking and sudden infant death syndrome, anti-smoking activists are excited to think they may now have the leverage needed to obtain legal measures against smoking by parents in homes. “Ms. [Gail] Vandermeulen of [Ontario] Children’s Aid said attempts to curb smoking in the home have so far proved unworkable. In 1999, for example, the association drew up a policy trying to keep foster parents from smoking. ‘It caused quite a controversy; people felt they had a right to do what they want to do in their own homes,’ Ms. Vandermeulen said. (Carolyn Abraham, “Secondhand smoke linked to SIDS”, Toronto Globe & Mail, Feb. 21). And anti-smoking activists, in a report financed by the government of California, are demanding that an “R” rating be attached to movies in which anyone smokes, putting Golden Age Hollywood films off limits to the underage set unless they drag an adult to the theater with them (“Anti-smoking groups call for movie ratings to factor in tobacco”, Hollywood Reporter, Mar. 12; “The Marlboro woman” (editorial), The Oregonian, Jan. 28 (Univ. of Calif.’s Stanton Glantz)). (DURABLE LINK)

March 27-28 — “The American Way”. Thanks to James Taranto at WSJ “Best of the Web” (Mar. 26) for this pairing of quotes:

* “They evil ones didn’t know who they were attacking. They thought we would … roll over. They thought we were so materialistic and self-absorbed that we wouldn’t respond. They probably thought we were going to sue them.” — President George W. Bush, Mar. 21.

* “Whether or not we invade Iraq to topple Saddam Hussein, let’s go about this the American way. Let’s sue him.”– Nicholas Kristof, New York Times (reg), Mar. 26.

March 27-28 — Reparations suits: so rude to call them extortion. What happened on Wall Street when the first three major U.S. companies were named in lawsuits demanding reparations for slavery? “In afternoon New York Stock Exchange trading, Aetna shares were up 44 cents at $37.78, CSX shares were up 66 cents at 37.55, and FleetBoston shares were up 24 cents at $35.38.” Should we interpret that as a recognition of the frivolous nature of the suits, or as investors’ vote of sympathy for the first extortion targets among many more to come? (Christian Wiessner, “Reparations Sought From U.S. Firms for Slavery”, Reuters/Yahoo, Mar. 26; “Suit seeks billions in slave reparations”, CNN, Mar. 26; text of complaint in PDF format, courtesy FindLaw; James Cox, “Aetna, CSX, FleetBoston face slave reparations suit”, USA Today, Mar. 24). Reparations activists are shrewdly structuring their meritless suits as guilt-seeking missiles, aimed at corporations nervous about their image and, coming up, the juiciest target of all: elite colleges and universities. At Princeton, for example, an early president of the college was recorded as owning two slaves at his death, and “numerous trustees and antebellum-era graduates owned slaves.” Reason enough to expropriate Old Nassau — get out your wallets, alums. (Andrew Bosse, “Reparations scholars may name University in lawsuit”, Daily Princetonian, Mar. 12; Alex P. Kellogg, “Slavery’s Legacy Seen in the Ivory Tower and Elsewhere”. Africana.com, Aug. 28, 2001) (see Feb. 22).

“It’s never about money,” lawyer Alexander Pires of the Reparations Coordinating Committee said last month. (Michael Tremoglie, “Reparations — ‘It’s Never About Money'”, FrontPage, March 4). “To me it’s not fundamentally about the money,” said radical Columbia scholar Manning Marable, who is also helping the reparations effort. (Kelley Vlahos Beaucar, “Lawsuit Chases Companies Tied to Slavery”, FoxNews.com, Mar. 25). Translation: it’s about the money. And next time you are inclined to be overawed by the reputation of Harvard Law School, consider that an ornament of its faculty, Prof. Charles Ogletree, not only is a key adviser to the reparations team but also co-chairs the presidential exploration committee of buffoon/spoiler candidate Al Sharpton, whose name will be forever linked with that of defamation victim Steven Pagones (see Dec. 29, 2000). (Seth Gitell, “Al Sharpton for president?”, Boston Phoenix, Feb. 28 – Mar. 7). (DURABLE LINK)

March 27-28 — Why your insurance rates go up. To the Colorado Court of Appeals, it makes perfect sense to make an auto insurer pay for a sexual assault that took place in a car. (Howard Pankratz, “Court: Attack in car insured”, Denver Post, Mar. 15). Update Oct. 15, 2003: state’s Supreme Court reverses by 4-3 margin.

March 25-26 — Web speech roundup. The famously litigious Church of Scientology has had some success knocking a major anti-Scientology site off the Google search engine (the offshore Xenu.net, “Operation Clambake”) by informing Google’s operators that the site violates copyrighted church material under the Digital Millennium Copyright Act. (Declan McCullagh, Google Yanks Anti-Church Sites”, Wired News, Mar. 21; “Google Restores Church Links”, Mar. 22; John Hiler, “Church v Google, round 2”, Microcontent News, Mar. 22) (via Instapundit)(see Mar. 19, 2001). The National Drug Intelligence Center, a unit of the U.S. Department of Justice, acknowledged in December that it monitors more than 50 privately operated websites that provide information about illegal drugs. In a report, the Center warned that many such sites include material “glamorizing” such substances or are “operated by drug legalization groups” with an aim to “increase pressure on lawmakers to change or abolish drug control laws.” Yes, it’s called “speech” to you, buddy (Brad King, “DOJ’s Dot-Narc Rave Strategy”, Wired News, Mar. 13; “Government Admits Spying on Drug Reformers”, Alchemind Society, Mar. 15; National Drug Intelligence Center, “Drugs and the Internet”, Dec. 2001; more on what DoJ calls “offending” websites).

Companies continue to wield threats of litigation with success against individuals who criticize them on investor and other message boards: “Dan Whatley …lost a $450,000 defamation lawsuit for statements he had made about a company called Xybernaut on an Internet message board. He said he didn’t even know the suit existed.” (Jeffrey Benner, “Online Company-Flamers: Beware”, Wired News, Mar. 1). The Texas Republican Party recently threatened legal action against a parody website aimed at calling attention GOP links to the failed Enron Corp., but succeeded only in giving the site’s operators far more publicity than they could have gotten in any other way (Eric Sinrod (Duane Morris), “E-Legal: Republican Party of Texas Goes After Enron Parody Web Site”, Law.com, Mar. 5). The Canadian government has demanded that pro-tobacco website Forces Canada cease using a version of the national flag’s maple leaf (which turns out to be a trademarked logo) as a design feature, claiming it could confuse viewers into thinking the site is officially sanctioned (Joseph Brean, “Take Canadian flag off Web site, government tells smokers’ group”, National Post, Jan. 30). And the Electronic Frontier Foundation along with law school clinics at Harvard, Stanford, Berkeley, and the University of San Francisco have launched the new Chilling Effects Clearinghouse, aimed at assisting site owners worried about being accused of violating copyrights or trademarks. It includes special sections devoted to fan sites, poster anonymity and other issues, and publishes examples of lawyers’ letters commanding site owners to cease and desist, popularly known as nastygrams. (Gwendolyn Mariano, “Site reads Web surfers their rights”, Yahoo/CNet, Feb. 26). (DURABLE LINK)

March 25-26 — La. officials seek oyster judge recusal. “The Louisiana Department of Natural Resources is asking a state district judge to remove himself from hearing oyster lease damage cases because he has already awarded a former client and the client’s family almost $110 million from two previous cases. Monday, state District Judge Manny Fernandez is set to begin hearing more lawsuits claiming the Caernarvon Freshwater Diversion damaged oyster leases in St. Bernard Parish. The state says at least one plaintiff in the case is a former client of Fernandez’s and that man’s family and related companies received damage awards in recent Fernandez decisions. … The upcoming case is the latest in a string of oyster damage suits that, if upheld on appeal, will cost the state more than $1 billion, according to the state’s motion.” (Mike Dunne, “DNR asks judge to step down”, Baton Rouge Advocate, Mar. 16). (DURABLE LINK)

March 25-26 — Tribulations of the light prison sleeper. David Wild, serving a sentence for murder at a medium security prison in British Columbia, is asking C$3 million in damages over what he calls the prison’s “inhumane” practice of conducting head counts in the middle of the night, which “has caused him to lose a full night’s sleep 509 times over five years.” In particular, Wild’s suit “says prison guards acted thoughtlessly and carelessly by rattling door knobs, stomping down stairs, turning on lights and talking loudly on two-way radios in the middle of the night.” Federal Court Justice James Hugessen has already ruled that the case can go forward, rejecting the Canadian government’s attempt to get it thrown out as frivolous or vexatious. (Janice Tibbetts, “Prison guards wake me up too much, murderer claims in $3.1M lawsuit”, Southam/National Post, Mar. 12). (DURABLE LINK)

March 22-24 — “O’Connor Criticizes Disabilities Law as Too Vague”. Another noteworthy public speech from Supreme Court justice Sandra Day O’Connor on a topic dear to our heart, namely the way the Americans with Disabilities Act created a massive new edifice of rights to sue without making clear who was actually covered by the law or what potential defendants had to do to comply. Law professor Chai Feldblum, who played a key role in guiding the law to passage while with the American Civil Liberties Union’s Washington office, counters by saying that its backers were not rushed and devoted much care and attention to drafting the bill’s provisions. Note that this does not actually contradict the charge of vagueness, but only Justice O’Connor’s charitable assumption that the vagueness was inadvertent; it is consistent with our own long-voiced opinion that the bounds of the law were made unclear on purpose. (Charles Lane, Washington Post, Mar. 15). For the Justice’s comments last summer on the relation between contingency fees, class actions and the litigation explosion, and on zero-tolerance policies, see July 6, 2001. (DURABLE LINK)

March 22-24 — Lawyers stage sham trial aimed at inculpating third party. Arizona bar authorities say opposing lawyers in a medical malpractice case cut a secret deal in which the lawyers for the physician defendant “promised not to object to any of the plaintiffs’ evidence in return for the plaintiffs’ promise to dismiss the case before the jury began deliberations.” A second defendant, Scottsdale Memorial Hospital, had already been dismissed from the case on summary judgment, and for the plaintiffs the point of the maneuver “was to create a record that would help them in seeking reconsideration of the summary judgment in favor of the hospital”. Both parties were aware that the physician defendant’s resources were insufficient to pay the claim if successful. The trial judge had been suspicious of the plaintiffs’ motion to withdraw the case, and later discovered the secret agreement when considering their motion to reconsider the summary judgment in favor of the hospital.

The state bar of Arizona brought a disciplinary action against Richard A. Alcorn and Steven Feola, who had represented the doctor. (The plaintiff’s attorney involved in the deal, Timothy J. Hmielewski, is from Florida). A hearing officer recommended against punishing the two, “concluding that the lawyers had a ‘good faith belief’ that they had no duty to disclose the secret pact”. However, both a disciplinary panel and the Arizona Supreme Court disagreed, and the latter ordered Alcorn and Feola suspended from practice for six months. It “concluded that the scripted trial and prearranged dismissal worked a serious fraud on the court and the public.” The trial judge had also “ordered all the attorneys involved to pay a $15,000 fine each for committing a fraud on the court and duping the court into conducting ‘a mock trial at the taxpayers’ expense.’ That sanction was affirmed on appeal.” (“‘Sham Trial’ Slammed, ABA Journal eReport, Mar. 8; In re Alcorn, Ariz. No. SB-01-0075-D.) (DURABLE LINK)

March 22-24 — Arsenic: one last dose? Last year some environmental groups did their best to make the public think that by pulling back the Clinton administration’s last-minute arsenic rules the incoming Bush White House was trying to let “polluters”, specifically the mining industry, get away with dumping the poison into town drinking water supplies. “This decision suggests the Bush Administration is caving to the mining industry’s demands to allow continued use of dangerous mining techniques,” said Sierra Club executive director Carl Pope. (Sierra Club release, Mar. 20, 2001). “This outrageous act is just another example of how the polluters have taken over the government,” said Natural Resources Defense Council senior attorney Erik Olson. (NRDC release, Mar. 20, 2001). Critics of the stringent Clinton rule said its real victims would be ratepayers and taxpayers in the Southwest where municipal water systems would be forced to spend huge amounts to remove traces of naturally occurring arsenic that had been causing no evident health effects (see Sept. 11, 2001 and links from there).

So who was right? The Bush people ran into a p.r. disaster and soon backed down, but this week’s L.A. Times report from Albuquerque, N.M., which has more arsenic in its water than any other big American city, suggests that the enviros won their victory on the issue by misleading the public. Pretty much everyone the paper talked to in Albuquerque, from the Democratic mayor on down, dislikes the new standard: “many people here say the rule will do little more than cost the city $150 million, and Albuquerque and the state of New Mexico are suing to block it.” Did mining operations cause the city’s high arsenic levels? No, “volcanoes and lava flows are responsible”. (Elizabeth Shogren, “Albuquerque Battles to Leave Arsenic in the Water”, L.A. Times, Mar. 18). See also Robert McClure, “Mining, arsenic rules are next on Bush’s list”, Seattle Post-Intelligencer, Mar. 21, 2001: “Virtually all arsenic in drinking water is naturally occurring.” Mining companies wind up being affected indirectly by drinking water standards because of rules that treat mine runoff water as pollution if it flunks drinkability standards, even (absurdly) if the natural occurrence of substances like arsenic in the soil meant that the water would not have met the standard with or without mining operations. (More: Nick Schulz, “Greens vs. Poor People”, TechCentralStation, Nov. 6; Jonathan Adler, “Wrong way on water”, National Review Online, Nov. 13). (DURABLE LINK)

December 2001 archives, part 2


December 20 — New York guardianship scandals. “Cronyism, politics, and nepotism” run rife in New York’s notorious system of court-appointed guardianships, a report released by the state’s chief judge, Judith Kaye, has found after a two-year investigation (see Jan. 12, 2000). “In one case, a lawyer appointed to be a guardian for a woman who could not handle her own affairs billed her estate $850 after he and an assistant took a cake and flowers to her nursing home on her birthday. On another day, the lawyer and an employee took her out for a walk and bought her an ice cream cone. Their bill was $1,275.” And much, much more (Jane Fritsch, “Guardianship Abuses Noted, Including a $1,275 Ice Cream”, New York Times, Dec. 4; Daniel Wise, “Investigation Finds ‘Cronyism’ Abounds in New York Court Appointments”, New York Law Journal, Dec. 5; “Report of the Commission on Fiduciary Appointments”, December; “Fiduciary Appointments in New York“).

December 20 — “Firms Hit Hard as Asbestos Claims Rise”. L.A. Times looks at asbestos litigation and finds abuses and overreaching have gone so far that even some prominent plaintiff’s lawyers agree on the need for action. “An Oakland-based attorney who has represented asbestos victims for 27 years is leading a renegade faction of the plaintiffs’ bar that has joined with many of the corporations they sue in calling for limits on claims from people without serious illnesses. ‘It’s too far gone to do anything else,’ Steve Kazan said. ‘The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who’d rather kill them, cut them up and put them on the grill now. We’d all have a great time, but there are people who will be hungry in five years.'” Over 15 years, now-bankrupt boilermaker Babcock & Wilcox “spent $1.6 billion on 317,000 claims that took paralegals five to 10 minutes each to prepare.” (Lisa Girion, “Firms Hit Hard as Asbestos Claims Rise”, L.A. Times, Dec. 17). According to a letter sent by the Manville Trust to federal judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other grave illness are receiving reduced payments because “disproportionate amount of Trust settlement dollars have gone to the least injured claimants — many with no discernible asbestos-related physical impairment whatsoever.” As usual, a key problem is the submission of questionable x-rays. (Queena Sook Kim, “Asbestos Trust Says Assets Are Reduced As the Medically Unimpaired File Claims”, Wall Street Journal, Dec. 14)(online subscribers only).

December 20 — Accused WTC bombing participant won’t get $110K. “In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center … the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were ‘substantially justified’ even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge” by clear, convincing and unequivocal evidence. (Shannon P. Duffy, “3rd Circuit Takes Away Attorney Fee Award in ’93 WTC Bombing Case”, The Legal Intelligencer, Dec. 7).

December 19 — Texas jury clears drugmaker in first Rezulin case. Back to the drawing board for plaintiff’s lawyers trying to take down the Warner-Lambert division of Pfizer over side effects from its diabetes drug Rezulin. “‘It was a good drug. It helped a lot of people,’ said one juror, who asked not to be identified. ‘There just wasn’t enough evidence to show the drug was defective.'” Attorney George Fleming had demanded $25 million in damages and “emphasized Warner-Lambert’s interest in profits, flashing excerpts from internal memos before the jury.” Lawyers have many more Rezulin cases in the pipeline, so they’ll be able to try again and again before other juries. (Leigh Hopper, “Firm wins 1st Rezulin suit in court”, Houston Chronicle, Dec. 17). UpdateJan. 9-10, 2002: second trial goes against drugmaker with $43 million actual damages.

December 19 — “$3 million awarded in harassment”. “A federal jury Wednesday awarded a woman patrol officer for the Cook County Forest Preserve District $3 million in damages — $1 million more than her lawyer sought from the district–for years of sexual harassment and retaliation on the job … One member of the five-woman, three-man jury said he didn’t find the harassment egregious but felt a need to send the Forest Preserve District a message for its inaction regarding Spina’s complaints. ‘The county didn’t respond,’ juror Christopher Calgaro, an insurance claims supervisor from Homewood, said after the verdict. ‘They need to change, I mean catch up to the times.'” (Matt O’Connor and Robert Becker, Chicago Tribune, Dec. 13).

December 19 — Sued if you do dept.: language in the workplace. “Any worker offended by the words of a single employee can sue his employer for damages. Accordingly, many employers have adopted ‘English-only’ rules for their employees, in order to better supervise employee comments. Yet the EEOC also insists that employers can be sued by any employee who takes offense to an ‘English-only’ policy.” (Jim Boulet Jr., , “Catch-22 on Language”, National Review Online, Nov. 14) (see Nov. 17, 1999).

December 18 — False trail of missing lynx. “Federal and state wildlife biologists planted false evidence of a rare cat species in two national forests, officials told The Washington Times. Had the deception not been discovered, the government likely would have banned many forms of recreation and use of natural resources in the Gifford Pinchot National Forest and Wenatchee National Forest in Washington state.” After a Forest Service employee blew the whistle on colleagues, officials discovered that seven government employees, five from federal agencies and two from Washington state, “planted three separate samples of Canadian lynx hair on rubbing posts used to identify existence of the creatures in the two national forests.” The employees were given no serious discipline, merely counseling and being taken off the lynx survey project, and federal officials would not even release their names, “citing privacy concerns.” (Audrey Hudson, “Rare lynx hairs found in forests exposed as hoax”, Washington Times, Dec. 17; InstaPundit, Dec. 17).

December 18 — For client-chasers, daytime TV gets results. “Princeton, N.J. lawyer John Sakson … spends up to $80,000 a month soliciting potential plaintiffs. Some of his advertising is aimed at slip-and-fall and medical-malpractice victims. But these days he’s also trawling for much bigger fish — plaintiffs for deep-pocket attacks on big corporations, especially pharmaceutical companies. … the nation’s largest legal- advertising agency … says one-third of its $20 million in legal billings comes from pharmaceutical litigation ads, compared with maybe 1% a decade ago.” Poor, unemployed and disabled people disproportionately watch daytime TV: “Real-life judge shows like Judge Mills Lane and Judge Judy are jackpots.” (Michael Freedman, “New Techniques in Ambulance Chasing”, Forbes, Nov. 11).

December 18 — Compulsory chapel for Minn. lawyers. “Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training — called ‘elimination of bias’ education — as a condition of holding a license to practice law.” The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone. (Katherine Kersten, “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought”, Minneapolis Star-Tribune, Dec. 12). See update Nov. 21, 2003 (lawyer challenges requirement).

December 17 — “Suing the City for Sept. 11? Oh, Why Not?”. Giuliani or Bloomberg, New York City’s tort crisis just keeps getting worse: “Settlements cost the city $459 million that year [fiscal 2000], the latest for which statistics are available. … You might expect the litigation to slow down as a hurt and financially damaged city looks to rebuild and weather a recession. You would be wrong. … Interviews with lawyers for the city and prospective plaintiffs indicate that the attack will generate substantially more than 1,000 notices of claim.” (Joyce Purnick, New York Times, Dec. 13).

December 17 — Slouching toward Marin? Every conservative commentator in the country, it seems, has by now told us where to pin the blame for Tali-boy John Walker’s descent into Islamic extremism: it’s all because of his permissive, religiously liberal suburban upbringing. Steve Chapman offers a corrective to all the Culture War axe-grinding (“Is John Walker a failure of liberalism?”, Chicago Tribune, Dec. 16).

December 17 — Daynard watch. It sure did take a long time, but the British Medical Journal has finally admitted to its readers that tobacco-baiting Northeastern University law prof Richard Daynard failed to disclose competing interests in litigation to BMJ readers as per the journal’s policy (see our earlier reports). The correction states that Daynard “has been involved as counsel in suing tobacco companies and has received grants for research into the use of litigation to control tobacco use”. Because this formulation is so terse and artfully worded, however, readers in the United Kingdom (where lawyers are generally not allowed to claim percentage stakes in litigation) may not realize that the competing interest Daynard concealed consisted not in routine hourly fees but a contingency stake that, per his claims, may top $100 million (“Correction: Tobacco litigation worldwide”, Oct. 6). Connecticut activist Martha Perske deserves the credit for getting the BMJ to semi-‘fess up. Meanwhile, Daynard’s division- of- the- spoils suit against former anti-tobacco colleagues Ron Motley and Richard Scruggs “is providing an inside look at the way lawyers finagled fees in the tobacco litigation — and the lengths they’ll go to protect their hoard.” (Elizabeth Preis, “A Piece of the Action”, The American Lawyer, Sept. 7).

December 15-16 — Criminal defense attorneys, doing what they do best. “While it may seem like the ultimate smoking gun, defense lawyers said there would be ways to try to undercut the videotape of Osama bin Laden if he were to go on trial for the Sept. 11 terrorist attacks. … ‘I would argue as a defense lawyer that the tape is puffery, celebration and bragging,’ said Robert E. Precht, director of public interest law at the University of Michigan Law School who was a defense lawyer in the trial of the World Trade Center bombers in 1994′ … several defense lawyers suggested that a creative defense team might claim that the damning translation from Arabic was misleading or that the tape was doctored. ‘The reality is you can make a tampering argument with any tape,’ Barry I. Slotnick, a New York defense lawyer, said.” And: “with tapes that are transcribed from a different language, there are interpreters you can find who can come up with a different transcript,” offered New York’s Benjamin Brafman. Then there’d be attacks on the tape’s admissibility, since “it was not clear how the government obtained it”, which might in turn force the CIA to reveal sensitive information — great tactical leverage. (William Glaberson, “Defense Lawyers See Ways to Attack Tape, if Not Win”, New York Times, Dec. 15). On the role of the O.J. Simpson case in convincing much of the American public that our court system cannot be trusted to deliver even rough justice in a high-profile criminal trial, see, among many others, Glenn Reynolds, InstaPundit.com, Dec. 13.

December 15-16 — Updates. Further developments in cases that were bound to develop further:

* The Canadian Transportation Agency has ruled that obesity in itself is not a disability and that airlines are not therefore obliged by law to offer extra seats to severely overweight passengers, although it suggested they consider doing so voluntarily (see June 7, Dec. 20, 2000)(“Canadian tribunal rules obesity is not a disability”, Reuters/FindLaw, Dec. 13).

* In New South Wales, Australia, an appeals court has ordered a new trial after finding that an award of almost $3 million (Aust.) was “excessively high” in the case of a man who sued over having been subjected to strapping as punishment twice at a Catholic school seventeen years ago (see Feb. 20). (Ellen Connolly, “Compensation takes a caning as $3m payment revoked”, Sydney Morning Herald, Nov. 1).

* Sitting en banc, the Ninth Circuit has held that grabbing the interest on clients’ trust accounts at law firms to finance poverty law does not entail any “taking” for which the clients need be compensated; the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier opinion for a three-judge panel (see Jan. 31) the court reversed. The Ninth now officially disagrees with the Fifth Circuit (so what else is new?) on this issue, and the circuit split may attract the attention of the U.S. Supreme Court. The court did not resolve the question of whether such programs violate the First Amendment. (Jason Hoppin, “IOLTA: 9th Circuit Says IOLTA Programs OK”, The Recorder, Nov. 15) (opinion in PDF format courtesy FindLaw).

* “Five shopkeepers prosecuted for weighing food in British Imperial measurements instead of the metric system demanded by European law appealed to London’s High Court Tuesday to quash their convictions.” After greengrocer Steven Thoburn of Sunderland, the original “metric martyr”, was brought up on charges for weighing bananas in pounds (see Jan. 22, April 11), authorities collared four more shopkeepers who were using the forbidden measures to weigh such items as mackerel and pumpkins. Some 200 protesters demonstrated outside the court in support of the merchants. (“Shopkeepers Battle for Right to Use British Weight” , Reuters/Yahoo, Nov. 23). Update Feb. 20, 2002: they lose High Court appeal.

December 13-14 — “Father seeks $1.5 million after son misses varsity spot”. By reader acclaim: “The father of a high school sophomore seeks $1.5 million in damages and the dismissal of the school’s basketball coach after his son did not make the varsity. Lynn Rubin sued the New Haven Unified School District on Nov. 27 because his son, Jawaan Rubin, was told to return to the junior varsity after being asked to try out for varsity.” The youngster attends James Logan High School in Union City, Calif. (AP/SFGate.com, Dec. 11; Contra Costa Times, Dec. 12).

