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July 2009 Archives

A California jury found K-Mart had forced out a 64-year-old manager.

The House of Representatives has just started debating H.R. 3269, the Corporate and Financial Institution Compensation Fairness Act, and a final vote on the bill is expected this afternoon.

The bill sponsored by Rep. Barney Frank (D-MA) requires annual, non-binding shareholder votes on senior executive pay at most publicly held firms, and includes many other regulatory provisions meant to influence compensation throughout the company. The National Association of Manufacturers -- my employers -- sent a letter to the House opposing the bill, and the Heritage Foundation released a memo on the bill's flaws, "House Executive Pay Legislation Puts Pay Czar's Boot in the Door."

Rep. Pete Sessions (R-TX), in debating the rule, noted he has proposed consideration of an amendment to make clear the bill does not create a private right of action: "Without this amendment, trial lawyers will be able to exploit a new opportunity to shake down companies for huge payments by challenging any action for being non-compliant with this non-binding vote."

As the minority comments in the committee report state: "Because this bill explicitly states that no shareholder proxy rights are prejudiced by the non-binding executive compensation vote, it could also spur frivolous litigation if corporate boards reject or refuse to abide by the results of the shareholder vote."

With a push from the White House, expect a big stimulus to litigation in yet another area now that the Senate has agreed to drop its opposition to jury trials for federal government workers who say their adverse job action was in retaliation for blowing the whistle on some topic. Federal managers, reports AP, "worry about a spike in frivolous lawsuits filed by disgruntled or poor performing employees who use the new protections as a way to stave off legitimate disciplinary actions." (It's common for employment lawyers to advise clients to find something to blow the whistle on by way of enhancing their leverage in a dispute.) The whistleblower-advocacy lobby grumbles that the Senate version still excludes sensitive intelligence agencies from jury trials so as not to risk disclosure of national security information; a version in the House would knock down that constraint as well. [Washington Post, AP/Tri-City Herald]

Writing in Forbes, Cardozo lawprof (and friend of this site) Lester Brickman finds it ethically problematic that plaintiff's lawyers in securities class actions routinely farm out discovery review and other high-intensity work to contract lawyers, then mark up the relatively low rates paid to a much higher per-hour figure when presenting the bill for representing the class:

Defendants' law firms used to add a substantial profit margin to these expenses but clients and competition drove out much of that profit. Instead, though there are many variations, when defendants' law firms now submit their bills and expenses to their corporate clients, typically the outside vendors' bills for objectively coding documents are considered an expense and reimbursed at cost.

Not so on the plaintiffs' side, where there is no actual client footing the bill. Here, the law firms collapse the separate processes of objective and subjective coding so that it is all done "by hand" using contract lawyers. Though contract lawyers are paid about $35 to $40 an hour, plaintiffs' firms "bill" this time to the class at $300 an hour or more, sometimes without disclosing that work was not done by the firm's lawyers.

That's before the application of "multipliers" for purportedly outstanding results and other bonanza logic.

Recently, Brickman says, contract lawyers have come forward as whistleblowers to allege not only that the number of hours they worked had been padded in later fee submissions, but that the labor itself had been make-work intended to lay the basis for fee requests rather than to pursue necessary legal objectives. Brickman promises a fuller account in his book in progress on contingency fee law.

As a former Mississippian with several friends and relatives still residing in the state, I have taken a tremendous interest in the scandals that have brought down Dickie Scruggs, Paul Minor, Ed Peters, and several other big names in Mississippi legal circles in recent years. So forgive me if I revisit my earlier post about Judge Bobby DeLaughter's guilty plea with a nod to today's follow-up at Y'all Politics concerning the plea agreement and factual basis in that case.

Under the plea agreement, DeLaughter agreed to plead guilty to "obstructing, influencing and impeding a federal corruption investigation and grand jury proceeding[.]" The United States agreed to dismiss the remaining charges following sentencing, and the parties agreed that DeLaughter's sentence should be 18 months imprisonment.

The Factual Basis is an interesting read. In addition to a clear statement of the facts in support of the obstruction charge, the summary of the testimony to come from Ed Peters (who was paid $1 million by Scruggs to influence DeLaughter) and Timothy Balducci (the go-between in the bribery scandal that brought down Scruggs) suggests DeLaughter had good reason to lie to the FBI about the secret communications flowing back and forth between DeLaughter and Scruggs. According to the government, these communications gave the Scruggs team the opportunity to address DeLaughter's reservations about some issues and, in at least one case, to avoid a critical misstep once they learned that DeLaughter was going to rule in their favor.

Although Scruggs and some Scruggs apologists have, at times, attempted to downplay the various scandals as "mere" Mississippi-style "earwigging" - basically, having someone with influence with a presiding judge use that influence to lobby the judge to rule in your favor - the bribery case that ended Scruggs' career and the DeLaughter case demonstrate that earwigging can be an ethical slippery slope. In the first, Judge Lackey properly understood the wink-and-a-nod attempt to obtain financial influence over him for what it was - a bribe - and quickly led to the downfall of Scruggs and several others. In the latter, the improper contacts were apparently so extreme and prejudicial that DeLaughter would go to great lengths to avoid their disclosure, even committing a federal crime in the process. Even if DeLaughter had reasonable, legal explanations for his actions in the case, the old adage "it's not the crime but the coverup" still seems applicable.

From The Minneapolis/St. Paul Business Journal, "Class action suits filed against NAF":

Three people have filed class action lawsuits against the National Arbitration Forum (NAF), alleging the company hid its ties to credit-card companies and handed down unfair rulings.

The claims in the suits closely follow those made by the Minnesota Attorney General's office earlier this month. That suit, which accused the NAF of masking its relationships with the debt collection industry, was settled last week. As part of the settlement, NAF agreed to exit the consumer arbitration business. It did not admit to any wrongdoing.

The plaintiffs' bar campaigns against arbitration. Minnesota's AG sues an arbitration company. A House committee holds a hearing and releases a damning report. And now a class-action suit. Almost as if there were a plan. Wonder what comes next.

Oh yes, it's Congressional action. From the American Association of Justice, a news release, "Legislation Critical In Settling Arbitration Landscape." The bills to ban pre-dispute consumer arbitration are H.R. 1020 and S. 931.

Earlier posts...

