John Steele at Legal Ethics Forum offers his selection.
December 2008 Archives
The now-closing JEHT Foundation was a major backer of groups like the Center for Constitutional Rights, Common Cause, and ACLU, of Alien Tort statute litigation, and of a wide array of criminal justice reform projects, initiatives at law schools, and so forth. As noted earlier, Massachusetts law dean Lawrence Velvel of let's-hang-Bush fame was also among Madoff's victims; CCR's Peter Weiss was reported among the scheduled attendees at Velvel's recent conference on that theme.
Sophisticated litigants sometimes approach key lawyers in a community or specialty when a suit is impending, not because they actually intend to use them as counsel, but just to disqualify them from representing the opponent. David Hricik at Legal Ethics Forum examines a Texas ethics opinion addressing the practice.
When the dust settled, Quinn Emanuel Urquhart Oliver & Hedges had collected $12 million in fees from the settlement of a business dispute while its client got less than that. Philadelphia plaintiff's lawyer Maxwell Kennerly has some questions from a distance about what looks to have been a dysfunctional client-attorney relationship.
The Wall Street Journal editorializes in praise of a Detroit judge's crackdown on dubious medical testimony:
Defendants presented evidence that Dr. [Michael] Kelly was neither a radiologist nor a pulmonologist and had failed the test that certifies doctors to read X-rays for lung disease. They also showed that the overwhelming majority of hospital radiologists who had reviewed Dr. Kelly's patients found no evidence of disease. ... According to Michigan records, Dr. Kelly has been responsible for reporting more than 7,300 cases of asbestos disease. ...
The plaintiffs firm -- Greenberg, Persky and White -- has already requested a delay in another 180 cases that were due to be heard in January and May -- and which presumably also relied on Dr. Kelly. Judge Colombo denied that request, which means the plaintiffs will either have to dismiss or find some other doctor to replicate Dr. Kelly's miraculously consistent diagnoses.
They're shaping up as among the New Year's most contentious, reports the Boston Globe (via Damon Root, Reason). More: Civil libertarian Harvey Silverglate hasn't forgotten the "Holder Memo", with its coercive arm-twisting of defendants in white-collar cases, and hopes the nominee will have to answer some questions about it at the hearings.
If you enjoy law blogs, it is well past time to check out technology webzine Ars Technica's great new blog on technology law and policy: Law & Disorder. It features elegantly written and insightful analysis on intellectual property law, privacy law, and other hot topics. Despite being only a couple of months old, Law & Disorder has already garnered a nomination for an ABA "Best Law Blawg" award (although you should, of course, vote for Overlawyered!).
Originally, the lawyers spearheading the project cooked up an elaborate smorgasbord of Fizzbinesque licenses incorporating features like time-limitations. What they realized, though, was that the legal stifling of creativity was a function of transaction costs at least as much as licensing fees--that is, the cost of navigating the bramble of overlapping rights, often held by dispersed parties, in a given set of works. High levels of customization might sound appealing to the individual creator, but in the aggregate they'd yield a self-defeating legal Babel. So the Fizzbin licenses bit the dust, and CC settled on a few simple modules that captured the core rights most people were centrally interested in.
Second, there was a surprising consensus that the deployment of the actual licenses was less important than their function as a conversation starter. That is, it wasn't so much that teachers or scientists suddenly had some legal boilerplate that could easily be slapped on their creations, but that there was a visible project they could point to and ask: "Should we be doing something like this?" Professional conferences would hold panels asking not, "Is sharing a good idea?" but "Which Creative Commons license is best suited for us?"
Confirming once again that the New York Times would never think of subjecting its op-ed columnists to the indignity of fact-checking, the incorrigible Bob Herbert is at it again with a column praising the recent Republic Windows sit-down strike in Chicago as having secured "severance pay and benefits that [workers] were owed by law", with no mention that the law's "unforeseeable business circumstances" provision cast much doubt on whether the WARN benefits were in fact owed by law or not -- and if they weren't, then the action was one to coerce the payout of cash that no one owed. At Prawfsblawg, Rick Esenberg of Marquette is troubled by the "secondary -- if not 'boycott'" aspect of aiming the campaign at third-party banks, rather than at the company itself that owed (or didn't owe) the WARN payment. And Carter did a nice post at ShopFloor, for which I'm grateful, summarizing my City Journal piece of last week on the action.
CyberTelecom Blog notes that one very big, very famous law firm is still clinging to this very doubtful theory in its suit against a small real estate website: "since Voldemort is of the persuasion that merely linking to its website gives rise to a cause of action, we will avoid doing so like a hound dog avoids taking a bath." For more on Jones Day v. BlockShopper, see posts at Overlawyered here, here, and here.
- Arguments for why the proposed Employee Free Choice Act might be unconstitutional on Takings Clause and First Amendment grounds [Manhattan Institute scholar Richard Epstein, WSJ]
- Key case on NYC "pothole" law: state's high court says judges shouldn't rubber-stamp famous trial-lawyer-generated map as proof of notice of sidewalk trip hazards [Sewell Chan, NYT; background]
- Corp-governance scoldery that flourished after Enron collapse seems to have helped very little in crash, SEIU/Calpers not exactly role models these days [Weisenthal, Ribstein]
- Despite reputed collegiality of English bar, awards-ceremony tiff indicates personal injury lawyers split "along tribal lines" [Telegraph; hard feelings from asbestos-suit clashes]
- Charged by some fellow academics as stooge of ruling-class exploiters, Rick Hills declines invitation to self-criticism session [Prawfsblawg, guest appearance by Brian Leiter]
- Thoughts about the ethics of nonrefundable attorneys' fee retainers [Greenfield]
- Peter Schuck's "legislative checklist" is terrific idea for reducing needless litigation -- but of course it assumes that lawmakers want to make laws clear [WSJ law blog]
- Are New Hampshire's med-mal screening panels working? [TortsProf; earlier here and here]
- "NERA Releases Year-End Securities Litigation Report", on pace to reach ten-year high [D&O Diary]
- Nothing much came of dire predictions after California extension of common carrier liability to roller coasters [TortsProf]
- Altria anti-preemption result: what does it bode for Wyeth v. Levine? [Beck & Herrmann, Hills/Prawfsblawg]
- Ongoing Federal Judicial Center study of CAFA (Class Action Fairness Act) [Consumer Law & Policy, Thomas Willging and again]
Courthouse News: "A divided 9th Circuit ruled that U.S. courts might not be the right venue for Papua New Guinea residents to litigate their claims that British mining company Rio Tinto incited a savage 10-year civil war. A plurality of judges remanded the case to determine whether 'prudential exhaustion analysis' applies and, if so, whether the plaintiffs must exhaust their remedies in Papua New Guinea before proceeding in U.S. courts." (via Above the Law). Bloomberg also reports, the opinions are here, and Howard Bashman has more about the court's unusually complicated five-way (!) split. Our extensive coverage of Alien Tort Statute litigation can be found here.