December 13-14 — SCTLA’s homegrown Chomsky. We’re familiar with the tendency of politically active injury lawyers to espouse opinions farther to the left than those of the communities they live in. Still, we’re a bit amazed at a commentary that appeared last month on CommonDreams.org, a left-leaning website that has vehemently opposed U.S. military action before and after September 11. The commentary, in headlong Noam Chomsky/Robert Fisk rant mode, claims that “the United States is making war on children” in its efforts against the Taliban and al Qaeda, declares that the American military is delivering a “message of greed and violence” to Afghanis, and even puts scare quotes around the word “evil-doers” in referring to those responsible for Sept. 11. The screed’s author? Columbia, S.C. plaintiff’s lawyer Tom Turnipseed, a well-known figure in his state’s Democratic politics (most recently as its 1998 attorney general candidate; he’s now mulling a run for U.S. Senate) who’s often described as a leader of the state party’s progressive wing. Can this sort of thing really play with the voting public and in the jury box in a conservative, pro-military state like S.C.?

The “message of greed” that Turnipseed claims the U.S. is conveying to Afghanis, incidentally, consists of our offer of $25 million for the apprehension of Osama bin Laden. Presumably this is quite different from the message conveyed by Turnipseed’s own web site, which assures prospective clients that he has resolved numerous cases for sums in excess of $1 million. (“Broadcasting and Bombing”, CommonDreams.org, Nov. 22; Turnipseed’s law firm website and “mission“; via Matt Welch). (DURABLE LINK)

December 13-14 — Competitor can file RICO suit over hiring of illegal aliens. A really odd one from the Second Circuit: the court says a commercial cleaning service in Hartford has standing to sue a competitor for racketeering under federal law over the second firm’s alleged hiring of undocumented workers. If the decision stands, expect all sorts of new business-on-business litigation, underscoring the need to roll back RICO’s many overexpansive provisions, or repeal the law entirely. (Elizabeth Amon, “New RICO Target: Hiring Illegal Aliens”, National Law Journal, Nov. 27). Update: see Point Of Law, Jul. 12, 2004.

December 13-14 — Segway, the super-wheelchair and the FDA. The much-publicized new mobility device, known variously as “It”, “Ginger” and the “Segway”, originated as a spinoff of a quest for a truly powerful and versatile wheelchair that would allow disabled users to climb and descend stairs and curbs, traverse rough terrain and surmount other kinds of barriers. The IBot wheelchair project is still considered extremely promising, but progress on it has been less rapid than hoped: genuine safety concerns are part of the problem, but they’re magnified by various legal worries including the arduous process of getting the Food and Drug Administration to approve a new “medical device”. Meanwhile some disabled persons, frustrated at seeing years of their lives slip by without the yearned-for mobility advance, are now considering hacking the “Segway” to meet their needs. (Michelle Delio, “What About Kamen’s Other Machine?”, Wired News, Dec. 7).

As for the Segway itself: “No matter how inherently safe Segways may be, someone, somewhere is going to kill himself on one. ‘It’s inevitable,’ says Gary Bridge, Segway’s marketing chief. ‘I dread that day.’ Never mind that people die every day on bicycles, in crosswalks, on skateboards, in cars. The Segway is the newest new thing, and nothing does more to set hearts afire on the contingency-fee bar. ‘There are some very deep pockets around this thing,’ remarks Andy Grove. ‘I fear this could be a litigation lightning rod.'” (John Heilemann, “Reinventing the wheel”, Time, Dec. 2 (see p. 4)). Update: see Aug. 1, 2002.

December 13-14 — Menace of office-park geese. We knew they were sinister: an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman Nolan Lett, who was attacked by Canada geese on his employer’s property in suburban Oak Brook, and filed a workers’ comp claim “under the theory that Aramark had a duty to warn employees of the dangers of the geese because the building was in an area that attracted them.” Lett broke his wrist trying to fend off the pesky creatures. (“Workers’ compensation: Victim of wild goose attack settles for $17,000”, National Law Journal, Oct. 22). (DURABLE LINK)

December 12 — By reader acclaim: “Teen hit by train while asleep on tracks sues railroad”. Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad and its conductor and engineer, saying that they should have sounded the train’s horn or bell as well as engaged the emergency brake when they saw him asleep on the tracks. Clapp’s blood alcohol level after the accident was measured at .229, nearly three times the permissible level for operating a motor vehicle. “According to Grover Beach police, the engineer and conductor did not sound the horn because they were focused on activating the train’s emergency brakes.” Notwithstanding his client’s having been passed out at the time, Clapp’s attorney, Jim Murphy, claims that ‘These horns are enormously powerful and can literally* wake the dead.'” (Leila Knox, San Luis Obispo Tribune, Dec. 8) (*usage note)

December 12 — A bargain at $700/hour. New York law firms Weil, Gotshal and Manges and Wachtell, Lipton, Rosen & Katz “have each asked for a $1 million bonus, on top of their regular rates and costs, as an ‘enhancement'” for advising United Companies Financial Corp. of Baton Rouge, La. and its creditors during its bankruptcy. Under bankruptcy law, judges must approve the payment of fees in such cases. “Ultimately, any such fees come out of the estate of the debtor, leaving less money to go around. … Weil, Gotshal’s [attorney Harvey] Miller says that while shareholders were wiped out, his firm, which represented the debtor, still deserves a bonus for ‘creating value.’ Weil is seeking $7.3 million in fees in the case. But he says that hourly rates do not always do justice to a lawyer’s contributions. He considers his $700 hourly rate, which he increased from $675 over the summer, ‘a bargain.'”

“In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis, has requested $5 million in fees for representing consumers in a two-year-old Chapter 11 proceeding against a defunct satellite-dish financing unit of Houston-based American General Corp. The fee request includes a $3 million bonus, which would put the 22-lawyer firm’s effective rate in the case at roughly $650 an hour — on a par with top New York firms. The consumers ultimately collected about $28 million from the company. David Kleiman, a partner, says he considers the case more akin to a far-flung class-action suit, where courts have long rewarded lawyers a multiple of their hourly rates. The fees were ‘remarkably low,’ he says.” (Richard B. Schmitt, “Bankruptcy Lawyers Seek Big ‘Enhancement’ Bonuses”, Wall Street Journal, Nov. 1 (online subscribers only)).

December 12 — Ready, aim … consult counsel. It seems that situation described by Seymour Hersh in his New Yorker story a few weeks back (see Oct. 19) — of U.S. forces hesitating to destroy a hostile target until they could consult a Pentagon lawyer — is not as unusual as might be assumed. “To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general [during mission planning and in battlefield decisionmaking] is startling. But nowadays it is standard procedure,” writes Vanessa Blum in Legal Times. “Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions.” (“JAG Goes to War”, Nov. 15).

December 11 — “Lawyers on trial”. In what was originally planned as a cover story, U.S. News in this week’s issue asks: “Are lawyers out of control? Or, more important: Has litigation become more of a burden to society than a safeguard?”. Our editor, who provided considerable assistance (readers of this site will recognize many stories), is quoted. (Pamela Sherrid, U.S. News, Dec. 17) (links to sidebars on class action recruitment, asbestos, forum-shopping, shareholder suits). Also, an account of a recusal controversy in a New York securities-law case quotes our editor to the effect that lawyers are taking a risk when they demand that judges recuse themselves, since such demands tend to annoy not only the target judge but also his colleagues on the bench. (Heidi Moore, “IPO Recusal Motion Backfires”, The Deal, Dec. 7).

December 11 — “Wrongful life” comes to France. A court in Paris has ruled that some disabled children can sue doctors for not having aborted them, a development that OpinionJournal.com‘s “Best of the Web” takes as evidence of specifically French barbarity, apparently unaware that American lawyers have been advancing such theories for years in our courts with some success (see Aug. 22). (Nanette van der Laan, “France debates right not to be born”, Christian Science Monitor, Dec. 7; James Taranto, “Best of the Web”, Dec. 10 (last item)). Update Jan. 9-10, 2002: French doctors stage job action in protest.

December 11 —KPMG. This international services firm (no longer affiliated with the consulting firm of the same name) seems to think it has a legal right to prevent people from linking to its website without its permission, so of course any number of websites are doing just that. Like this: KPMG. Actually, our advice is to skip the company’s tedious site and just check out the Wired News account of the controversy: Farhad Manjoo, “Big Stink Over a Simple Link”, Dec. 6. (& see Blogdex)

June 2001 archives, part 2


June 20 — Mich. lawyer’s demand: get my case off your website. On April 3 we ran a brief item on the trademark lawsuit filed by Detroit-based jewelry-selling enterprise Love Your Neighbor Inc. against a Florida charity called Love Thy Neighbor, which assists homeless persons. A few weeks later Detroit Free Press legal correspondent Dawson Bell published a story going into more detail about the dispute and quoting Robert Dorigo Jones, director of the legal-reform advocacy group Michigan Lawsuit Abuse Watch (M-LAW), who said that while the suit might not count as a frivolous one, he considered it unnecessary: “This falls into the category of lawsuits that can be filed, but shouldn’t be.” (Dawson Bell, “Love your neighbor is suing one, instead”, Detroit Free Press, May 5).

It turns out that M-LAW’s Mr. Dorigo Jones was living dangerously by making such remarks. Within days he had received a letter (which he’s shared with us) from “Love Your Neighbor”‘s attorney, Julie Greenberg of Birmingham, Mich.’s Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski, P.C. The tone of the letter might reasonably be called menacing coming from a lawyer: it says that for him to have called her lawsuit unnecessary had “caused damage to my personal reputation in the legal and social community”. It claims to be “particularly disturbed” that Mr. Dorigo Jones would presume to comment on her suit even though he is not an expert in trademark law; “indeed, you are not even an attorney”. And it proceeds to the following bottom-line demand: “In an effort to curb potential ongoing damage to my reputation from your quote in the Free Press, I request that you retract your statement made, and further that you take all references to me or this lawsuit from your [M-LAW’s] website, or your affiliated website Overlawyered.com, which is promoted and hyperlinked by your website. I look forward to your prompt response.”

Oh, dear. “Your affiliated website Overlawyered.com“? How’d we get dragged into this? As even casual investigation should have revealed to attorney Greenberg, Overlawyered.com and M-LAW aren’t “affiliated” with each other in any normal sense of that word: we link to them and they link to us, but that’s true of any number of other sites as well. Yet she seems to think Mr. Dorigo Jones has the power to get items removed from our site — or is that she thinks he should take down his site’s link to us? Whichever is the case, we have bad news for her: Mr. Dorigo Jones tells us that he has no intention of removing M-LAW’s link to Overlawyered.com, and we have no intention of removing our previous item mentioning Greenberg’s client, or this one either (& letter to the editor, July 6) (DURABLE LINK)

MORE: According to Bell’s report, Arnold Abbott founded the Florida charity in 1992 “in memory of his deceased wife”. Ms. Sims, who has registered the phrase as a trademark, had earlier challenged Mr. Abbott’s right to the domain name lovethyneighbor.org but lost in arbitration. Attorney Goldstein’s letter says the filing was “necessary” because owners of trademarks can lose their rights if they do not police infringement, and notes that various efforts by her client short of litigation had failed to keep the Florida charity from going right on calling itself “Love Thy Neighbor”. Mr. Abbott, for his part, told reporter Bell that “he is flabbergasted that it is possible to register rights to an expression that ‘has been around for 5,700 years. ‘If she’s right, then every time someone prints a Bible they’d have to pay her a royalty.”

June 20 — “Gambling addiction” class action. “A lawyer in Canada’s Quebec City is launching a class action suit against the province’s gambling monopoly for not warning players about the alleged dangers of its games.” The suit says the video gambling machines are addictive. (Mike Fox, “Addicted gamblers sue in Quebec”, BBC, June 14).

June 20 — By reader acclaim: “dog slobber” slip-fall case. Mary Lee Sowder of Rocky Mount, N.C. is suing a PetsMart store in Roanoke, saying she slipped on canine “slobber” on its floor. She claims knee damage and wants at least $100 grand. (Tad Dickens, “‘Dog slobber’ at pet store caused her fall, woman says in lawsuit”, Roanoke Times, June 19).

June 19 — Keeping child in her lap = homicide conviction. Prosecutors have prevailed on a Chattanooga, Tenn. jury to convict 20-year-old Latrece Jones of criminally negligent homicide in the death of her 2-year-old son Carlson Bowens Jr., “who was in her lap instead of a car seat during a car crash.” When we use the phrase “safety cops”, we’re really not kidding. (“Car seat conviction”, ABCNews.com, June 15) (& letters to the editor, July 6).

June 19 — Tobacco: Boeken record. Per AP and CNN reports, $3-billion jackpot winner Richard Boeken started smoking in 1957, yet “testified that he ‘never heard or read about the health risks of smoking until congressional hearings were held in 1994.’ This claim does not simply strain credulity; it smashes credulity into a million tiny pieces. … Until 1997, California law … classified tobacco as a product that is ‘known to be unsafe by the ordinary consumer…with the ordinary knowledge common to the community.’ Now we see the sort of idiocy that provision was holding back.” (Jacob Sullum, “Beyond belief”, June 12). The Onion weighs in with a satire, if it’s possible to satirize such things (“The $3 Billion Judgment“). See also Robert Jablon, “Los Angeles Jury Orders Philip Morris to Pay $3 Billion to Lifelong Smoker”, AP/Law.com, June 7; Bob Van Voris, “Big Bucks Guy Shows Little Ego”, National Law Journal, June 15 (profile of winning attorney Michael Piuze). And after Salon ran a piece by veteran tobacco-litigation advocate Elizabeth Whelan trying to defend the outcome of the L.A. case it immediately drew an influx of reader mail strongly disagreeing with her (“Tobacklash!”, June 15; letters, June 18). Update Oct. 2, 2004: appeals court orders punitive award cut to a sum not to exceed $50 million.

June 19 — Docs and Dems. The American Medical Association, which used to take a dim view of the litigation biz but now eagerly builds it up as a way of revenging itself against managed care, is tilting its campaign contributions these days toward lawsuit-friendly Democrats (OpenSecrets.org “Money in Politics Alert — New Friends: The American Medical Association, Democrats and the Patients’ Bill of Rights”, June 18). See also Kelley O. Beaucar, “Critics Decry ‘1-800- LAWSUITS’ Bill”, FoxNews.com, June 18 (quotes our editor); Fred Barnes, “The Right Medicine” (editorial), Weekly Standard, June 25. And SmarterTimes, the indispensable corrective to each morning’s dose of West 43rd St. tendentiousness, finds a number of misleading assertions in Monday’s New York Times editorial on “patients’ rights”. For instance: “The editorial says, ‘The White House, for its part, says the bill would open the floodgates to a wave of frivolous lawsuits, a claim not supported by the evidence in those states that have adopted similar legislation, including Texas under Governor Bush.’ This is misleading; the Texas patients’ bill of rights included limits on civil damage awards that are not included in the federal legislation to which the White House is objecting.” (June 18 — scroll to “Patients’ Bill of Wrongs”; “The Right Patients’ Bill of Rights” (editorial), New York Times, June 18).

June 19 — “Candles might be polluting your home, EPA says”. A new indoor environmental menace: just what we needed to ruin our wick end. (Traci Watson, USA Today, June 14).

June 18 — Lawsuits on overseas terrorism: guess who foots the bill. “Thanks to Congress’ largesse, U.S. taxpayers are paying hundreds of millions of dollars to compensate victims of foreign terrorism. And the tab might soon soar.” Given American jurors’ low opinion of regimes like those of Iran and Libya, trial lawyers often score big awards suing them — which they can then present to U.S. taxpayers for at least partial payment. “Stuart Eizenstat, deputy Treasury secretary under President Clinton, says lawyers are pressing cases under two laws: a 1996 statute that lets Americans file suit in U.S. courts against seven countries on a State Department list of terrorist states, and a 2000 law that authorizes the government to pay some damages. Congress has to approve new awards, but it has in every case so far. ‘It has become a race to the courthouse and then a race to get Congress to appropriate funds,’ Eizenstat says.” (Barbara Slavin, “Taxpayers get the bill when terrorists lose in court”, USA Today, June 14). “Two former hostages held in Lebanon by pro-Iranian kidnappers sued Iran on Tuesday, contending the country was responsible because its Muslim government shields and supports terrorists. The lawsuits, filed by Rev. Benjamin Weir and Frank A. Regier, seek $100 million in compensatory damages and an unspecified amount in punitive damages.” (“Former Iran [sic] Hostages File Lawsuits”, AP/FindLaw, June 13).

June 18 — Villaraigosa and the litigation lobby. One group that may be less than happy about leftist Antonio Villaraigosa’s June 5 loss to James Hahn in the L.A. mayoral race: trial lawyers, who’ve found Villaraigosa a close ally in his powerful post as speaker of the California Assembly. “In the 1997-1998 campaign cycle, Villaraigosa received $612,400 in campaign contributions from personal injury lawyers, a number that works out to be 25% of the almost $2.4 million given to California Assembly candidates,” notes California’s Torrance-based Citizens Against Lawsuit Abuse (“2001 L.A. Mayor’s Report“, undated). “In the 1999-2000 campaign cycle, he received $220,600 from personal injury lawyers, which works out to be 10 percent of funds contributed to California Assembly candidates.” See also Todd Purdum, “Hahn Wins Los Angeles Mayor’s Race”, New York Times, June 6 (reg).

June 18 — Next time, “endorse” only products you like? Tennis pro Martina Hingis has sued the Sergio Tacchini Italian sportswear company, claiming that its shoes caused her feet to hurt and made her drop out of tournaments. Couldn’t she just have removed the offending footgear? Well, she’d agreed to wear it as part of a $5.6 million endorsement deal. (“Hingis claims shoes injured her feet”, AP/ESPN, June 11; “Shoemaker says Hingis has no basis for claim”, AP/ESPN, June 12).

June 18 — Reader contributions pass $1,000. We’re doing better with the Amazon Honor System than most sites we know, thanks to generous readers like you; our average contribution is nearly $10. Have you done your bit yet?

June 15-17 — Jury: drunk driver hardly responsible at all for fatal crash. A Broward County. Fla. jury has found the state Department of Transportation and a highway construction firm to be 90 percent responsible for the 1995 traffic accident that took the life of former Miami Dolphins linebacker David Griggs. Griggs “had a blood-alcohol level of .16, twice the legal limit of .08, after which a person is considered drunk in Florida, according to the toxicology report from the Broward County Medical Examiner.” A second trial is set for the fall to determine damages. (“Jury: Road firm, government mostly to blame for Griggs’ death”, AP/Sacramento Bee, June 14).

June 15-17 — “Doctor liable for not giving enough pain medicine”. On Wednesday an Alameda County, Calif. jury found Dr. Wing Chin liable for recklessness and elder abuse for not giving sufficient pain medicine to 85-year-old William Bergman, who died three days later of lung cancer. “During the month-long trial, the doctor testified he followed established protocols in prescribing pain medication to Bergman. His attorney Bob Slattery also argued neither the patient nor his family requested that the doctor prescribe more pain medication to alleviate the suffering.” Plaintiff’s lawyer Jim Gearan said Dr. Chin had failed to take training in pain management. (“Doctor liable for not giving enough pain medicine”, CNN, June 14). We wonder whether this case ties in in any way with the phenomenon convincingly documented by Jacob Sullum, namely the widespread undertreatment of pain by doctors in a medical culture swayed both by fear of narcotics themselves and by fear of the enormous hassle from state regulators and the federal Drug Enforcement Administration that can descend on the heads of doctors perceived as too ready to furnish narcotics (“Who’ll stop the pain?”, Reason, Jan. 1997).

June 15-17 — “Lender hit with $71M verdict”. A Holmes County, Mississippi jury voted $69 million in punitive damages and $2.2 million in compensatory damages after a group of 23 plaintiffs accused Washington Mutual Finance Group of “goading customers into renewing loans with additional undisclosed charges”. The plaintiff’s lawyer was Rep. Edward Blackmon Jr., who chairs one of the two Judiciary committees in the lower house of the Mississippi legislature; his wife Barbara, also a plaintiff’s trial lawyer, serves in the state Senate where she sits on the Judiciary committee and is vice chair of the Insurance committee. (Jackson Clarion-Ledger, June 14).

June 14 — Wal-Mart-as-“cult” suit: it is about the money. A lawsuit accuses Wal-Mart of maintaining a “cult-like” atmosphere which encourages employees to put in unpaid overtime. “You bet it’s about the money,” said litigant Taylor Vogue. (“Wal-Mart Brainwashes Workers, Suit Alleges”, AP/Omaha World-Herald, June 9).

June 14 — “Lawsuit rocks Virginia string quartet”. Further developments in the ongoing Audubon String Quartet mess, last reported on here June 5, 2000: estranged first violinist David Ehrlich is suing the other three members of the ensemble for $2 million and has obtained a court order preventing them from playing together under the Audubon name or any other group name (they can still use their individual names). Robert Mann, an original member of the Juilliard Quartet, thinks chamber musicians should not take differences to court: “If anyone who becomes disaffected with his group can sue the others for money, it would be disastrous.” (Chris Kahn, AP/ SFGate.com, June 8). Update Nov. 13, 2001: judge awards Ehrlich more than $600,000 in damages.

June 14 — Fee fracas still going 23 years after case filed. Chick Kam Choo was a ship worker killed in 1977 in an accident on a tanker in Singapore harbor. His survivors’ wrongful-death suit against Exxon and other defendants was filed in Houston, Tex., with its big verdicts, rather than in Singapore. It finally settled this January for $2.7 million after protracted battles that reached the U.S. Supreme Court, but as of April the plaintiffs hadn’t seen a penny because of new squabbling between eight different plaintiff’s lawyers over who gets fees. John O’Quinn of O’Quinn and Laminack, whose doings are frequently reported on in this space, says his firm gets it all. But Newton B. Schwartz Sr., C. Benton Musslewhite Sr. and his son Charles B. Musslewhite Jr., Richard Sheehy, Gary Polland, and Joseph C. Blanks all maintain that they deserve some or all of the fees. (Brenda Sapino Jeffreys, “A Piece of the Action”, Texas Lawyer, April 17).

June 13 — Dodge ball on endangered list. “Educators in several states are fighting to ban dodge ball, but the game remains popular with kids.” A professor at Eastern Connecticut State University says the game is “litigation waiting to happen.” (“Educators want dodge ball tossed out”, AP/CNN, June 7). And a touch football game has brought youngsters to court in a Wisconsin broken-arm case unlikely to have any real winners (Tom Kertscher, “Trial is about pals, football, evening the score”, Milwaukee Journal Sentinel, June 10).

June 13 — Antidepressant blamed for killing spree. Three years after Donald Schell went on a murderous rampage, a Cheyenne, Wyo. jury has blamed the episode on Glaxo SmithKline, maker of the anti-depressant Paxil, with an $8 million verdict. (“Shooter’s family awarded $8 million in drug suit”, AP/CNN, June 7).

June 13 — Batch of reader letters. The latest sack of correspondent mail includes a note from Ric Espinosa, who filed the “library cat” suit reported on last month; letters on the ethics of ghostwriting for lawyers, class action suits, Prof. Richard Daynard’s conflicts and their tardy disclosure, the Casey Martin case, and flashlight warnings; along with the possibly relevant lyrics of an Al Stewart song.

June 12 — “Hearsay harassment” not actionable. Diane Leibovitz, a now-retired mid-level manager at the New York City Transit Authority, filed a sexual harassment lawsuit against the TA because, though she had not herself been a target of harassment, reports had reached her at second hand that other women employees had been. She got a $60,000 jury award after a trial presided over by federal judge Jack Weinstein, but the Second Circuit U.S. court of appeals has reversed it, saying the law does not confer a right to sue on a worker who “was not herself a target of the alleged harassment, was not present when the harassment supposedly occurred, and did not even know of the harassment when it was ongoing”. Leibovitz’s lawyer, Merrick Rossein, a law professor at CUNY and author of a widely used textbook on employment discrimination law, was disappointed: “They’re saying that since she didn’t directly observe the harassment and didn’t prove the harassment actually occurred, it is not cognizable under the theory of hostile environment.” (John Springer, “Court overturns transit authority sexual harassment award”, Court TV/Yahoo, June 11).

June 12 — Ghost blurber case. Almost as fast as Sony Pictures got caught inventing quotes from nonexistent film critic “David Manning” to hype four of its films, a class action lawyer sued on behalf of two L.A. moviegoers whose desire to engage the studio in legal battle no doubt welled up in a wholly spontaneous fashion (Denise Levin, “Sony’s Bogus Blurbmeister Spurs Class Action Suit”, Yahoo/Inside.com, June 8; Anthony Breznican, “2 Moviegoers Sue Sony Over Review”, AP/Yahoo, June 8). And even faster off the dime was Connecticut Attorney General Richard Blumenthal, who seized on the scandal’s very tenuous Nutmeg State connection (the fictitious Manning was said to work for the Ridgefield Press) as excuse for an investigation (“Conn. AG to Investigate Film Reviews”, AP/Yahoo, June 6). According to Jim Knipfel of the New York Press, the investigation may be a wide-ranging one : “Blumenthal is not only upset by the fake critic business, but also by the age-old publicist’s trick of carefully editing lukewarm reviews into raves” via ellipses, and says that may be unlawful too. Where has he been for the past 30 years, Knipfel wonders? “Mr. Blumenthal should find himself some sort of hobby.” (“Billboard: ‘Stunning! … An Amazing Achievement … Seething with Forbidden … Desire!'”, New York Press, June 6 (strong language); Mickey Kaus, Kausfiles “Hit Parade” (left column — scroll to June 8).

June 12 — Bicycles not “motor vehicles”, court rules. Aren’t you relieved? If they had motors, you’d always be buying gasoline for them. (Danielle N. Rodier, “Bicycles Not Motor Vehicles Under Governmental Immunity Statute”, The Legal Intelligencer (Philadelphia), June 7).

June 12 — Record traffic on Overlawyered.com. Last week set another record for pages served at 31,600 (with about 14,000 distinct visitors). We must have gotten some big publicity Thursday (more than 8,000 pages served on that day) but we’re not sure what it was.