UPDATE (2:45 p.m.): Other developments, as reported in the WSJ Law Blog:

[Former Miami Herald writer Martin] Merzer reported that, only a day after the American Arbitration Association announced that it has suspended all of its consumer arbitration activities, JPMorgan Chase, one of the nation's largest credit-card issuers, announced it, according to creditcards.com, would no longer submit disputes to arbitration and was reevaluating the inclusion of arbitration provisions in its consumer contracts.

Writes Merzer about the AAA-JPMorgan-back-to-back news: "Two more supporting beams have crumbled and now, with astonishing speed, the entire edifice of the mandatory credit card arbitration system is collapsing."

Another eye-opening story from Chris Rizo at the Chamber's Legal NewsLine: the litigation lobby is quietly preparing to push through a $1.6 billion (with a "b") tax break for contingent-fee lawyers that would let them deduct expenses as made, rather than in the year of settling a suit. AAJ lobbyist Linda Lipsen says Sens. Harry Reid and Max Baucus and Reps. Nancy Pelosi and Charles Rangel are among those on board, as well as "some Republicans", but "the problem is there is not a tax vehicle yet," -- "You cannot have a stand alone bill to help lawyers ... so we have to tuck it into something."

More: Carter at ShopFloor has the bill numbers -- S. 437, with GOP co-sponsors Crapo, Martinez, and Graham, and H.R. 2519 -- and also links to a Victor Schwartz/Chris Appel paper (PDF) for the Washington Legal Foundation. And welcome readers from Jonathan Adler's post at Volokh Conspiracy, which has spurred a considerable discussion in comments of what tax treatment for these outlays would in fact accord with the tax principles applied to other economic activity. Says one commenter:

Treating these pseudo-loans as business expenses the moment they're made is effectively an admission that the lawyer doesn't expect to be repaid. If a bank loans you $1 million to buy a house, you don't see them lobbying to make it a tax-deductible business expense, because it's a bona fide loan they expect to get back.

[Addressing another commenter:] ... the fact that the loans are tax-deductible if they are not repaid is not indicative of some special tax treatment that already exists; it simply means that they can be written off like any bad debt. But you don't get to write off bad debt until you actually know it's bad!

Yet more: Tax Lawyer's Blog ("'Tuck it into something' is an Orwellian phrase designed to mislead the public. What it means is that certain congressmen want to pass this law to placate the trial lawyer lobby, but they don't want the electorate to know they're doing it."); Paul Caron, TaxProf (collecting links); San Francisco Examiner "Beltway Confidential"; James Taranto/WSJ "Best of the Web".

From inside the AAJ convention

The Chamber-backed Legal NewsLine seemed to have a fly on the wall during an otherwise-closed-to-media presentation by Litigation Lobby figure Linda Lipsen, who had less-than-glowing words for Senate Democrats Lincoln (Ark.), Baucus (Mont.) and Carper (Del.) as "'business Democrats that aren't necessarily that great for us,' referring to plaintiffs' lawyers." Nor is the Senate Finance Committee as favorable to AAJ's interests as the Senate Judiciary Committee, although, really, what is?

Robert Ambrogi draws up a list.

Returning to litigation last mentioned here in April, the Tennessee Valley Administration is appealing a federal judge's ruling that held its coal-fired power plants in Tennessee and Alabama caused a public nuisance by polluting North Carolina's air. Attorney General Roy Cooper sued the TVA in January 2006 (news release, complaint). In January 2000 U.S. District Judge U.S. District Judge Lacy Thornburg ruled that emissions from the TVA's plants caused "significant hurt, inconvenience [and] damage'' in North Carolina, even though the plants were compliant with the Clean Air Act permits and their home states' emission limits. The court ordered the TVA to upgrade, install or speed installation of environmental technology.

In May, the TVA appealed to Fourth Circuit as related in this news release, "TVA Files to Appeal in North Carolina Lawsuit." Then, earlier this month the AG's office responded in its own filings claiming any delays would harm the state's citizens. (Asheville Citizen-Times, "NC: No delay in TVA's clean-up.")

Amid all this predictable back and forth are other, more provocative stories dug up by The Carolina Journal, a publication of the free-market group, the John Locke Foundation. There's this, "DAQ Scrapped Report After Meeting With AG Lawyers: "RALEIGH -- The N.C. Division of Air Quality scrapped a pollution report days after lawyers working for Attorney General Roy Cooper expressed concerns that its findings might lead to unwanted questions about the state's lawsuit against the Tennessee Valley Authority."

And now....a fun story about AG Cooper's state-hired lawyers and staffers spending gas tax revenue to pay for but not stay in D.C. hotel rooms, "Law Firm Racked Up Hotel, Airline Fees":

Not So Fast, Mrs. Madoff

As reported by Ashby Jones at the WSJ Law Blog, the trustee for the consolidated cases of Bernie Madoff and his investment firm commenced an adversary seeking more than $44 million from Ruth Madoff earlier today. This action does not surprise me as much as it seems to surprise Mr. Jones; to the contrary, it makes a lot of sense.

First, regardless of whatever deal Ruth Madoff has with prosecutors, this action is being brought under entirely different authority (primarily, federal bankruptcy and state fraudulent transfer laws). Her deal with prosecutors recognizes this much and does not purport to interfere with this sort of suit by the trustee.

Second, this is an important aspect of the trustee's duties to the creditors of Mr. Madoff and his firm. By this suit, the trustee should be able to (a) get whatever assets Mrs. Madoff may have at her disposal that should be turned over to the estates and (b) prevent Mrs. Madoff from obtaining any recovery on her proof of claims in those cases unless she turns over the full amount she may owe the bankruptcy estates. This is not only an important technical function of bankruptcy law (marshaling assets for distribution to creditors); in such a high profile case, it serves an equally important role in maintaining public confidence in the bankruptcy system. Indeed, Bernie Madoff's victims and many in the general public are angry enough that she gets to keep $2.5 million; imagine the furor if she could also dilute the victims' recovery as a creditor without being forced to pay back anything she owes the estates first.

Stuart Taylor, Jr. reviews the bidding in the lively debate that has ranged Ramesh Ponnuru, J. Harvie Wilkinson III and Richard Posner (among others) against many other commentators and jurists highly regarded on the Right.

New at Overlawyered

Stories you might have missed if you're not reading my other site:

Reid planning to "railroad" EFCA?

Roll Call reports (via Smith, ShopFloor) that according to senior Democratic aides, the Senate majority leader "is sketching a process for railroading the bill through the floor as quickly as possible to prevent Republicans from rallying a major campaign against it."