The newest installment of the Manhattan Institute's popular Trial Lawyers Inc. series is on the Pelican State, lately rated second-worst of the fifty for business defendants in a survey of corporate lawyers. There are profiles of leading tort lawyer Russ Herman and former attorney general Charles Foti, mild praise for the state high court's refusal to destroy insurance law in the aftermath of Katrina, and mentions of the toxic tort litigations for which the state is particularly known, such as those over asbestos and mold. Something I didn't know: "In Louisiana's pension funds, Trial Lawyers, Inc. found its most accommodating and enthusiastic plaintiffs; indeed, three Louisiana pension funds are among the five most active lead plaintiffs nationally." (& Legal NewsLine).
P.S. While on the subject of Louisiana, AP reports that a judge has dismissed former AG Foti's post-Katrina antitrust suit against hurricane insurers.
President-elect Obama has named one of his top economic advisers, Georgetown lawprof Daniel Tarullo, to fill a seat on the Federal Reserve Board. A law professor would ordinarily be an unusual pick for the central bank, but some guess that Tarullo's role will be to push for more stringent financial regulation, a topic closer to his academic interests. National Journal's James Barnes has described him as the Obama campaign's "go-to guy on currency, foreign investment, and trade".
Legal-academia-watchers may also remember Prof. Tarullo's name because of his role in the now-decayed Critical Legal Studies movement, which for a few years was the hottest new thing in the nation's law schools, with its penchant for high theory, "trashing" and deconstruction of prescribed norms and concepts, and contempt for liberal legalism. As this series of Harvard Crimson articles recalls, Tarullo was one of three CLS adherents whose denial of tenure at Harvard in the 1980s became a cause celebre badly dividing the institution. (The others were Clare Dalton and David Trubek.) Twenty years is a long time, of course, and we shouldn't assume that Tarullo's views haven't evolved since then. Perhaps the moral is that being denied tenure at Harvard Law is by no means the end of the world.
- "If recent jury verdicts are any indication, it is good to be a plaintiffs employment discrimination lawyer these days" [ABA Journal]
- Marquette lawprof Rick Esenberg on labor costs and the Big Three automakers [Shark and Shepherd first, second, intermission posts, more to come]
- Judge Chin to Dewey & LeBoeuf: could you explain exactly who all these lawyers are you want to bill out at $605/hr.? (And what's with the extra $5?) [Greenfield]
- The field of cardiology discriminates against women? Really? [Dr. Wes]
- Washington Supreme Court rules manufacturers of otherwise nonhazardous component products have no duty to warn about asbestos used in conjunction with their wares [TortsProf]
- Does "logrolling" count as an environmentalist activity? Sierra Club and Natural Resources Defense Council endorse AFL-CIO's EFCA/card check push [ShopFloor]
I've got a new piece just up at City Journal on last week's occupation of the Republic Windows and Doors factory in Chicago, led by a union on the left fringe of the American labor movement. The action ended after six days with the capitulation of Bank of America and Chase under intense political pressure. Earlier coverage here. A few points:
- You'd have had trouble guessing from a lot of the coverage, but it's far from clear that the window factory owners owed any severance at all under the terms of the federal WARN (plant-closings) act. And it's abundantly clear that the actual targets of the protest, the two banks, owed nothing.
- The whole point of this sort of illegal action is to resolve by force a dispute that would otherwise be consigned to the ordinary processes of law -- put differently, to make sure the action's targets never get their right to a day in court to put forth their (quite possibly meritorious) defense. When Chicago and Illinois officials jumped in to arm-twist the targets into settling, they endorsed this way of resolving disputes. That may come as little surprise given the reputation of Chicago governance. But why should anyone feel secure in locating a politically sensitive business in that city (or state) from now on?
- Among those who either cheered the illegality or viewed it with complacency are not only high public officials but law professors, commentators and leaders of the legal profession. Indeed, President-elect (and former law professor) Barack Obama vocally backed the union's cause at a press conference while pointedly saying not a word about its unlawfulness of its actions. Should we ever again take seriously the rumblings of any of these parties about the all-importance of the rule of law?
- Some in the media, like Boston Globe columnist James Carroll, applauded the illegal action and left-leaning Washington Post columnist Harold Meyerson called for more of the same: "Barack Obama means to build a more equitable nation, but it would help him in that task if more workers sat down". Does Obama agree?
According to Bronx judge Paul Victor, as summarized by Eric Turkewitz, the vagueness and litigability of key terms in the state's auto no-fault law have rendered it ineffective in reducing litigation and screening out minor or frivolous claims as intended. Disagreements and inconsistencies at the appellate level are rife, the judge says, with the result that appeals by both sides are common. Commenter Adam Gee from the Ziff Law Firm writes, "Until there are bright line rules in place where all sides, defense plaintiff and judiciary, can look at a case and easily determine whether a case meets the serious injury threshold, the courts will continue to be clogged with motion after motion."
"Only two publicly traded companies are incorporated in North Dakota. But last year lawmakers there -- prodded by out-of-state activists including Carl Icahn -- enacted the nation's most shareholder-friendly corporate-governance law," reports the WSJ. The idea is that shareholders can then pressure companies to reincorporate in North Dakota as a way of certifying that they intend to give shareholders wider (or at least different) rights than they would possess in a state like Delaware. Larry Ribstein, although supportive of a competitive market between states in corporate governance, doesn't think this particular experiment is likely to bear much fruit.
