Thanks to reader J.H. for flagging Alcala v. Santa Fe Rubber Products, from the California courts last fall: “A very strange case — Union demands 20 minute lunch breaks (instead of the required 30), which are put into a union contract. Then, in balked renegotiations years later, they threaten to sue for labor violation claiming 20 violates statute, and ultimately get evidence of their demands kept out. Court of Appeals agrees with most of that. And the unions protect exactly who?”
An extraordinary bill in the California legislature, promoted as making it easier to sue fossil fuel companies over their involvements in public debate, would lift the four-year statute of limitations of the state’s already extremely liberal Unfair Competition Law, otherwise known as s. 17200 — and retrospectively, so as to revive decades’ worth of time-lapsed claims “with respect to scientific evidence regarding the existence, extent, or current or future impacts of anthropogenic induced anthropogenic-induced climate change.” Despite a 2004 round of voter-sponsored reform which curbed some of its worst applications, s. 17200 still enables what a California court called “legal shakedown” operations in which “ridiculously minor” violations serve as the predicate for automatic entitlement to damages, attorneys’ fees, and other relief.
Combined with the plans laid by California Attorney General Kamala Harris — part of the alliance of AGs that has sought to investigate not only oil, gas, and coal companies, but private advocacy groups and university scientists who have played a role in what is characterized as “climate denial” — the bill would begin laying the legal groundwork for an astonishingly broad campaign of inquisition and, potentially, expropriation. The bill was approved by a subcommittee and was further amended May 10 to provide that climate science-related claims of any age would begin a four-year reviver period as of next January. [Northern California Record; the left-leaning Union of Concerned Scientists has a piece supporting the bill]
Section 2(b) of the bill declares it the California legislature’s policy to promote “redress for unfair competition practices committed by entities that have deceived, confused, or misled the public on the risks of climate change or financially supported activities that have deceived, confused, or misled the public on those risks” [emphasis added] — a very clear signal that the target is public issue advocacy, and not merely (say) advertising that is directed at consumers in their capacity as buyers of gasoline at the pump. Last month, a federal court slapped down, as an unconstitutional burden on First Amendment rights, California Attorney General Kamala Harris’s demand for the donor lists of nonprofits that carry on operations in California.
In 2004 Californians voted to curtail s. 17200, the state’s distinctively liberal “unfair competition” law which had brought into existence an entrepreneurial sector of lawyers to sue businesses even in the absence of an injured consumer as client. The Federalist Society’s State Court Docket Watch has just published a symposium on the lessons and aftermath of Prop 64, with participants including William Stern of Morrison & Foerster, Scott Leviant of Spiro Moss, Jeremy Rosen of Horvitz & Levy, and Shaun Martin of the University of San Diego School of Law
- Litigation over high-tech products is rife, but major benefits for consumers can be hard to discern [Low End Mac]
- “United settles with female ex-pilot who found p0rn in cockpits” [Obscure Store]
- California suit charges negligent “laying on of hands” at church service [Lowering the Bar]
- UN resolution against “defamation of religion” imperils free speech [Paula Schriefer, Freedom House/CSM, Steyn/NR “Corner”, National Secular Society (U.K.), Ilya Somin @ Volokh
- DivorceNetwork.com, social networking for those caught up in family law battles? [Ambrogi, Legal BlogWatch]
- Prosecutors behaving badly in Wayne County (Mich.), Miami, Santa Clara County [Radley Balko, Reason “Hit and Run”]
- After nine years, the notorious Bill Lerach California-unfair-competition-law suit against Kwikset (over several screws from Taiwan in a lock marked “Made in America”) finally winds down [California Civil Justice, earlier]
- Oklahoma AG Drew Edmondson to poultry companies: my pals will bankrupt you with massive verdicts unless you settle [Rizo/Legal NewsLine; more]
That’s the explanation given by Charles J. O’Byrne’s lawyer for why his client didn’t file income taxes for year after year. I’ve never tried that one myself, but then, I’m not the chief aide to the governor of the state of New York, the way O’Byrne is. He has no plans to resign from his position. (Nicholas Confessore and Jeremy W. Peters, “Governor’s Aide Had ‘Late-Filing Syndrome,’ Lawyer Says”, New York Times, Oct. 23).
Relatedly or otherwise, Carolyn Elefant at Legal Blog Watch notes (Oct. 22) that Harpreet Singh Brar, known to Overlawyered readers for his abusive mass mailing of demand letters to California businesses,
came up with an even better defense to charges of failure to file tax returns on behalf of himself and his professional corporation: ineffective assistance of counsel. Sounds promising, except when you consider that Brar is an attorney who represented himself at trial. On appeal, he’s argued that he did not knowingly waive his right to counsel, and that he may have been under the influence of drugs and alcohol at the time of the waiver. Not surprisingly, the appeals court rejected Brar’s argument. (Source: Metropolitan News-Enterprise.)
The mills of California lawyer discipline grind exceeding slow: five years after the scandal over Brar’s mass-mailing of extortionate demands to small businesses under the state’s unfair business practices act, and after Brar’s jailing for federal tax evasion as well as well as contempt of court for pursuing legal harassment, a state bar judge has recommended that he lose his license to practice. (In the matter of Harpreet Singh Brar, PDF, via CJAC). Earlier here, here, here, here, etc.