Update: Or could it all be a red herring?

Featured discussion continues

Our featured discussion between John Hasnas and Michael Seigel on corporate prosecution is in full swing, and has drawn attention from Jonathan Adler at Volokh Conspiracy and Jesse Walker at Reason "Hit and Run", with reader comments at both sites. Check it out.

The Clarion Ledger reports that former Mississippi state judge Bobby DeLaughter will plead guilty tomorrow to a charge that he lied to the FBI during an investigation into efforts to improperly influence DeLaughter's handling of a fee dispute between Dickie Scruggs and his former co-counsel, Robert Wilson. (hat tip: NMissCommentor, y'all politics). DeLaughter's plea on this count should come as no great surprise to followers of the Good Ole (Miss) Boy Network scandals of the last couple of years, but it is a shocking fall from grace for the former Byron De La Beckwith prosecutor.

The Specious Claim Market

I am currently reworking my next article, The Private Market for Specious Claims. The current abstract can be found here, and I invite comments from anyone with an interest in mass torts and asbestos litigation, including those who may not ordinarily read academic articles in this area. During the preparation of my last article, some of the most insightful and challenging comments came from practitioners and nonlawyers who are active in this area. Please let me know if you would like a copy of the next draft when it becomes available. Thanks!

Around the web, July 28

Felons' right to vote case

It may count as Sonia Sotomayor's least satisfactory answer to Senate questioners.

Kevin LaCroix on a most-likely-illusory lull.

P.S. And this too from NERA.

GM and Chrysler

First, a big thanks to to Walter Olson and PointOfLaw for the opportunity to guest blog this week. Over the next few days, I plan to raise a few issues related to my current research, which focuses on bankruptcy, mass tort, and the intersection of the two.

I begin today with a quick reference to the Congressional Oversight Panel's field hearing on the recent Chrysler and GM bankruptcies, and the manner in which TARP funds have been used to push through quick bankruptcy sales in those cases. Press coverage of the hearing has focused on Ron Bloom's (the newly-minted "car czar") vows to take a passive role and sell the government's stake in New GM and New Chrysler quickly. Perhaps the most interesting testimony of the day came from Indiana State Treasurer Richard Mourdock, who revisited several questions concerning the legality of the loans to GM and Chrysler, the manner in which the bankruptcy sales were conducted, and critical factual developments in Chrysler.

Notably absent from the hearing were representatives of the UAW, whose extraordinary recoveries under the GM and Chrysler deals ahead of senior creditors have drawn strenuous objections in both cases.

As Marie Gryphon noted, we'll be hosting a featured discussion this week on the topic of corporate criminal liability, with professors John Hasnas of Georgetown ("Trapped: When Acting Ethically Is Against the Law"/podcast) and Michael Seigel of Levin/Florida. John Hasnas has now kicked off the discussion with an initial post.

I'm pleased to announce that S. Todd Brown, an associate professor at Buffalo Law School, will be joining us as guestblogger this week. He's practiced at such leading law firms as Jones Day and Wilmer Cutler Pickering Hale and Dorr, and his writings have often focused on the intersection of bankruptcy and mass torts, a subject of perennial interest to us here. He's also profiled in a recent issue of the UB Law Forum.

Blawg Review #222

It's at Australia's IP Think Tank Blog (Marie-Louise Mortimer).

Around the web, July 27

  • U.K.'s Freshfields under fire after it's found to having represented antebellum slaveholders. Next shock-horror discovery: some big-name lawyers have even represented murderers [WSJ Law Blog]
  • Lawyers will reap $10 million from $35 million settlement of Wal-Mart Washington state wage/hour claims [AP/Law.com]
  • Maryland lead paint lawyers lose round in effort to circumvent damage limit [Miller] More: Pero.
  • Coffee cup warning raises a smile [Overlawyered]
  • "10 Myths About Subprime Mortgages" [Demyanyk, Cleveland Fed, via Carney]
  • "Texas-style health care reform is bigger and better" [Sally Pipes, Examiner]

A UAW pension bailout

Special rules for GM's union retirees will intensify the pressure on the federal Pension Benefit Guaranty Corporation (PBGC) to raise rates on less politically influential businesses obliged by law to pay its premiums. [WSJ]

Paul Salvatore (Proskauer Rose) and Paul Secunda (Marquette) wouldn't be surprised.

Now we find out dept.: a judge says it's because the entire land area in question is set aside for the Cherokee nation. Injunctive relief is still a possibility, but Arkansas Attorney General says the setback for fellow AG Drew Edmondson's suit is "devastating". [Washington Post, Tulsa World, Feedstuffs; earlier]

More discussion of the overcriminalization problem by Brian Walsh (Heritage) at Fox News and in a Washington Times editorial.

Kevin LaCroix has the details.

The Blagojevich Blight continues to spread, as witness the mark-up scheduled by the Senate Judiciary Committee, Subcommittee on the Constitution, for Thursday, July 30. The subject: S. J. Res 7, a joint resolution proposing an amendment to the Constitution of the United States relative to the election of Senators (Feingold, Begich, McCain, Durbin)

The proposed amendment was introduced on January 29, a committee hearing was held on March 11, and now the mark-up. The text:

`Section 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.

`Section 2. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as a part of the Constitution.'.

On Wednesday, the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security, held a hearing, "Over-Criminalization of Conduct/Over-Federalization of Criminal Law." The testimony is now up, and former Attorney General Richard Thornburgh* supplies an excellent and clear review of the issue in his prepared statement. Just one excerpt:

My fellow panelists will be discussing the mens rea requirement for federal crimes, and the need to reform statutes that lack such a requirement. Without a clear mens rea requirement, citizens are not able to govern themselves in a way that assures them of following the law, and many actors are held criminally responsible for actions that do not require a wrongful intent.

Indeed, a recent Federalist Society report states that federal statutes provide for over 100 separate terms to denote the required mental state with which an offense may be committed, and the Heritage Foundation issued a report stating that 17 of the 91 federal criminal offenses enacted between 2000 and 2007 had no mens rea requirement at all. This trend cannot continue, and suggested legislative reform in the nature of a default mens rea requirement when a statute does not require it is worthy of consideration.

There are (an estimated) 4,450 federal crimes on the books?

Other testimony...