The American Tort Reform Association is out with its annual ranking of the jurisdictions where it thinks civil defendants are farthest from being assured a fair trial, and they are:
- West Virginia
- South Florida
- Cook County, Ill.
- Atlantic County, NJ
- Montgomery and Macon Counties, Ala.
- Los Angeles County, CA
- Clark County (Las Vegas), Nev.
The list reflects the views of big-company managers and lawyers as to tort lawsuits; a poll of, say, doctors might result in different nominations (Brooklyn, Bronx, Long Island, Philadelphia) and one of class-action or patent-infringement defendants would likely produce yet other lists.
ATRA has a supplementary "Watch List", nicknamed by some of us "Heckholes", of toasty but not quite infernal jurisdictions, on which it places the Rio Grande Valley and Gulf Coast of Texas, Madison County, Ill., Baltimore, Md., and St. Louis city and county and Jackson county, Mo. It also offers side essays on notable scandals among high-rolling lawyers, trial lawyer-AG alliances, and pro-plaintiff's-bar lobbying efforts.
As AmLaw Daily confirms, the bulk of litigation will be directed not against Madoff himself or any others inside the scheme, from whom collection prospects are apt to be unpromising, but against solvent third-party managers, auditors and others who allegedly should have done more to uncover his fraud.
WSJ columnist Bill McGurn had better duck and run, after saying such disrespectful things about the pro bono cause to rule all causes in prestige legal practice these past few years, the defense of Guantanamo detainees:
Now, nothing against those who simply want to ensure those at Gitmo have access to a good lawyer. And if Seton Hall Law School wants to hold teach-ins featuring the poetry of these men -- one of whom murdered more than a dozen people in a suicide bombing in Mosul after his release -- well, that's the school's business. But with all these top-flight lawyers providing separate defenses for each detainee or detainee group, the good men and women at the Department of Justice might stand a little outside help. ... And it might even protect Barack Obama from the last thing he will want to do as president: setting jihadi terrorists free on American soil.
What? Pro bono work done on behalf of the government/prosecution side? Isn't that, like, illegal?
Kevin LaCroix is not a fan of the National Community Reinvestment Coalition's lawsuit against Fitch's and Moody's, alleging that they improperly overrated the creditworthiness of inner-city properties:
The NCRC complaint belongs in a category with the nuisance lawsuit the City of Cleveland filed against the major investment banks (about which refer here). Both actions involve novel legal theories, and both attempt to scapegoat downstream deep pockets for the consequences of upstream transactions. Both depend entirely on simplistic causation analyses that disregard the multitude of causes that contributed to the subprime mess.
These blame casting exercises may gratify claimants or even provide catharsis, but these exercises in creative lawyering (and I do not mean that as a compliment) will do little, other than contributing friction costs, to affect the current deplorable conditions in the housing market. To be sure, there are no easy solutions in these circumstances, but simplistic litigation definitely does not help.
- "Deeply troublesome" decree by New York regulator: directors' and officers' insurers can't disclaim duty to defend, no matter how explicitly [LaCroix]
- Supreme Court grants certiorari on question of whether bankruptcy court can stop asbestos injury suits [Burch, Mass Tort Lit]
- A passing moment of anger after a day that didn't go right, post-EFCA -- and then the union's got your card to hold on to [Laboring at the Institute via Fox, Jottings]
- One source of demand for financial regulation: "Many in the securities business want investors who feel safer than they are." [Carney]
- Britain's experiment with consumer class actions isn't getting much refund money into consumer hands, but it's not as if our system excels at that either [Karlsgodt]
- First step for lawyer to take in defending any lawsuit: the "Stupid Call". [CalBizLit]
The U.S. Supreme Court today ruled in Altria Group v. Good that a group of Maine smokers who puffed "light" cigarettes can sue Philip Morris under the state's law governing deceptive advertising. The court's 5-4 opinion is available here.
The general take so far is that the ruling is a bit of a surprise, and some theorize that it could represent the court distancing itself from federal pre-emption in other cases such as Wyeth v. Levine, regarding FDA labeling of pharmaceuticals. At least that's the contention in the WSJ Washington Wire account, "High Court to Smokers: Preemption, Shmeemption; Bring Your State Suits."
Altria issued a statement calling the "light" cases still manageable:
"While we had hoped for a dismissal based upon federal preemption, it is important to note that the Supreme Court made no finding of liability. We continue to view these cases as manageable, and the company will assert many of the strong defenses used successfully in the past to defend against this very type of case," said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA.
The Court said that the plaintiffs "still must prove that [the companies'] use of 'lights' and 'lowered tar' descriptors in fact violated the state deceptive practices statute."
- MarketWatch: Supreme Court: 'Light' smokes case can proceed
- Associated Press: "Court allows lawsuits over 'light' cigarettes
- New York Times: "Supreme Court Allows Lawsuits Over 'Light' Cigarettes"
- Washington Post: "Court Rules in Favor of Smokers Who Seek to Sue Big Tobacco"
The New York Times deserves kudos for its continuing investigation into the widening scandal, which broke with revelations that between 93 percent and 97 percent of Long Island Rail Road employees are deemed "disabled" on their retirement. Today's front-pager by Walt Bogdanich and Nicholas Phillips makes clear that the scandal has national and not just local ramifications, with the federal Railroad Retirement Board looking at best ineffective at preventing systematic abuses, and at worst cowed by unions and union-organized protesters into conniving at such abuse.
- $380 million Marc Dreier scandal shaping up as biggest-ever scam by a single lawyer, unless you count scams conducted in full public view through litigation [Overlawyered]
- Day without a doctor? Illinois legislature said to be playing Jan. 1 chicken game on medical licenses [White Coat Rants]
- More on medicine in Illinois: Blagojevich's shakedown of children's hospital was by no means the first time state pols have milked hospitals for cash, "certificate of need" (permission-to-build) laws are often a culprit [StateHouseCall, Dr. Wes]
- Pressure mounts on Pennsylvania's Specter as EFCA showdown nears [Tribune-Review]
- Class action over Zonolite attic insulation, which contained naturally occurring asbestos, settles with W.R. Grace agreeing to pay "up to" $140 million [AP/Law.com]
- Philadelphia judge approves Bailey Perrin Bailey's contingency-fee representation of state of Pennsylvania in drug recoupment suit [Legal NewsLine via a redesigned Law and More]
Trial consultant R. Robert Samples asks why some states and portions of states become notorious for their hostility to out-of-state business defendants; he's inclined to ascribe more importance to slants in the judiciary and political systems than to the demographics of local jury pools. He also cites as an important factor "absentee business ownership". That makes intuitive sense at some level, and yet does not fit all the instances: Los Angeles County, Calif. and Cook County, Ill. regularly make it onto hellhole lists even though both host many corporate headquarters as well as a large base of locally owned small businesses.