June 11 — Blockbuster Video class action. Yet another headline-grabber from the world-famed courts of Beaumont, Tex.: customers will get various free-rental and cents-off coupons with a notional value approaching $450 million and a real value of some minute fraction of that, while class-action plaintiff’s lawyers will take home $9.25 million. The video chain’s sin was, allegedly, to have made too much money from late fees and to have changed its policies without notifying customers. (“Blockbuster settles suits”, AP/CNNfn, June 5; details; William F. Buckley, Jr., “Trial lawyers vs. sanity”, National Review Online, June 8).

June 11 — “Plastic surgery addiction” patient loses suit. In a unanimous ruling, New York’s highest court last week “tossed a lawsuit from a woman addicted to plastic surgery — she had over 50 operations — who claimed her doctor should have referred her to a psychiatrist before using the knife.” A lower court had ruled that the suit could proceed, raising fears that physicians might have to arrange psychiatric pre-screening of patients before many elective operations (see Aug. 15, 2000) (Kenneth Lovett, “Plastic-Surgery Addict Suit Gets Carved Up”, New York Post, June 8).

June 11 — $5,133.47 a cigarette. That’s how much the jury awarded plaintiff Richard Boeken last week when it told Philip Morris to pay him $3 billion for having enabled his smoking habit, according to calculations by reader Nathan Clark by WSJ OpinionJournal “Best of the Web” (June 8). “Based on Boeken’s claim that he smoked two packs a day for 40 years, Clark figured Boeken had smoked 584,000 cigarettes”, which divided into $3 billion “comes to $5,133.47 per cigarette Boeken smoked. Look for a big increase in teen smoking as word gets around the schoolyards that it’s a ticket to untold wealth.” Update Oct. 2, 2004: appeals court orders punitive award cut to a sum not to exceed $50 million.

June 11– End the dairy compact. Sen. Jeffords (I-Vt.) has been a leading defender of the “indefensible boondoggle” by which Northeastern milk prices are kept high, and his party switch makes a perfect opportunity to get rid of the thing (Jonathan Chait, “Spilled milk”, The New Republic, June 11). And Republican electoral victories in states like West Virginia are dearly bought if the quid pro quo for them is that consumers in the rest of the country have to suffer restrictions on steel imports (“Protectionist Bush?” (editorial), Christian Science Monitor, June 11).

April 2001 archives, part 3


April 30 — Michigan prisoner sues for recognition as Messiah. “A prisoner who claims he is God has sued the U.S. government, the state of Michigan, a book publishing company, a radio program and several others.” The case of inmate Chad De Koven, 43, reflects a more serious problem: in spite of reforms at both the federal and state level that have aimed at curbing unmeritorious suits by those behind bars, “Michigan Assistant Attorney General Leo Friedman heads a division of 19 lawyers who do nothing but handle prison litigation.” (Crystal Harmon, Bay City Times, March 28). Update May 14: judge dismisses case in 22-page opinion.

April 30 — “States Mull Suit Against Drug Companies”. Latest nominee for Next Tobacco designation are the folks who’ve allegedly charged too much for saving our lives: “In an action modeled on their 1998 class action lawsuit against the tobacco industry, at least six states are poised to go to court to try to force pharmaceutical companies to lower prescription prices … Attorneys general in Florida, Georgia, Maine, Massachusetts, Nevada and Texas are among those considering legal action, officials from some of the offices said. … A catalyst for state legal action is Florida businessman Zachary Bentley, who is going from state to state urging state attorneys general to sue drug manufacturers.” Bentley, himself a disgruntled competitor of the drug companies, says they overstate the average wholesale price of many drugs so as to boost what Medicare and Medicaid programs will pay for them. “Under whistleblower and federal False Claims laws, Bentley gets a portion of any settlement that results from what he’s revealed.” (Mary Guiden, Stateline.org, April 2)(more on False Claims Act: July 30).

April 30 — “Radio ad pulled after lawyers object”. Following protests from the state bar association, the Kentucky transportation department last month agreed to stop airing a traffic-safety radio ad based on a well-worn lawyer joke. The joke? “A car full of lawyers turned over right in front of old man Jenkins’ place. He comes out and buries them all. The sheriff asked old man Jenkins, ‘You sure they were all dead?’ ‘Well,’ says Jenkins. ‘Some said they weren’t. But you know how them lawyers lie.”’ The ad urged motorists to slow down so as not to meet a similar fate. (Jack Brammer, Lexington (Ky.) Herald-Leader, March 27).

April 27-29 — Victory in Albany. Unanimous, long-awaited, and devastating: by a 7-0 vote New York’s highest court yesterday rejected the most important elements of the much-hyped lawsuit Hamilton v. Accu-Tek, which seeks retroactively to tag gun manufacturers with liability for criminal misuse of their products. Answering two questions Cardozo would be proudcertified to them by the federal Second Circuit, the jurists of the New York Court of Appeals declined to impose a new legal duty of gun manufacturers toward anyone who might fall victim to post-sale misuse of guns, and also ruled out the application of “market-share liability”, the adventurous theory by which plaintiff’s lawyers were attempting to impose liability on gunmakers without having to show that their guns figured in particular shootings. Both rulings stand as a reproof to activist federal judge Jack Weinstein, who had kept the Hamilton suit alive despite many indications that it had no grounding in existing law. (Joel Stashenko, “Court says gun manufacturers not liable”, AP/Albany Times-Union, April 26; “N.Y. Gun Ruling Could Have National Impact”, AP/FoxNews.com, April 27; John Caher, “New York Rules Gun Manufacturers Not Liable for Injuries”, New York Law Journal, April 27; read full opinion (PDF) — Firearms Litigation Clearinghouse site).

Other judges have lately thrown out of court municipal antigun suits filed on behalf of New Orleans and Miami (Susan Finch, “N.O. gun suit shot down”, New Orleans Times-Picayune, April 4; Susan R. Miller, “Appeals Court Halts Miami-Dade Suit Against Gun Industry”, Miami Daily Business Review, Feb. 15). And the Florida legislature has voted on largely partisan lines, with Democrats opposed, to join 26 other states in spelling out explicitly that cities, counties and other subdivisions of state government have no authority to file recoupment actions against gun makers and dealers over criminals’ misdeeds (“Florida Legislature Votes to Insulate Gunmakers”. Reuters/Yahoo, April 25; see also Charlotte Observer, April 26) (N.C. bill). Unfortunately, judges have recently allowed novel anti-gunmaker suits to proceed in Chicago and Atlanta; and as the gun-control-through-lawyering crowd knows too well, even a few eventual breakthroughs for their side may be enough to ruin this lawful industry (Todd Lighty and Robert Becker, “Gun victims’ lawsuit against firearms industry can move forward”, Chicago Tribune, Feb. 15).

MORE: Jeff Donn, “Maker of the .44 Magnum turns to golf putters and teddy bears”, AP/Minneapolis Star Tribune, April 14 (after the failure of its attempt to cut a deal with its legal tormentors, S&W struggles to stay afloat; one lawsuit had cost the company $5 million just to be dropped from the case); Tanya Metaksa, “Smith & Wesson’s Deal With the Devil”, FrontPage, April 12; Kris Axtman, “Gunmakers not about to run up white flag”, Christian Science Monitor, Dec. 15. Politicians have begun to move away from reflexive antigun sloganeering as election results have made clear that the supposed antigun consensus in American public opinion is no consensus at all (Michael S. Brown, “Gun Control: What Went Wrong?”, FrontPage, April 26).

April 27-29 — “Iowa Supreme Court says counselors liable for bad advice”. “A high school guidance counselor can be held responsible for giving wrong advice to a student that damages the student’s educational goals, the Iowa Supreme Court ruled Wednesday.” Katie, bar the door! (AP/CNN, April 26).

April 26 — “Legal action prolongs whiplash effects: experts”. Yet another study, this time from researchers at the University of Adelaide, Australia, finds that after auto accidents people experience more pain and quality-of-life deterioration if they are pursuing litigation (Australian Broadcasting Corporation, April 12) (see April 24, 2000). Also see Kevin Barraclough, “Does litigation make you ill?” British Medical Journal, March 31.

April 26 — Judge offers “court phobia” defense. Court-appointed special masters found that Los Angeles County Judge Patrick Murphy took more than 400 days of unjustified sick leave at taxpayer expense since 1996. They were not “impressed with what they called his ‘evolving defense,’ which began with claims that his political opponents were behind the accusations and ‘matured’ into a defense that he was disabled because of a ‘phobic reaction to judicial activities.'” (Sonia Giordani, “Los Angeles Judge’s ‘Court Phobia’ Defense Falls Flat”, The Recorder, April 12).

April 26 — The law must be enforced. In St. Cloud, Florida, 12-year-old Derrick Thompson tried to cross a street against the traffic and got hit by a truck, to onlookers’ horror. Dazed and bleeding, Derrick got another surprise minutes later when town police handed him a ticket for jaywalking. (Susan Jacobson, “Ticket seen as insult to injury”, Orlando Sentinel, April 13).

April 25 — While you were out: the carbonless-paper crusade. Some people are convinced their health has been damaged by ordinary workplace exposure to the chemicals present in carbonless paper, the material used in pressure-sensitive memo slips and similar office supplies. (“Carbonless Copy Paper — The Injury and Information Network”, carbonless.org). Although the product’s makers, such as Appleton Papers and the Mead Corporation, deny that there’s anything to be feared from working with receptionist’s pads or other multiple forms, a number of news reports have uncritically accepted the idea of a causal link between the paper and the ills complained of — to MSNBC’s Francesca Lyman, for example, “probably thousands” have fallen victim to the scourge, showing how “a seemingly benign product could leave a trail of damage”. (“The carbonless paper caper”, MSNBC, Jan. 17 (page now removed, but GoogleCached); see also Keith Mulvihill, “Sick of Paperwork? Some Office Workers Say It’s the Paper”, New York Times, Sept. 26, 1999 (reg); Tracy Davidson, WCAU-TV Philadelphia “Consumer Alert“). Inevitably, those who feel victimized are filing suits against companies that manufacture the product.

None of the activists have figured more prominently in news stories than Brenda Smith of Virginia Beach, Va., who filed suit in 1993 over a variety of symptoms including “headaches, sinus and allergy problems, skin and eye irritation, sore throats, respiratory infections, bronchitis,” and others, which she believes resulted from exposure to the chemicals in carbonless paper at her job. “The potential for litigation from worker’s compensation to product liability is huge,” she told The American Enterprise. However, the magazine also unearthed one extra little fact which the earlier press reports had neglected to mention: that “the health-afflicted Brenda Smith was addicted to cigarette smoking, which she admitted to TAE when we bothered to ask. Apparently some reporters didn’t think that fact advanced their story.” (“Scan”, The American Enterprise, April/May (scroll down to “Smoking Gun”)) See also Bob Van Voris, “Scents or Nonsense?”, National Law Journal, Nov. 6, 2000. NIOSH review (PDF — very long)(& see letter to the editor, May 18).

April 25 — Value of being able to endure parody without calling in lawyers: priceless. When MasterCard sent its lawyers to do a cease and desist routine on rec.humor.funny over a tasteless parody of its “Priceless” ad campaign, list founder Brad Templeton posted this tart riposte on NetFunny.com (April).

April 24 — Put the blame on games. The lawyer for survivors of a murdered Columbine teacher has sued 25 media companies, mostly makers and distributors of video games whose violence he says incited the perpetrators of the crime. Attorney John DeCamp claims to be “100 percent on the side of the First Amendment” when he isn’t filing actions like this, and equally predictably says it’s not really about the money, which isn’t keeping him from demanding that the defendants fork over $5 billion-with-a-“b”. (Kevin Simpson, “Slain teacher’s family launches suit aimed at media violence”, Denver Post, April 21). Update Mar. 6, 2002: judge dismisses case.

April 24 — Pennsylvania MDs drop work today. “Hundreds of physicians from Southeastern Pennsylvania plan to shut down their offices and leave their hospital posts [Tuesday] to go to Harrisburg to insist that lawmakers enact insurance-tort reforms and give them relief from soaring malpractice-insurance premiums. … According to the Pennsylvania Medical Society, obstetricians in the Philadelphia region pay an average of $84,000 yearly in malpractice insurance, while the same doctors in New Jersey pay about $58,000, and in Delaware, $52,000. Neurosurgeons pay $111,000 for coverage in Philadelphia. If their practices were in New Jersey, the rate would be about $75,000.” (see Jan. 24-25). Timothy Schollenberger, president of the state trial lawyers’ association and evidently a man given to bold denials, says the protest is misplaced: “tort law is not a significant factor in making [malpractice] premiums rise or fall”. Kind of like an oil sheik denying that OPEC crude price hikes have anything to do with the cost of gas at the pump, isn’t it? (Ovetta Wiggins, “Doctors to protest premium increases”, Philadelphia Inquirer, April 23).

April 24 — Bush’s environmental centrism. The press has decided to make President Bush’s supposed anti-environmentalism the story du jour, but in fact “on almost every environmental issue, Bush has upheld the Clinton-Gore position.” (Gregg Easterbrook, “Health Nut”, The New Republic, April 30).

Among Bush proposals to meet with support from many centrists and Democrats is the one for a year-long moratorium on pressure groups’ use of endangered-species lawsuits to drive the agenda of the Fish and Wildlife Service; see Bruce Babbitt, “Bush Isn’t All Wrong About the Endangered Species Act,” New York Times, April 15 (reg); Michael Grunwald, “Bush Seeks To Curb Endangered Species Suits”, Washington Post, April 12 (“The litigation explosion has been so bad, we couldn’t even list species that were going over the edge,” said Jamie Rappaport Clark, who directed the service under Clinton. “We asked the courts to let us set our own priorities, but they wouldn’t budge.”)(see Dec. 4, 2000).

April 24 — Washington Post editorial on cellphone suit. We’ve appended highlights from yesterday’s refreshingly blunt Post editorial (“More Dumb Lawsuits”) to the item below on the Angelos onslaught against mobile telephony. Is it too much to hope that the New York Times or L.A. Times will someday start being even half as editorially sensible about litigation issues as the Post is?

April 23 — Sorry, wrong number. As expected, Baltimore tort tycoon Peter Angelos filed suit against 25 defendants including Nokia, Motorola, Ericsson, Verizon, Sprint and Nextel accusing them all of concealing the brain-frying horrors of cellular telephone use. “The suits do not claim that anyone has actually suffered an illness.” (Peter S. Goodman, “Angelos Suits Allege Cellular-Phone Danger”, WashTech.com/ Washington Post, April 19). In an editorial bluntly titled “More Dumb Lawsuits”, the Washington Post declares, “There is now a new way to satisfy the bemused foreigner who asks why a nation so proudly founded upon the rule of law is marked by such contempt for lawyers. Just tell the foreigner about the litigation against cell-phone makers that Peter Angelos began on Thursday.” Moreover, Angelos is demanding a remedy (free headsets) that “makes no sense … Mr. Angelos is seeking to replace a situation in which consumers are free to buy headsets if they choose with one in which they indirectly are forced to pay for them — and to pay Mr. Angelos’s fees into the bargain.” (April 23). Update Oct. 1-2, 2002: court dismisses case.

April 23 — Seventh Circuit rebukes EPA. A U.S. Court of Appeals has rebuked the Environmental Protection Agency, dismissing the Superfund suit in which the agency sought permission to enter and dig up the 16-acre property of John Tarkowski, a disabled and indigent building contractor in Wauconda, Ill. Tarkowski’s habit of accumulating surplus materials, from which he has constructed his house, has annoyed many of his upscale neighbors, but repeated investigations have failed to find any serious contamination on his property. Rejecting the government’s arguments, the appeals court held that EPA “sought a blank check from the court. It sought authorization to go onto Tarkowski’s property and destroy the value of the property regardless how trivial the contamination that its tests disclosed.” And: “In effect, the agency is claiming the authority to conduct warrantless searches and seizures, of a particularly destructive sort, on residential property, despite the absence of any exigent circumstances. It is unlikely, even apart from constitutional considerations, that Congress intended to confer such authority on the EPA.” (“U.S. Court of Appeals Dismisses EPA Suit Threatening to Destroy Elderly Wauconda Man’s Property”, press release from Mayer, Brown & Platt (whose Mark Ter Molen represented Tarkowski pro bono), Yahoo Finance/Business Wire, April 20).

April 23 — If I can’t dance, you can keep your social conservatism. The town of Pound in Virginia’s coal-mining western corner has an ordinance on the books that bans public dancing without a permit. Bill Elam is defying the law by operating his Golden Pine nightclub, while local clergy hope the town sticks to its guns: “I can never see a time when dancing can be approved of, especially with people who are not married,” said one. (“Virginia town outlaws dancing”, Nando Times, April 16).

January 2001 archives, part 3


January 31-February 1 — “All you can drink” winner sues over fall. John Remley won an “all you can drink” contest at Super Bowl time a year ago and proceeded to pack away so much liquor that he fell and hurt his head. He’s suing for a sum in excess of $1 million, saying the bar should have seen he was drunk and cut him off. (Kimball Perry, “Man drinks his way into $1 million lawsuit”, Cincinnati Post, Jan. 24).

January 31-February 1 — “A No-Win Numbers Game”. Colleges cut men’s sports teams, and cut, and cut, trying to achieve the artificial “proportionality” pressed for by the federal Title IX law. Then they get sued anyway. “Last year, in pursuit of ‘gender equity’, the University of Miami eliminated the men’s swimming and diving program that produced Olympic gold medalist Greg Louganis. Brigham Young University eliminated its top ten ranked men’s gymnastic team and its top 25 ranked wrestling team. The University of New Mexico slashed three men’s teams. Miami University in Ohio eliminated 30 wrestlers, 25 men’s soccer players and 10 men’s tennis players — not just to save money (the men shared a total of eight scholarships among them) but to get the numbers right.” (Jessica Gavora, Washington Post, Jan. 14) (more).

January 31-February 1 — Unfairness of mandatory IOLTA. Such a clever idea: scoop up the interest on lawyers’ trust accounts (“IOLTA”) and use it to finance lawyering for the poor. However, the Ninth Circuit recently ruled that the interest in the trust accounts rightfully belongs to the lawyers’ clients and can’t be hijacked for the benefit of others without compensation. The sums at stake are too small to “really” matter to clients, say proponents. “But mandatory IOLTA programs also violate client First Amendment rights,” argues George Kraw. “Individual legal consumers aid programs arguing public positions that some oppose.” (“A Matter of Principle”, The Recorder (San Francisco), Jan. 26).

January 31-February 1 — An anything-but-civil juror. Five days into jury deliberations in the two-month trial of a highly publicized suit by the Manville asbestos-plaintiff trust demanding that tobacco companies pay for the contribution of cigarette smoking to asbestos workers’ lung maladies, federal judge Jack Weinstein declared a mistrial after he was sent a handwritten note: “Juror has made threat against other juror to kill” if they have to be “here much longer.” (Tom Hays, “Tobacco-Asbestos Mistrial Declared”, Yahoo/AP, Jan. 25).

January 31-February 1 — Batch of readers’ letters. Our correspondents take issue with our handling of Holocaust reparations litigation, update the saga of antitobacco professor Richard Daynard and the conflicts he didn’t disclose in the British Medical Journal, and recount one man’s experience of being solicited by lawyers after a car crash.

January 30 — By reader acclaim: patented PB&J. Orrville, Ohio-based jam magnates J.M. Smucker have managed to patent the venerable peanut butter and jelly sandwich, or at least a particular crustless version of same. So discovered Albie’s, a food manufacturer and restaurant in Gaylord and Grayling, Mich., best known for its version of Michigan’s most famous delicacy, pasties. Albie’s started making crustless PB&Js for their customers last summer but have now been hit with a cease and desist letter saying that they are infringing on a patent # 6,004,596 issued in December 1999, to a Smucker unit for the “sealed crustless sandwich.” The Smucker people say the crimped edge makes all the difference. (Crystal Harmon, “Food company hopes to resolve jam over crustless sandwiches”, Bay City (Mich.) Times, Jan. 20; “Smucker protects peanut butter-jelly sandwich patent”, Reuters/FindLaw, Jan. 25) (& see letter to the editor, Feb. 12). Update: Albie’s prevails (Apr. 9 and May 31, 2005)

January 30 — Annals of zero tolerance: fateful fiction. Leading lights of the Canadian literary establishment are lending their moral support to the latest youngster to run afoul of zero-tolerance policies: “Within days of performing for his 11th-grade drama class a monologue he had written about a harassed student preparing to blow up his school, the young author, from a village near Cornwall, Ontario, was arrested, strip-searched, and incarcerated. His detention lasted 34 days — through his 16th birthday as well as the Christmas and New Year’s holidays. He’s out of jail on $2,500 bail now, but has become a cause célèbre here.” (Ruth Walker, “Writers rally for Canadian boy jailed for tale”, Christian Science Monitor, Jan. 26).

January 29 — Getting around small-aircraft lawsuit reform. “The General Aviation Revitalization Act of 1994 (GARA) immunized makers of GA aircraft against lawsuits for defects in products older than 18 years and is credited — along with a strong economy — for breathing new life into non-commercial aviation in the U.S. But, if manufacturers are no longer liable, who is? … If you’re a pilot, an owner or a parts manufacturer, you may not like the answer.” Moreover, the ever-inventive Ninth Circuit U.S. Court of Appeals in California has “carved a hole in GARA by ruling that an aircraft’s flight manual is a part of the aircraft. Thus, any post-sale revisions or deletions to an aircraft manual may restart the 18-year clock each time they are made.” (Phillip J. Kolczynski, “GARA: A Status Report”, AvWeb).

January 29 — Homemade cookie menace averted. Rachel Wray vowed to be the kind of mom who prepares home-baked goodies for her kids to take to school, but discovered the district had a policy: “No treat can be distributed to children on school grounds unless it’s sealed in packaging from a grocery store or retail bakery.” (“I wanted to be a mother who bakes”, Salon, Jan. 2). And the Washington Post reports that officials in Loudoun County, Virginia, are insisting that all bakers and canners take a food safety course before selling their homemade pies and jams at small town fairs. “They’re taking the country out of country” complains the director of the Lucketts Fair. (Christine B. Whelan, “Home Cooks Gag on Rules for Fairs in Loudoun”, Washington Post, Sept. 15 (fee-based archive — search on “Lucketts Fair”)) (via Max Schulz, CEI Update, Oct./Nov.) See “Pie Menace Averted”, Dec. 13, 1999.

January 26-28 — “The litigation machine”. Business Week‘s cover story explores some of the methods by which mass litigation gets ever more effective at extracting money from its targets. Among them: mass production of claims, sophisticated document-sharing, and financing arrangements by private firms that now finance actions in exchange for a slice of the proceeds. (Jan. 29).

January 26-28 — Anorexia as disability. Keri Krissik is suing Stonehill College in Massachusetts “for refusing to let her register on the grounds of her anorexia,” in violation, she says, of the Americans with Disabilities Act. “Miss Krissik stands 5-feet-six-inches and weighs less than 100 pounds.” (“Anorexia as a disability?”, Washington Times (editorial), Jan. 18).

January 26-28 — Solomon’s child. “In Victoria[, B.C. in December], a seven-year-old boy was at the centre of a legal battle after his father refused written consent for a three-week car trip to Arizona and Disneyland. Jason Arsenault, the 28-year-old father, was prepared to deny his son this experience because Elizabeth Howse, his 27-year-old former common-law wife, wouldn’t agree to refrain from smoking in the car. … There is something worse than growing up in a household where your parents are constantly at each other’s throats — spending your childhood in a legal war zone, torn between adults whose petty courtroom battles never end.” (Donna LaFramboise, “Courts often encourage parents to keep bickering”, National Post (Canada), Dec. 19).

January 26-28 — Digital serfs? Contrary to what some commentators seem to imagine, the “vast majority of high-tech workers are not independent contractors or agency temps, and those who are overwhelmingly prefer their status, according to a new analysis by the Employment Policy Foundation of government data. ” Moreover, according to EPF, the average annual income of high-tech independent contractors and agency temps “is just over $51,000 — a figure not significantly different from high-tech professionals who are regular, traditional employees.” (“High Tech Independent Contractors and Agency Temps: Who They Are and How They Work” (PDF document), Jan. 23).

January 24-25 — Philadelphia juries pummel doctors. Southeastern Pennsylvania’s medical community is still reeling from a $118 million jury award last fall against St. Luke’s Hospital in Bethlehem and St. Christopher’s Hospital for Children in Philadelphia. That topped verdicts of $55 million and $49.6 million in other malpractice cases within the same three-month span, the latter awarded to a client of Shanin Specter, one of the city’s most successful personal-injury lawyers. Specter also won a $158 million product-liability case against Ford Motor in 1998, as well as huge verdicts in cases involving motorcycle helmets and swimming pools; he happens to be the son of U.S. Senator Arlen Specter of Pennsylvania, a Republican who often breaks from his party on issues of litigation reform. (Karl Stark, “In Phila., malpractice awards have ‘gone haywire'”, Philadelphia Inquirer, Dec. 10; Hudson Sangree, “Jury Slams Ford with $153 Million Verdict for death of 3-year-old boy”, Lawyers Weekly USA, Jan. 11, 1999, reprinted at Kline & Specter site).

January 24-25 — Perils of regulatory discretion. “Flexible” rules, regulatory arrangements based on “reasonableness” — what could be better as a way of handling an issue like building permits? But actually it’s an invitation to whimsical delay, as one New Englander discovers when his quest to enlarge a house turns into a months-long ordeal: “the bureaucrats had plenty of discretion and were very reasonable, yet we were worse off than if what we wanted to do were simply forbidden. In that case we just wouldn’t have purchased the property. Instead, we had months of uncertainty after the purchase.” Prescription: clear rules, mechanically applied. (Gene Callahan, “Shaky ground”, Reason, Jan.).

January 24-25 — “Suicide-Attempt Survivor Sues”. “A former Suffolk deputy police inspector who tried to kill himself has filed a $45-million federal lawsuit, blaming the county for giving him back his service pistol, one day after stripping him of the weapon, fearing he might hurt himself or others.” Dominick Steo of Holbrook shot himself in the head in 1999. (Rick Brand, Newsday, Jan. 6).