Make no mistake: the Supreme Court's recent rulings in Twombly and Iqbal offer the best hope in years for curtailing ill-founded litigation and reducing the scope of needless combat in what remains (by focusing and narrowing issues at an early stage and heading off discovery "fishing expeditions"). And they have already provoked a response from some who like things just fine the way they were before [Frankel, American Lawyer ("Plaintiffs Lawyers' Favorite Senator, Arlen Specter, Introduces Iqbal Rollback Legislation"); Blog of Legal Times; Beck & Herrmann ("It's a measure of the political clout that the other side has that, whenever the Supreme Court does something that the plaintiffs' bar doesn't like, a bill gets introduced to change it"); CL&P]

Iqbal/Twombly has predictably brought peals of outrage from some in legal academia (e.g. Howard Wasserman, Prawfsblawg). Adam Liptak reported on the backlash earlier this week in the Times. The most outspoken defenders of the new decisions so far have been Beck & Herrmann, who engage the academic critics here, here and here; see also their new Featured Column for this site, a second Wasserman post and Marcia McCormick, Workplace Prof. And Max Kennerly, taking issue with the general drift of commentary, contends that the impact of the decisions is less than is widely assumed.

Earlier Point of Law coverage can be found here. My first book The Litigation Explosion (1991) devoted an early chapter (ch. 5: "Litigation Made Easy: Suing Without Explaining") to the decline of a meaningful pleadings stage in civil procedure as one of the key procedural innovations by which advocates of expanded litigation ensured that we would get lots of it. And, yes, I do feel just slightly vindicated that a topic that seemed almost entirely historical if not obscure at the time ("You have a chapter on why notice pleading is a bad idea?") has once again made its way back to center stage.

For the first time, the SEC is "[using] the Sarbanes-Oxley Act's 'clawback' provision to recover compensation from an individual not otherwise alleged to have violated the securities laws". Kevin LaCroix and Larry Ribstein explain.

A 2003 paper by Rebecca Korzec (Baltimore) newly posted on SSRN (via Robinette, TortsProf). Abstract:

Among industrialized nations, the United States is unique in addressing tort law at the state rather than the national level. For example, Australia and Canada, which share a common-law heritage with the United States, have federal tort systems. The United States approach may be appropriate in some tort settings, such as in the premises liability or motor vehicle accident context (not involving a claim of products liability), where the state rule's impact remains within that state's geographical boundaries. Unlike the simple 'fender-bender', which occurs within the borders of one state, the typical product is manufactured and marketed nationally or internationally. Therefore, several factors suggest that uniform federal treatment of product liability laws may be a more desirable means of regulation.

Point of Law is honored to be hosting what should be a fascinating dialog on the expansion of corporate criminal law by two noted experts in the field: Professor John Hasnas of the McDonough School of Business at Georgetown University and Professor Michael F. Seigel of the University of Florida, Levin College of Law.

This free-wheeling discussion, titled "Criminalizing Corporate Conduct: How Far is Too Far," will take place in this space between Monday morning, July 27 and Friday afternoon, July 31. Expect different perspectives and new insights on this important legal and policy issue.

Our newest Featured Column reprints one of the most widely talked-about legal blog posts of recent weeks, which originally appeared at James Beck and Mark Herrmann's Drug & Device Law Blog. Beck & Herrmann assess how well the courts have done over the past 25 years in screening out ill-founded litigation in their field of practice (pharmaceuticals and medical devices). The grades they award in such areas as scientific evidence, preemption, class action practice and discovery aren't always what might be expected.

"Card check comes to campus"

Pro-union legislation passed by the Wisconsin legislature and signed by Gov. Jim Doyle sweeps 3,200 research assistants at the state university into what proponents anticipate will be a card-check system of unionization. In addition, unions are pushing for something called "unit clarification" which if successful could corral thousands of university employees into collective bargaining just by redefining the scope of bargaining units. Donald Downs of UW-Madison explains in a post for the Manhattan Institute's Minding the Campus.

Around the web, July 23

"Forbes is just up with a new, improved version of my piece on the amazing trial lawyer bonanza that someone quietly tucked into last week's draft of the health care bill. An earlier version of the piece ran at Overlawyered on Friday. The Forbes version takes note of the names of the House members who were pushing for and against the idea on the Ways & Means panel. Michelle Malkin gives it a recommendation here." (cross-posted from Overlawyered)

Overcriminalization, continued

Apropos Walter's Jim Copland's post below about today's committee hearing on the over-criminalization of conduct and the over-federalization of criminal law, we commented in this Shopfloor.org post that this sort of prosecutorial excess seems to occur more often in areas of environmental law and regulation. In particular, we were reminded of the federal prosecution of the former W.R. Grace executives for criminal violations of the Clean Air Act related to the Libby, Mont., vermiculite mine and asbestos exposure case. (Earlier Point of Law posts.)

Coincidentally, a news release today points us to an article in the July edition of InsideCounsel, "Asbestos Acquittal: W.R. Grace Unexpectedly Wins Environmental Crimes Trial." James O'Toole, Jr., a shareholder and chair of the Environmental and Toxic Tort Practice Group in Buchanan Ingersoll & Rooney's Philadelphia office, is quoted in the story, and he observes:

I don't believe you're going to see the Justice Department or the EPA shy away from criminal prosecutions in the future simply because of some of these missteps in the past. The agency's proposed budget is going to have at least a $600 million increase, with $32 million for enforcement alone. They're going to hire 30-plus additional positions just to handle enforcement and investigation: When you have a robust budget and a focused agency, and a commitment supported by the administration, you can't help but think there's going to be greater scrutiny and enforcement across all environmental programs.

That seems like a good prediction.

This afternoon in Washington, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security is holding a hearing entitled "Over-Criminalization of Conduct and Over-Federalization of Criminal Law." Expert witnesses include former Attorney General Dick Thornburgh (see also the Manhattan Institute's program including Mr. Thornburgh here), and victim witnesses include Krister Evertson, whose story was told in the Washington Examiner here. Details are below for what promises to be a very informative program:

Wednesday, July 22, 3 p.m.

2237 Rayburn Bldg.

At least if one critic is right, the New England Journal of Medicine and FDA -- maybe even all those trial lawyers? -- could have a lot of explaining to do, per a post from KevinMD:

Internist Matthew Mintz, a staunch defender of the drug, argues that because of the scare, "over 100,000 type 2 diabetic patients [needed] insulin, which could have been avoided."