Lyle Roberts of 10b-5 Daily (Dec. 12) passes along reports that the plaintiff's securities bar may be helping to draft legislation for the new Congress to overturn two key Supreme Court decisions of recent years, Central Bank and Stoneridge, which respectively limited "aiding and abetting" and "secondary actor" liability.
From the State Journal-Register, Springfield, Ill., "Local contributors denounce Blagojevich":
The president of the Illinois Trial Lawyers Association, a major campaign contributor to Gov. Rod Blagojevich, is calling for the scandal-plagued governor to step down.
Philip "Flip" Corboy Jr., of the Chicago law firm of Corboy & Demetrio, called it a "sad situation."
"I, like every other person in this state, feel cheated and let down," Corboy told The State Journal-Register. "He was elected to do a job and we're ... now learning he probably couldn't care less about the people. And that's always disappointing.
"I'm embarrassed on one hand and disappointed on the other. When it all gets mushed up together, I really feel sorry for the people of Illinois. We know we deserve better."
From the Illinois State Board of Elections, contributions from the Illinois Trial Lawyers Association to the campaign committee, "Friends of Blagojevich":
Illinois Trial Lawyers Assn 6/27/2008 $15,000
Illinois Trial Lawyers 10/15/2007 $20,000
Illinois Trial Lawyers 10/24/2006 $25,000
Illinois Trial Lawyers PAC 6/9/2004 $50,000
Illinois Trial Lawyers PAC 3/30/2004 $2,500
Illinois Trial Lawyers Assn PAC 8/19/2003 $3,360
Illinois Trial Lawyers Assn PAC 7/21/2003 $25,000
Illinois Trial Lawyers Assn PAC 10/15/2002 $25,000
Illinois Trial Lawyers Assn PAC 10/4/2002 $25,000
Illinois Trial Lawyers Assn PAC 8/14/2002 $167
Illinois Trial Lawyers Assn PAC 8/14/2002 $3,233
Illinois Trial Lawyers Assn PAC 6/17/2002 $25,000
Illinois Trial Lawyers Assn PAC 5/1/2002 $25,000
The list of the reported ITLA contributions since 1999 has been uploaded here in a spreadsheet format. Reported contributions to state candidates during that period total $2,447,972.
Lawrence Velvel of the maverick Massachusetts School of Law at Andover is among the victims of what may prove the biggest Wall Street fraud ever. Velvel has been associated with some causes we find congenial, such as reducing overhead costs and policing plagiarism in law education, and others we find much less so, such as that recent "law school conference contemplating the filing of war crime charges against leading members of the current administration, with an eye toward their eventual execution by hanging".
Reports the Times. "Nearly 10,000 firefighters, police officers, construction workers and others have sued the city and its contractors, saying they suffered respiratory and other illnesses because they were not given breathing masks during the nine-month rescue and recovery operation after the 2001 terrorist attack on the World Trade Center. The defendants face a liability that could reach $1 billion or more if they are found to have been negligent."
The Manhattan Institute, which sponsors this website, is now on Twitter , as is its superlative policy magazine, City Journal. Follow both today! Just as a reminder, you can also follow me here (mix of legal, business, journalistic and other content), follow a feed of posts from my other weblog Overlawyered here, and -- last but not least -- follow a feed of Point of Law posts here.
A Texas intermediate appeals court has vacated its May 14 decision, which had dismissed a $7.75 million judgment against Merck & Co. Inc. in favor of Felicia Garza. Ms. Garza had alleged that her 71-year-old husband had sufferred a fatal heart attack in 2001 because he took Vioxx. Ted Frank had commented on the May JNOV on this forum.
The 4th Court of Appeals has remanded for a new trial on two grounds. First, it found juror misconduct because one juror had received a loan from Ms. Garza, and had not disclosed it. That juror had voted with the 10-2 majority in rendering a verdict against Merck -- so it's hard to see how this error harmed the losing plaintiff. More damaging to defendant, however, is a second ground for the new trial -- the Court of Appeals found that its prior holding that Leonel Garza's pre-existing heart problems could not be ruled out as the cause of his death was of no legal consequence. Writing for a three-judge panel, Justice Sandee Bryan Marion concluded that "after reviewing the evidence and considering the appropriate standard of review for a legal sufficiency challenge, we conclude the plaintiffs carried their burden of presenting legally sufficient evidence to support a finding of specific causation." The panel also held that the Garzas' evidence was legally sufficient to support their claim that Merck failed to provide sufficient warning to doctors that Vioxx increased the risk of heart attacks and strokes. The court reiterated its May ruling in Merck's favor on design defect grounds. Given the findings on causation and on failure to warn, it's hard to see how the new trial could be about anything but damages (corrupted because of the juror misconduct). Merck will obviously appeal this to the Texas Supremes.
The Texas Lawyer account of the reversal can be found here.
A good conservative cause? Or a problematic way of injecting passion and prejudice into white-collar (and other) criminal prosecutions?
With the Obama Senate seat vacant and the governorship of Illinois quite possibly soon to become vacant given the arrest and disgrace of incumbent Rod Blagojevich, Illinois Attorney General Lisa Madigan's name now regularly comes up as a prospect for higher office. Madigan has, as expected, been active in office in going after business defendants, and her much-publicized lawsuit against Countrywide this summer over its mortgage lending practices drew criticism from the late Tanta of Calculated Risk (see also Felix Salmon). On the other hand, she got some surprisingly favorable publicity in October from the Madison County Record:
Fears that Madigan would be a trial-happy opponent of tort reform groups have so far proven unfounded, said Ed Murnane, president of the Illinois Civil Justice League.