January 24-25 — “Sex shop is fined because its videos are ‘too tame'”. Consumer protection authorities in York, England, have fined a sex shop owner £5,826 for selling as “hard-core” videos that were actually quite tame, such as a comedy starring Sixties sexpot Ursula Andress. Irate buyers “felt cheated”. (Sally Pook, Daily Telegraph (UK), Jan. 19).

January 22-23 — Metric martyr goes on trial. In a Sunderland, England, magistrates’ court, trial has begun for the greengrocer accused of selling bananas in pounds and ounces instead of Euro-directed measurements, in the first such prosecution for metric noncompliance (see “Don’t Give an Inch”, Nov. 13). The opposition Conservative Party registered sympathy with defendant Steven Thoburn by sending its shadow trade and industry minister to take him to lunch during a leave from the courtroom, provocatively sitting down to a McDonald’s “Quarter Pounder”. (David Graves, “Case of Metric Martyr ‘echoes trial of witches'”, Daily Telegraph (London), Jan. 17; “Quarterpounder adds to troubles”, Jan. 17; “Sunderland Metric Martyrs” website. Plus: James Bond parody of undercover metric enforcement (best detail: “Miss Moneycent”): Tom Utley, “An honest man is charged while criminals are freed,” Daily Telegraph, Jan. 17. Update: Thoburn convicted (April 11, 2001)

January 22-23 — “Firms mum on troubled workers”. You might hope companies would warn each other about employees like Michael McDermott, the man police say murdered seven co-workers last month at Edgewater Technology in Wakefield, Mass. But the reality, the Boston Globe finds, is that human resource managers tend to keep mum about even serious problems with former personnel, rather than risk getting sued. ”Silence is golden,” says law professor Markita Cooper. ”Silence is protection.” Although most states have passed laws protecting reference-givers, and very few cases have ultimately gone against them, facing suit is itself perceived as the punishment, win or lose. Edgewater itself says that when other companies call to ask for references on its ex-workers, it goes no farther than verifying employment: ‘there are a number of sticky laws in place about what a company can and can’t say,” says a spokesman. (Michael Rosenwald, “Firms mum on troubled workers”, Boston Globe, Jan. 9).

January 22-23 — Someone might get confused. “Just when you think the battle over domain names and trademarks can get no more ridiculous, Pillsbury goes and ups the ante. Universities and companies as large as Sun Microsystems received cease-and-desist letters this week ordering engineers to stop holding what the [giant flour maker] considers illegal ‘bake-offs.’ But it’s not as if the engineers are huddling together around the oven trading stolen recipes — in techie lingo, a ‘bake-off’ is a get-together in which software programmers test their creations against network protocols to see if they will work correctly. … No matter: The geeks are infringing on Pillsbury’s ‘bake-off trademark,’ the letters argued.” (Damien Cave, “Pillsbury Doughboy mauls techies”, Salon, Jan. 20)(Slashdot thread).

January 22-23 — CBS among asbestos litigation targets. “Viacom, which became one of the largest media companies in the world with its acquisition of CBS Inc. in May, is facing 140,872 unresolved asbestos-related claims from discontinued operations of Westinghouse Electric Corp. as of Sept. 30. Westinghouse Electric purchased CBS in 1995 and took on the name CBS Corp.” On the other hand, Warren Buffett has been buying up stocks of some besieged companies, perhaps betting that Congress will attempt to resolve the issue. (Gregory Zuckerman, “Specter of Costly Asbestos Litigation Haunts Old Economy Companies”, Wall Street Journal, Dec. 27 (sub)). An exec with auto parts maker Federal-Mogul “said 90% of [its asbestos] claims are now paid to people who show no serious ill effects. Still, Federal-Mogul expects to make payments of $350 million this year and a further $550 million by 2004.” (Paul M. Sherer, “Federal-Mogul Gets New Credit Lines, Plans to Fight Against Asbestos Litigation”, Wall Street Journal, Jan. 4) (sub).

June 2000 archives, part 3


June 30-July 2 — “Backstage at News of the Weird”. Chuck Shepherd writes the sublime “News of the Weird” feature, which is syndicated weekly to major papers and alternative weeklies nationwide. From time to time he’s asked which are “his favorite online scanning sites for weird news”. This site came in #4 of 6 — you’ll want to check out the whole list. (June 19).

Remarkable stories from the legal system turn up nearly every week both in “News of the Weird” and in the more recently launched “Backstage” column. Here’s one from the same June 19 number: “An Adel, Ga., man sued the maker of Liquid Fire drain cleaner for this injury (and follow this closely): LF comes in a special bottle with skull and crossbones and many warnings, but our guy thought, on his own that the bottle’s spout just might drip, so he poured the contents into his own bottle (which he thought would be drip-proof), whose packaging wasn’t able to withstand the LF and began to disintegrate immediately, causing the contents to spill onto his leg. So now he wants $100k for that.”

June 30-July 2 — Supreme Court vindicates Boy Scouts’ freedom. Matthew Berry, an attorney with the Institute for Justice who helped write an amicus brief for Gays and Lesbians for Individual Liberty, explains why the principle of freedom of association that protects the Boy Scouts from government dictation of its membership is also crucial in protecting the freedom of gays and lesbians (“Free To Be Us Alone”, Legal Times, April 24) (case, Boy Scouts of America et al v. Dale, at FindLaw). See also Independent Gay Forum entries on the subject by Tom Palmer and Stephen H. Miller.

June 30-July 2 — “DOJ’s Got the Antitrust Itch”. After a decade or two of quiescence, antitrust is on the rampage again, led by Joel Klein and other officials at the Justice Department’s Antitrust Division. (Declan McCullagh, Wired News, June 28).

June 30-July 2 — “Being a Lefty Has Its Ups and Downs”. Letter to the editor published in yesterday’s New York Times from our editor runs as follows: “To the Editor: At the City Council’s hearing on whether left-handed people should be protected by anti-discrimination law (Elizabeth Bumiller, “Council Urged to End a Most Sinister Bias”, June 22), a high school student called it discriminatory that banisters and handrails are often on the right side of public stairwells — at least from the perspective of someone climbing up. But people walk on stairs in both directions. It would seem the same stairwell that oppressively discriminates against lefties on the way up also discriminates against righties on the way down. Can they sue, too?

“The student also asserted that ‘societal discrimination results in the death of the left-handed population an average of 14 years earlier than the right-handed population.’ However, the study that purported to reveal such a gap was soon refuted. A 1993 study by the National Institute on Aging found no increase in mortality associated with handedness — not surprisingly, since insurance actuaries would long ago have made it their business to uncover such a correlation.” — Very truly yours, etc. (no longer online) (more on life expectancy controversy: APA Monitor, Psychological Bulletin, Am Journal Epidem — via Dr. Dave and Dee).

Postscript: Scott Shuger in SlateToday’s Papers” promptly took a whack at us over the above letter, claiming we didn’t realize that big stairwells at places like high schools have two-way traffic patterns where people keep to the right, leaving lefties without a rail for the handy hand whether headed up or down. But if anything, this proves our point that the issue isn’t, as had been claimed, the insensitive decision to place handrails on one side but not the other: typically these larger stairwells have handrails on both sides. Instead the broader culprit for those who wish to steady themselves with their left hand is the walk-on-the-right convention. Had the advocate of an antidiscrimination law acknowledged that point, however, much of the steam would have gone out of her argument, since few in her audience would have been inclined to view the walk-on-the-right convention as fixable “discrimination”. Nor is there anything in the original coverage to indicate that her gripe was at the absence of center rails, which have inconveniences of their own.

June 29 — Failure to warn about bad neighborhoods. “A Florida jury has awarded $5.2 million to the family of a slain tourist after finding that Alamo Rent-A-Car failed to warn the victim and her husband about a high-crime area near Miami.” Dutch tourists Gerrit and Tosca Dieperink, according to the National Law Journal, “rented an Alamo car in Tampa and planned to drop it off in Miami”. When they stopped in the Liberty City area of Miami to ask directions, they were targeted by robbers who recognized the car as rented, and Mrs. Dieperink was shot and killed. Lawyers for her survivors sued Alamo, saying it was negligent for the company not to have warned customers — even customers renting in Tampa, across the state — of the perilousness of the Liberty City neighborhood, where there’d been numerous previous attacks on rental car patrons. After circuit judge Phil Bloom instructed the jury that Alamo had a duty to warn its customers of foreseeable criminal conduct, jurors took only an hour of deliberations to find the company liable, following a seven-day trial. (Bill Rankin, “Alamo’s Costly Failure to Warn”, National Law Journal, May 22; Susan R. Miller, “Trail of Tears”, Miami Daily Business Review, May 8.)

Which of course raises the question: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of certain neighborhoods? Numerous businesses have come under legal fire for discriminating against certain parts of town in dispatching service or delivery crews (“pizza redlining”); one of the more recent suits was filed by a civil rights group against online home-delivery service Kozmo.com, which offers to bring round its video, CD and food items in only some neighborhoods in Washington, D.C., mostly in affluent Northwest. (Elliot Zaret & Brock N. Meeks, “Kozmo’s digital dividing lines”, MSNBC/ZDNet, April 12; Martha M. Hamilton, “Web Retailer Kozmo Accused of Redlining”, Washington Post, April 14).

June 29 — “Angela’s Ashes” suit. Frank McCourt (Angela’s Ashes, Tis) and his brother Malachy (A Monk Swimming) have had a runaway success with their memoirs of growing up poor in Ireland and emigrating to America (4 million copies have sold of Angela’s alone). Now they’re being sued by Mike Houlihan, “who in the early 1980s raised $20,750 to stage and produce a McCourt brothers play called ‘A Couple of Blaguards,'” also based on their early life. The play had only modest success, though it has begun to be revived frequently with the success of the memoir books. Mr. Houlihan says he and several others are entitled to 40 percent of the profits from Angela’s Ashes and the other memoirs because they are a “subsidiary work” of the play. “That would be a nice piece of money, wouldn’t it?” says Frank McCourt, who says his old associate “has hopped on America’s favorite form of transportation — the bandwagon”. (Joseph T. Hallinan, “Backers of McCourt’s Old Play Say They Are Due Royalties”, Wall Street Journal, June 6 (fee)).

June 29 — “Trying a Case To the Two Minute Mind”. California attorney Mark Pulliam passes this one on: a recent brochure from the San Diego Trial Lawyers Association offered a sale on educational videos for practicing litigators, of which one, by Craig McClellan, Esq., was entitled “Trying a Case To the Two Minute Mind; aka Trial by Sound Bite” (worth one hour in continuing legal education credits). According to the brochure, “The presentation shows how to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror’s perception and thought process in the least amount of time.”

June 28 — Oracle did it. Today’s Wall Street Journal reports that the big software maker and Microsoft rival has acknowledged it was the client that hired detective firm Investigative Group International Inc. for an elaborate yearlong operation to gather dirt on policy groups allied with Microsoft; the detective firm then offered to pay maintenance workers for at least one of the groups’ trash (see June 26). “The IGI investigator who led the company’s Microsoft project, Robert M. Walters, 61 years old, resigned Friday after he was named in stories about the case.” Oracle claims to have no knowledge of or involvement with illegalities — buying trash isn’t in itself necessarily unlawful — and IGI also says it obeys the law. (Glenn R. Simpson and Ted Bridis, “Oracle Admits It Hired Agency To Investigate Allies of Microsoft”, June 28 (fee))

June 28 — Born to regulate. Opponents say the Occupational Safety and Health Administration’s “ergonomics” proposals would tie America’s employers in knots in the name of protecting workers from carpal tunnel syndrome and other repetitive motion injuries (see March 17), and resistance from the business community is stiff enough that the regs ran into a roadblock in the Senate last week. However, Ramesh Ponnuru at National Review Online reports that “Marthe Kent, OSHA’s director of safety standards program and head of the ergonomics effort, couldn’t be happier at her job. ‘I like having a very direct and very powerful impact on worker safety and health,’ she recently told The Synergist, a newsletter of the American Industrial Hygiene Association. ‘If you put out a reg, it matters. I think that’s really where the thrill comes from. And it is a thrill; it’s a high.’ Later in the article, she adds, ‘I love it; I absolutely love it. I was born to regulate. I don’t know why, but that’s very true. So as long as I’m regulating, I’m happy.'” (Ramesh Ponnuru, “The Ergonomics of Joy” (second item), National Review Online Washington Bulletin, June 26). See also “Senate Blocks Ergonomic Safety Standards”, Reuters/Excite, June 22; Murray Weidenbaum, “Workplace stress is declining. Does OSHA notice?”, Christian Science Monitor, June 15.

June 28 — Giuliani’s blatant forum-shopping. Time was when lawyers showed a guilty conscience about the practice of “shopping” for favorable judges, and were quick to deny that they’d attempted any such thing, lest people think their client’s case so weak that other judges might have thrown it out of court. Now they openly boast about it, as in the case of New York City’s recently announced plans to sue gun makers. The new legal action, reports Paul Barrett of the news-side Wall Street Journal, could “prove especially threatening to the industry because Mr. Hess (Michael Hess, NYC Corporation Counsel) said the city would file it in federal court in Brooklyn. The goal in doing so would be to steer the suit to the courtroom of U.S. District Judge Jack Weinstein, who is known for allowing creative liability theories. … Mr. Hess said that New York will ask Judge Weinstein to preside over its suit because it is ‘related’ to the earlier gun-liability case [Hamilton v. Accu-Tek, now on appeal.]” (See also Nov. 1). (“New York City Intends to File Lawsuit Against Approximately 25 Gun Makers”, June 20 (fee)).

June 28 — From our mail sack: transactional-lawyer whimsy. New York attorney John Brewer writes: “This may just be a bit of transactional lawyer inside humor, or it may be evidence that the agnostic and individualistic themes in our culture have finally penetrated lawyers’ contract boilerplate (which for a variety of reasons tends to be an extraordinarily conservative-to-anachronistic form of stylized discourse). According to the April 2000 issue of Corporate Control Alert [not online to our knowledge], a provision in the documentation for the 1998 acquisition of International Management Services Inc. by Celestica Inc. contained a definition which read in part as follows:

“Material Adverse Change” or “Material Adverse Effect” means, when used in connection with the Company or Parent, as the case may be, any change or effect, as the case may be, caused by an act of God (or other supernatural body mutually acceptable to the parties) …

“In a sign that some of the old certitude remains, however,” John adds, “the accompanying article referred colloquially to the clause containing this language as a “hell-or-high-water” provision without any suggestion of mutually acceptable alternative places of everlasting torment.”

June 27– Welcome New Republic readers. Senior writer Jodie Allen of U.S. News & World Report tells us we’re her favorite website, which we consider proof we’re on the right track. Writing the New Republic’s “TRB from Washington” column this week, her theme is our legal system’s willingness to entertain all sorts of remarkable new rights-assertions that might have left Thomas Jefferson scratching his head, and she says readers who want more “can monitor such cases at Overlawyered.com.” We’ll help with the following thumbnail link-guide to cases mentioned in the column: drunken airline passenger, child left in hot van, right to non-sticky candy, bank robber and tear gas device, beer drinker’s restroom suit & Disneyland characters glimpsed out of uniform, haunted house too scary, high-voltage tower climber (& second case), killer whale skinny dip, obligation to host rattlesnakes, parrot-dunking, Ohio boys’ baseball team, school administrator’s felony, stripper’s rights, and murderer’s suit against her psychiatrists. (“Rights and Wrongs”, July 3). (DURABLE LINK)

June 27 — Reprimand “very serious” for teacher. Norwalk, Ct.: “After an in-house investigation that lasted more than a month, Carleton Bauer, the Ponus Ridge Middle School teacher who gave an 11-year-old girl money to purchase marijuana, has been reprimanded with a letter in his file.” The girl’s father, who was not notified of the disciplinary action taken against the teacher but was contacted by the press, felt the teacher’s union had been allowed to negotiate too lenient a treatment for Bauer, a 31-year teaching veteran, but Interim Superintendent of Schools William Papallo called the penalty “fair and equitable”, saying, “For someone who has worked so long, a reprimand is very serious”. (Ashley Varese, “Ponus teacher ‘lacked judgment'”, Norwalk Hour, June 16, not online).

June 27 — Peter McWilliams, R.I.P. Although (see above item) there are times when our authorities can be lenient toward marijuana-related infractions, it’s more usual for them to maintain a posture of extreme severity, as in the case of well-known author, AIDS and cancer patient, and medical marijuana activist Peter McWilliams, whose nightmarish ordeal by prosecution ended last week with his death at age 50. (William F. Buckley Jr., Sacramento Bee, June 21; Jacob Sullum, Reason Online/Creators Syndicate, June 21; John Stossel/ABC News 20/20, “Hearing All the Facts”, June 9; J.D. Tuccille, Free-Market.Net Spotlight; Media Awareness Project).

June 27 — AOL “pop-up” class action. In Florida, Miami-Dade County Judge Fredricka Smith has granted class action status to a suit against America Online, purportedly on behalf of all hourly subscribers who viewed the service’s “pop-up” ads on paid time. Miami attorney Andrew Tramont argues that it’s wrong for subscribers to be hit with the ads since they’re paying by the minute for access to the service (at least if they’re past their allotment of free monthly time), and “time adds up” as they look at them — this, even though most users soon learn it takes only a second to click off an ad (“No thanks”) and even though the system has for some time let users set preferences to reduce or eliminate pop-ups. The case seeks millions in refunds for the time customers have spent perusing the ads. According to attorney Tramont, “the practice amounts to charging twice for the same product. ‘AOL gets money from advertisers, then money from subscribers, so they’re making double on the same time,’ he said.” Please don’t anyone call to his attention the phenomenon of “magazines”, or we’ll never get him out of court. (“Florida judge approves class-action lawsuit against America Online”, CNN, June 25).

June 26 — Cash for trash, and worse? We’re glad we didn’t play a prominent role in defending Microsoft in its antitrust dispute, since we’d have found it very intrusive and inconvenient to have our garbage rifled by private investigators and our laptops stolen, as has happened lately to a number of organizations that have allied themselves with the software giant in the controversy (Declan McCullagh, “MS Espionage: Cash for Trash”, Wired News, June 15; Ted Bridis, “Microsoft-Tied Groups Report Weird Incidents”, Wall Street Journal, June 19 (fee); Glenn Simpson, “IGI Comes Under Scrutiny in Attempt To Purchase Lobbying Group’s Trash”, Wall Street Journal, June 19) (fee); Ted Bridis and Glenn Simpson, “Detective Agency Obtained Documents On Microsoft at Two Additional Groups”, Wall Street Journal, June 23 (fee)). Material surreptitiously obtained from the National Taxpayers Union, Citizens for a Sound Economy, and Independent Institute soon surfaced in unflattering journalistic reportage on these groups in the New York Times, Washington Post and Wall Street Journal, and two attempts were also made to get night cleaning crews to sell the trash of the pro-Microsoft Association for Competitive Technology. They’re calling it “Gatesgate”.

In other news, the New York Observer checks into what would happen if the giant company tried to flee to Canada to avoid the Justice Department’s clutches (answer: probably wouldn’t make any difference, they’d get nailed anyway) (Jonathan Goldberg, “The Vancouver Solution”, June 12). And over at the Brookings Institution, it’s a virtual civil war with fellow Robert Crandall arguing against a breakup and fellow Robert Litan in favor (Robert Crandall, “If It Ain’t Broke, Don’t Break It Up”, Wall Street Journal, June 14; Robert Litan, “The rewards of ending a monopoly”, Financial Times, Nov. 24; Robert Litan, “What light through yonder Windows breaks?”, The Globe and Mail (Toronto), June 11, all reprinted at Brookings site).

June 26 — “Was Justice Denied?”. Dale Helmig was convicted of the murder of his mother Norma in Linn, Mo. This TNT special June 20 impressed the Wall Street Journal‘s Dorothy Rabinowitz as making a powerful case for the unfairness of his conviction (“TV: Crime and Punishment”, June 19 (fee); TNT press release April 13). At the TNT site, links will lead you to more resources on errors of the criminal-justice system both real and alleged, including “Convicted by Juries, Exonerated by Science” (DNA exonerations); “The Innocent Imprisoned“; Justice: Denied, The Magazine for the Wrongly Convicted; CrimeLynx (criminal defense attorneys’ resource); and Jeralyn Merritt, “Could This Happen To Your Spouse or Child?” (Lawyers.com).

June 26 — Updates. Catching up on further developments in several stories previously covered in this space:

* In the continuing saga of leftist filmmaker Michael Moore (see Sept. 16), who made his name stalking the head of General Motors with a camera at social and business events (“Roger and Me”) and then called the cops when one of his own fired employees had the idea of doing the same thing to him, John Tierney of the New York Times has added many new details to what we knew before (“When Tables Turn, Knives Come Out”, June 17) (reg).

* Trial lawyers are perfectly livid about that New England Journal of Medicine study (see April 24) finding that car crash claimants experience less pain and disability under a no-fault system that resolves their claims relatively quickly. Now they’re throwing everything they can find at the study, lining up disgruntled former employees to question the researchers’ motives, saying the whole thing was tainted by its sponsorship by the Government of Saskatchewan (which runs a provincial auto insurance scheme), and so forth. (Association of Trial Lawyers of America page; Bob Van Voris, “No Gain, No Pain? Study Is Hot Topic”, National Law Journal, May 22).

* A Texas judge has entered a final judgment, setting the stage for appeal, against the lawyers he found had engaged in “knowingly and intentionally fraudulent” conduct in a product liability case against DaimlerChrysler where both physical evidence and witness testimony had been tampered with (see May 23). “Disbarment is a possible consequence, as are criminal charges, but none has yet been filed.” (Adolfo Pesquera, “Judge orders lawyers to pay $865,489”, San Antonio Express-News, Jun. 23). Update: see Mar. 17, 2003.

* It figures: no sooner had we praised the U.S. House of Representatives for cutting off funds for the federal tobacco suit (see Jun. 21) than it reversed itself and voted 215-183 to restore the funds (Alan Fram, “House OKs Funds for Tobacco Lawsuit”, AP/Yahoo, Jun. 23).

June 22-25 — Antitrust triumph. With great fanfare, the Federal Trade Commission announced this spring that it had broken up anticompetitive practices in the recording industry that were costing CD buyers from $2 to $5 a disc, saving consumers at least hundreds of millions of dollars. “So, how far have CD retail prices fallen since? Not a penny … Now, retail and music executives are accusing FTC Chairman Robert Pitofsky of misleading consumers and feeding the media ‘artificially inflated’ pricing statistics, possibly to camouflage the lusterless findings of the FTC’s costly two-year investigation of CD advertising policies.” A commission spokesman says it can’t release the basis of its pricing study because it’s based on proprietary information. (Chuck Philips, “FTC Assailed on Failed CD Price Pledge”, Los Angeles Times, June 2).

June 22-25 — More trouble for “Brockovich” lawyers. Latest trouble for real-life L.A. law firm headed by Ed Masry, dramatized in the Julia Roberts hit film “Erin Brockovich“: a wrongful termination suit filed by former employee Kissandra Cohen, who at 21 years of age is the state’s youngest practicing lawyer. Cohen alleges that when she worked for Masry he “made repeated sexual advances, and when she did not respond, he fired her. Cohen, who is Jewish, also claims that Masry and other attorneys in his office made inappropriate comments about her Star of David necklace and attire” and kept copies of Playboy in the office lobby. Also recently, Brockovich’s ex-husband, ex-boyfriend and their attorney were arrested in a scheme in which they allegedly threatened that unless Masry and Brockovich saw that they were paid off they’d go to the press with scandalous allegations about the two (the sort of thing called “extortion” when it doesn’t take place in the context of a lawsuit). (“Sex Scandal for Brockovich Lawyer”, Mr. Showbiz, April 28).

June 22-25 — Compare and contrast: puppy’s life and human’s. Thanks to reader Daniel Lo for calling to our attention this pair of headlines, both on articles by Jaxon Van Derbeken in the San Francisco Chronicle: “S.F. Dog Killer Avoids Three-Strikes Sentence”, June 2 (Joey Trimm faced possible 25 years to life under “three strikes” law for fatal beating of puppy, but prosecutors relented and he was sentenced to only five years); “Man Gets Five Years In Killing of Gay in S.F.”, April 25 (“high-profile” homicide charges against Edgard Mora, whom prosecutors had “long labeled a hate-filled murderer”, resolved with five-year sentence for involuntary manslaughter.)

June 21 — And don’t say “I’m sorry”. “Be careful,” said the night nurse. “They’re suing the hospital.” First-person account of how it changes the atmosphere on the floor when the family of a patient still under care decides to go the litigation route. Highly recommended (Lisa Ochs, “In the shadow of a glass mountain”, Salon, June 19).

June 21 — Good news out of Washington…. The House voted Monday to curb the use of funds by agencies other than Justice to pursue the federal tobacco lawsuit. The Clinton Administration claims the result would be to kill the suit (let’s hope so), but it and other litigation advocates will be working to restore the money at later stages of the appropriations process, and the good guys won by a margin of only 207-197 (June 19: Reuters; Richmond Times-Dispatch/AP; Washington Post) (It soon reversed itself and restored the funds: see June 26).

June 21 — …bad news out of New York. Mayor Rudolph Giuliani has joined the ranks of gun control advocates willing to employ the brute force of litigation as an end run around democracy. “[F]ollowing the lead of many of the nation’s other large cities, [Giuliani] announced yesterday that his administration would file its own lawsuit against handgun manufacturers, seeking tens of millions of dollars to compensate New York City for injuries and other damage caused by illegal gun use.” Maybe he wouldn’t have made such a good Senator after all (Eric Lipton, “Giuliani Joins the War on Handgun Manufacturers”, New York Times, June 20).