Sherwin-Williams is claiming hometown sentiment -- as well as dodgy projections of the youth's future and capacity for college work -- did it in before a Jefferson County jury [Legal NewsLine, Jane Genova and followups here and here, defense site with motions] More: AmLaw.

An Associated Press article on "sorry" reform quotes MI's Jim Copland.

Part carrot, part stick

Why the business community hasn't mounted large-scale public campaigns against the Obama administration's plans to overhaul health care, energy and finance.

Nominee Sonia Sotomayor has now disavowed some of the views on gender, race and jurisprudence that she once delivered to admiring audiences on the foundation/conference circuit, and Manhattan Institute fellow Heather Mac Donald, for one, is disappointed:

The airing of her many speeches on identity politics and the law had produced another Ward Churchill moment: An idea that is outright mundane within the academy escapes its hothouse environment and shakes the public temporarily out of its stupor regarding university culture. Now, unfortunately, Sotomayor's bland denials that she ever meant what she said will allow the curtain to fall once more over the mad world of academic legal theory.

A more optimistic interpretation, of course, would be that Sotomayor is ready, like Shakespeare's Prince Hal on attaining the throne, to put away childish things.

Around the web, July 21

  • Citing misconduct in closing argument, Tenth Circuit reverses $2.4 million jury verdict [Day]
  • "Huddled Masses Yearning to Strike It Rich: Foreign Plaintiffs Shopping for Gold in American Courts" [Paul Cereghini & John Sear, Law.com]
  • Judge refuses to dismiss City of Baltimore suit against Wells Fargo over lending [Bank Lawyer's Blog]
  • Fraudulent joinder of drug sales reps to defeat diversity [Susan Burnett at Drug & Device Law]
  • Some thoughts on health care rationing and defensive medicine [MedRants]
  • "Fair Governance: Paternalism and Perfectionism", new book from Francis Buckley of George Mason law school [Amazon]

The civil litigation death penalty

There's an old legal joke that goes: "If you're weak on the facts, pound the law. If you're weak on the law, pound the facts. If you're weak on both the facts and the law, pound the table."

Except the entrepreneurial trial bar has found an intermediate step: instead of pounding the table, pound the discovery requests. Persuade a judge that a discovery snafu was really a deliberate attempt at a cover-up, and get sanctions that prohibit the other side from defending itself. Because plaintiffs rarely have discovery obligations that are more than an infinitesmal fraction of a defendant's discovery obligations, this can be a profitable strategy.

The strategy is not new--I saw it myself first-hand in the 1990s defending GM, and wrote a piece about a trial where John Edwards successfully used a variant. But as discovery gets more and more complex due to emails, voicemails, and instant-messaging, it becomes easier for the discovery snafu to happen, and it becomes harder for judges to distinguish between good-faith mistakes and bad-faith withholding of documents. You may recall a famous example in Florida where Morgan Stanley was precluded from introducing evidence about a transaction involving Sunbeam before the appellate court threw out the entire case.

A recent example of this sort of gamesmanship is going on now in Florida where a group of lawyers representing Ecuadorian shrimp farmers came up with a brand new implausible theory of their case--now alleging that runoff from a formulation of a Benlate fungicide that stopped being used in 1991 is what caused their damages in the mid-to-late 1990s, all so they can claim to a judge that DuPont's failure to produce documents about this marginally relevant formulation (which was effectively identical to the other formulations, except it included two inert ingredients) deserved sanctions. And sure enough, the court ordered a civil death penalty: all of DuPont's defenses have been stricken, even though there is no scientific evidence that fungicide runoff caused the virus that killed many Ecuadorian shrimp. (Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.))

A similar case involving Goodyear and a civil death penalty sanction that resulted in a $30 million verdict is pending in the Nevada Supreme Court.

Consumer arbitration in retreat

Consumer arbitration, long targeted by the plaintiffs' bar and "consumer activists," has just taken a big hit in the political and PR world, and the legislative world awaits, sap at the ready.

Attorney General Lori Swanson of Minnesota last week sued (news release, complaint) and then negotiated a settlement with National Arbitration Forum, in which the NAF agreed to drop its business of arbitrating credit card and other consumer collection disputes.

In her release today announcing the settlement, Swanson said: "I am very pleased with the settlement. To consumers, the company said it was impartial, but behind the scenes, it worked alongside credit card companies to get them to put unfair arbitration clauses in the fine print of their contracts and to appoint the Forum as the arbitrator. Now the company is out of this business."

The Forum also issued a release, defending its practices and characterizing the settlement as a business decision forced upon it.

"The National Arbitration Forum remains committed to consumer arbitration as the best and most affordable option for consumers to resolve disputes quickly and efficiently. However, the FORUM lacks the necessary resources to defend against increasing challenges to arbitration on all fronts, including from state Attorneys General and the class action trial bar," said Forthright CEO Mike Kelly. "Mounting legal costs, a challenging economic climate, and increased legislative uncertainty surrounding the future of arbitration have prompted the FORUM to exit the consumer arbitration arena. At this time, the costs of providing consumer arbitration services far exceed the revenue generated. Until Congress resolves the legal and legislative uncertainty the cost is simply too high for users and providers of consumer arbitration."

The American Association of Justice hailed the settlement in a release, arguing it proved the need for U.S. legislation to end predispute consumer arbitration clauses. Pending in Congress are a complete ban, the Arbitration Fairness Act (S. 931 and H.R. 1020), and legislation limited to nursing home arbitration. Public Citizen, another anti-arbitration campaigner, called the settlement "a tremendous win" for consumers.

Attorney General Swanson gets to take a D.C. victory lap on Wednesday when she testifies before the House Committee on Oversight and Investigations, Domestic Policy Subcommittee, at a hearing, "Arbitration or 'Arbitrary': The Misuse of Arbitration to Collect Consumer Debts." Kelly is also scheduled to testify, but the hearing was planned before Swanson's suit and the settlement, so he could be forgiven...

News coverage...

Blawg Review #221

Since the card-check element of the Employee Free Choice Act has been politically dead for months, and talk of fallback "compromise" pro-union legislation has been going on for just as long, it's far from clear why Thursday's New York Times gave prime billing to a report by Steven Greenhouse which presented the backtracking and attempted reformulation of the bill as if it were something exciting and novel. Especially since still part of the bill, apparently for now at least, is the equally radical imposed-arbitration scheme (critique: Shikha Dalmia in the WSJ) which Mickey Kaus proposes to call "federal pay determination" for short, and which, as Carter at ShopFloor notes, most business-side advocates view as utterly unacceptable under any circumstances.