"She's been a pleasant surprise to those of us who were concerned that she would be very closely aligned and sympathetic to plaintiffs' lawyers," said Murnane, who serves on the board of directors of the American Tort Reform Association.
One other favorable data point here (stayed out of dubious lead paint nuisance amicus joined by 16 AGs).
- Republic Windows sit-down factory occupation in Chicago stirring wide interest, stoked by high-level politicos (because they're hoping to touch off more such?) [McCormick, Workplace Law Blog]; union claims federal WARN plant-closing act requires severance, but per Jon Hyman's best guess, credit-driven closure of factory probably fell into act's "unforeseeable circumstance" exception [Ohio Employer's Law]; factory got subsidies from city of Chicago [Lehrer, OpenMarket]; earlier; $400,000 being extracted from JPMorgan Chase though it is only a 40% minority owner of the firm [Sun-Times]
- Advanced forum-shopping: Mississippi public employee pension fund selects California as venue to sue NY's Morgan Stanley and other financial defendants [D&O Diary]
- Promising new searchable database of patent litigation is among first fruits of $10 million Kauffman Foundation initiative to reinvigorate law-and-economics school [Stanford IP Litigation Clearinghouse, The Recorder, AmLaw Litigation Daily, scroll; Parloff, Fortune "Legal Pad"]
- ProPublica's song and dance about supposed Goldman Sachs municipal conflicts is just as lame when they try to repeat their California formula in New Jersey [Salmon; earlier]
- New Marie Gryphon loser-pays paper called "terrific" [Moller, Cato-at-Liberty]
- Okay, not a shockeroo exactly: "Political Leanings of Supreme Court Clerks Help Sway Votes" [Legal Blog Watch]
- How can company keep from being a mass tort defendant? Avoid walking under falling safes [Beck & Herrmann]
Two separate scandals are in the news about the Gotham institution long troubled by reports of favoritism and insidership. The New York Times reports on the indictment of Manhattan Surrogate's Court judge-elect Nora S. Anderson on charges that she had contrived with Seth Rubenstein, a lawyer who was her "boss, friend and campaign adviser", to funnel $250,000 of his money covertly to her campaign fund in violation of law. More at WSJ law blog. And the New York Daily News (via Judicial Reports and Scott Greenfield, both of whom comment) thinks New York AG Andrew Cuomo should go after attorney Louis Rosenthal over fees directed his way by now-disbarred Brooklyn Surrogate's Court Judge Michael Feinberg, in a scandal that came to light six years ago.
P.S. Unrelatedly, a former state judge upstate has just been indicted on bribery charges.
There's a new version of the federal financial rescue legislation for the auto industry just released. It appears to have dropped the provision to block recipients of the aid from suing the states attempting to impose their own emission standards more restrictive than the federal standards. (See earlier post.)
UPDATE (2:10 p.m.): In a White House briefing this morning, Deputy Chief of Staff Joel Kaplan said he expected the controversial provision to go away. Relevant comments below.
Claims of improved measurement of the human contribution to changes in the earth's climate -- don't call it guesswork! -- of a sort that lawyers could assert in court, seem to have at least one Oxford scientist, as well as the Guardian, fairly pacing the floor with excitement. More here, here, here, etc.
Notes the Chamber-backed W.V. Record: "About half of the personal injury lawyers who contributed to Attorney General Darrell McGraw's 2008 re-election campaign with large contributions have worked as special assistant AGs for his office. Those appointments mean the attorneys could reap millions of dollars in legal fees at public expense, and the executive director of a statewide legal reform group is crying out for reform."
Mark Moller of DePaul has published a commentary at the Cato Institute's Cato-at-Liberty blog, based on an SSRN paper discussed by among others Larry Solum, arguing that key elements of the Class Action Fairness Act run afoul of an originalist understanding of the Constitution's Case or Controversy clause. The Constitution gives federal courts jurisdiction over "controversies between citizens of different states", and the multistate class actions that are CAFA's target might seem to fall squarely within that class. However, Moller accepts as persuasive the argument of Public Citizen's Brian Wolfman that until a state court actually certifies a class of plaintiffs in such a case, the lawsuit has not yet risen to the status of a "controversy" for purposes of federal jurisdiction. Even on this theory, CAFA could be rewritten to accomplish some of its goals in a more cumbersome and less reliable way -- letting the state court decide whether to certify the hoped-for class action, for example, and then taking away jurisdiction once it had done so and a controversy was undeniably at hand.
It should be noted that this interesting theory does not amount to saying that states have some sort of constitutional right to go on resolving multi-state class actions, or that CAFA somehow defies federalism, proves the hypocrisy of its conservative supporters, etc., etc. (although we fully expect to hear some critics say all those things). State-court handling of 50-state class actions poses the more pressing threat to federalist values, because it empowers the plaintiff-selected state to impose its own favored litigation outcomes without so much as asking leave of the states where the transactions took place. (It does not serve a proper understanding of federalism to invite an Illinois state court to second-guess dealings between a Delaware lender with a Nebraska borrower, and preside over a verdict more punitive than either a Delaware or a Nebraska court would have reached. But if forum-shopping plaintiffs can head for Illinois courts, that is what will happen.) Hinging as it does on interpretation of the Case or Controversy Clause, Moller's argument is best suited for evaluation by those steeped in the history and workings of that interesting (and, for most non-lawyers, fairly recondite) Constitutional provision.
Lest it get lost in the other news: "Blagojevich, a Democrat, yesterday said the biggest U.S. retail bank won't get any more state business unless it restores credit to Republic Windows & Doors, whose workers are staging a sit-in." (David Mildenberg and Brian Louis, "Illinois Threat to Bank of America Is Dangerous, Critics Say", Bloomberg, Dec. 9). More on the sit-in and its highly placed political friends from Ron Coleman. The United Electrical, Radio and Machine Workers Union, which organized the action, is a leftist union outside the AFL-CIO which represents the shrunken remains of what was at the time the biggest of a number of unions to be kicked out of the then-Congress of Industrial Organizations for leftist extremism; the AFL-CIO assisted in the rise of the politically more mainstream IUE as a replacement. An account of the schism written from the UE's perspective is at Wikipedia, and the union is often romanticized by academics who regret the labor movement's 1940s and 1950s campaign to purge its ultra-Left elements.
