- Drunk driving by St. Louis Blues hockey player Rob Ramage killed his passenger in a Toronto crash, and now Missouri verdict puts car rental company on hook for $9.5 million [Post-Dispatch]
- Consumers trust lawyer ads in phone book, or at least so say the Yellow Pages people [WV Record]
- Latest flip in marine-mammal litigation: Ninth Circuit orders curbs on Navy’s sub-hunting sonar [L.A. Times; earlier coverage]
- More on colorful Judith Regan suit against News Corp. [Carr, NYT]
- Lesson for law-firm “foreclosure mills”: don’t file the action before your client actually acquires the instrument being sued on [ABA Journal]
- John Fund on Salvation Army and English in the workplace litigation [WSJ/OpinionJournal; earlier]
- Comstock Act for the web is one of departed Rep. Hyde’s less happy legacies [McCullagh, CNet]
- A view from Boston on Lone Star State med-mal reforms [Globe]
- Shaker abstinence, cont’d: FDA mulls petition to crack down on salt in foods, and AMA has joined busybody brigade [L.A. Times; earlier, see also]
- Texas tort tycoon John O’Quinn probably isn’t winning prizes these days from historic preservationists [ABA Journal]
- Run for your lives! Toxic chocolate! [six years ago on Overlawyered]
- Shocker- Washington state trial lawyers lie in ad promoting litigation windfall referendum. [The Olympian; Reject R-67]
- Mississippi AG Jim Hood rewards his out-of-state trial-lawyer campaign donors. [Hattiesburg American]
- Update: Illinois Justice Robert R. Thomas settles his libel case; sued reporter is unrepentant. [Law.com]
- Update: Cop withdraws slip-and-fall lawsuit; department placed her on paid leave and is investigating [South Florida Sun-Sentinel]
- Update: 1-800-Flowers suit dismissed on technicality; plaintiff adulterer vows to refile in New York. [On Point]
- Update: Court reverses injunction in whales v. US Navy sonar lawsuit, but lawyers vow to keep trying. [Bashman roundup]
- Wrongful sermon a cause of action? [On Point]
- Don’t expect your rapist to be convicted by a Philadelphia jury. [Philly Magazine]
- Facebook as treasure-mine for litigation evidence. [Law.com]
- Dry-cleaners can bring frivolous lawsuits, too. [New York Post]
1. Yet another Roy Pearson update: the Washington Post, confirming a previous rumor, reports that he’s closer to losing his job. The Commission on Selection and Tenure of Administrative Law Judges (CSTALJ?) has voted to start the process of terminating him, by sending him a letter notifying him that he may not be reappointed to his job. Of course, the procedure alone makes the story a perfect fit for Overlawyered. Pearson can’t just be fired; that would be too easy. First, his boss had to make a formal recommendation. Then, the Commission had to decide to send that letter. And now?
Pearson is not out of work yet. The letter is a key step, though, alerting him that his reappointment is in jeopardy. He has 15 days to file a rebuttal and could push for reappointment by appearing before the commission at its next meeting in September.
The wonders of public employment. And then if he’s turned down, of course, he can sue!
Apparently trying to destroy a business by using the legal system to extort millions from the owners isn’t his big sin; his big sin is being rude to his boss:
Concerns about Pearson’s temperament as an administrative law judge preceded the publicity about the lawsuit this spring. The letter from the commission focuses on those concerns, addressing the lawsuit only briefly.
In e-mails sent to his fellow judges and cited in the letter, Pearson’s contempt for Chief Administrative Law Judge Tyrone T. Butler was evident. In one of the missives, he spoke of protecting himself from any attempt by Butler “to knife” him. In another, he questioned Butler’s competence and integrity.
Incidentally, he was serving a two year term, but if he wins reappointment, it will be for a ten year term.
Cooper said it was never easy to balance the interests of wildlife with those of national security. But in this case, she said, environmental lawyers have made a persuasive case that the potential harm to whales and other marine life outweighs any harm to the Navy while the court case proceeds.
Because, clearly, a bunch of lawyers are in the best position to design United States naval strategy.
3. Remember the Kentucky Fen-Phen scandal? The one in which the class action attorneys were accused of misplacing $60 million of their clients’ money into their own pockets? (We’ve covered it May 20 and earlier) Well, a federal judge has now ruled that they need to repay $62.1 million to their clients. So far. Still to come: a ruling on punitive damages, a criminal trial, and the suit against Cincinnati attorney Stan Chesley, who’s accused of the same wrongdoing. (AP/Forbes)
Environmental groups keep suing the United States Navy (See: Oct. 2004, Jul. 2006, and Mar. 2006) over its use of sonar, on the speculative theory that sonar hurts whales. Now they’re at it again, filing a lawsuit yesterday in federal court in Hawaii. This time it’s Earthjustice, suing on behalf of the Ocean Mammal Institute, the Animal Welfare Institute, KAHEA, the Center for Biological Diversity, and the Surfrider Foundation, trying to stop naval exercises off the coast of Hawaii. (PDF copy of complaint.)