June 21 — Stress of listening to clients’ problems. Dateline Sydney, Australia: “A court awarded [U.S.] $15,600 in damages to a masseuse who suffered depression after listening to clients talk about their problems. Carol Vanderpoel, 52, sued the Blue Mountains Women’s Health Center, at Katoomba, west of Sydney, claiming she was forced to deal with emotionally disturbed clients without training as a counselor or debriefing to cope with resultant stress.” (“Singing the Blues: Masseuse wins damages for listening to problems”, AP/Fox News, June 20; Anthony Peterson, “$26,000 the price of earbashing”, Adelaide Advertiser, June 20).

November 1999 archives


November 15 — Class-action coupon-clippers. Hard-hitting page-one Washington Post dissection of class-action abuse, specifically the “coupon settlements” by which lawyers claim large but notional face-value benefits for the represented class, which can serve as a predicate for high fees even if few consumers ever take advantage of the benefits. “The record in one case, against ITT Financial Corp., showed that consumers redeemed only two of 96,754 coupons issued, a redemption rate of 0.002 percent.” Settlement-confidentiality rules often make it impossible to learn how many coupons were redeemed. Groups like Public Citizen and Trial Lawyers for Public Justice, normally closely aligned with plaintiffs’-side interests, are crusading against the coupon abuses, fearing they’ll erode public support for the class action device and “sour the public” on the whole system.

The piece includes a profile of Chicago lawyer Daniel Edelman, who’s won millions in fees in about thirty consumer lawsuits, and is variously called by consumerist critics “the Darth Vader of class action settlements” and “the poster child for how to rip off consumers under the guise of helping them”: “I can think of no plague worse than to have a court impose the likes of Daniel Edelman…on absent and unsuspecting members of a class,” said one judge in a lawsuit against Citibank. Edelman was among the plaintiff’s lawyers in the famed BancBoston Mortgage case, whose outcome was described by federal judge Milton Shadur (who was not involved in it) as “appalling” and “astonishing”: “The principal real-money beneficiaries of the settlement,” Judge Shadur wrote, “turned out to be the class counsel themselves.” The consumer who originally objected to that settlement, Dexter Kamilewicz of Maine, “chose not to comment for this article, noting that Edelman’s firm had countersued him for $25 million. That case is settled, but he said he feared landing in court yet again.” (For more on lawsuits filed by class action lawyers against their critics, see Nov. 4 commentary). (Joe Stephens, “Coupons Create Cash for Lawyers”, Washington Post, Nov. 14, link now dead)

November 15 — Link your way to liability? Daniel Curzon-Brown, a professor of English, has sued TeacherReview.com, a student-run “course critique” site that provides a forum for anonymous praise and criticism of faculty at City College of San Francisco (CCSF) and San Francisco State University. “Free speech is great, but this is not about free speech,” said Brown’s lawyer, Geoffrey Kors, saying his client had been falsely labeled racist and mentally ill, among other damaging charges. (“Other teachers were called ‘womanizers,’ ‘reportedly homicidal’ and ‘drugged out.'”) In one of the suit’s more ambitious angles, the lawyers have joined CCSF as a defendant on the grounds that it “allow[ed] one of its student clubs to provide a link to the review site on a college-hosted Web page” which “helped to create the appearance of official backing for the site”. (“Teacher sues over ‘racist’ Web review”, Reuters/ZDNet, Oct. 21 — full story). Update Oct. 10, 2000: Curzon-Brown agrees to drop suit.

November 15 — Are they kidding, or not-kidding? We’ve read over both these opinion pieces carefully, and here are our tentative conclusions. We think Nancy Giuriati, writing in the Chicago Tribune‘s “Voice of the People”, probably is kidding when she suggests overeating be addressed as a public health problem through lawsuits against food companies along the lines of the anti-smoking crusade. (“Treat Eaters Like Smokers”, Nov. 9). On the other hand, we think Ted Allen, writing in the Legal Times of Washington, probably isn’t kidding when he suggests fans file class-action suits against hard-luck sports teams like the Boston Red Sox and New Orleans Saints. (“Sue da Bums?”, Nov. 1). It could be, however, that we’ve got things upside down — that Mr. Allen is kidding, while Ms. Giuriati isn’t. If you think you can help us out, or wish to call our attention to other who-knows-whether-they’re-joking proposals for the further extension of litigation (entries from law reviews especially welcome!), send your emails to AreTheyKidding -at -overlawyered – dot – com. Update Apr. 11, 2002: Ms. Giuriati writes in to say she wasn’t kidding.

November 15 — Gimme an “S”, “U”, “E”. Latest lawsuit over not making the high school cheerleading squad filed by Merissa D. Brindisi and her father, Richard, who claim it was arbitrary and unfair for Solon, Ohio, school officials to have used teacher evaluations as one factor in deciding who got on the squad. Another suit by an unsuccessful cheerleader contender was filed last month in nearby Lorain County, but was dismissed. (Mark Gillispie, “Solon ex-cheerleader, father file suit”, Cleveland Plain Dealer, Nov. 10 — full story.)

November 13-14 — Fins circle in water. Hoping to piggyback on Judge Jackson’s Microsoft findings of fact and attracted by the treble damages provided by antitrust law, “veterans from the cigarette wars are plotting to sue the company in a wave of private litigation. If the onslaught unfolds as expected, teams of lawyers will turn Microsoft into the next Philip Morris, tangling the company in courts across the country.” David Segal, “New Legal Guns Train on Microsoft”, Washington Post, Nov. 12 — link now dead). Same day, same paper, same byline: another profile of emerging trial lawyer strategy of mounting assault on their targets’ stock price in order to force them to the negotiating table (see “Deal with us or we’ll tank your stock“, Oct. 21). The announcement of a major trial lawyer offensive against HMOs destroyed $12 billion of value in a single day as the market reacted. “Most of the companies have yet to recover.” (David Segal, “Lawyers pool resources, leverage settlements”, Washington Post, Nov. 12, link now dead).

On Friday the stock of big New Orleans-based engineering and construction company, McDermott International Inc., important in the offshore oil business, fell by 35.5 percent following a 26.7 percent drop the previous day to hit a 10-year low. The company disclosed lower earnings and “said in its earnings statement that the settlement of asbestos claims was using up a growing amount of the cash flow of its Babcock & Wilcox (B&W) subsidiary”, one of the nation’s best known makers of power plants. “This unquantifiable asbestos liability puts a whole new spin on things. [McDermott] becomes an asbestos liability valuation play rather than an earnings recovery play,” said analyst Arvind Sanger of brokerage firm Donaldson Lufkin & Jenrette, who added that he thought the market had overreacted to the uncertainty. (“Asbestos Claim Worries Hurt McDermott”, FindLaw/Reuters, Nov. 12, link now dead)

November 13-14 — Update: ADA youth soccer case. Bang! Ouch! As reported here a week ago, parents insisted that 9-year-old Ryan Taylor, who suffers from cerebral palsy, be allowed onto soccer team despite administrators’ fears of injuries from his metal walker. Now they’ve filed suit under federal Americans with Disabilities Act (see “After Casey Martin, the deluge“, Nov. 5-7). (“Parents Sue Over Son’s Soccer Ban”, AP/FindLaw, Nov. 12, link now dead).

November 13-14 — Risks of harm. “One woman manager whom I spoke to, an architect who has worked in construction for a number of years, put it this way: ‘When a woman comes to me with a complaint, I want first of all to make sure that no harm comes to the woman. But I want to make sure that no harm comes to the man, too. Because if a charge of sexual harassment goes into his folder, he may never get another promotion in his entire life.’ [emphasis in original] — from the forthcoming book What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor (see yesterday’s entry).

November 12 — Turning the tables. Automaker DaimlerChrysler has sued plaintiff’s attorneys and a individual named client who it says cost it millions of dollars and harmed its reputation by naming it in what is says was a meritless suit. In June, the locally based law firm of Greitzer & Locks and Maryland attorney William Askinazi filed a class-action suit in Philadelphia against DaimlerChrysler, Ford, General Motors and GM’s subsidiary Saturn alleging that the companies’ seat design was defective and unsafe. Similar suits were filed in other states, and lawyers were quoted in one story as claiming the aggregate value of their claims could amount to $5 billion. But DaimlerChrysler and Ford say they were dropped from the Philadelphia case after the named plaintiff, Brian Lipscomb, was shown never to have owned cars manufactured by either automaker.

The German-U.S. company has been on something of a mission recently to fight what it sees as abusive litigation. It recently secured dismissal of an Illinois class action over allegedly excessive engine noise and in 1996 unsuccessfully sought fees after securing dismissal of a Seattle class action that turned out to have been filed without client permission. It succeeded last year in winning an $850,000 judgment against two lawyers in St. Louis who it alleged had taken confidential documents while working for one of its outside law firms and then used that information to file class-action suits against the automaker. “Class-action lawsuits should be used to resolve legitimate claims and not serve as a rigged lottery for trial lawyers,” said Lew Goldfarb, DaimlerChrysler vice president and associate general counsel, in a statement this week. “For too long, trial lawyers have been exploiting class actions, turning these lawsuits into a form of legalized blackmail. They launch frivolous cases because they believe that just the threat of massive class actions filed in many states can coerce a company into settlement. It’s time they started paying for some of the costs of abusing our legal system.” “DaimlerChrysler sues lawyers over lawsuit”, Reuters/Findlaw, Nov. 10, link now dead; “Automakers sued for allegedly defective seats”, Detroit News, Jun. 26)

November 12 — Suppression of conversation vs. improvement of conversation. “Another difficulty in dealing with sexual harassment as a legal problem is that almost all people accused of harassment, from the one whose joke is misunderstood to the hard-core opportunistic harasser…don’t believe they are hurting anyone. [emphasis in original] And we know from our experiences with alcohol and drug prohibition that people whose behavior is regulated and who don’t believe they are hurting anyone else overwhelmingly evade and resent the regulations….If you tell people that the way in which they relate to each other naturally is against the law, their immediate reaction is to think the law intrusive. If, by contrast, you tell people that they may have misunderstood each other but that they can learn to communicate more clearly, you are offering them a new skill without blaming half of them in advance.” — from What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment, by Joan Kennedy Taylor, a book to be published this month by New York University Press and the Cato Institute.

November 11 — We didn’t mean those preferences! At Boalt Hall, the law school of U.C. Berkeley, it’s de rigueur to consider race, gender and various other official preferences as entirely constitutional as a way of balancing out past collective hardship. However, there’s one form of official preference you’d better not speak well of lest you risk ostracism: veterans’ preference. “If you, despite your well-intentioned, fine-toothed combing of the Constitution, just can’t find a legal rule that says that veterans’ preferences are impermissible gender discrimination, then that is sexism. If you think that these veterans’ preferences are acceptable as a matter of policy — for the liberals who are willing to concede that there is a difference between constitutional permissibility and policy advisability — then that is extreme sexism.” — contributor Heather McCormick in The Diversity Hoax: Law Students Report from Berkeley, edited by David Wienir and Marc Berley (Foundation for Academic Standards and Tradition, 1999).

November 11 — Microsoft roundup. Peter Huber of the Manhattan Institute, author of Law and Disorder in Cyberspace, argues in yesterday’s Wall Street Journal that a breakup of the company would in fact be less destructive of value than seemingly more modest remedies that might require the company to prenegotiate its future business relationships or even its software revisions with competitors’ lawyers: “Complex remedial decrees invariably kick off endless rounds of follow-up bickering. Costs mount quickly. Private lawsuits follow. And antitrust law awards triple damages.” (“Breaking Up Isn’t hard to Do”, Wall Street Journal, Nov. 10 — requires online subscription). “Two branches of the federal government, which is a case study in institutional sclerosis, are lecturing Microsoft on the virtues and modalities of innovation,” notes George Will (“Risks of Restraining”, Washington Post, Nov. 9, link now dead). “The dynamism of technology long ago rendered the entire case moot,” argues a Detroit News editorial. “…It is doubtful, for example, that America Online would have paid $10 billion for Netscape if Microsoft’s Bill Gates had indeed rendered the Navigator [browser] worthless.” (“Microsoft: Punishing Success”, Nov. 9). Declan McCullagh at Wired News finds it surprising that the judge was so dismissive of the prospects of Linux, the open-source competitor to Windows (“Judge Jackson: Linux Won’t Last”, Nov. 8).

November 11 — Accommodating theft. In New Jersey, the Office of Attorney Ethics is seeking the disbarment of Tenafly lawyer Charles Meaden, who was arrested in 1996 for trying to buy $5,600 worth of golf clubs with a stolen credit card number. Mr. Meaden’s attorney, Linda Wong, argues that her client suffered from bipolar illness and was in a manic state at the time of the theft due to a change in his medication. “The panel has to send a signal to the public that disabilities can be accommodated.” The ethics body counters that Mr. Meaden’s use of the stolen number showed considerable planning, and added that he’d applied for guns four times in the two years before the arrest, each time denying that he’d been treated for psychiatric conditions. His lawyer’s response? Mr. Meaden, she said, was relying on his doctor’s assurance that depression was “not a psychiatric condition”, besides which “it was understandable that Meaden did not disclose his psychiatric history because the mentally ill face discrimination.” (Wendy Davis, “The Case of the Stolen Credit Card: Mental Illness or Well-Planned Heist?”, New Jersey Law Journal, Oct. 21 — full story)

November 10 — $625,000 an hour asked for time on stopped elevator. Nicholas White, 34, a production manager at Business Week, has filed suit asking $25 million from the owners of Rockefeller Center over an incident last month in which he got stuck on an elevator late one Friday and remained there, pushing buttons and banging on the door, for 40 hours before any building employees noticed. He had only a pack of Life Savers and three cigarettes to see him through the ordeal. “When he had to go to the bathroom, he would pry open the doors a little,” a friend of his told the New York Post. White’s lawyer, Kenneth P. Nolan, said last week that his client was “still in a state of shock” and “has not gone back to work”. (“Floor, please”, Fox News/Reuters, Oct. 21 (link now dead); “Man Trapped in Elevator Wants $25M”, AP/Washington Post, Nov. 3, link now dead; “Man, trapped in New York elevator 40 hours, sues”, Reuters/San Jose Mercury News, Nov. 4, (link now dead; Philip Delves Broughton, “Editor sues for $25-million after 40-hour elevator terror”, National Post (Canada) (originally Daily Telegraph, London), Nov. 6, link now dead)

November 10 — Annals of zero tolerance: more nail clippers cases. The Marshall Elementary School in Granite City, Ill. has suspended second-grader Derek Moss for three days after a custodian found him with a nail clipper. Earlier this fall in Cahokia, Ill., 7-year-old second-grader Lamont Agnew drew a 10-day suspension for possession of the same contraband. (Robert Kelly, “Another nail clippers incident reported”, St. Louis Post-Dispatch, Nov. 2 (link now dead)) Earlier this year Pensacola, Fla. administrators recommended the expulsion of 15-year-old sophomore Tawana Dawson for possession of a clipper with a two-inch attached blade; she’d lent it to a classmate to trim her nails. (“School calls nail clipper a weapon”, AP/APB News, June 7). In recent California cases, a 12-year-old Corona boy was expelled over a nail clipper, a decision later reversed; a Mission Viejo 10-year-old was suspended over a three-inch cap-gun toy on her key chain, and a Buena Park 5-year-old was transferred to another school after he brought into school a disposable shaver he’d found at a bus stop. (Oblivion.net)

November 10 — Welcome Progressive Review and Cal-NRA visitors. Haunted-house story is here; gun lawsuits vs. national security story, here.

November 10 — “The Dutch Boy isn’t Joe Camel.” The companies recently sued by Rhode Island “voluntarily stopped marketing lead-based paint for interior use in the 1950s — a generation before the federal government decided to ban interior lead paint in 1978,” writes Judy Pendell of the Manhattan Institute’s Center for Legal Policy (with which our editor is affiliated). You’d think withdrawing your product before you were obliged to would count as socially responsible, but no good deed escapes punishment. Nor, it seems, does any incorporated bystander with deep pockets: “Many of the defendants acquired their companies long after they had stopped making lead paint…If you can sue an industry that essentially shut itself down almost a half century ago, who’s next?” (“Trial lawyers’ next target: the paint industry”, Wall Street Journal, Oct. 18 — now online at the Manhattan Institute site, which boasts a growing collection of online reports on legal issues (link now dead)).

November 10 — Correction: the difference one letter makes. On Sept. 2 we ran an item about the role of charitable and social-service groups in efforts to take down the gun industry, and included the YMCA on the list of such groups. That was off base: it’s the YWCA that’s a participant in the Coalition to Stop Gun Violence, not its male counterpart. The mistake is one the anti-gun coalition itself unleashed on the world when it erroneously listed the YMCA on its list of supporting organizations. The Capital Research Center took the claim at face value in its report on anti-gun philanthropy, whence it made its way to our summary. Patrick Reilly of the Capital Research Center tells us he’s spoken with the coalition, which acknowledges its mistake and says it’s replaced the “M” version with the correct “W”. In the mean time, the poor YMCA has gotten calls from outraged supporters of the Second Amendment. Send those outraged calls to the YWCA instead.

November 9 — Gun jihad menaces national security. Colt Manufacturing is an important current, as well as historic, defense resource to this country: “We are one of the two suppliers of the M16 rifle and the sole supplier of the M4 carbine to the United States military, as well as many of our allies.” Yet the courtroom assault masterminded by American trial lawyers and carried out by their friends at city hall is quickly running the enterprise into the ground: legal defense costs are “astronomical”, financing and insurance are drying up, and managers have scant time to do anything but respond to legal demands.

“In connection with these lawsuits, Colt has been served with extraordinarily expansive and burdensome discovery requests seeking virtually every document in Colt’s possession related to the design, manufacture and marketing of firearms — military and otherwise. In our defense, waves of lawyers have descended on Colt and other legitimate gun manufacturers, scouring every corner and aspect of our business in an effort to respond to these unreasonable requests.”

If the municipal firearms litigation “forces us out of business, it also will leave the military without an experienced base to turn to during a time of crisis. In the opinion of the Department of Defense, it would take two to five years and significant government investment to return any of today’s weapon systems to their current level of operational reliability should we lose this present capability.”

“We are uneasy and troubled by the fact that we and other companies in the future may be driven out of business by a wave of lawsuits, even if the courts eventually find out that the plaintiff’s cases have no merit.” — Lt. Gen. William M. Keys U.S.M.C. (ret.), chief executive officer of the New Colt’s Holding Company, in testimony before the Senate Judiciary Committee Nov. 2. (full testimony) (overall hearings page).

November 9 — Hold your e-tongue. Though employees may still fondly imagine their screen banter to be somehow entitled to privacy, “e-mails not only are subject to discovery, but also can kill you in a courtroom,” explain two lawyers with Miami’s Becker & Poliakoff. The problem for companies that get sued is that “people who are normally careful of what they say in writing seem to feel that e-mail doesn’t count, and…say things in e-mails they would never say in person or by telephone.” All of which leads up to the following rather startling advice: “Businesses should have an e-mail policy. Consider such rules as ‘No e-mail may contain derogatory information about individuals or the competition.'” (Mark Grossman and Luis Konski, “Digital Discovery: Decoding Your Adversary”, Legal Times (Wash., D.C.), Oct. 20 — full column).

November 9 — “Banks’ good deeds won’t go unpunished”. Good Steve Chapman column on ill-advised laws adopted in San Francisco and Santa Monica, and under consideration for U.S. military bases, that forbid banks from charging a fee for non-customers’ ATM withdrawals; currently banks put automatic machines “in all sorts of relatively low-traffic, out-of-the-way places”, a trend likely to halt abruptly if the business becomes a legislated money-loser. (Chicago Tribune, Nov. 7 — full column).

November 8 — Microsoft ruling: guest editorials. Venture capitalist Jay Freidrichs of Cypress Growth Fund: “My gut is, this is not positive for the industry. The less government involvement, the better.” Peter Ausnit of San Francisco brokerage Volpe Brown Whelan & Co. is alarmed that the ruling could “open up Microsoft to thousands of lawsuits from every belly-up software firm in the world….Are they going to be set upon like the cigarette industry?” George Zachary, a partner at Mohr Davidow Ventures: “a scary reminder that if you make it to the top, someone will try to pull you down.” Venture capitalist Tim Draper: “Silicon Valley should be furious with the way our government is treating successful companies…Any would-be entrepreneur is getting a message from Washington that says: ‘Become successful but not too successful, or we’ll ruin your life.'” (David Streitfeld, “Glee, Gloom in Silicon Valley”, Washington Post, Nov. 6 (link now dead); Duncan Martell, “Silicon Valley Cheers Microsoft Ruling”, Yahoo/Reuters, Nov. 6 (link now dead)). Plus: Virginia Postrel, “What Really Scares Microsoft”, New York Times, Nov. 8; George Priest, “Judge Jackson’s Findings of Fact: A Feeble Case”, Wall Street Journal, Nov. 8 (requires online subscription).

November 8 — Ohio tobacco-settlement booty. A private firm with close links to prominent Columbus lobbyists has been angling for the contract to handle Ohio’s anti-tobacco ad campaign, financed from its share of the state’s settlement loot. It just so happens the next CEO of this firm is State Rep. E.J. Thomas, a key player in the divvying up of the tobacco spoils as chair of the House Finance-Appropriations Committee. “Does Mr. Thomas really believe nobody would have questioned his neutrality while voting to award tobacco contracts when he has been holding hands with one of the parties playing to win the jackpot?” editorializes the Toledo Blade. (“The smoking cigarette”, Oct. 24 — link now dead).

November 8 — Who loves trust-and-estates lawyers? Well, auction houses, for one, since these attorneys control so much asset-disposition business. And so a lot of buttering-up goes on: “At one of the largest annual gatherings of trust and estate lawyers in the U.S., held each year in Miami, Christie’s brings down hundreds of thousands of dollars in jewels so that the lawyers, or their spouses, can try them on. ‘I am not that easily swayed,’ says Carol Harrington, an estate lawyer from the Chicago law firm McDermott Will & Emery, who deals regularly with the auction houses. ‘But what woman doesn’t like having $40,000 in jewels around her neck?'” (Daniel Costello, “An Art Collection to Die For”, Wall Street Journal, Sept. 24).

November 8 — “Police storm raucous party to find members of anti-noise squad”. Moral of this report from southwest England: if you’re hoping to keep your job on the town noise-abatement committee, don’t hire three bands and throw a bash late into the night at city hall; after annoyed neighbors called in to report loud whoops and shrieks, police descended on the venue only to find the mayor and local dignitaries in attendance. (AP/CNN, Oct. 26, link now dead).

November 5-7 — “Scared out of business”. Boston Globe reports on decline of a Halloween tradition, the community haunted house, under pressure from building and safety codes (No emergency sprinklers! Combustible material! And children present, no less!) “In the future, the only option will be to drive to a big, slick venue and pay your $23.50 for a corporatized event that has nothing to do with community,” said Douglas Smith, an illustrator who used to help design the haunted house at Hyde Community Center in Newton Highlands, which has lately been discontinued along with two other haunted houses in Newton. “Only they have the resources. Only they can build to these codes.” “I’m very disappointed,” said 10-year-old David Olesky, who had been looking foward to the outing. “They can make rules, but they can’t drain all the fun out of everything. It’s unfair.” Now “the skull’s mouth, the body parts, and dozens of eyeballs remain packed in boxes” at the community center. “Within a few years, I imagine all amateur haunted houses will get shut down,” Smith told the Globe‘s Marcella Bombardieri. “Society is getting so concerned about liability that there’s no way to have fun.” (Oct. 29 — link now dead).

November 5-7 — Public by 2-1 margin disapproves of tobacco suits. New ABC News poll of 1,010 adults finds that by a 60-to-34 percent margin public doesn’t believe tobacco companies should have to pay damages for smoking-related illnesses. But not one of the fifty state attorneys general held back from filing such a suit — an indication these AGs are taking their policy cues from something other than their states’ electorates. As for trial lawyers, they know the luck of the draw will eventually assure them a certain number or juries and judges around the country willing to go along with the 34 percent view. That’s enough to cash in no matter what the majority may think. (ABC News.com, “Cigarette Makers Absolved: Six in 10 Reject Liability for Tobacco Companies”, Nov. 3).

November 5-7 — AOL sued for failure to accommodate blind users. Yes, AOL is big, but the legal theories being advanced under the Americans with Disabilities Act have the potential to redefine all sorts of websites, including publishing and opinion sites, as “public accommodations”. If you’re looking for a way to slow down the growth of the Web, try menacing page designers with liability unless they set aside their to-do list of other site improvements in favor of trooping off to seminars on how to fix nonaccommodative coding choices. (“Blind Group Sues AOL Over Internet Access”, Excite/Reuters, Nov. 5; case settled August 2000)..

November 5-7 — More details on Toshiba. Last Saturday’s L.A. Times, not in our hands before, adds a number of salient details to the story covered in this space November 3. Number of laptops involved: 5.5 million. The company agreed to settle “even though no consumer ever complained of losing data as a result of the glitch”. Company officials “said they had been unable to re-create the problem in the lab, except when trying to save something to a disk while simultaneously doing one or two other intensive tasks, such as playing a game or watching a video.” However, Toshiba was tipped toward settling when it heard that NEC Corp. considered the glitch a genuine one and learned moreover that there’d been an earlier advisory from NEC, thus opening up scenarios in which lawyers could argue that warnings had been callously ignored etc. The coupons will be much more valuable than the usual style of settlement coupons because owners “will be able to sell their coupons or use multiple coupons toward a single purchase.” But the public goodwill fund that will bulk out the rest of the $1 billion settlement if claims fall short may consist of donations of older hardware to charitable groups, a notoriously soft accounting category (Joseph Menn, “Toshiba OKs Settlement of $1 Billion Over Laptops”, Oct. 30, link now dead). Jodi Kantor, Slate “Today’s Papers”, also Oct. 30, reports: “The company’s credit rating was immediately downgraded, and its share price slipped 9%.” (Toshiba site)

November 5-7 — After Casey Martin, the deluge. Latest handicap-accommodation demand from the playing field: family of 9-year-old Ryan Taylor, who’s afflicted with cerebral palsy, asks for his right to play soccer in a metal walker. David Dalton, volunteer president of the Lawton [Okla.] Optimist Soccer Association league, says the walker is hazardous and a violation of the game rules. In addition, the league could get sued if another player smashed into it while trying to contest Taylor’s control of the ball, if any were so unsporting as to try that. However, “in 1996 a federal court in California ruled that a youth baseball league violated the Americans With Disabilities Act by excluding an 11-year-old with cerebral palsy who used crutches” and Houston disability-rights lawyer Wendy Wilkinson is rattling the saber, saying the ruling “definitely applies to this situation”. (Danny M. Boyd, “Disabled boy is barred from playing soccer with a walker”, AP/Fox News, Nov. 3, link now dead).