From page 16 the draft legislation presented by Congressional Democratic leadership to the White House, the ''Auto Industry Financing and Restructuring Act":
(g) WITHDRAWAL FROM CERTAIN ACTIONS.--The terms of any financial assistance under this Act shall prohibit the eligible automobile manufacturer from participating in, pursuing, funding, or supporting in any way, any legal challenge (existing or contemplated) to State laws concerning greenhouse gas emission standards.
Senator Republican Leader Mitch McConnell (R-KY) addressed that provision in floor remarks this morning:
This proposal does not go nearly far enough. It holds neither management nor labor truly accountable. And in areas where one side is held accountable, the other side isn't. One example is a provision that requires automakers to drop all legal challenges to state fuel economy standards that are inconsistent with the federal standard.
Where is the offer from our friends on the other side to call on environmental groups to drop their lawsuits? Democrats say they want to solve this problem as much as we do. Yet they seem all too eager to tip the scales to the detriment of the manufacturers.
By banning litigation on a key issue, the legislation would help ensure a patchwork of different emissions standards in different states, a regulatory regime the industry could not afford to meet.
UPDATE (11:30 a.m. Wednesday): Eugene Volokh finds good arguments and case law suggesting that the no-litigation clause may violate the First Amendment rights of those receiving the federal aid. But it's certainly not cut and dried.
Finally catching up to the latest issue of "Trial," the American Association for Justice's monthly magazine, I see that AAJ has formed three new litigation groups -- panels meant to educate, inform and polish their members' ability to sue, sue, sue. These litigation groups are most often associated with a product or practice that you can sue over, e.g., electric blankets, lead paint, toxic mold or funeral services. But one detects a different emphasis in the three new groups: jury bias, appellate practice, and class actions. The one for jury bias stands out:
Jury bias: Too often, plaintiffs lose cases they should win because of jury bias, not because of the strength of the evidence. This new litigation group, cochaired by the creators of the Jury Bias Model, will educate members about how jury bias in tort cases affects jury verdict preferences.
The group will highlight cutting-edge research so attorneys can minimize the effects of jury bias and tort "reform" rhetoric at trial, and it will provide members with information and advice about focus groups, mock juries, and jury consultants. The group will also establish a document library, a list server, and education programs to be presented at upcoming AAJ conventions.
Cochairs are David Wenner of Phoenix; Gregory Cusimano of Gadsden, Alabama; and Jerome O'Neill of Burlington, Vermont.
Pushing back against tort reform rhetoric, eh? Perhaps the trial lawyers recognize they're on the defensive, and that the civil justice reform advocates have been succeeding with their well-founded arguments.
Or maybe Wenner and Cusimano just did a real good sales job promoting their Jury Bias Model .
You can read the AAJ article on the litigation groups here.
The Civil Justice Association of California, the Golden State legal reform group, has added a blog to its website. Among topics of early posts: a new attempt by trial lawyers to overturn MICRA, the state's well-known law limiting medical liability; reading the intent of Prop 64, the voter-enacted measure that did much to rein in clientless litigation under the state's unfair competition statute; and a possible legislative move on electronic discovery.
The U.S. Chamber of Commerce has added new videos to its advocacy website, on cases that include a Maryland business sued when a wild goose nesting outside the store allegedly startled a passerby, causing her to fall; a North Carolina youth baseball coach sued by parents after a player was injured diving for a ball; and an 11-year-old New Jersey girl who was sued by an adult bicyclist who collided with her while she was rollerblading.
A paper by John T. Chester of Porzio, Bromberg & Newman: "In June 2008, the New Jersey Supreme Court in Sinclair v. Merck & Co., Inc., 195 N.J. 51 (2008), rejected an ambitious attempt to force pharmaceutical manufacturer Merck to fund a massive, nationwide medical-monitoring program for some 20 million former Vioxx users. Why were the plaintiffs rebuffed? Because they did not allege that they had sustained any physical injury as a result of their Vioxx use and, as such, failed to plead a prima facie tort claim under New Jersey law. Any other outcome would have had the effect of vastly expanding tort liability under New Jersey law, and would have invited a deluge of no-injury medical-monitoring claims with potentially dire consequences."
At its own Volokh thread. As commenter Cornellian points out, most of the objections and fears raised in the thread have long since been addressed in the loser-pays literature and in the practice of Canada (and innumerable other countries).
P.S. And here's a new op-ed by Marie Gryphon on the subject from the L.A. and S.F. Daily Journals.
- California plaintiff's lawyer Seth Davidson has been blogging Japanese asbestos conference, with presentations on law of asbestos compensation in Italy, France, Japan and Korea; also views of Mt. Sinai's Stephen Levin [Asbestos Law Journal; corrected misrendering of blogger's name]
- "Bring your own booze" policy no defense to liability for drinking establishment after customer leaves drunk and crashes, says Illinois appellate court [newish torts blog by John Marshall lawprof Alberto Bernabe]
- Wouldn't have guessed Oregon-based Jack Bogdanski, one of the better known lawprof-bloggers, would be dabbling in Trig Palin trutherism [Michelle Malkin]
- Much chatter from labor unions about "shareholder democracy", but their actual practice seems about as tactical and inconsistent as on the use of secret ballots in representation [Ribstein]
- Feel the love! Very grown-up and sophisticated response to release of Marie Gryphon's careful and wide-ranging new study of loser-pays [Day on Torts]
- John Beisner weighs in on American Law Institute's draft Principles of Aggregate Litigation, inside baseball but important stuff [Beck & Herrmann]
Now that you're back, be aware that the contest has other categories where you can vote for some of our friends and acquaintances (or for other blogs if you like them even better). In "News", Volokh Conspiracy is currently in a tight three-way race for the lead with Above the Law and the (mostly criminal-law-oriented) TalkLeft. At least half the other names in "News" will be familiar to our readers, including Howard Bashman, Glenn Reynolds of Instapundit, and Jane Genova of Law and More. NY-based bloggers Scott Greenfield (Simple Justice) and Eric Turkewitz (New York Personal Injury Blog) appear in "Crime" and "Regional" respectively; both hold high positions on our reading list even though -- or is it especially because? -- their well-crafted views often contrast with our own. Finally, "Professors" is headlined by Point of Law contributor and stellar expositor of corporate law Prof. Bainbridge, though other nominees on the list stand out as well, such as the Becker-Posner Blog and Paul Caron's broader-than-its-name-implies TaxProf.
