Posts Tagged ‘loser pays’

June 13 roundup

  • High school graduation got rained out in Gilbert, Ariz., and a dad wants $400 from the school district for that [Arizona Republic]
  • Happens all the time in one-way fee shift awards, but still worth noting: lawyer in police-misconduct case “billed 22 hours at $480 an hour — a total of $10,560 — just to figure out how much his fees are going to be” [Seattle Times]
  • We get to decide and that’s that: New York judge orders that salaries of New York judges including his own be raised [PoL, Bader] Also at Point of Law: white-shoe Clifford Chance throws a party for New York lefties, should anyone be surprised? outsourcing of interrogation to profit-minded private contractors is bad when it’s Blackwater, good when it’s Motley Rice; tax break for trial lawyers said to be blocked for now.
  • One firefighter killed in Boston restaurant blaze had sky-high .27 blood alcohol level, the other traces of cocaine, which probably won’t impede the inevitable lawsuit against the restaurant and other defendants [Globe, background]
  • Writing again on U.S. exceptionalism, Adam Liptak contrasts our First Amendment with Canadian speech trials; James Taranto thinks he’s siding with the Canadians, but the piece looks pretty balanced to me [NYTimes, WSJ Best of the Web]
  • Milberg said to be on verge of deferred prosecution agreement deal with feds involving $75 million payment and admissions of wrongdoing [NLJ]
  • Courts in Australian state of Victoria, emulating a model tried in Canada, will resort more to mediation of intractable disputes [Victoria AG Rob Hulls/Melbourne Age]
  • Great moments in international human rights: KGB spy on the lam sues British government for confiscating royalties he was hoping to make from his autobiography [five years ago on Overlawyered]

Spalding Laboratories, Inc. v. Arizona Biological Control

I’ve previously criticized the unrealistic notions judges have of the expense of litigation. (For example: Budget Rent A Car (7th Cir. 2005).) As I said, “[T]he mistake of thinking that legal practice is so frictionless is what encourages so many judges to deny motions to dismiss and deny motions for summary judgment and fail to restrain discovery.” The Spalding Labs v. ARBICO case, No. CV 06-1157 ODW (SHx), 2008 WL 2227501 (C.D. Cal., May 29, 2008) (via Tushnet) provides another example.

Read On…

Purina vs. “Chow, Baby”

“Three years ago, Purina sent a cease-and-desist letter to Chow, Baby!, a Baltimore area pet supply shop and Web site owned by Robin McDonald, asserting that its use of the ‘Chow, Baby!’ name was likely to cause confusion with Purina’s CHOW trademarks and would dilute the distinctive quality of those marks. … According to the dictionary, ‘chow’ is defined as food, a meaning that dates back to 1860.” (Carolyn Elefant, Legal Blog Watch, May 2). More from Ron Coleman:

But companies such as Purina are not interested in discussing the matter. Brand management isn’t a seminar. They are interesting in executing and maintaining a policy of complete domination of not only their brand equity space, but a comfortable semiotic buffer all around that space to the full extent that they can get away with it. Judges simply do not award fees or otherwise penalize brand owners for overreaching under the Lanham Act, though the Act empowers them to do so (the exceptions are notable and hence reportable). For this reason it is worth it to Purina and companies like it — it is a rational economic and corporate choice — to litigate these cases at the small risk of actually getting to a final adverse judgment regarding a trademark they have no right to anyway, as weighed against the much higher possibility that the other side will surrender $10,000, $25,000 or even $100,000 worth of fees into the process — dollars that are orders of magnitude more significant to the defendant (or declaratory judgment plaintiff) than for a corporation that probably has counsel on a retainer anyway.

“Judge Fines Medtronic $10 Million Over Trial Tactics”

Another strong reaction from the bench to scorched-earth practices in litigation:

A Massachusetts U.S. District Court judge fined Medtronic Sofamor Danek Inc. and related companies $10 million for the behavior of its trial lawyers at Dewey & LeBoeuf while fighting a patent case brought by DePuy Spine Inc.

