- Fearful of adverse Supreme Court ruling, Department of Justice said to have exercised pressure on city of St. Paul to buckle in housing-disparate-impact case [Kevin Funnell]
- Justice Janice Rogers Brown: we can dream, can’t we? [Weigel] The Brown/Sentelle opinion everyone’s talking about, questioning rational basis review of economic regulation [Hettinga v. U.S., milk regulations; Fisher, Kerr]
- Claim: “The Bachelor” TV franchise discriminates on basis of race [Jon Hyman]
- Chicago sold off municipal parking garages. Good. It also promised to disallow proposals for private parking nearby. Not good [Urbanophile]
- Bad day in court for Zimmerman prosecution [Tom Maguire, more, Merritt]
- “I want some systematic contacts wherever your long arm can reach” — hot-‘n’-heavy CivPro music video satire [ConcurOp, language]
- Federal judge dismisses charge against man who advocated jury nullification outside courthouse [Lynch, Sullum, earlier]
“A state court judge in Madison County, Ill., [has] ordered an end to the court’s practice of allotting trial dates to local asbestos plaintiffs firms before they had filed any cases. The order was hailed by defense advocacy groups like the U.S. Chamber of Commerce and the American Tort Reform Association, which have long criticized Madison County’s system on the grounds that it allowed local firms to market their trial slots to out-of-state plaintiffs.” [AmLaw Litigation Daily, sub-only; Chamber-backed Madison County Record]
- “Vision Media Suit Over Criticism on 800Notes Dismissed” [Paul Alan Levy, Consumer Law & Policy, more; earlier here and here]
- “In Search Of a Definition for the term ‘Patent Troll'” [Gene Quinn, IP Watchdog]
- U.K.: “The end of ‘have-a-go’ litigation?” [Guardian, Telegraph]
- “Lessons in Blogging”: it won’t kill you to link to opposing views [Turkewitz]
- Briefing and fairness hearing in Volkswagen sunroof leak settlement [CCAF]
- Troublesome treaty signed by US on ADA anniversary: “Ratification of the Disabilities Convention Would Erode American Sovereignty” [Steven Groves, Heritage]
- Abolish summary judgment? Now hold on a minute [Ronald Miller]
- A strong liability-reform advocate on a Democratic national ticket? It happened when Gore slated Sen. Lieberman as VP pick [ten years ago on Overlawyered]
Overlawyered readers are well aware of the sorry history of the fen-phen litigation; those that aren’t are advised to check out Professor Lester Brickman’s summary.
In April 2008, the Diet Drugs MDL district court awarded $567 million the class counsel in that case, basing the award in part on representations by class counsel about future class recovery. A year later, a plaintiff’s attorney requested the court reopen the question of the fee award because the class counsel had exaggerated those estimates. The district court refused, holding that the one-year delay in bringing the Rule 60(b) motion was not a “reasonable time.” There has been an appeal to the Third Circuit, and, today, the Center for Class Action Fairness filed an amicus brief in support of the appeal that itself provides a short overview of the history of the fen-phen MDL. Many thanks to Chris Arfaa for his generous help in filing the brief.
Alas, it’s closed to the press and public. [Doherty, Reason “Hit and Run”]
According to Paul Secunda at Workplace Prof Blog, a monstrously overgrown employment discrimination dispute recently ruled on by a California appellate court helps explain “why people like Walter Olson rightly believe in some cases that litigation is just plain overlawyered“.
This fall, I had the honor of being elected to the American Law Institute—along with Point of Law blogger Michael Krauss and CL&P blogger Brian Wolfman.
Next week, the ALI has its annual meeting in Washington. Of critical importance is the May 20 vote on amendments and the Final Draft of its Principles of the Law of Aggregate Litigation—a document that could be of great influence in the way courts think about class actions. Beck and Herrmann have a must-read post detailing the issues involved. And they note that ALI is a nose-counting organization: policy is made by those that show up. If members of your law firm or university are ALI members, please pass along the post to them.
In Mississippi Litigation Review blog, Philip Thomas argues that Kim Strassel’s article (which we discussed Sunday) overemphasizes the role played by U.S. Silica’s CEO. I think that’s more the doing of the WSJ headline writers (which do pitch the story of one guy standing alone against the plaintiffs’ bar) than Strassel; as Thomas himself acknowledges, Ulizio doesn’t try to take undue credit, and Strassel merely (and correctly) notes that lawyers alone couldn’t defeat the silica lawsuits without the support of the business community willing to stand up against the tort bar.
Thomas also objects to Ulizio’s characterization of the victory as “luck,” but luck definitely played a huge role. The scandal came to light solely because Judge Janis Jack held mass Daubert hearings at an abnormally early stage in the litigation. In fact (and I seem to be the only person who has ever made this point), Jack’s ruling was especially abnormal, because she made the Daubert ruling before she made a jurisdictional ruling—and her jurisdictional ruling found that 99% of the cases in front of her lacked complete diversity and needed to be remanded. In other words, Judge Jack’s famous condemnation of plaintiffs’ experts was largely an ultra vires advisory opinion (which is why her sanctions order was for only a couple of thousand dollars).
The luck of the MDL draw had everything to do with that result. Another judge might not have held Daubert hearings at such an early stage; another judge might not have actually applied Daubert even if she had held the hearings; another judge might have preferred to empty her docket immediately, rather than stalling on the eventual remand.
And these aren’t purely hypothetical musings: in the welding fumes MDL in Ohio, there has been plenty of evidence of mass tort fraud, yet the judge has refused to throw out cases, so they slowly continue to proceed to trial.
In that sense, Ulizio is absolutely right: “When you have an entire system that condones these lawsuits, that does nothing to police its own, where there are no consequences, right or wrong has nothing to do with it. It’s a coin flip.” The lawyers who brought these fraudulent cases are still practicing law; thousands of fraudulent mass tort lawsuits continue to be brought since Judge Jack’s ruling without consequence to the unethical lawyers who bring them.
If allegations by New York attorney general Andrew Cuomo are true, one of the most fundamental elements of due process for civil defendants — notice of a pending legal action through service of process — simply gets ignored in thousands of instances. “Sewer service” was a major concern of court reformers in the 1960s; it sounds as if the problem may never actually have gone away. [Newsday, Popehat]