Jon Hyman notices that the union-backed campaign is doing TV ad buys for the dreadful measure:
Does anyone doubt for a second that huge labor costs built into collective bargaining agreements are a big part of the Big 3's big problems? ... I've also yet to hear one EFCA supporter in Congress explain why it's okay to oppose NAFTA provisions that did not mandate secret ballot union election in Mexico, but it's not okay to have the same protections for our own workers.
There's surprisingly little good discussion online about this noteworthy if narrow piece of federal liability-reform legislation, as I found when trying to research it a while back. Now Beck and Herrmann help fill the gap. An excerpt:
In 1998, Congress was concerned that suppliers of raw materials were being unfairly targeted in litigation. DuPont, for example, supplied less than $100 worth of a resin, Teflon, to a jaw implant manufacturer, and ended up being named in 651 lawsuits against the implant manufacturer and paying millions to defend itself. Although the law in most jurisdictions recognizes a "raw material supplier" or "bulk supplier" defense, the supplier must nonetheless endure expensive discovery before being able to extricate itself from the litigation. Suppliers of surgical stainless steel, resins, and nickel and titanium memory metals withdrew from the medical device supply market because of the threat of litigation.
Congress responded. The BAAA creates immunity for companies that provide biomaterials that are used to manufacture implantable medical devices. The manufacturer of the device itself may be liable, of course, but the company that provided raw materials or component parts generally is not.
Although the litigation lobby bitterly assailed the legislation, it seems to have worked as intended and the crisis in biomaterials availability subsided.
Paul Howard and Marie Gryphon of the Manhattan Institute have an op-ed in The Examiner on the Wyeth v. Levine preemption issue.
As David Owsiany notes in a short paper (PDF) for the Buckeye Institute, Ohio has gone a fair distance already toward asbestos reform by way of legislation restricting recovery to claimants with actual medical indications of disease. Now, amid an outcry over organized misdiagnosis and double-claiming, some advocates are hoping to take a further step: "Sen. Bill Seitz (R-Cincinnati) introduced legislation in the Ohio Senate that mandates any plaintiff bringing an asbestos tort action must disclose any previous claims he or she has filed with asbestos trusts."
- Good response to clueless Marie Cocco column that celebrated tenth anniversary of corrupt, undemocratic multi-state tobacco settlement [Sullum, Reason "Hit and Run"]
- New details on Philadelphia prosecution of ring that allegedly helped itself to class action proceeds by filing bogus claims [WSJ law blog, earlier]
- More thoughts regarding that offensively titled "Patriot Employers Act" being pushed by union advocates in Congress [Coyote, earlier]
- Proposal for tougher curbs on residents' work hours: will training suffer? [MedRants]
- Remember the Nader-originated PIRG (Public Interest Research Group) groups? In Canada, University of Ottawa's OPIRG faces furor over its snubbing of Hillel group citing "relationship to apartheid Israel" [National Post]
- Housing finance bubble the outcome of laissez-faire? What laissez-faire would that be? [Lawrence White, Cato Unbound via Bainbridge]
- Motion to recuse Illinois Supreme Court justices who took Corboy & Demetrio money -- but that'd require recusing four of the seven [ABA Journal; more on Caperton v. Massey, headed for high court]
Initially, we'd invite anybody who doesn't think that plaintiffs in product liability litigation aren't asking state courts to ignore FDA decisions to read the statements of fact in either of these briefs. The causation claims plaintiffs advance in these cases have been rejected by the FDA time and time again.
Ditto for the concept of "overwarning." The proposition that too many warnings can have detrimental health effects by deterring the use of beneficial drugs isn't something made up by the Bush administration. The SSRI record detailed in these briefs indicates FDA concern about overwarning back in 1991. Moreover, as we've already noted, there's solid epidemiological evidence (only the largest increase in history in pediatric suicide rates coming hard on the heels of the addition of a pediatric suicide warning) indicating that the FDA's concern about overwarning is 100% legitimate - certainly where SSRIs are concerned.
My post yesterday on a San Francisco jury's vindication of the oil company's conduct drew notice at LexMonitor and ShopFloor (with a second post linking to NAM's briefs in Alien Tort cases). And at National Review Online, Andrew McCarthy covers the verdict and the wider campaign of which the lawsuit was a part.
One reader familiar with the case also raised a sidelight relating to the Electronic Frontier Foundation, whose support for the plaintiffs, as I noted in the earlier post, might seem at best far afield from its reputed "freedom for the internet" mission. The reader calls our attention to an unusual controversy that arose during the trial in which the plaintiffs demanded -- and Judge Susan Illston agreed -- that Chevron be barred from taking out paid Google ads directing readers to its side of the story on the Bowoto suit. Wasn't it ironic, this reader asks, that EFF as part of the plaintiff team would happily go along in saddling its opponent with an internet gag order?
More: Anthony Sebok at FindLaw offers (as is customary) a differing perspective.
Discussion of medical malpractice law in the blog world is likely to heat up soon, what with University of Texas law professor David Hyman having joined the Volokh Conspiracy as a permanent contributor. One of the areas in which Prof. Hyman specializes is the study of medical malpractice litigation, and his interpretations of that area of litigation tend to differ widely from my own. (For example, I'd say he tends to think the legal system does a much better and more rational job of handling medical liability suits than I think it does.) His first post in a planned series on this subject is here, and lays out background on the issue of non-economic damage caps.
Prof. Hyman has never been other than friendly and gracious toward me in our interactions, so I look forward to the prospect of learning more about where we may agree or disagree.
Securities Docket: "University of Michigan Law School Professor Adam Pritchard's recent proposal to reform securities class actions via shareholder proposal has moved from a purely academic discussion to the real world. Prof. Pritchard reports today that a shareholder in Alaska Air has submitted a proposal to the company under Rule 14a-8 to amend Alaska Air's certificate of incorporation to provide for 'a partial waiver of the "fraud on the market" presumption of reliance created by the Supreme Court in Basic v. Levinson.'" Earlier here and here.