Senior District Judge Edward F. Harrington also ordered Medtronic Sofamor, which makes spinal implant devices, to pay some of the plaintiffs’ attorney fees. …

“The defendants prolonged the proceedings unnecessarily (thus unduly imposing upon the jury’s time), they sought to mislead both the jury and the Court, and they flouted the governing claim construction as set forth by the Federal Circuit,” Harrington wrote.

(Sheri Qualters, National Law Journal, Feb. 28).

“Resurrect Rule 11”

In 1993 the U.S. Congress, urged on by organized litigators, gutted Rule 11, which for ten years had provided relatively strong remedies to those targeted by groundless litigation in federal courts. It’s time to look again at the case for a stronger Rule 11, argue Zeke J. Roeser and Karen Harned (National Federation of Independent Business, in a new article for the Federalist Society’s Engage (cross-posted from Point of Law).

Judge Holds Trial Firm Liable for Fees

U. S District Court Judge Robert Matsch recently got so infuriated by the conduct of McDermott, Will and Emery attorneys Terrance McMahon and Vera Elson that he overturned a jury’s $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars. (Denver Post, Feb. 25)

From the decision (Medtronic Navigation, Inc. v. BrainLAB Medizinische, 2008 WL 410413):

In essence, the response from the plaintiff and MWE, through new counsel, is that the Court had the obligation to stop any trial conduct that stepped over the line of zealous advocacy. In short, they argue that they should not be held responsible for what they were able to get away with during the trial presentation. The adamant denial that there was any abuse of advocacy in this case is in disregard of what this Court has already concluded and displays the same arrogance that has colored this case almost from its inception. Throughout these proceedings Medtronic and the MWE lawyers have demonstrated that when they are faced with adverse court rulings, they proceed undeterred, with only superficial observance of the court’s determinations. Such conduct supports the conclusion that after the Markman rulings, Medtronic’s primary objective in pursuing this litigation was to put economic pressure on its competitor in the market.

Medtronic’s counsel proceeded cavalierly, with reckless indifference to the merits of Medtronic’s infringement claims. The continued prosecution of a claim after its lack of merit has become apparent warrants sanctions under § 1927. At trial, MWE’s conduct was in disregard for the duty of candor, reflecting an attitude of “what can I get away with?” Throughout the trial, the MWE lawyers artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.

Lawyer liable when client pursues illegitimate claim?

“The New Jersey Supreme Court has agreed to review a case that could determine whether a lawyer is liable for furthering a client’s illegitimate purpose in pursuing litigation.” A lower New Jersey court had ruled that even if a lawyer knew his client was moved by an improper purpose in filing a lawsuit, he could not be held liable unless he was pursuing an illegitimate purpose of his own (as opposed to furthering the client’s illegitimate purpose). On top of it all, the lawyer’s former client was defending an action for malicious process on the grounds that he’d relied on the lawyer’s advice in suing. Since this was the same lawyer who was disclaiming all responsibility for the results of the advice, the overall effect might be seen as that of a shell game in which responsibility for the wrongful lawsuit was to be found under whichever walnut shell — attorney or client — wasn’t being lifted for inspection. (Mary Pat Gallagher, “N.J. Supreme Court to Take Up Issue of Lawyer’s Liability for Client’s Baseless Claim”, New Jersey Law Journal, Jan. 31)(LoBiondo v. Schwartz).

Lawyer liable to both client and opponent

As one of our reader/informants sums up this litigation against a Kentucky surgeon filed by (and backfiring against) a Tennessee attorney: “Plaintiff lawyer (who is a JD/MD) gets sued by both his plaintiff client and the defendant doctor and he loses to both.” (Andrew Wolfson, “Attorney is loser in malpractice lawsuit”, Louisville Courier-Journal, Nov. 28; Childs, Dec. 27). More on countersuits by doctors: Point of Law, Dec. 20.