Regardless of what one thinks of the merits of using sonar or privileging whales over national security, it’s absurd that federal judges — experts, we think, neither in marine biology nor submarine warfare — should be the ones deciding these policy questions. But it’s more absurd that these issues get to be relitigated over and over and over again. Of course environmental groups are the ones filing these repeated lawsuits, but in the big picture, the blame for this situation should be laid at the feet of Congress, which passes vague environmental laws which create broad standing allowing infinite numbers of random bystanders to sue without having to suffer tangible personal harm. (“I like looking at whales.”) And, perhaps worse than the vagueness of the laws is the fact that so many of these laws simply exist to create a zillion procedural hoops to jump through. (To provide an idea of these hoops, this complaint alone alleges the following causes of action:
- Failure to provide public notice and an opportunity to comment in violation of Administrative Procedure Act and National Environmental Policy Act
- Failure to prepare an Environmental Impact Statement in violation of Administrative Procedure Act and National Environmental Policy Act
- Issuance of an inadequate Environmental Assessment in violation of Administrative Procedure Act and National Environmental Policy Act
- Issuance of an inadequate Biological Opinion in violation of Administrative Procedure Act and Endangered Species Act
- Failure to consult with the Hawaii State Coastal Zone Management Program For Undersea Warfare Exercises in violation of Administrative Procedure Act and Coastal Zone Management Act
Have your eyes glazed over yet?)
Whatever the appropriate policy balance to be struck here, it should probably be determined by Congress, and it should definitely be decided once and for all, rather than each and every time a submariner sneezes. If the Navy is to be required to use specific types of sonar or other equipment, or is to be denied permission to operate in certain locales, or whatever, then there ought to be a statute or regulation which spells these rules out explicitly, rather than allowing activist groups to rush to court on a weekly basis to get a judge to decide.
“The [California] Coastal Commission and a national environmental group sued the Navy on Thursday over its refusal to take certain precautions to protect marine mammals during military training exercises off the coast of San Diego. While the commission’s legal action is a rarity, the Natural Resources Defense Council already had sued the Navy four times over its use of high-intensity sonar.” We last covered the controversy, and discussed the implications for national defense, Jul. 6, 2006. (Terry Rodgers, “Coastal Commission sues Navy over use of sonar”, San Diego Union-Tribune, Mar. 22; Alicia Chang, “Calif. Coast Panel Files Navy Sonar Suit”, AP/Washington Post, Mar. 23).
Now that litigators from the National Resources Defense Council have won a temporary restraining order from a federal judge under the terms of the National Environmental Policy Act, the U.S. Navy says it will employ less effective passive sonar, rather than active sonar, in exercises off Hawaii intended to simulate anti-submarine warfare. The NRDC complained that when the Department of Defense granted the Navy a temporary exemption from the Marine Mammals Protection Act for purposes of the exercises, it was trying to evade being sued. (” Whale lawsuit forces Navy to change sonar plan”, AP/CNN, Jul. 5). “The Navy, in a statement after the ruling, said sonar was ‘the only effective means we have to detect and quickly target hostile submarines and keep sea lanes open,’ and that sonar operators needed training at sea ‘to protect our nation’s ships, shores and allies.’…. The sonar use is meant to test whether quiet, diesel-powered submarines like those used by Iran, North Korea and China can be detected.” (Tony Perry, “Judge Temporarily Bars Navy From Using Sonar Said to Harm Whales”, Los Angeles Times, Jul. 4) “The Navy says it must practice hunting submarines near the Hawaiian islands because that’s the type of environment where it most likely will face an emerging threat of submarine warfare.” (AP/Houston Chronicle, Jul. 4)(& welcome readers from Michelle Malkin, who provides more background on the controversy).
There’ll always be a Ninth Circuit: “The world’s whales, porpoises and dolphins have no standing to sue President Bush over the U.S. Navy’s use of sonar equipment that harms marine mammals, a federal appeals court ruled yesterday. A three-judge panel of the U.S. 9th Circuit Court of Appeals in San Francisco, widely considered one of the most liberal and activist in the country, said it saw no reason why animals should not be allowed to sue [emphasis added] but said they had not yet been granted that right.” (“Court Says Whales, Dolphins Cannot Sue Bush”, Reuters/PlanetArk, Oct. 21). For more on giving animals standing to sue (= giving human lawyers standing to sue on their claimed behalf) see our animal rights archives and specifically May 14-15 and Apr. 29-30, 2002. More: Legal Reader has a link to the opinion (PDF), and Martin Grace also comments. More: Jeff Chorney, “Call Me Ishmael — and Call My Lawyer!”, The Recorder, Nov. 1.