Carter suggests that the underlying stratagem at work here may resemble a two-stage booster rocket: with card-check gone, labor and Democrats can later pose as reasonable by jettisoning arbitration as well in favor of a bill with just the other, supposedly miscellaneous provisions such as heightened employer penalties (to "bludgeon employers into submission", as he has put it). Among the miscellaneous provisions, as Michael Fox notes: quickie elections, perhaps as fast as 5 days, and "equal access provisions to allow unions to campaign on an employer's premises".

The miscellaneous provisions are probably the biggest political danger to bill opponents. Both card check and compulsory arbitration are relatively easily grasped as drastic changes in the existing labor-law regime for private workplaces, and both can be effectively criticized as curtailing worker choice (arbitration would impose new working conditions not just without management's consent, but also without a vote by workers). On the other hand, proposals that can be presented as merely increasing penalties for violations tend to go down easy in our system, and many of the other ideas can be couched as if there were incremental adjustments in things like the speed or logistics of elections -- even if their cumulative effect might prove drastic.

P.S. Jon Hyman at Ohio Employer's Law has a further roundup of blog reactions.

Around the web, July 20

All-California edition:

  • California Supreme Court decision restricts some uses of famous unfair competition (UCL) law [Cal Biz Lit, CL&P]
  • Burning Man case could be significant for assumption of risk in California law [Cal Biz Lit, Overlawyered, earlier]
  • "Ninth Circuit: Private Right of Action Can't Be Used to Enforce Municipalities' ADA Transition Plans" [Calif. Civil Justice] Famed Sacramento eatery squeezed by ADA claimant [Overlawyered]
  • "What Does It Take To Allege A Cause of Action In California State Court?" [Cal Biz Lit]
  • Unruh Act claim against furloughed government employee discounts draws wrath of legislature [Overlawyered]
  • Prop 65 committee votes against including baby-bottle plastic BPA on reproductive-harm warn list [ShopFloor and earlier, Cal Biz Lit] Medical marijuana must carry Prop 65 warnings [Overlawyered]
  • Ninth Circuit rejects suit against Wal-Mart by employees of foreign suppliers [Cal Law Legal Pad]

Here's a little exercise using Google News Search, seeking the terms: "automated, external, defibrillator, saved, life." We learn that indeed the devices do -- save lives, that is. For example...

It just occurred to us to conduct the search after looking through the litigation groups meeting at the American Association for Justice's upcoming summer convention in San Francisco. And there it is, 10 a.m., Tuesday, July 28, "Automated External Defibrillator (AED) Litigation Group Meeting."

Wonder how many lives that meeting will save?

Which is our way of offering the list of the 75 litigation group meetings cited in the AAJ's convention schedule:

NuvaRing Litigation Group Meeting
Welding Rods Litigation Group Meeting
Vaccines Litigation Group Meeting
Pain Pump-Chondrolysis Litigation Group Meeting
Child Sex Abuse Litigation Group Meeting
Complex Regional Pain Syndrome (RSD) Litigation Group Meeting
Nursing Home Litigation Group Meeting
Benzene/Leukemia Litigation Group Meeting

Glenn Greenwald vs. Sonia Sotomayor

In the New York Times online "Room for Debate" feature, amid one of his usual diatribes against Republicans, Salon blogger/attorney Glenn Greenwald has some unkind words for Judge Sotomayor as well, assailing as perhaps "disturbing" her "excessively mechanistic and legalistic" rulings against plaintiffs. Alas, he misses a chance to add perspective to this interesting complaint by not apprising readers that he himself as private lawyer was on the losing side of one of these rulings of hers (earlier).

From a Newsday editorial: "The Medical Liability Mutual Insurance Co., the major player in New York, has seen its surplus plummet from $1.3 billion six years ago to $300 million today." Albany lawmakers in their wisdom have chosen to renew a freeze on rate hikes by malpractice insurers can charge -- must be nice not to have to worry about consequences. See also Jul. 3 (second-largest med mal insurer in New York is underwater).

Congress recently created a commission to investigate the crash, and some of its backers hope the panel will emerge as a major business-lashing, deregulation-blaming molder of public opinion like the Pecora Commission of FDR days. And to run the operation, Congressional Democrats have now selected California treasurer Phil Angelides, one of the nation's most durable and influential allies of the securities class-action plaintiff's bar.

The second quarter 2009 lobbying disclosure reports have been filed with the U.S. House and Senate, and not surprisingly, the American Association for Justice has expanded its efforts to keep any liability limits from being included in congressional health care legislation. (AAJ disclosure report here in .pdf.) Total lobbying expenditures for the quarter: $1.12 million.

Under the category of "Torts" -- not "Health Care" -- we find this growing list of issues AAJ lobbied on. The first two entries on page 16 were also featured in the first quarter 2009 AAJ disclosure, but the rest are new additions. Phew...

S 391 (Healthy Americans Act); specific interest in provisions in Title VI and VII relating to payments to States for implementing measures related to liability for medical malpractice.

Lobbying with regard to medical malpractice liability as it relates to any health care reform proposal; also lobbying in response to "Call to Action: Health Reform 2009" (a White Paper issued by Senator Baucus); specific interest in proposed health courts and other malpractice compensation models.

Affordable Health Choices Act (HELP Committee health care reform bill; unnumbered as of 6/30/09); specific interest in amendments relating to liability for medical negligence:

Coburn amendment #88, not offered as of 6/30/09; to establish a grant program for states to develop, implement, and evaluate three alternative models to the current tort litigation system, including an expert review panel, an administrative health care tribunal, and a combination of these systems.

Bounty-hunters' paradise?

At Overlawyered this morning I look into a stealthily added and then hastily withdrawn provision in the House health-care reform bill that would have opened up remarkable new scope for qui tam actions.

Despite the famously opaque nature of the administration of bankrupt asbestos defendants' trusts, Kirk Hartley has been doing some digging and finding surprisingly large payout numbers (more than $700,000/claimant) in one case whose details made it into court documents.