November 5-7 — “Land of the free…or the lawyers?” Nice editorial in Investors Business Daily on the deepening litigation crisis: “No industry or company is safe.” It even quotes our editor (Oct. 21, link now dead).

November 5-7 — Toffee maker sued for tooth irritation. Spreading across the Atlantic?, cont’d: Former Miss Scotland Eileen Catterson, a runway fashion model for ten years, has sued the makers of Irn-Bru toffee bars saying the sticky confection has left her with discolored teeth and sore gums. She is demanding £5,000 damages in Paisley Sheriff Court, which itself sounds like a fashion establishment. (Gillian Harris, “Model sues sweets firm over teeth”, The Times (London), Oct. 28).

November 4 — Criticizing lawyers proves hazardous. In July Publishers Clearing House, the magazines-by-mail company whose sweepstakes is promoted by Ed McMahon, agreed to settle a class action charging it with deceptive practices. The settlement provided for a maximum of $10 million in outlays by the company, to be divided roughly as follows: $1.5 million to send a notice of settlement to an estimated 48 million households in the class; $5.5 million or less to be refunded to dissatisfied magazine buyers that could muster the required paperwork, the exact sum to depend on how many did so; and $3 million in legal fees for the lawyers who filed the suit, sister-and-brother attorneys Judy Cates and Steven Katz of Swansea, Ill. and a third colleague.

The announcement did not sit well with St. Louis Post-Dispatch columnist Bill McClellan, who wrote August 27 that Cates and Katz “represent the modern version of the James Gang….They recently gained renown by galloping into the little town of Publishers Clearing House. They robbed the bank there, and rode away.” He added that “the way these class-action lawsuits usually work” is that “members of the class get very little. Usually nothing. Our lawyers get a lot. Always….It will be considered a cost of doing business, and like all such costs, it will be passed on to the consumers, who are, of course, the very same people who are allegedly benefiting from the lawsuit.”

And with that, almost before the popular columnist could tell what hit him, he was staring down the barrel of a writ. On August 30 Cates and Katz filed suit against McClellan in federal court in East St. Louis, Ill., seeking $1 million in damages for the libel of having been compared to bank robbers.

Unrepentant, McClellan followed up with a second and equally jocular effort, explaining that the lawyers had misunderstood: although upstanding Illinois might object to bank robbery, “Here in Missouri, we like the James Gang,” as folk heroes from the state’s Great Plains heritage. “So it is with the gallant class-action lawsuit lawyers. Close your eyes and see them the way I see them. They ride into town, file their lawsuits, reach their settlements and then, their saddlebags stuffed with money, they gallop into the night, but as they go, they throw coins to the cheering populace.

“And coins is the operative word, too,” McClellan added, pointing out that on average each of the represented households stood to gain something on the order of 12 cents, compared with $3 million for their lawyers. It is not recorded that Cates and Katz have dropped their suit or been in any other way mollified by this response. Bill McClellan, “Only Ones Who Gain From Class-Action Suits Are The Lawyers”, St. Louis Post-Dispatch, Aug. 27; “Missourians love James Gang and today’s robbers, too”, Sept. 1). Update: Nov. 30 (he criticizes them again, though case is still pending); Feb. 29, 2000 (they agree to drop suit).

November 4 — Bring a long book. It takes New York, on average, seven years to fully adjudicate discrimination cases filed with its Division of Human Rights. One woman in Orleans County spent 14 years in the system before obtaining a $20,000 award, while a complainant against Columbia University was still waiting for a hearing after 11 years. A federal judge has sided with the National Organization for Women in a suit demanding that the agency hire more employees on top of its current 190 to handle the case load; NOW wants that number tripled. (Yancey Roy, “State faulted on rights cases”, Rochester Democrat and Chronicle, Nov. 2 — link now dead).

November 3 — Toshiba flops over. Last Friday’s announcement by Toshiba Corp. that it had agreed to pay a class-action settlement nominally valued at $2 billion over alleged defects in the floppy-drive operation of its laptop computers appears to represent a genuine breakthrough for plaintiff’s lawyers who’ve for years been gearing up a push to extract cash from high-tech companies over crashes, glitches and other subpar aspects of the computing experience. Many still unanswered questions about the new developments:

* Has the glitch led to any problems at all in real-world use? Conspicuously absent from the coverage of recent days has been any word from victims of the glitch saying that on such and such a date they lost important data because of it. Yet if the plaintiffs’ side had such witnesses available, it’s hard to see why they wouldn’t have pushed them forward to public notice by now. Apparently the lawyers, through their expert, have found a way to configure Toshiba laptops so as to replicate data loss under carefully controlled demonstration conditions, but news coverage has not yet probed into the question of how artificial these conditions are or how likely they are to occur to real users who aren’t trying on purpose to get their computers to lose data. The plaintiffs’ theory, which seems rather convenient, is that the data loss is so subtle that people don’t know it’s happening or can’t trace it to the glitch afterward.

* Given the above, who if anyone has suffered damages? Next week Toshiba “will post on its Web site a free and downloadable software patch that eliminates the problem.” And a large percentage of laptop owners never or almost never use their floppy drive, preferring modem transmission of files. Yet all will be entitled to prizes.

* How valuable are those prizes? There’s some talk of refunds for recent purchasers, but presumably most would rather download a software patch than return a computer they like. (Toshibas are popular.) Others will get coupons mostly valued at $100-$225 “for the purchase of Toshiba computer products sold through Toshiba’s U.S. subsidiary”. Usually the face value of a coupon settlement is a highly unreliable guide to what the settlement is actually costing; otherwise a Sunday paper with $30 in grocery coupons in it would sell for $30. Yet Toshiba is taking a $1 billion accounting charge, and pledges to donate unclaimed amounts from the settlement fund to “a newly created charitable organization”. And it’s also agreed to pay a very non-imaginary $147.5 million to a not-so-charitable organization, the lawyers that brought the suit.

* Can the lawyers take their act industry-wide? “On Sunday night, four new suits were filed in U.S. District Court in Beaumont, Texas [where the Toshiba case had been filed only six months ago], against PC makers Hewlett-Packard Co. Compaq, NEC Packard-Bell and e-Machines Inc.” Compaq says there are specific diferences between its machines and Toshiba’s which render the case against it meritless. Pattie Adams, a spokeswoman for eMachines, said her company still hadn’t seen the suit but expressed the view that it. “doesn’t really apply to us…It appears to be about laptops, which we do not have, and the technology is from before we were even established.” As if that would save them in our current legal system! Another news report suggests the lawyers are busily trying to rope in governments as plaintiffs, à la guns-tobacco-lead paint: “federal investigators have attended laboratory demonstrations sponsored by plaintiffs’ lawyers intended to show the occurrence of the alleged defect, these people said. State and local agencies can opt to assert damage claims on their own.”

The law firm involved, Reaud, Morgan & Quinn, of Beaumont, Texas, may not be a familiar name to tech-beat reporters, but it’s quite familiar to those who follow high-stakes litigation. After growing rich on asbestos claims it moved into the tobacco-Medicaid suit on behalf of Texas (Forbes, July 7, 1997; Sept. 21, 1998 and sidebar). It also made the Houston Chronicle‘s list of top ten political donors in Texas (five of whom, all consistent Democratic donors, happen to have represented the state in tobacco litigation for $3.3 billion in fees). Beaumont, which also is home to another of the Big Five Texas tobacco firms, is sometimes considered the most plaintiff-dominated town in the United States. (DISCUSS)

Sources: Toshiba press release, Oct. 29; Terho Uimonen, “Toshiba Settles Floppy Disk Lawsuit”, IDG /PC World News, Oct. 29; Andy Pasztor and Peter Landers, “Toshiba to pay $2B settlement on laptops”, Wall Street Journal Interactive/ZDNet, Nov. 1; Michael Fitzgerald and Michael R. Zimmerman, “PC makers hit with ‘copycat’ suits”, PC Week/ZDNet News, Nov. 1; “More PC lawsuits filed”, AP/CNNfn, Nov. 2 (link now dead); “Laptop Illogic”, Wall Street Journal, Nov. 3.

November 3 — Flag-burning protest requires environmental permits. You’re so angry you want to burn a flag in public? You’ll have to fill out these two environmental permissions first, please, one for the smoke aspect and one for the fire aspect. We don’t think this is a parody. (Vin Suprynowicz, “Levying a Free-Speech Fee”, Las Vegas Review-Journal, Oct. 28 — full column)

November 3 — Welcome RiskVue and Latex Allergy Links readers. Coverage of EEOC protection of illegal aliens is here, and of possible Rhode Island-led suits against glove makers, here.

November 2 — School shootings: descent of the blame counselors. It may seem incredible to Americans, but after the 1996 massacre at Dunblane, Scotland, in which 16 kindergarteners and their teacher were killed, “not a single lawsuit was filed”. How different in Littleton, Colo., West Paducah, Ky., and Jonesboro, Ark., where busy litigators — call them blame counselors? — seem to outnumber grief counselors, aiming suits in all directions: at school districts, entertainment companies, gunmakers, and most controversially the parents of the killers. Many victim families still decline to sue, taking the older view of litigation as an obstacle to forgiveness and community reconciliation; others throw themselves vigorously into their suits as a cause, believing they’re helping expose deep-seated evils of today’s America or at least the negligence of certain bad parents; and then there’s the middle ground represented by one Columbine High School mother who says she’s forgiven the shooters’ parents, but, frankly, now needs the money. (Lisa Belkin, “Parents Suing Parents”, New York Times Magazine, Oct. 31) (see also July 22, 1999 and April 13, 2000 commentaries).

November 2 — “Responsibility, RIP”. Columnist Mona Charen comments on two auto safety suits, one of them the child-left-in-hot-van case discussed in this space Oct. 20. In the other case, $2 million went to the survivors of a Texas man who’d left a truck running on a hill and walked behind it. “You don’t need an owner’s manual to tell you that it’s dangerous to walk behind a running, driverless vehicle on a steep hill. This used to be known as common sense. But so long as juries return such verdicts, the concept of individual responsibility gets hammered ever lower…the trial lawyers’ wallets grow corpulent, and the populace is increasingly infantilized.” (Jewish World Review, Oct. 25 — full column)

November 2 — How the tobacco settlement works. “‘There’ll be adjustments each year based on inflation,’ said Brett DeLange, head of the Idaho attorney general’s consumer protection unit. Plus, ‘If cigarette volume goes down, our payments will go down. If volume goes up, our payments will go up even more.'” Why, it’s like Christmas come early! Of course DeLange denies that this arrangement will in any way dampen the state’s enthusiasm for reducing tobacco use. (Betsy Z. Russell, “Tobacco money gets closer to Idaho”, Spokane Spokesman-Review, Oct. 24 — full story) (see also July 29 commentary)

November 2 — Lockyer vs. keys. “October 12, 1999 (Sacramento) — Attorney General Bill Lockyer today sued 13 key manufacturers and distributors for allegedly failing to warn that their products expose consumers to the toxic chemical lead in violation of Proposition 65.” — thus a press release from the office of the California AG. From time immemorial, it seems, house keys have been made of brass, and brass contains lead. Whatever you do, don’t tell him about the knocker on your front door, or those robe hooks in the bathroom. (press release link now dead)

November 2 — Perkiness a prerequisite? Lawsuit charges local outlet of Just for Feet shoe chain with bias against black workers. Among evidence alleged: store “policy dictating employees should look like Doris Day or ‘the boy next door.’ Company representatives deny the existence of such a policy.” (“Shoe store accused of discrimination”, AP, Las Vegas Sun, Oct. 26 — full story)

November 2 — 80,000 pages served on Overlawyered.com. With help from our Canadian visitors, we hit a new daily traffic record last Thursday. New weekly and monthly records, too. Thanks for your support!

November 1 — New topical page on Overlawyered.com : family law resources. Divorce, custody, visitation, child support, adoptions gone wrong, and other occasions for overlawyering of the worst kind.

November 1 — Not-so-Kool omen for NAACP suit. Apparently unconcerned about retaining the good will of Second Amendment advocates, the National Association for the Advancement of Colored People is suing gunmakers for having catered to strong demand for their product in inner cities (see Aug. 19 commentary). Its potential case, however, is widely regarded as weak — so desperately weak that back on July 19 the National Law Journal reported the civil-rights group as angling to get the suit heard by Brooklyn’s very liberal senior-status federal judge Jack Weinstein because the underlying theories “might not succeed in any other courtroom in America”.

Now there’s another omen that the much-publicized lawsuit is unlikely to prevail: in Philadelphia, federal judge John Padova has dismissed a proposed class action which charged cigarette makers with selling in unusually high volume to black customers and targeting them with menthol brands and billboard ads. To bring a civil rights claim, the judge wrote, “[p]laintiffs would have to contend that the tobacco products defendants offer for sale to African Americans were defective in a way that the products they offer for sale to whites were not.” If a racial angle can’t be grafted onto the legal jihad against cigarette makers, is the same tactic likely to be any more successful when directed at gun makers?

Sources: Sabrina Rubin, “Holy Smokes!”, Philadelphia Magazine, February 1999; Shannon P. Duffy, “Court Urged to Dismiss Menthol Cigarette Class Action”, The Legal Intelligencer, April 8; Joseph A. Slobodzian, “A novel civil-rights lawsuit vs. tobacco industry is dismissed”, Philadelphia Inquirer, Sept. 24, link now dead; Shannon P. Duffy, “Judge Dismisses Smoking Suit”, The Legal Intelligencer, Sept. 24.

November 1 — Mounties vs. your dish. About a million Canadians are said to defy their country’s ban on the use of satellite dishes to receive international programming, though the Mounties’ website warns that violators “can face fines of up to $5,000 and/or up to 12 months in prison”. The ban applies not only to “pirate” watching (where viewers buy stolen code that lets them unscramble signals without compensating the satellite provider) but even to straightforward paid subscriptions to foreign satellite services. The only lawful option is to go through one of a duopoly of Ottawa-approved suppliers (Bell Express Vu and Star Choice). Good news on another front, though: Internet radio is letting listeners bypass the absurd and oppressive laws requiring Canadian content in that medium. Bring Internet TV soon, please! (Ian Harvey, “RCMP threatens a clean-up of illegal dishes”, Toronto Sun, Oct. 13 — full column)

November 1 — “Shoot the middle-aged”. That’s the title of a Detroit News editorial responding to the Michigan House’s unanimous approval of a bill allowing for doubling of criminal penalties when offenses are committed against the young or elderly. (Oct. 23 — full editorial).

November 1 — World according to Ron Motley. Even before tobacco fees, the Charleston-based plaintiff’s lawyer was “worth tens, maybe hundreds, of millions of dollars. But he’s about to get much richer. A billion or two or three richer….Sketching plans that would alarm many corporate executives, the 53-year-old lawyer will reinvest most of his newfound money to finance lawsuits against the makers of lead paint, operators of nursing homes, health maintenance organizations and prescription drug makers.” He calls the businesses he sues “crooks”. “Mr. Motley’s windfall [from tobacco] is likely to exceed $3 billion…’If I don’t bring the entire lead paint industry to its knees within three years, I will give them my [120-foot] boat,’ he says”.

In its flattering profile of the 53-year-old South Carolinian, yesterday’s Dallas Morning News quotes a pair of law profs who hint that the public should really be glad Motley is now personally reaping billions for representing government clients, because next time he sues some huge business it’ll be more of an even match. By that logic, we’d be better off if we let every lawyer who argues a case against, say, Microsoft, amass as much wealth as Bill Gates. Maybe the trial lawyers will figure out a way to make that happen too before long (Mark Curriden, “Tobacco fees give plaintiffs’ lawyers new muscle”, Oct. 31 — full story)


November 30 — Class-action fee control: it’s not just a good idea, it’s the law. A panel of the Ninth Circuit U.S. Court of Appeals has ruled that judges have a positive duty to scrutinize and, where appropriate, reduce attorneys’ fees in class actions, independently of whether anyone with appropriate standing raises an objection. The case arose after a Los Angeles federal district judge approved nearly $3 million in legal fees to the plaintiff’s firm of Weiss & Yourman in a shareholder class action against Occidental Petroleum, which had cut its dividend in alleged breach of an earlier promise not to do that. The case was settled by Occidental’s agreement to maintain more lucrative dividend payouts in the future and pay legal fees to the plaintiff’s firm; no cash recovery was had by shareholders.

Noted class-action objector Lawrence Schonbrun then appeared on behalf of a class member to challenge the fee payout as excessive; his arguments proved sufficiently persuasive that the judge eventually cut Weiss & Yourman’s fee by more than half, to $1.15 million. The law firm appealed, arguing that because its fee was the result of a separate side-deal with Occidental, rather than being deducted from a payout to the class, an individual class member (such as Schonbrun’s client) had no standing to object. This line of argument has been routinely offered in defense of “separately negotiated fee” class-action settlements, and it has a remarkable implication, namely that once the two sides’ lawyers have cut their deal behind closed doors, no one in the client class has any right to raise an objection to the fees obtained for representing them. Fees for representing a class, yet with no worry that anyone in the class will be able to bring a challenge to those fees — why, it’s like magic!

A little too magical for the Ninth Circuit: a “client whose attorney accepts payment, without his consent, from the defendants he is suing, may have a remedy,” wrote Judge Andrew Kleinfeld last month on behalf of a unanimous panel that also included Judge Alex Kozinski and Oregon district judge Owen Panner, sitting by designation. “The absence of individual clients controlling the litigation for their own benefit creates opportunities for collusive arrangements in which defendants can pay the attorneys for the plaintiff classes enough money to induce them to settle the class action for too little benefit to the class”. That’s where “the supervisory power of the district court” should come in, as “a mechanism for assuring loyal performance of the attorneys’ fiduciary duty to the class.” (Paul Elias, “$2 Million Fee Reduction Stands in Securities Case”, The Recorder/Cal Law, Oct. 20 — full story).

November 30 — Leave that mildew alone. It’s illegal to market “mildew-proof” paint for bathrooms and damp basements unless you go through the (extremely expensive) process of registering the paint as a pesticide, claims the federal Environmental Protection Agency, which is seeking $82,500 in penalties from William Zinsser & Co., Inc., a Somerset, N.J.-based paint manufacturer. (EPA Region 2 press release, Nov. 10).

November 30 — Update: sued columnist still disrespecting local attorneys. As reported earlier in this space, Swansea, Ill. lawyers Judy Cates and Steven Katz have filed a lawsuit demanding $1 million from St. Louis Post-Dispatch columnist Bill McClellan after a column in which he criticized their handling of a class-action suit against Publisher’s Clearing House and jocularly compared them to the James Gang of bank robbers (see Nov. 4 commentary). You’d think McClellan would have learned his lesson by now, especially with the case still pending, but no, he’s had the temerity to write another column criticizing the same lawyers, this time pointing out that numerous state attorneys general have intervened to fault their proposed settlement of the magazine-subscription suit. (“Regardless of suit result, my lawyers will have work”, Nov. 21 — full column)

November 29 — New subpage: Our overlawyered schools. Compiling news clips and commentaries on the legal headaches that beset teachers, students, principals, faculty and university administrators. Highlights include our ever-popular Annals of Zero Tolerance, special ed and the ADA, Title IX (From Outer Space), the role of litigiousness in undermining supervised recreation, the paralytic contribution of tenure laws, and other trends that tend toward the merger of schoolhouse, courthouse and madhouse.

November 29 — “Some lawyers try to make nice”. “Soon after EgyptAir Flight 990 plunged into the Atlantic Ocean, the personal-injury lawyers at R. Jack Clapp and Associates marshaled their resources and mobilized their forces. Faster than you can say class-action lawsuit, the Washington, D.C., firm, which specializes in aviation disasters, launched EgyptAir990.com — a Web site that at first blush appears primarily concerned with helping the bereaved deal with loss, but on closer examination is all about financial gain.” New York Times writer David Wallis devotes a “Week in Review” roundup to the legal profession’s efforts to repair its “sorry” image, lately impaired “by tacky late-night commercials for ambulance chasers; the legal lobby’s opposition to tort reform; and the one-two punch of the O.J. Simpson trial and the Monica Lewinsky scandal.”

The Ohio Bar, meanwhile, has sponsored a TV spot in which two children explain at school what their parent does for a living: one says his father “protects people”, like a police officer, and another says her mom “helps sick and hurt people”, like a doctor. It turns out that they’re . . . lawyers. So what is it that the opposing side’s lawyers do for a living? (David Wallis, “Some Lawyers Try To Make Nice”, New York Times, Nov. 28 — full story)(free, but registration required).

November 29 — “Wretched excesses of liability lawsuits”. Op-ed by the Philadelphia Inquirer‘s David Boldt looks at “the ever-expanding litigation explosion” by way of some recent automotive cases, including the class action against DaimlerChrysler that recently resulted in a countersuit by the company (see November 12 commentary). On this summer’s Chevy Malibu verdict in Los Angeles, in which a jury voted $4.8 billion against General Motors, later reduced by a judge to $1.1 billion, Boldt offers a point of comparison we hadn’t previously seen: “The impact [of the Chevy’s 70 mph rear-ending by a drunk driver] was the equivalent of dropping the car from the top of a 16-story building.”

Many accept the idea that the litigation boom offers compensating benefits — for example, “that our lives are made safer by the system because it makes companies more careful. Interestingly, there is no known evidence for this.” Boldt cites the Brookings Institution’s study “The Liability Maze” of eight years ago. “The editors — Peter Huber of the Manhattan Institute and Robert Litan of Brookings — wrote that none of the authors had found a demonstrable improvement in safety for Americans compared with nations that have less stringent liability-law systems. Nor did the authors find that the increase in liability suits had accelerated a decline in U.S. accident rates. I can find no subsequent study that has contradicted these conclusions.” (David Boldt, “We all end up paying for a litigious society”, reprinted in Baltimore Sun, Nov. 24).

November 26-28 — Oh, well, better luck next time. Illinois courts reviewing capital sentences “have repeatedly expressed dismay at the representation received by Death Row inmates at trial,” and this Chicago Tribune investigation brings to light a sad array of ways lawyers can drop the ball at a time when clients need their help most: missing deadlines, failing to develop exculpatory evidence, alienating judges, neglecting to disclose conflicts of interest, and much more. “Since Illinois reinstated capital punishment in 1977 . . . 33 defendants sentenced to death were represented at trial by an attorney who had been, or was later, disbarred or suspended — disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney’s license should be taken away.” If lawyers can perform this sloppily even when a client’s life is at stake, what must they be getting away with in lesser cases? (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdicts”, Chicago Tribune, Nov. 15).

November 26-28 — Beware of market crashes. “Online brokerages are ‘probably’ financially responsible for computer outages that leave their customers unable to trade,” Securities and Exchange Commission Arthur Levitt said this week. Executives at online trading firms, reports the New York Post‘s Jesse Angelo, “are terrified of lawsuits from customers claiming they lost money due to computer glitches. E*Trade has already been slapped with such a suit by an Ohio woman who attributes $40,000 in losses to computer problems at the online trading site. The suit seeks class-action status”. (Jesse Angelo, “Levitt: Web Brokers May Be on the Hook for Computer Crash”, New York Post, Nov. 23).

November 26-28 — Update: cannon shot OK. Administrators at Nevis High School in Minnesota have relented and agreed to permit a yearbook photo of Army enlistee Samantha Jones perched on a cannon draped with a U.S. flag, despite a policy of “zero tolerance” of depictions of weapons (see Oct. 30-31 commentary). “More than 100 students walked out of class Nov. 3 to protest the ban on the photo, leading to 50 suspensions,” AP reports. (“Fight over yearbook photo ends”, AP/Washington Post, Nov. 25 (link now dead)).

November 26-28 — Weekend reading: evergreens. Pixels to take to the mall or to peruse while resting off the big meal:

* Out-of-state defendants sued for more than $75,000 in a state court should be able to choose removal of the suit to a U.S. district court with its greater objectivity between local and nonlocal litigants, argues Phelps Dunbar partner Michael Wallace in one of the more promising proposals for liability reform we’ve heard in a while (Michael Wallace, “A Modest Proposal for Tort Reform“, from vol. 1, issue 3 of Federalist Society Litigation Working Group newsletter; at Federalist Society website).

* How to tell you’ve been the victim of a staged car accident: tips from a local CBS-TV affiliate’s story on “Los Angeles’ most unlucky driver” (you’re driving alone in a newer car, someone in one vehicle distracts your attention, a second older car with several passengers gets in front of you and suddenly slams brakes, none of the alleged victims carry photo IDs) and from investigator Jack Murray’s book on the subject (the incident occurred midblock, not in rush hour and with no eyewitnesses, struck vehicle “has had tire pressure in the rear tires lowered (causes more taillight damage and stops more quickly)”. (“Special Assignment: Staged Accidents“, Channel2000.com, March 28, 1998; Jack Murray, “Red flags: a 14 point checklist“, not dated, National Association of Investigative Specialists website).

* “Procedures And Rules Regarding Suits Against Public Entities” — well, okay, it’s a dry title for an undeniably dry outline of the steps involved in extracting money from City Hall, but you’ve got to admit it bears an interesting byline: Johnnie L. Cochran, Jr., whose success in litigating personal-injury cases both preceded and followed his better-known role in assisting O.J. Simpson to walk free of murder charges (website of California law firm Kiesel, Boucher and Larson LLP — full paper, undated).