Now this could crimp the business plans of quite a few attorneys:
A Manchester lawyer who threatened to sue a Concord salon for pricing haircuts differently for men and women and then took money to settle the matter was found guilty of theft by extortion.
A jury took about 1½ hours to convict Daniel Hynes, 27, on Wednesday. Assistant Attorney General Elizabeth Baker said Hynes sent letters to at least 19 salons in the state.
One arrived Dec. 20, 2006, at Claudia’s, the North Main Street hair salon owned by Claudia Lambert. In the letter, Hynes said prices should be based on the time a cut takes or on the length of hair, instead of on gender. He wrote: “I demand payment in the amount of $1,000 in order to avoid litigation,” according to court documents. …
Hynes said yesterday that he plans to appeal.
“The conviction goes against the First Amendment,” he said. “People have a right to petition the courts. In my case, I wanted to address my concern with the Human Rights Commission.”
Asked why he sent letters to salons instead of contacting the commission directly, Hynes said lawyers often settle out of court.
“I believe it’s more appropriate to attempt as amicable a resolution as possible,” he said.
… In one court document, he argued that the price structure that he saw as discriminatory had caused him stress and mental anguish, despite the fact that prices for men were less than those for women. He said he was being denied an “inherent benefit in being treated equally.”
Prof. Bainbridge (Mar. 25) cites California’s experience with the now somewhat reformed s. 17200 unfair business practices law, which empowered freelancing lawyers to send out demand letters to businesses over a wide variety of alleged infractions. He concludes that the answer is to amend underlying laws which sweep too broadly in banning business practices, authorize damage claims unrelated to actual injury, and so forth. Although I much appreciate the kind suggestions for further reading he offers in his post, I can’t say I entirely go along with the idea that the scope for possible abuse would vanish if only the underlying laws were written properly. At Concurring Opinions, incidentally, one commenter draws a connection to RIAA’s mass production of demand letters against file-sharers, while another warns that for a target to complain to the authorities of extortion, as did the New Hampshire salon owner, might itself be construed by many courts as “retaliation” against the filer of a discrimination claim and thus as grounds for penalties on its own.
The New York Times “Small Business” section looks at how Garden Grove, Calif. liquor store owner Vinod Kapoor fought back when targeted by attorney Harpreet Brar, famed for his lawsuits demanding legal fees from small businesses over alleged regulatory infractions (see Aug. 20, 2002, Jul. 22, 2003, Nov. 1, 2004). Included are some updates:
In February, Judge Polos [Peter J. Polos of Orange County Superior Court] sent Mr. Brar to jail for two weeks for violating his order [not to name multiple businesses in one suit], calling him “an extortionist.”
Mr. Brar said his experience in jail was a “nightmare,” which he said included watching several inmates be beaten by guards. Mr. Brar said he planned to represent several of them.
On April 16, Mr. Brar was suspended from practicing law for 30 days and placed on probation for two years for filing a frivolous motion and appeal against the attorney general and for using the courts as a delaying tactic, according to Kristin Ritsema, one of several supervising trial counsels at the state bar.
“I think he is a huge threat to the public,” Ms. Ritsema said.
Another local liquor store owner, Herve Domange, who is from Paris, said: “You couldn’t do this in France. In France, these lawsuits would not be possible. But I don’t want to say too much. I’m afraid I might get sued.” (Regan Morris, “Picking the Wrong Mom and Pop to Sue”, New York Times, Jun. 1).
Three years ago California’s notorious Trevor Law Group was found to be mass-mailing demand letters to small businesses alleging violations of the state’s ultra-liberal s. 17200 unfair business practices act, then settling the complaints for cash. A major furor ensued, and the state bar and Attorney General Bill Lockyer made gestures toward reforming the law to prevent law firms from running “shakedown” practices. But did it work? Mike Cernovich notices that a law firm has placed an employment ad on Craigslist seeking “additional counsel” to handle an “expanding workload”. What kind of workload? Well, it’s “primarily in the practice of wage and hour law inclusive of class actions … almost all [of our] cases are settled and are rarely tried.”
That business about settling rather than trying “almost all cases” got Cernovich’s suspicions up, and then he “saw something that made my jaw drop:”
In assessing the nature of the work and return on time spent it is helpful to keep in mind that the burden of proof is always on the employer to establish that he has paid the correct wages. The law requires that the employer keep accurate and timely maintained records that show hours worked and amounts paid. Failure to maintain such records is almost always at the heart of the case ….
Furthermore the employer will be liable for our legal fees if he is unable to defense the case. These two elements [the inability to prove us wrong and threat of attorneys fees] provide our clients with extraordinary leverage to resolve the matter.
Cernovich reads this as amounting to: “we sue employers knowing that it’s unlikely they’ll be able to produce records that will prove us wrong. … In other words, let’s just sue someone, hope he can’t produce any employment records to contradict us, threaten him with attorneys fees, and then settle the case post haste.” Or is he being too suspicious? (Mar. 8). (Updated/corrected shortly after posting to fix a mistake on my part about who placed the Craigslist ad; also retitled next morning.)