New chair at the EEOC

Program officer in the Ford Foundation's Peace and Social Justice Program, ACLU attorney, Harvard, Lawyers' Committee for Civil Rights, as well as NAACP LDEF.... you do get a sense of knowing exactly what we're in for, don't you? [Runkel]

Here's a business plan

"Cruise though The Caribbean and complete 12 hours of your CLE requirements for a tuition of only $300.00." [CLECruiseLines.com]

Utah: "Sen. Bob Bennett asked the Securities and Exchange Commission to investigate whether law firms sometimes give big campaign donations to officials who oversee government pension plans so they can be rewarded with lucrative law contracts to represent those funds." [Deseret News via 10b-5 Daily] Now the SEC has replied, saying it lacks the jurisdiction. [Securities Docket, Compliance Week]

A statement from David Arkush of the Fair Arbitration Now Coalition released to coincide with Tuesday's hearing by the Senate Banking Committee on President Obama's proposed Consumer Financial Protection Agency, "Consumer Financial Protection Agency Bill is Right to Address Forced Arbitration, Says Coalition." Arkush is the Director of Public Citizen's Congress Watch Division, and the statement was posted at the American Association for Justice's website.

Meanwhile, the House Committee on Oversight and Investigations, Domestic Policy Subcommittee, will hold a hearing next Wednesday, "Arbitration or 'Arbitrary': The Misuse of Arbitration to Collect Consumer Debts." From Chairman Dennis Kucinich:

The purpose of this hearing is to evaluate contractually-mandated arbitration of disputes between businesses and consumers in the context in which the vast majority of those disputes occur--the collection of debts from consumers. The hearing will evaluate whether consumer debt collection arbitration, as currently administered, produces results that are fair and legitimate.

Among the witnesses is Attorney General Lori Swanson of Minnesota.

Hedge fund regulation, cont'd

Larry Ribstein on why it's a bad idea.

An Associated Press account is surprisingly sympathetic to the poultry farmers whose livelihood is threatened by Oklahoma Attorney General Drew Edmondson's big-ticket suit. Trial is set for Sept. 21.

We've covered the suit several times as an example of the coziness of alliances between some state AGs and powerful private trial lawyers:

  • 7/19/05: suit flying mostly under the radar; per AP, in earlier suit by Tulsa "city received only $200,000 of the $7.5 million settlement, with the bulk going to lawyers. Edmondson says Oklahoma's contract with lawyers in the latest case states that fees and expenses won't toll more than 50 percent."
  • 10/6/05: per Will Wilson, AEI's AGWatch, "Edmondson has farmed out the litigation for the suit to campaign contributors; one-third of the booty from the case will go to firms whose letterheads coincide happily with the Edmondson donor list (Riggs, Orbison, Turpen, Neal)";
  • 4/30/06: famed non-Oklahoma firm Motley Rice gets finger-lickin' one-third contingency share;
  • 3/9/08: more on hiring of lawyers;

And more on Edmondson here, here, and here (running for governor).

Around the web, July 16

  • Mississippi: "$23.5M med mal jury verdict in Shelby County" [Freeland]
  • SEIU intimidates broadcasters over anti-EFCA ads [Ivan Osorio at Open Market, Carter at ShopFloor, Patrick at Popehat]
  • "Obama comes from the law academia environment ... where that talk about 'empathy' is what you hear all the time. It's very normal, it's 'sophisticated'" [Ann Althouse via Taranto]
  • Asbestos two-step: "Calif. Supreme Court Declines to Review 'Judicially Sanctioned Extortion'" [NLJ, earlier here and here]
  • Everything you might want to know about off-label promotion pharmaceutical class actions [Beck & Herrmann first, second, third posts]
  • "Lawyer drops plea to halt manufacture of mini blinds" [Madison County Record]

A lunchtime event on Capitol Hill next Tuesday sponsored by AEI, with UCLA economist Lee Ohanian [details]

In a column in today's Examiner, I argue that the rancor concerning judicial confirmations today stems in part from the legal academy's efforts to deconstruct the law itself, through such movements as legal realism and critical legal studies. Each school of thought does contain truths, and some areas of law--including tort law and antitrust law--are essentially judge-made, and call out for policy judgment.

But the end result of deconstructing legal formalism is legal-process-as-politics--an express tenet of some strands of critical-legal thought--in which the judiciary is viewed as essentially indistinguishable from the political branches. When legality itself is reduced to no more than policy outcomes, the end result is a less-legitimate judiciary, and a highly charged, political confirmation process.

All of which makes Sonia Sotomayor's testimony so striking. However much Sotomayor's words before the Senate Judiciary Committee may not match some of her previous extra-judicial writings and speeches, her testimony has been a full-throated endorsement of legal formalism, as I note over at NRO. Sotomayor has (a) backed away from her earlier statements suggesting not only that race and gender matter in determining legal outcomes but that it's not a bad thing; (b) expressly repudiated President Obama's "empathy" standard as even being necessary in any cases; and (c) rejected in essence the whole project of transnational legal process, claiming that American law is determined by American traditions apart from obvious exceptions like treaties and contracts with alternate choice-of-law terms.

It's hardly surprising that at least one Crit has thrown up his arms at the spectacle, and led Randy Barnett (and myself) to lift our eyebrows, given an almost indisputable acceptance that the law "is a whole lot more underdeterminate than Judge Sotomayor made it out to be."

The take-aways, as I see it? First, the President's advisors who prepped Sotomayor view legal formalism--however discredited in the academy--as the mainstream public view of the law. Second, Sotomayor's orthodox statements of law constrain somewhat the President's next Supreme Court appointment, since they could "be used pretty powerfully to undercut the legitimacy of a full-blown transnationalist like Harold Koh, or anyone firmly rooted in the Critical Legal Studies school."

A zinger from Tom Goldstein's and Kristina Moore's liveblogging of the confirmation hearings yesterday at ScotusBlog:

4:02 - Tom Goldstein: CS [Sen. Chuck Schumer, D-N.Y.] is walking through the greatest of SS's hits of cases in which she ruled against plaintiffs in sympathetic sounding cases [such as In Re Air Crash Off Long Island, 1996, in which she ruled based on precedent for the defendant airline and against survivor families; Schumer's theme was that the rulings establish Sotomayor's willingness to decide cases on a basis of logic rather than personal empathy].

4:03 - Tom Goldstein: It reaches an extreme when CS points out that she ruled against a poor woman trying to get a loan who didn't have a lawyer. I think that CS might have thought of that case a little differently if he were questioning Sam Alito.