November 24-25 — Don’t redeem that coupon! Under the heading, “Free money for doing nothing”, financial commentator Andrew Tobias writes, “If you’ve ever owned a Toshiba laptop — I’ve owned two — apparently you’re in line for $200-$400 because Toshiba has to pay us $2 billion because . . . well, because . . . I’m actually not going to claim my prize, because it doesn’t feel right. But, as noted over on overlawyered.com, it makes an interesting story.” (AndrewTobias.com, Nov. 24). Our coverage of the Toshiba laptop settlement ran Nov. 3, Nov. 5, Nov. 17 and Nov. 23.

November 24-25 — From our mail sack: memoir of a morsel. We’ve generally refrained from publishing on this site the many letters people send us describing their horrible personal experiences in court. Just this once, we’re going to break that rule and run this one from Paul Boyce of Tustin, Calif.:

“I am a small businessman, owner of a 3-employee business helping companies with their carpool programs (one of those employees is my wife). We were sued by an employee for wrongful termination 5 years ago, at a time when we had six employees. She had been working for me for only 6 months when I let her go. We went into binding arbitration, supposedly a low cost alternative to a jury trial. I lost. With penalties and interest, the judgment came to over $240,000. In 1998, I filed for Chapter 7 liquidation bankruptcy — there was no way I could pay that much! In fact, business revenues were down to 1/5 of what they were when she sued me. Last year I earned $60,000. My lawyer’s fees came to $55,000.

“In the bankruptcy, the only asset we had was our small-business retirement plan savings, amounting to about $350,000. What was astonishing was that the judge said that because my wife and I are in our mid 40s, we didn’t need the $350,000 — we could easily make it up! He based this on tables showing how long we could be expected to live versus how much we could be expected to make at hypothetical government jobs. So he ordered our retirement plan be handed over to the contingency fee lawyers to be split up. We’ve asked around and the best we can tell, the employee who sued us 5 years ago will get maybe $35,000 for her efforts. We counted a total of 4 contingency fee lawyers on her side.

“The result of all this is that I’ve decided to close the office and lay off my only employee. It’s just a lot easier and less risky to run the business out of our home.

“The legal system, with its strong preference for feeding the lawyers at the expense of morsels like me, shows me how far astray from the constitution our great country has strayed. It’s a parody of what the founding fathers had in mind when they clearly expressed their historic vision. Today, it’s all about the lawyers and how clever they are at shifting even more wealth their way.”

Paul and Sandy Boyce can be reached at Commuter Services Group, Tustin, CA.

November 24-25 — CNN “Moneyline”. Watch for our editor as a likely guest on this evening’s (Wed., Nov. 24) CNN Moneyline, discussing the continuing lawsuit boom.

November 23 — Class actions vs. high tech. “It had to happen: America’s most successful industry, high technology, is under sustained assault from America’s second-most successful industry, litigation.” The editor of this website has an op-ed in this morning’s New York Times, tackling the Microsoft and Toshiba class actions. (Walter Olson, “A Microsoft Suit with a Sure Winner”, New York Times, Nov. 23).

November 23 — Soros as bully. Add another prominent name to the list of philanthropists (see September 2 commentary) bankrolling the lawsuits that are fast driving family-owned gunmakers into bankruptcy: wealthy financier George Soros, who according to a Wall Street Journal report last month has donated $300,000 to keep the Hamilton v. Accu-Tek litigation going and also provided financing for the NAACP’s suit against gunmakers. (Paul M. Barrett, “Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21)

November 23 — Update: too obnoxious to practice law. The Nebraska Supreme Court has now heard the case of Paul Converse, who wants to become a lawyer though the state bar commission says he’s behaved in an “abusive, disruptive, hostile, intemperate, intimidating, irresponsible, threatening or turbulent” manner in the past (see Oct. 13 commentary). Last week the court agreed that Converse “seeks to resolve disputes not in a peaceful manner, but by personally attacking those who oppose him in any way and then resorting to arenas outside the field of law to publicly humiliate and intimidate those opponents.” Notwithstanding these high qualifications to practice in certain fields of American law, it turned down his application. They sure do things differently out in Cornhusker land (Leslie Reed, “Court: Law Grad Unfit for Nebraska Bar”, Omaha World-Herald, Nov. 20, link now dead)

November 23 — Get off my jury. “To win a decent verdict, Mr. Rogers [Chicago attorney Larry R. Rogers, Sr., who won $10.4 million for a client after a serious traffic accident] had to select the right jury…He never wants people from the banking industry, accountants and people in investment professions on his juries: ‘These people tend to think about the power of money, that if you give someone $100,000 and they invest it, it will earn something. They won’t give you full compensation for the injury.’ He was also sensitive to keeping off jurors who are anti-lawsuit: ‘I ask them is there anything they’ve heard in the media, in newspapers, about tort reform.’ …’They liked [his client], and juries tend to award damages to people they like.” (“Proving worth isn’t age-related” (profile of Larry R. Rogers Sr.), National Law Journal, Oct. 4.)

November 22 — From the planet Litigation. Courtroom jousting continues between a group that calls itself Citizens Against UFO Secrecy and the U.S. Department of Defense over CAUS’s charges that DoD has covered up incidents of possible intrusion by extraterrestrial spacecraft. CAUS has sued the government a half-dozen times over its alleged unresponsiveness to Freedom of Information Act (FOIA) requests regarding UFO sightings; on September 1 it added a complaint that the government has fallen short of its responsibilities under Article IV, Section 4 of the Constitution to defend the nation’s territory against foreign invasion. CAUS executive director Peter Gersten filed the action in his home state of Arizona, which “is definitely a targeted area for the clandestine intruders,” and is contemplating follow-on suits in New York and California. “I can prove in a court of law, and beyond a reasonable doubt, that we are in contact with another form of intelligence,” he says. CAUS’s site reprints affidavits, motions and other documents from the case, including illustrations of UFO sightings in Corpus Christi, Tex., Pahrump, Nev. (link now dead), and Seattle. (Robert Scott Martin, “CAUS Sues U.S. Over Secrecy”, Space.com, Sept. 1, link now dead; CAUS Sept. 1 press release.)

In a separate action, UFO researcher Larry Bryant of Alexandria, Va., who’s served as CAUS’s Washington, D.C. coordinator, has prepared a petition charging Virginia authorities with shirking their constitutional obligation to safeguard citizens from invasion by foreign powers. Bryant says Virginia governor James Gilmore III “knows that it’s against the law to abduct, torture, falsely imprison, wantonly impregnate and unconsensually surgically alter (via implants) a person. He also knows that he has the power to repel these invasive activities of apparently alien-originated UFO encounters.” Described by Space.com as a retired writer and editor of military publications, Bryant “takes pride in having ‘filed more UFO-related lawsuits in federal court than has anyone else in the entire universe.'” (Robert Scott Martin, “UFO Invasion Outcry Spreads to Virginia”, Space.com, Sept. 10, link now dead.)

CAUS’s Gersten has also described as “gratuitously demeaning”, probably “defamatory” and “actionable” an ad for Winston cigarettes this summer which made fun of alien-abduction believers, but declined to pursue legal action against the cigarettes’ maker, R.J. Reynolds. (“Cigarette Ad Sparks UFO Controversy”, Space.com, Sept. 28; “UFO Lawyer Unlikely To Sue Tobacco Company over Ad”, Oct. 1, links now dead).

November 22 —Vice President gets an earful. “One employee summed up the anguish over the case, saying, ‘when I read what the government says about Microsoft, I don’t recognize the company I work for.’ Another bitterly complained that the many subpoenas of Microsoft e-mail had invaded employees’ privacy more than any government wiretap, ‘so that sharp lawyers can cut and snip bits of e-mail to construct whatever story they want’ in court. ‘We bugged ourselves’.” John R. Wilke, “Gore, Addressing Microsoft Staff, Defends Nation’s Antitrust Laws”, Wall Street Journal, Nov. 16).

The New York Times is reporting that class-action lawyers on the West Coast will sue Microsoft as early as today on behalf of a class of California end-users of Windows 95 and 98. The suit, which will ask treble damages for alleged overcharges, will be filed on behalf of a statewide rather than nationwide class because the U.S. Supreme Court’s 1977 Illinois Brick decision disallows federal antitrust actions on behalf of indirect purchasers of goods (most Windows users buy it preloaded on their machines, rather than direct from Microsoft). However, 18 states including California and New York have enacted statewide laws allowing such suits. (Steve Lohr, “Microsoft Faces a Class Action on ‘Monopoly'”, New York Times, Nov. 22free, but registration required).

November 22 — Great moments in zoning law. Officials in Millstone, N.J. have issued a summons to Lorraine Zdeb, a professional pet-sitter who took in nearly 100 animals from neighbors, clients and strangers to save them from the flooding of Tropical Storm Floyd, charging her with operating a temporary animal shelter in a residential neighborhood. (“Somerset County woman charged for taking in animals during storm”, AP/CNN, Nov. 20, link now dead).

November 22 — Repetitive motion injury Hall of Fame. Delicacy prevents us from describing exactly how this Fort Lauderdale, Fla. woman acquired carpal tunnel syndrome in the course of providing paid telephone companionship for lonely gentlemen, but it did not prevent her from applying for workers’ compensation benefits for which she obtained a “minimal settlement” this month. (Reuters/ABC News, Nov. 19, link now dead).

November 20-21 — Annals of zero tolerance: the fateful thumb. MeShelle Locke’s problems at North Thurston High School near Tacoma, Washington began Nov. 5 when she pointed her finger and thumb at a classmate in the shape of a gun and said “bang”. Asked if that was a threat, she saucily quoted a line from the 1992 movie “The Buttercream Gang”: “No, it’s a promise.” Before long, she was hauled up on charges of having threatened violence, drawing a four-day suspension and a disciplinary record that may affect her chances of getting into a competitive college.

A budding writer whose work appeared in the high-selling anthology Chicken Soup for the Kid’s Soul, and who says she’d never been in trouble with the school before, MeShelle might seem an unlikely source of menace, but school officials told her father that his daughter “fit the profile” of a potentially dangerous student: “For example, she often eats lunch alone or in a small group.” (Karen Hucks, “Gunlike gesture results in suspension”, Tacoma News-Tribune, Nov. 13; “School is no place for ‘bang-bang’ jokes”, Nov. 16, links now dead)

November 20-21 — From the evergreen file: L.A. probate horror. Wealthy art collector Fred Weisman was lucky he didn’t live to see the proceedings in a Santa Monica courthouse after his death “as his will and his estate are picked apart like a slab of pork thrown to buzzards.” (Jill Stewart, “Shredded Fred”, New Times L.A., Nov. 19, 1998, link now dead).

November 20-21 — No, honey, nothing special happened today. In early 1997 Denise Rossi startled her husband by announcing that she wanted a divorce. In the ensuing legal proceedings she forgot to mention — it just slipped her mind! — that eleven days before filing she’d happened to win the California lottery for $1.3 million. Two years later, her husband learned the truth when a misdirected Dear-Lottery-Winner letter arrived offering to turn his ex-wife’s winnings into ready cash. And this Monday a judge ruled that she’d have to hand it all over to her ex-husband, as a penalty for committing a fraud on him and on the court. She has since filed for bankruptcy proteciton. (Ann O’Neill, L.A. Times, reprinted in San Jose Mercury News, link now dead).

November 20-21 — Judge to lawyers in Miami gun suit: you’re trying to ban ’em, right? “If you were to get exactly what you wanted, they’d be taken off the market entirely,” Circuit Court Judge Amy Dean told lawyers representing Dade County in its recoupment lawsuit against major gunmakers, by way of clarifying their position. (Jane Sutton, “Miami Gun Suit Could Take Firearms Off Market”, Reuters (link now dead), Nov. 16). Last month attorney John Coale, a spokesman for the municipal suits, “dismissed claims that the lawsuits could ever shut down the entire handgun industry. ‘It can’t be done, and it’s not a motive, because as long as lawful citizens want to buy handguns, and as long as the market’s there, there’s going to be someone filling it,’ Coale said.” (Hans H. Chen, “Colt’s Handgun Plan Heats Up Debate”, APBNews.com, Oct. 11) (see Oct. 12 commentary).

Dade County-Miami Mayor Alex Penelas, quoted in the new Reuters report, seemed to view the anti-democratic nature of the county’s lawsuit almost as a point in its favor: he “said he was using the courts in an attempt to crack down on the gun industry because the Florida legislature refused to do so. ‘Every year that I’ve gone to the legislature we have basically been told to take our case elsewhere,’ he said.” Much the same sentiment was expressed last month by Elisa Barnes, the chief lawyer behind the Hamilton v. Accu-Tek lawsuit in Brooklyn, N.Y. against gunmakers: “‘You don’t need a legislative majority to file a lawsuit,’ says Ms. Barnes.”” (“Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21 (requires online subscription))

November 20-21 — National Anxiety Center “Favorite Web Sites of the Week”. “I recommend a visit to www.overlawyered.com where you can get tons of data regarding how trial lawyers are destroying this nation out of nothing more than greed, greed, and greed. This excellent site will help you understand what’s happening to Microsoft, to the tobacco industry, the gun manufacturers, and much more.” — “Warning Signs”, the weekly commentary of Alan Caruba’s National Anxiety Center, for Nov. 19. Unabashedly conservative, Mr. Caruba’s popular site specializes in refuting environmental scares in outspoken style.

November 20-21 — 100,000 pages served on Overlawyered.com. We’d have hit this milestone earlier but our counter went on the fritz for a few days…thanks for your support!

November 18-19 — Worse than Y2K? “If the EPA succeeds in forcing a shutdown of the 17 coal-fired power generating plants it claims are illegally polluting,” editorializes the Indianapolis Star regarding the Clinton Administration’s recently filed lawsuit, “chances are very good the Midwest will experience major brownouts and rolling power outages on the next hot summer day.” Moreover, the “lawsuits were filed without warning [Nov. 3] by the Justice Department on behalf of the EPA. It was, quite simply, an unprecedented sneak attack on the electrical power industry” — yet one to which private environmental groups may have been tipped off in advance, given how ready they were to fire off a flurry of supportive press releases. EPA administrator Carol Browner and Janet Reno’s Justice Department now contend that utilities disguised expansions and upgrades of the grandfathered plants as routine maintenance, but a Chicago Tribune editorial says the modernizations were carried out with “the knowledge of federal environmental inspectors” whose superiors are now seeking to change the game’s rules after many innings have been played. If a looming Y2K glitch threatened to shut down a large share of the electric capacity of the Midwest and South, there’d be widespread alarm; when aggressive lawyering threatens to do so, few seem to care. (“EPA sneak attack”, editorial, Indianapolis Star, Nov. 5, link now dead; “A costly U-turn by the federal EPA”, editorial, Chicago Tribune, Nov. 13).

November 18-19 — Golf ball class action. Golf Digest is “disgusted” over a class-action suit that lawyers filed against the Acushnet Company because, after running out of a promotional glove sent free to customers of Pinnacle golf balls, it sent the remaining customers a free sleeve of golf balls instead. Fraud! Deception! Shock-horror! “In the end, the plaintiffs’ attorneys were awarded as much as $100,000 in fees for their heroic efforts, [Allen] Riebman and [Lawrence] Bober (as the two named plaintiffs) themselves received payments of $2,500 apiece, and everyone else received what the lawsuit claimed was unacceptable in the first place: another free sleeve of Pinnacles. That’s justice at work.” (“The Bunker”, Golf Digest, October 1 — link now dead)

November 18-19 — Skittish Colt. According to Colt Manufacturing, the historic American gunmaker battered by the trial lawyers’ onslaught, Newsweek got some things wrong in its report last month, which was summarized in this space Oct. 12 (see also Nov. 9 commentary). Colt denies that its dropping of various handgun lines constitutes an exit from the consumer market, and says “it will continue its most popular models, such as the single-action revolver called the Cowboy and the O Model .45-caliber automatics.” It gave a number for layoffs of 120-200 rather than 300, and suggested that the lines would have been dropped at some point even without the litigation pressure. (Robin Stansbury, “Arms Reduction at Colt’s”, Hartford Courant, Oct. 13, reprinted at Colt site). A statement by the company did not, however, dispute a quote attributed to an executive in the original reports: “It’s extremely painful when you have to withdraw from a business for irrational reasons.”

According to Paul M. Barrett in the Oct. 21 Wall Street Journal, Colt’s legal bills for defending the suits “are expected to reach a total of about $3 million in 1999 alone. Insurance will cover two-thirds of that, says [New Colt Holdings chairman Donald] Zilkha, but the remaining $1 million is a significant hit for a still-struggling company that expects to have net income of only about $2 million this year.” (“Evolution of a Cause: Why the Gun Debate Has Finally Taken Off”, Wall Street Journal, Oct. 21). Update: for a closer look at Colt, see Matt Bai, “Unmaking a Gunmaker”, Newsweek, April 17, 2000.

November 18-19 — Law-firm bill padding? Say it isn’t so! Law professor Lisa Lerman of Catholic University in D.C. thinks lots and lots of overbilling goes on, even at big-name firms. “There’s a complete disconnect between the occurrence of misconduct and the rate of discipline,” she says. (Michael D. Goldhaber, “Overbilling Is a Big-Firm Problem Too”, National Law Journal, Oct. 4). One of Lerman’s case histories, if accurate, indicates systematic malfeasance in the methods by which an unnamed Eastern law firm generated time sheets to submit to its insurance-company clients. (Michael D. Goldhaber, “Welcome to Moral Wasteland LLC”, National Law Journal, Oct. 11).

November 18-19 — A lovable liability risk. Zoe, a golden retriever who for the past two years has accompanied Principal Jill Spanheimer at her office at West Broad Elementary School, and has made friends with practically all the kids over that time, has been banished by an administrative order of the Columbus, Ohio public schools. The school system’s letter to Ms. Spanheimer “cited ‘possible allergic reactions,’ ‘liability issues’ and ‘an uncomfortableness of some students and staff’ as reasons Zoe was expelled.” See if your heart doesn’t melt at the picture (Julie R. Bailey, “Principal’s dog expelled from elementary school”, Columbus Dispatch, Nov. 11). On Tuesday the board agreed to review the policy (Bill Bush, “Policy on animals in schools becomes pet project for board”, Columbus Dispatch, Nov. 17).

November 18-19 — Aetna chairman disrespects Scruggs. No love lost, clearly, between Richard Huber, chairman of Aetna, and Mississippi tobacco-fee tycoon Richard Scruggs, prominent in the much-hyped legal assault on managed care. Scroll down about halfway through this interview to find the bracketed “Editor’s Note” where the interviewer asks the chairman of the nation’s largest health insurer whether it was “by intention or mistake” that he’d consistently misreferred to Mr. Scruggs’ surname as “Slugs”. Knock it off, kids (MCO Executives Online, Oct. 27 — full interview).

November 18-19 — Welcome WTIC News Talk visitors (“Ray and Robin’s picks“). We’ve even got a few Hartford-related items for you: see the Colt and Aetna bits above, and this report summarizing an article from the Courant about how lawsuits are making it hard for towns around Connecticut to run playgrounds.

November 17 — “How I Hit The Class Action Jackpot”. “As the lucky co-owner of a Toshiba laptop computer, I should be tickled pink: I apparently qualify for a cash rebate of $309.90….And the beauty of it is that my Toshiba works just fine!….[S]o remote is the possibility that our laptop will ever seriously malfunction that I may not get around to downloading the free software ‘patch’ that Toshiba has provided as part of the settlement.” Don’t miss this scathing Stuart Taylor column on the mounting scandal of the $147.5-million (legal fees) laptop settlement. (National Journal, Nov. 15 — link now dead).

November 17 — Who needs communication? The Equal Employment Opportunity Commission steps up its campaign of complaint-filing over employer rules requiring employees to use English on the job. Synchro-Start Products Inc. of suburban Chicago has agreed to pay $55,000 to settle one such agency complaint; native speakers of Polish and Spanish make up much of its 200-strong workforce, and the company said it adopted such a policy after the use of languages not understood by co-workers had led to miscommunication and morale problems. The EEOC, however, pursues what the National Law Journal terms a “presumed-guilty” approach toward employer rules of this sort, permitting narrowly drafted exceptions only when managers can muster “compelling business necessity”, as on health or safety grounds. Earlier this year, a California nursing home agreed to pay $52,500 in another such case. In some early cases, employers adopted English-only policies after fielding complaints from customers who felt they were being bantered about in their presence or that non-English-speaking customers were getting preferential service — a problem which, like that of co-worker morale, may not necessarily rise in Washington’s view to the level of “business necessity”. (“EEOC Settles ‘English Only’ Workplace Suit For $55,000”, DowJones.com newswire, Nov. 12; Darryl Van Duch, “English-Only Rules Land In Court”, National Law Journal, Oct. 26.)

November 17 — Microsoft roundup. A critic of the giant company explains, not without glee, why the findings of fact mean so much as a template for private lawsuits: “Before last Friday, telling a jury that Microsoft is an evil, predatory organization that drove you out of business was a long, protracted procedure of walking a jury, step by step, through a crash course of how a technology company works; the importance of core technologies and leveraging them into a larger space, the nature of operating systems and related licensing and agreements, how Microsoft was able to exploit its position in the marketplace; and why this means that the plaintiff’s company was hoodwinked and not simply outmaneuvered. Today, you just have to call the jury’s attention to the document which your, their, and Bill Gates’ tax dollars helped to prepare.” (Andy Ihnatko, “The Wicked Witch Is Seeking Positive Spin”, MacCentral Online, Nov. 9).

Also: why bungling by IBM (especially) and Apple helped clear the way for Redmond’s dominance (Jerry Pournelle, “Jerry’s take on the Microsoft decision: Wrong!”, Byte, Nov. 8). And a Gallup Poll shows the public viewing Bill Gates favorably by more than three to one, siding with Microsoft on the trial by a 12-point margin, and opposing breakup of the company by a solid majority — as if any of that will matter to the folks in Washington (Ted Bridis, “Despite court loss, Microsoft moving ahead in public opinion”, AP/SFGate Tech, Nov. 10).

November 16 — What a mess! New Overlawyered.com subpage on environmental law. Our latest topical page assembles commentaries and links on the slowest and most expensive method yet invented to clean up fouled industrial sites, pay due respect to irreplaceable natural wonders, and bring science to bear on distinguishing serious from trivial toxic risks — namely, turning everything over to lawyers at $325 an hour. Also included are commentaries on animal rights, including our ever-popular drunken-parrot, crushed-insect, rattlesnake-habitat and eagle-feather reports — though at some point the menagerie of legally protected critters will probably get its own page.

November 16 — Baleful blurbs. Under well-established First Amendment precedent, it’s still nearly impossible to prevail in lawsuits against book publishers alleging that their wares are false and misleading — that, e.g., the diet book didn’t really make the pounds melt away, the relationship book resulted in heartbreak rather than nuptials, the religion book led the reader into spiritual error, and the celebrity autobiography bore only a passing relationship to strict historical truth. Were it otherwise, whole categories of book might never appear on bookstore shelves in the first place for fear of liability, including not a few works of public policy interest, such as, for example, the writings of certain early enviro-alarmists who predicted famine and exhaustion of world nonrenewable resources by 1985.

However, a recent decision in a California court may represent a breakthrough for plaintiff’s lawyers who’ve long hoped to expand publisher liability for printed untruths. The “Beardstown Ladies” were a mid-1990s publishing phenomenon in the well-worn genre of commonsense investment advice: a group of grandmothers in a small Midwestern town whose investment club was widely reported to have achieved stellar annual returns. Eventually a reporter for Chicago magazine investigated and found the Ladies had inadvertently inflated their returns, which turned out to be not especially stellar. Disney, their publisher, sent correction slips to booksellers, and the Beardstown craze was soon but a memory. The San Francisco law firm of Bayer, August & Belote, however, went to court on behalf of a customer to say that Disney had behaved falsely and deceptively by not yanking the book or at least its cover, which repeated the discredited claims.

Last month, reversing a lower court’s ruling, the state’s First District Court of Appeal ruled that although First Amendment law concededly protected the contents of the book, its cover blurbs were entitled to no such protection — even though the blurbs were in fact quoted verbatim from the book’s text. “Because the state has a legitimate interest in regulating false commercial speech, we conclude that the statements, as alleged, are not entitled to First Amendment protection,” wrote Justice Herbert “Wes” Walker. The Association of American Publishers had filed an amicus brief warning that such a ruling would “impose an affirmative obligation on publishers to investigate independently and guarantee the accuracy of the contents of the books if those contents are repeated on book covers and promotional materials.” (Rinat Fried, “Panel: You Can Judge Book by Cover”, The Recorder/Cal Law, Oct. 29). (DISCUSS)

November 16 — ‘Bama bucks. Per financial disclosure reports, six plaintiff’s law firms “donated about $4 million last year to six candidates through the state Democratic Party and political action committees”, according to the pro-tort reform Alabama Citizens for a Sound Economy. Tops was the firm of Jere Beasley of Montgomery, which gave “more than $1 million — $633,000 to the Democratic Party and $389,000 to two political action committees, Pro-Pac and Trial-Pac”. Other distributors of largesse included Cunningham, Bounds, Yance, Crowder & Brown of Mobile ($955,000), Hare, Wynn, Newell & Newton of Birmingham ($636,000); Pittman, Hooks, Dutton & Hollis of Birmingham ($526,000); Morris, Haynes, Ingram & Hornsby of Alexander City ($476,000); and King, Warren & Ivey of Jasper ($250,000). The money went to four judicial candidates, of whom two won, and to losing candidates for attorney general and lieutenant goveror. (Stan Bailey, “Group: 6 law firms gave $4 million to Demos’ run”, Birmingham News, Nov. 10) (earlier coverage of Alabama tort politics: Aug. 26, Sept. 1).