Stories that shouldn’t get away, part I

A guestblogger will be joining us momentarily, and I’ll be posting less over the holidays. Meanwhile, my pipeline is still backed up with items from the past year that deserve a more serious treatment than a hurried roundup mention permits. Here are four of them:

  • More docs moving to Texas? Watch out, they must be quacks! After the New York Times reported that doctors seemed to be showing fresh interest in practicing in Texas since its enactment of litigation reforms, our frequent sparring partner Eric Turkewitz of New York Personal Injury Law Blog quickly countered by noting that disciplinary actions in the state are way up, and — quite a jump here — concluded with a suggestion that the newly arriving docs must be causing quality problems. Among bloggers who took this idea and ran with it: Phillip Martin of Burnt Orange Report. Then Prof. Childs had to spoil the fun by asking whether the doctors being disciplined were in fact newcomers to the state and found that, to judge by an initial sampling, no, they’re not. And the medical blogs then knocked the remaining props out from under the reform-made-care-worse theory by linking to coverage documenting how the increase in disciplinary actions reflected the Texas medical board’s concerted recent effort to get tough on doctors — too tough, said many critics. In other words, the Texas medical profession was doing exactly what many skeptics demanded it do — submit to stricter oversight in exchange for liability reform — and now that very submission was being cited as if it proved that standards of care were slipping.
  • Uninjured car owners can sue GM over seatbacks. No class members claim to have been injured, but Maryland appeals court allows class action over cost of replacing allegedly weak seatbacks in GM cars. [DLA Piper; opinion, PDF; Maryland Courts Watcher]
  • The litigious stylings of Jonathan Lee Riches. We mostly ignore litigants who file handwritten pleadings from prison cells complaining of obviously hallucinated events, but there’s no getting around it: the South Carolina convict has become a pop culture phenomenon with his scores of lawsuits against sports figures, President Bush, Perez Hilton, William Lerach and Elvis Presley over a host of imagined legal injuries. Some of the coverage: The Smoking Gun, Dreadnaught, Deadspin, Justia, Above the Law. He even has several Facebook fan groups.
  • Taxpayers and vaccine-compensation lawyers. Under the federally enacted vaccine-compensation program, notes Kathleen Seidel, “a petitioner who brings a claim in good faith is entitled to reimbursement for reasonable attorneys’ fees and costs, regardless of whether the claim is successful.” (Forget about loser-pays; this ensures that taxpayer-defendants can win but pay the other side’s fees anyway.) What sorts of bills do you think attorneys file for reimbursement under those circumstances? Yep, very optimistic bills, in which they expect taxpayers to shell out for their attendance at “advocacy group meetings, and attendance at a conference of trial lawyers representing autism plaintiffs”. In this case, HHS successfully appealed (PDF) an order that it pay the fees. Seidel’s Neurodiversity blog offers a remarkable trove of insight into litigation relating to autism causation theories, vaccines and thimerosal, and this post is no exception. (Updated to include links.)
More stories that shouldn’t get away in another post to come.

Clarification: Flatley $11 million “settlement”

Earlier this week, we quoted an Australian newspaper that Michael Flatley had won an “$11 million settlement” in his lawsuit against Tyna Marie Robertson, a woman who had falsely accused him of rape and tried to extort him through the threat of litigation, and speculated that Robertson’s other romantic shenanigans with the wealthy may permit her to pay it. Alas, other press coverage reveals that this was not a settlement, but a default judgment, which suggests the inability to pay for a lawyer to defend herself as well as to pay Flatley. On Point’s report of the default judgment notes that Robertson’s child support litigation claims she has $6 to her name. Flatley did come to an undisclosed financial settlement with D. Dean Mauro, the attorney who handled Robertson’s claim, so there will be some justice done.