The Manhattan Institute Center for Legal Policy today released a report by senior fellow Marie Gryphon, Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve the American Legal System. The report concludes:
The United States pays a high price for a system of justice that uniquely encourages abusive litigation, but it need not continue to do so. Thoughtful reforms in state and federal law can bring our civil justice system into sync with the rest of the world by replacing the American rule for attorneys' fees with a loser-pays system. Loser pays need not close the courthouse door to plaintiffs with modest means but legitimate grievances. England's recent quasi-privatization of civil justice demonstrates that markets for litigation insurance can develop rapidly in response to legal reforms, and that reasonable limits to the parties' exposure to liability for fees, if they are incorporated into an offer-of-judgment mechanism, can promote early settlement.
Not too long ago it was still a relatively novel idea for large law firms to sponsor or otherwise sanction blogging by their member lawyers or allied professionals. Now GeekLawBlog has a running total of 141 such blogs from 56 of the National Law Journal 250 top law firms, while Kevin O'Keefe has just done a separate compilation of 159 blogs emanating from 71 of the AmLaw 200 top firms.
In a stinging rebuke to a small army of progressive American academics, journalists, foundation grantmakers, and others who've promoted the case for years, a San Francisco jury has cleared the Chevron Corporation of all liability in the civil suit filed by Larry Bowoto over violence on a Nigerian oil platform in 1998, which he sought to lay at the giant oil company's door by way of the Alien Tort Statute (AP coverage, Levine/The Recorder, Chevron statement). Bowoto's allegations of Chevron-backed brutality, circulated and amplified by activists based in the U.S. and elsewhere, had received largely uncritical coverage in such outlets as the Los Angeles Times, USA Today, and even BoingBoing (quoting Cindy Cohn of the Electronic Frontier Foundation on the "shooting of unarmed environmental protesters in Nigeria"). American Lawyer entrusted its coverage of the case to left-wing journalist Daphne Eviatar, whose past writings in The Nation and elsewhere left little doubt as to where her sympathies lie.
If you were really diligent about Googling around, you might eventually have happened upon Chevron's side of the story. For example, those who made it to the very end of one lengthy Forbes piece on kidnappings of international workers would have read the following:
Few places are as treacherous as the Niger Delta, where last year 150 oil industry workers were kidnapped for ransom. Employees of Shell, Chevron, Schlumberger and Transocean, the Houston driller, have all dealt with abduction. Willbros Group, which provides engineering and construction to the oil and gas business, abandoned Nigeria after 9 employees, including 3 Americans, were kidnapped by militants who stormed a barge laying down pipe in 2006.
Chevron, which has had 60-plus people kidnapped (10 have been killed), must now deal with a new twist. This month lawyers working for Larry Bowoto will argue in a San Francisco courtroom that Chevron engaged in human rights violations when it hired Nigerian soldiers in 1998 to forcefully remove Bowoto and his unarmed group from a drilling platform. Bowoto, they will claim, was peacefully protesting the loss of fish and clean water in the area. The long-running case has been maddening for Chevron, which claims Bowoto and his gang took workers captive, beat two of them, poured diesel on the platform and threatened to set it ablaze unless Chevron paid a fee. Chevron Chief David O'Reilly referred to Bowoto as a "criminal" at the annual shareholders' meeting in late May, adding, "This is the most outrageous presentation that I have seen in my years at Chevron."
Just another cost of doing business abroad.
And maybe it is. But now that Chevron has been vindicated, it might be time for a second look at the way the press tends to accept at face value the lurid denunciations of international business proffered by the complex of legal strike forces, academic and non-profit centers, private law firms and others that wage litigation campaigns under the self-flattering banner of "international human rights". Among the groups that put their credibility at stake in pushing Bowoto v. Chevron is the Center for Constitutional Rights, whose attorney Judith Chomsky (sister-in-law of famed academic Noam Chomsky) has pursued a long series of ATS actions against overseas business. Another is EarthRights International, another specialist in this kind of suit, which is trying to gin up opposition to Attorney General nominee Eric Holder because he has defended Chiquita against such tort actions. And a perhaps more surprising third is the Electronic Frontier Foundation, regularly publicized as a supposed civil-liberties "good guy" on internet, telecom and tech issues, which many in Silicon Valley might be surprised to learn was involved in an issue of this sort at all. The next time CCR, ERI and EFF come around publicizing their version of some overseas controversy, will the press be as credulous?
Britain has been extensively "Americanizing" its litigation system for two decades, introducing conditional fees and other spurs to entrepreneurial lawyering, mass litigation formats, higher damage payouts, wider use of discovery, and so forth. And now:
A senior judge has been appointed to conduct a root and branch review of civil litigation costs prompted by fears that they are spiralling out of control.
Sir Anthony Clarke, the Master of the Rolls, has asked Lord Justice Jackson, a former High Court judge, to lead the review after lawyers and judges raised concerns that the high cost of litigation is damaging the UK's reputation as a leading centre for business disputes.
What a puzzle. Short of abandoning the rule of costs-follow-the-event, we've tried nearly every idea that has blown across the Atlantic from Yankee legal culture. What could have gone wrong?
- Feds indict six on charges of scheme to siphon $40 million from Cendant, Bank of America and NASDAQ class action settlements through filing of false claims [Alibaba, Karlsgodt]
- Sovereign immunity? Never heard of it: Sixth Circuit rules Vatican can be sued directly in church sex abuse cases [WSJ law blog, earlier]
- Mini-history of asbestos litigation controversies quotes MI paper, Brickman, Copland, Epstein [SE Texas Record]
- Columbia's George Fletcher has new book "Tort Liability for Human Rights Abuses", looks like it lauds expansion of such liability [CUP press release, Hart Publishing, Childs, TortsProf]
- "Pre-emptive demolition": how historic preservation laws can backfire [NYT, Adler @ Volokh]
- Continued background buzz over push for "workplace bullying" cause of action at state level [George Lenard, Michael Fox; earlier here, here, etc.]
Center for Legal Policy at the