July 1999 archives, part 2


July 30 — Please — there are terminals present. The story got played mostly as light human interest when it broke last month, but it counts as a fairly noteworthy advance for the Speech Police. Bloomberg LP, which leases some 120,000 screens which enable customers to keep tabs on the markets and also send each other email messages, has quietly installed software that prevents users from employing a long list of words deemed profane, obscene or racially insensitive. If they try to send a message using one of the forbidden words, a pop-up reprimand lectures them about how such language is “inappropriate in the context of business correspondence.” Bloomberg didn’t notify its customers it was planning to install the “protection”, and says it won’t remove it even if they ask; nor does it matter whether any prospective recipient of a particular email in fact objects to its improprieties.

There is, of course, no mystery about the legal system’s role in all this. According to the Wall Street Journal, company founder Michael Bloomberg said the new policy was adopted “for fear that offensive e-mails would lead to harassment lawsuits”. (Pamela Druckerman, “Bloomberg Demands Expletive Deleted”, June 28) Bloomberg also suggested the policy would apply to messages that were “anti-religion, that kind of stuff”, raising the question of whether clients are henceforth expected to refrain from expressing freethinking opinions. The company’s terminals account for a not trivial sector of the email universe, handling an estimated 3 million messages on a busy day.

Bloomberg himself compared the new step to the popular (and also, to a large extent, harassment-law-driven) corporate practice of installing “Net Nanny” screening software to prevent employees from browsing indecent websites. In at least two crucial respects, however, it would seem to go further: first because it so clearly shackles one-on-one personal speech as distinct from access to media content, and second because most of those whose speech it suppresses are not Bloomberg’s own employees. And yet both of these extensions are sadly consistent with the state of contemporary harassment law, which has made clear from early on its aim to impose a regime of censorship on ordinary conversation as well as the circulation of published matter in the workplace, and which has more recently moved to expand further the perimeters of the zone designated for censorship by exposing businesses to potential liability if they fail to curb “customer-on-customer” harassment.

Undoubtedly by coincidence, the hit television program South Park shortly thereafter (July 11) aired what reviewer Jon Osborne called “an amazingly frank attack on sexual harassment laws and on frivolous lawsuits generally.” It begins with the South Park kids “getting a lecture in sexual harassment at school. They soon figure out that sexual harassment is a legal bonanza and start suing each other over minor insults. As the lawsuits mount, however, it becomes clear that everyone is getting poorer except the town lawyer.” Kyle, one of the characters, has the following conversation with his lawyer father:

Lawyer: “You see, son, we live in a liberal democratic society. The Democrats created sexual-harassment law, which tells us what we can and cannot say in the workplace, and what we can and cannot do in the workplace.”

Kyle: “But isn’t that fascism?”

Lawyer: “No, because we don’t call it that.”

July 29 — Collusion: it’s an AG thing. Of the many outrages to proceed from the tobacco litigation, one that’s received surprisingly little press attention, perhaps because none of the major players have an interest in calling attention to it, is the role of the negotiated settlement in imposing a cartel structure on the cigarette industry. It’s the subject of a revealing article by Rinat Fried that ran last month in The Recorder, the California legal newspaper.

Start with a basic question: did the settlement impose a tax on the tobacco companies’ future sales, or assess damages for their past misconduct? The state attorneys general unanimously insist that what they obtained was a damage settlement rather than a tax, not surprisingly given that 1) they plainly lack authority to go about arranging the extralegislative imposition of taxes on their states’ populations; and 2) if the money being raised were to be viewed as tax revenue by another name, rude questions might be asked about whether they should have let private lawyers — in many instances personal chums, former law-firm cronies or major contributors to their own campaigns — rake off tens of billions of dollars as a commission for having helped arrange the transaction.

One major difference between a damages settlement and a prospective tax is that the former, by its nature, can be applied only to companies that were doing business at the time of the claimed misconduct. If a new company is organized to enter the cigarette trade, or a foreign maker decides to tackle the U.S. market for the first time, it can’t possibly be subjected to a damage assessment based on the conduct of U.S. companies in 1965 or 1980. Likewise, if what is at issue is a damages settlement, an obscure local cigarette company that grows to big-time status would owe only a level of payment based on its modest sales in the old days before the AGs cracked down, not a higher sum based on its new market success.

But in fact the settlement contains a series of provisions whose effect is specifically to curb any such entry by new competitors. Small cigarette companies are permitted to participate in the settlement only if they agree to keep their market share below 125 percent of its 1998 figure — either that, or pay a prohibitive 35-cent-a-pack penalty for every pack they sell above that level. And what if they, or new entrants, don’t like that deal? “The tobacco companies,” writes Fried, “got the states to agree to force small companies not participating in the settlement to fund a 30-year, multimillion dollar escrow account to be used as insurance against future health-related judgments against the small companies. Funding the account at a rate of 35 cents per pack would make it impractical for any small company not to sign the deal, the economists say.” “The economists” in this case are Paul Klemperer of Oxford and Jeremy Bulow, formerly of Stanford and now chief economist at the Federal Trade Commission, who have written an analysis critical of the settlement’s cartelizing effect.

Cigarette prices jumped by 45 cents almost as soon as the pact was announced, a hike that might have been undercut had the entry of discount smoke-makers into the market not been deterred by the anticompetitive clauses to which the state AGs agreed. The irony is that had cigarette executives met privately among themselves to raise prices by divvying up market shares and penalizing defectors and new entrants, they could have been sent to prison as antitrust violators. With the AGs doing it for them, the same process becomes (most likely) perfectly legal — what’s known as the Noerr-Pennington doctrine immunizes otherwise anticompetitive practices when they take place under color of government action or for purposes of obtaining such action.

Were the AGs, mesmerized by the chance to stuff unearned billions into their state treasuries and the pockets of their lawyer friends, simply crashingly naive about the actual economic effects of what they were agreeing to? Or would it be fairer to characterize them as having colluded in a sweetheart deal with the same tobacco executives they were publicly demonizing, in which everyone got something while smokers picked up the bill? We don’t have to decide right now, but the case for holding up this group of officials as some sort of model of public service grows weaker by the day.

July 28 — Time to rent a clue. Dana Blankenhorn at Clickz.com recently wrote such a good column about intellectual property law on the Net that Overlawyered.com was momentarily tempted just to swipe and use it whole in this space with due credit to him, until someone warned us that we were being a little unclear on the concept. So — to content ourselves with paraphrase and fair use — here’s the gist. Blankenhorn starts by telling about the legal catastrophe that descended on a little Colorado company named Clue Computing, which was the first to register the domain clue.com. Along came the giant Hasbro toy company to assert that because it owned the famous board game Clue it therefore had the right to Net dibs on this extremely old English word (earliest citation given in the O.E.D.: the year 1393). With hot and cold running lawyers at its command, Hasbro made things expensive and difficult for the little company for a long time before finally going away.

Blankenhorn had wanted to name his own e-newsletter www.clue.com, settled in disappointment for www.a-clue.com, and only later realized what a hassle he’d escaped. Other examples he lists, ranging from disputes over copycat graphics to the patentability of business models, point toward the same lesson: getting into a good litigation posture can count as very bad business, and sensible entrepreneurs will do almost anything to avoid going to law even when (especially when?) they’re right. Sure, there may sometimes be no other choice, “if the principle is worth dropping all your other business for” and you’ve resigned yourself to the danger of looking foolish or losing on a fluke that goes along with even the best case. “But lawsuits are war by other means. Remember that lawyers can also negotiate.”

One wonders whether anyone at McDonald’s Corp., a company that should know a thing or two about ill-considered litigation, has thought these questions through. On July 9 the Wall Street Journal reported (coverage by Richard Gibson; online subscription required) that McDonald’s has sued rival Burger King in U.S. District Court in Detroit over Burger King’s introduction of a “Big Kids’ Meal” at its stores nationwide. The U.S. Patent and Trademark Office has in fact ruled that “Big Kids’ Meal” is a generic term, a ruling McDonald’s says it plans to appeal; nor can it claim to have used the term for any major national product line of its own, pointing only to a three-week promotion in parts of Michigan last year where it employed the phrase. It nonetheless asks that Burger King’s national advertising be enjoined and demands treble damages. Such treble-damage entitlements, kerosene on the fire of needless business litigation, have been vocally defended by today’s litigation lobby, which also opposes the loser-pays principles by which other countries keep a lid on this sort of thing.

July 27 — Razor wire on the pool fence. It seemed like such a nice idea to keep a backyard swimming pool, the only one in her New Orleans neighborhood. All the local kids came by wanting to use it; some would prettily ask permission, while others would sneak in. Then novelist Patty Friedmann began learning more about terms like “attractive nuisance” and the many ways lawyers can go after property owners if kids sprain their ankles, develop bacterial infections, break a bone or worse, whether they had permission to be on the property or not. She tried being a saint; she tried being a meanie; and finally there was nothing left to do but put in the order for razor wire….(“My Turn”, Newsweek, July 26; link now dead).

July 27 — Improvements to the Overlawyered.com site. Our newest topical subpages, introduced during the past week, cover class actions and litigation vs. good medicine. That brings the number of topical pages to five, with more coming soon. (Others: firearms litigation, product liability, lawyers’ advertising and solicitation). Check these pages often if they interest you, since new resources keep being added without notice to each page.

Also new today is our acknowledgments page in which we thank some of the kind folks out there who’ve sent leads or otherwise helped draw our attention to cases, articles and resources suitable for Overlawyered.com coverage. The list will grow as we continue to work through the not unimpressive backlog of leads already on hand. Your name belongs on the list as well; to help make that happen, take a moment to send us a lead, or two or three.

July 26 — Mow’ better ADA claims. The July 22 Milwaukee Journal-Sentinel reports that Susan Bauer has gone to federal court to challenge her village’s insistence that she mow her lawn. The Dane County town of DeForest had ticketed Bauer and sent her a notice that if she did not cut her weedy lot the town would order it done for her and send her the bill. Bauer proceeded to sue village trustee Laura Crowell and seven other officials under the Americans with Disabilities Act, saying she suffered chronic back problems for which the town is obliged to allow a disability exception in its weed ordinance.

The issue of Bauer’s unkempt lawn has been building for two years, town officials say. Earlier, Bauer sued in state court, claiming that mowing her property would endanger exotic prairie plants, but lost when an unsympathetic court deemed the front-yard flora to consist of common and noxious varieties. “Those are thistles and other weeds growing there. She tried and failed in one attempt against the village, and now she’s trying something else,” Crowell said, adding that while she did not know the condition of Bauer’s back, nothing prevented her from hiring someone else to do the mowing. Bauer is representing herself without an attorney, and the federal court waived filing fees for her action.

July 26 — “Destroy privacy expectations: lawyer.” That’s the headline over the coverage in Business Insurance of one lawyer’s advice to participants at the annual Society for Human Resource Management conference last month in Atlanta (July 12 issue; free archives include latest two issues; search on “employee privacy” or another relevant term). Jonathan Segal of Philadelphia’s Wolf, Block, Schorr & Solis-Cohen explained that current law makes it dangerous for employers “to create an expectation of privacy, however well-intended” among workers. So instead “you want to destroy privacy expectations” by explicitly telling staff that their work space, on-site belongings, computer hard drives, voice- and email are subject to search. At the same time, managers should studiously avoid learning about things that may be going on in their employees’ personal lives: “It’s in your self-interest as an employer not to know private facts about employees,” Segal observed.

The folks who brought us modern employment law kept assuring us that the higher we raised the litigation hazards to which employers were exposed, the warmer and more empathetic the workplace would become. It doesn’t seem to have worked yet. (fee-based archives)

July 24-25 — Arbitrary confiscation, from Pskov to Pascagoula. “American commentators on Russia almost unanimously agree that it needs to strengthen the rule of law,” writes Michael Barone in the June 28 U.S. News and World Report. “By that they mean that the law should be predictable, contracts enforceable, property safe from confiscation or arbitrary transfer.”

Yet in this country, “trial lawyers who have been targeting major industries have been transferring vast wealth from major corporations to themselves” after inventing a series of strained, ex post facto theories. Now “it is clear that the tobacco cases will produce several dozen trial lawyers with the net worth — and potential political leverage — of Ross Perot or Steve Forbes. The difference is that unlike most entrepreneurs and heirs who hold other great fortunes, trial lawyers typically have the skills and political connections to become powers in their own right instantly”.

“Trial lawyers seeking transfers of corporate wealth need political protection just like Russia’s oligarchs. Texas’s ‘big five’ tobacco lawyers contributed $1.1 million to the Democratic Party. The leader of a tobacco class-action group brought in — with a $30 million potential fee — Hugh Rodham, a lawyer with no relevant experience but with the run of the White House as Hillary Rodham Clinton’s brother.”

“Americans urge Russians to move toward the rule of law. Why are we moving the other way?” (Full article)

July 23 — Suspicions of jury fallibility. The trial of Walter Huston in New Orleans this spring on charges of murder boiled down to a conflict in eyewitness testimony between a 14-year-old girl and a 13-year-old boy. Joan Canny, a management-side labor lawyer with McGlinchey Stafford PLLC, was surprised to find herself picked as a juror, and even more surprised to find that, despite what she saw as her own pro-police leanings, the testimony left her convinced the prosecution’s case was flimsy. The jury retired to discuss the case, and, reports Michael Goldhaber in the July 19 National Law Journal, “Ms. Canny found the deliberations disturbing. As she tells it, the foreman argued against believing the boy because he knew and distrusted the boy’s father. Another woman voted for conviction because ‘God told her to,’ even though she conceded it was contrary to the evidence. A third summarily changed his mind without explaining why. A fourth argued for a compromise verdict of manslaughter, even though no theory of the case supported it.” The proceedings ended in a hung jury, with a dramatic sequel: Canny volunteered pro bono to help the defense lawyer secure an acquittal at retrial, which she did by successfully demonstrating the teenage girl’s recollection of the killing to be inconsistent and unreliable.

Stephen Adler’s 1994 book The Jury (available on Bibliofind), reviewed by Overlawyered.com‘s editor in Reason at the time, is a classic account of the disillusionment of a reporter who initially bought into the conventional wisdom about how juries seldom get important matters wrong, and then took a close look at a series of real-life cases to find that many jurors were hopelessly confused about the issues, or regularly nodded off during the arguments, or “daydreamed about home or rated the witnesses and lawyers on their looks and demeanor.” All such heretical observations are instantly condemned as “anti-jury” by today’s bar establishment, but the actual lesson they hold is that it’s unwise to rely on jury rationality as the only line of defense against miscarriages of justice; strong defenses of other sorts against unwarranted court action are needed too.

July 22 — Censorship via (novel) lawsuit. The newly launched courtroom assault on entertainment companies over their customers’ violent acts parallels the legal mugging of tobacco and gun makers in many respects, notably advocates’ concern to have it be known that they’re not really trying to make up new liability law as they go along. Thus the New York Times, cheerleading the anti-gunmaker suits in an editorial this past Saturday, July 17, saw fit to deny that they were “based on exotic legal theories” and said that “in fact, these suits have applied traditional negligence standards”, a view not shared by many others (react). Likewise attorney Jack Thompson, who in April announced a suit against Nintendo, Time Warner and a long list of other videogame, movie and Internet-site purveyors on behalf of families victimized by Paducah, Ky. school shooter Michael Carneal, told Christianity Today (June 14) that “We have simply taken time-honored, adjudicated, reasonable-standard tort theory and applied it to these three categories of products.” (react).

This Monday (July 19), however, federal judge Edward Johnstone ruled that the Hollywood-made-him-do-it theory of the Paducah suit faced squarely opposed on-point precedent and asked Thompson to explain why that precedent was inapplicable or should now be overturned. Similarly, the July 19 National Law Journal, hardly suspected of sympathy for gun makers, describes federal judge Jack Weinstein, who presided over the much-publicized Hamilton v. Accu-Tek, as a “maverick” known for “unconventional rulings that often push the limits of tort law” and who’s been sought out by forum-shopping plaintiffs who think they can sell him on “novel theories of industry-wide liability that might not succeed in any other courtroom in America”. When lawyers on the attack take pains to label their theories as “time-honored, adjudicated” or “traditional”, it would seem, their use of these terms must often be understood in a Pickwickian sense.

In an earlier action filed in state court, the Paducah families’ lawyers sued more than 30 local students, teachers and other defendants they blamed for not preventing Carneal’s rampage. A judge later ruled that two dozen of these had clearly been named inappropriately (Nando Times; link now dead); one, a teacher named Frank DuPerrieu, turned out not even to have been employed at Carneal’s school, according to the May 11 Louisville Courier-Journal. (Attorney Mike Breen sought to blame school administrators for the mix-up, saying they hadn’t cooperated with his demands to know who the boy’s teachers had been.)

Plaintiff’s attorneys Thompson and Breen have been making the rounds of the conservative media to talk up their case against the entertainment companies, and have gotten lengthy, uncritical coverage in Insight (June 28); the American Spectator (Dave Shiflett, “The Children Strike Back”, July; react); and from the pro-censorship Family Research Council. “We intend to hurt Hollywood,” Thompson proclaimed at his April news conference. “We intend to hurt the video game industry. We intend to hurt the sex porn sites”. (ABC News; Lexington Herald-Leader; Wired.com.) But other conservatives, like those at the Boston Herald, prefer to stick with a principled opposition to the use of novel lawsuits for purposes of social engineering. On Salon July 19, conservative commentator David Horowitz spoke out: “the book burners are on the march….In the past, Republicans defended the principle that legal industries should not be destroyed by government lawsuits…unfortunately, the puritan impulse to censor and control others seems to be a bipartisan disease.”

[Update April 13, 2000: judge dismisses Thompson’s suit; appeal vowed. See also Nov. 2]

July 21 — Yes, this drug is missed. In discussions of Bendectin, the pregnancy-sickness drug driven from the market by scientifically speculative lawsuits though the FDA and other health authorities found it safe and effective, defenders of the litigation system sometimes advance the view that the drug was of at most marginal medical benefit anyway. But Atul Gawande’s feature article in the July 5 New Yorker (“A Queasy Feeling: Why Can’t We Cure Nausea?”) suggests they’re off base.

“Prior to the Second World War and the development of modern techniques for replacing fluids, hyperemesis [extreme nausea and vomiting in expectant mothers] was routinely fatal unless the pregnancy was aborted,” Gawande writes. “Even today, although death is rare, serious complications from the severe vomiting can occur — including rupture of the esophagus, lung collapse, and tearing of the spleen….

“Back when doctors didn’t hesitate to prescribe antiemetics for ordinary pregnancy sickness — at least a third of pregnant women were on such drugs in the nineteen-sixties and seventies — hyperemesis was much less common.” When ordinary cases are noticed and medicated early, they are less likely to progress to the severe stage. Then lawsuits “forced the popular remedy Bendectin off the market (despite numerous studies showing no evidence of harm). It became standard to avoid prescribing drugs until, as in [Amy] Fitzpatrick’s case [the 29-year-old mother profiled in the article], vomiting had already caused significant dehydration or starvation. Hospital admissions for hyperemesis of pregnancy subsequently tripled.”

For those wishing to defy the will of the U.S. litigation system, a nurse explains how to make your own bootleg version of Bendectin. The same compound is still sold in Canada under the name Diclectin, and some American women drive up to Toronto to get it (check out Lisa L.’s 5/23 entry on this BabyCenter.com bulletin board). Otherwise, as you throw up, think thoughts of lawyers.

July 21 — Hey, nice Jag the chief’s driving. Under current forfeiture laws, police and prosecutors can seize property they deem linked to criminal activity even if its owners are themselves accused of no crime. That includes family cars, seized when errant husbands are collared for DWI or as streetwalker johns; cash, seized because its holders have more of it on hand than their jobs seem to make plausible; homes, guns, jewelry, motels and even farm animals. Hapless owners can’t assert a presumption of innocence or other usual protections, and since authorities get to keep seized goods they’re tempted to resolve hard calls against leniency. Reason magazine takes a critical look at the subject in the latest installment of its online “Breaking Issues” series, unveiled Monday. Earlier entries in the link-rich series have tackled such issues as gun suits, the breast implant fiasco and disabled-rights law.

July 20 — Guns, tobacco, and others to come. What kind of trial is this, asks Peter Huber in the June Commentary, where political officials step forward to announce selective, discretionary legal action against some small group that’s been made deeply unpopular by a recent campaign of abuse in the press; where the rules of law are invented and applied retroactively to punish formerly lawful behavior; where the point is not to determine who did what but to proclaim society’s resolve to prevail over its internal enemies; where “right-thinking people know what the verdict ought to be before the proceeding even begins”; where “a mountain of fact and detail is presented merely as scenery and decoration”; and where “the little facts do not matter because we are meant to appreciate the gravity of the big facts, to understand society’s larger priorities, to be loyal to a higher principle, to be dedicated to a greater cause?

“It is a show trial.”

Huber is not optimistic about what lies ahead. “Each one of a dozen or more tobacco lawyers will soon collect more money than Bill Clinton has spent on all his political campaigns combined. Inevitably, some healthy share of the take will get channeled back to candidates…who are committed to expanding the mega-tort still further.”

The new mega-tort cases “cannot escape being essentially political,” Huber writes. “Yes, legislatures in the past have struck messy, imperfect compromises on guns and tobacco. But to tar those outcomes as a failure of representative government is to reject the political system itself.” (full article)

July 20 — Improvements to the Overlawyered.com site. Debuting today is the Overlawyered.com/Amazon bookstore, the first attempt we know of to assemble a wide selection of books of interest to legal reformers along with annotations and links to reviews and related articles. Topics range from junk science to family law, legal philosophy to harassment law; featured authors include Peter Huber, Richard Epstein, Mary Ann Glendon, James Q. Wilson, Daphne Patai and many more. Proceeds help support Overlawyered.com and other legal reform and research causes.

Topical pages now number three with a recently added page on lawyers’ advertising and solicitation joining those on gun litigation and product liability, and more to follow soon.

We’re pleased to announce that Overlawyered.com is a featured recommendation today (link now dead) on FrontPage, the lively Internet magazine published by David Horowitz’s Center for the Study of Popular Culture.

July 19 — Overlawyered skies not always safer. Safety experts say one reason airlines hold back from adopting data-collection programs that could save lives is that they fear the results will be used against them in later litigation, reports Matthew L.Wald in yesterday’s New York Times. Flight Operational Quality Assurance (“FOQA”) programs record and assemble large quantities of information from routine flights to help identify patterns that might signal future trouble. For example, Scandinavian Airline System analyzed FOQA data and discovered that many of its pilots were flying a new model of turboprop plane too fast, which allowed it to institute corrective steps before any mishaps occurred. More than 25 airlines outside the United States have successfully implemented FOQA programs (FAA draft advisory circular, link now dead) but the practice has been slow to catch on in this country.

According to the Alexandria, Va.-based Flight Safety Foundation, which has vigorously supported the FOQA concept, reasons for hesitation have included both flight crews’ fear that the data will be used in employee discipline or licensing action and airlines’ fear that the data will be used against them in civil litigation or prosecution (some worry that last week’s filing of criminal charges against a maintenance company in the Valujet case will portend more such prosecutions). The FSF’s Flight Safety Digest for July-September 1998, available as a PDF document (Adobe Acrobat needed to view; get it here) explores the issue in depth, and points out that flight data is likely to find its way into adversarial hands through Freedom of Information Act (FOIA) requests as well as the discovery process in civil litigation.

The issue keeps cropping up in many safety areas: unless some means is afforded by which regulated parties can conduct “self-critical analysis” without seeing the results seized on to prove their fault in later proceedings, they will flinch from pursuing such analyses wherever they may lead. But although some states have moved to enact protections for environmental audits or product safety remedial analysis, the American legal system generally remains quite hostile toward them. In February a Massachusetts trial court declared, in a liability case arising from basketball player Reggie Lewis’s fatal heart attack, that such immunities are “not…favored” in the Commonwealth. The federal Environmental Protection Agency has expressed the opinion that state environmental laws providing a self-audit privilege, such as Colorado’s (link now dead), may conflict with federal law.

July 17-18 — “Dune” as we say. Many historic structures on Nantucket have their front doors up a few steps, which brought their owners to predictable grief last November when federal law enforcers announced a crackdown on inns, restaurants, pharmacies and other businesses on the quaint island whose owners had not brought them into full compliance with the Americans with Disabilities Act. Assistant U.S. Attorney John A. Capin denied an intent “to run ‘Mom and Pop’ enterprises out of business” but said “[w]e want to work with the owners in order to educate them about their obligations”. If the owners fail to absorb this education at the indicated pace, of course, they risk being hauled to court.

If that happens, however, they’ll be summoned to a newly built federal courthouse in downtown Boston that has been been hit with a long series of complaints “for allegedly violating federal standards on handicapped accessibility”, as the Boston Globe reported April 19; for example, the jury boxes and witness stands in its 27 courtrooms can be reached only by way of steps. “We looked at the possibility of building in permanent ramps that were retractable but it was such a burden on the budget we just couldn’t do it,” said General Services Administration project manager Paul Curley, though the courthouse does sport double-story English oak paneling, a 45,000-square-foot glass wall overlooking the harbor, “spacious waterfront chambers for judges, and a five-story Great Hall”. One wonders whether Nantucket’s bait-and-tackle shops will be allowed to cop a similar plea of expense.

July 16 — From the Fourth Branch, an ultimatum. “The next great issue will be managed health care, said Mr. [Russ] Herman [former president of the Association of Trial Lawyers of America], whose New Orleans law firm has contributed $6 million in time and resources to the tobacco litigation with Mr. Gauthier.

“‘This Congress has an opportunity to do something about it,’ Mr. Herman said, ‘but if they don’t act, my guess is that in five years you will see a massive lawsuit brought to destroy and dismember managed care as it currently operates.'” — quoted in “Tobacco-Busting Lawyers On New Gold-Dusted Trails” by Patrick E. Tyler, New York Times, March 10, 1999.

A more recent report, by Michael D. Goldhaber in the June 28 National Law Journal (“Class Action Blues, New Orleans Style”), suggests that the duly elected legislative branch of the U.S. government may not have moved with sufficient alacrity to accept the terms Mr. Herman has dictated. “We’re going to dismantle the managed care system,” it quotes him as saying.