John Avlon, "Sue City"

Manhattan Institute Senior Fellow John Avlon, in Forbes:

New York City spends more money on lawsuits than the next five largest American cities -- Los Angeles, Chicago, Houston, Phoenix and Philadelphia -- combined.

The city's $568 million outlay in fiscal year 2008 was more than double what it spent 15 years ago and 20 times what it paid in 1977.

And the odd and extreme cases continue:

A Brooklyn insurance investigator won $2.3 million this year after he tumbled onto the subway tracks with a 0.18 blood-alcohol level and lost his right leg. ("They're not allowed to hit you just because you're drunk and on the track," his lawyer explained.) A corrections officer received $7.25 million after unsuccessfully attempting suicide, on the grounds that the city should not have permitted her to have a gun. ("Ms. Jones could just have easily turned her city-authorized firearm on anyone," her lawyer said.)

The piece is adapted from a contribution to a City Journal symposium, "New York's Tomorrow", and there's also an associated podcast. More: Eric Turkewitz talks back from a plaintiff's point of view ("when you account for inflation, there really hasn't been much change at all" [compared with 15 years ago)]

Sen. Sheldon Whitehouse (D-R.I.) and others on a Judiciary panel dismiss out of hand the case for nonjury health courts, and Philip Howard (The Death of Common Sense, Common Good) wonders whether the Senate majority is going to give its trial lawyer constituency a veto over health reform:

Special courts without juries are common in America and include courts for bankruptcy, tax disputes, workers compensation and more. America has a long history of using expert courts when there is a need for expertise and consistency. It's hard to imagine any area that needs consistent justice more than health care.

Revisiting the Estrada nomination

ABC's Jan Crawford Greenburg has a devastating rebuke of Sen. Patrick Leahy (via Patterico):

Leahy [yesterday] tried to blame Republicans for failing to get [Miguel Estrada] confirmed when they had a majority -- and then tried to blame Estrada himself, for not answering questions because he may have been "distracted" by a high-paying job offer.

??? Did I hear that right?

Estrada had (and has) a high-paying job, at Gibson Dunn, which he was willing to leave to go on the federal bench. And, regardless, Estrada answered questions every bit as thoroughly as John Roberts, who was confirmed to the DC Circuit--despite his not turning over the same DOJ documents the Judiciary Committee wanted from Estrada.

Estrada was blocked by Democrats for one reason -- the same reason they blocked Bush's other minority and women nominees: They knew he would be on the short list for the Supreme Court if confirmed. And they knew it's a lot easier to block a nominee at the appeals court level, when no one is paying as much attention as the do to the Supreme Court. (Republicans are seeing that now with Sotomayor.) It was a deliberate, thought-through strategy.

Sovereign immunity dept.

Investors in the failed financial schemes of R. Allen Stanford have filed a putative RICO and class action lawsuit against the Commonwealth of Antigua and Barbuda for an estimated $24 billion, saying the tiny Caribbean country abetted Stanford in fraud [Felix Salmon, Kirk Hartley]

Quin Hillyer at The Washington Times' blog, The Water Cooler, notes that Judge Sotomayor is defending her decision in a major eminent domain case, Didden v. Port Chester, because it was required by a clear statute of limitations: Didden was too late when he filed his legal challenge to the "taking" of his property. The law is clear, I ruled accordingly.

The reason such a bizarrely stringent obeisance to a supposed statute of limitations is problematic for her liberal backers is because they keep citing the Ledbetter decision as an example of why judges should take note of "real world" effects of their decisions and show "empathy" for the victim. But the Supreme Court in Ledbetter did exactly what Sotomayor did in the Didden case, namely applied a statute of limitations -- and one that was much more clear, much more unambiguous, than the strained reading Sotomayor put on the statute of limitations in the Didden case. So if she is going to go so overboard in [mis]applying a statute of limitations in Didden, how can the lefties say it is important to have an empathetic woman on the court in order to override unimportant things such as statutes of limitations in cases like Ledbetter's? Again, I have already heard the Demo senators at least twice make reference to Ledbetter in arguing in favor of Sotomayor. How can they make that argument but still defend her Didden ruling?

Well, in politics at least, you can't spell "empathy" without "empty."

The report comes by email from James Cordrey of Lexis/Nexis-Mealey's. "The Wisconsin Supreme Court today unanimously affirmed an appellate court ruling and held that lead pigment is not defectively designed, dismissing a lead-poisoned boy's claims for strict liability and negligence against the former manufacturers of white lead carbonate pigment (Ruben Baez Godoy v. E.I. duPont de Nemours and Co., et al., No. 2006AP2670, Wis. Sup." It sounds like a devastating setback for the well-organized mass tort campaign, which continues to press county and municipal recoupment litigation in California and elsewhere. Jane Genova has a link to the decision (PDF); statement of defense attorney Charles H. Moellenberg, Jr. of Jones Day; NLJ.

More: Maybe not so devastating to plaintiffs, as Julie Triedman, AmLaw Litigation Daily, notes: Fidelma Fitzpatrick of Motley Rice, who represents the plaintiff in the Godoy case,

points out that the court did not strike Godoy's failure to warn claim, and the case is expected to go forward on those grounds, as will a flood of other individual claims. Fitzpatrick says Motley Rice has an inventory of more than 200 such claims. ...

The Wisconsin high court's ruling is unlikely to change Wisconsin's status as ground zero for individual lead paint injury claims, says McGuireWoods' [Joy] Fuhr [who defended the case]. Wisconsin achieved that status exactly four years ago when it became the only state to permit individuals to file product liability claims even if they can't identify the specific manufacturer whose product caused the poisoning.

Around the web, July 14

  • "Organized Labor Concedes: Employer Violations Rare in Secret Ballot Elections" [James Sherk, Heritage Backgrounder] And before the Washington Post swallows claims of a pro-employer tilt in union-organizing election procedures, it should look at the facts more closely [Sherk, "Foundry" blog]
  • Kevin Funnell on "bankslaughter" proposals to criminalize more instances of bank mismanagement [Bank Lawyer's Blog]
  • "Texas tobacco lawyers now file class action in Arkansas over light cigarettes" [SE Texas Record]
  • Will state courts follow federal Twombly/Iqbal example and adopt meaningful pleading standards? [Day, Tennessee]
  • Even when your target is the state of New York and its longsuffering taxpayers, meritless litigation might eventually get you sanctioned [Wait a Second!, Gollomp v. Spitzer]
  • Sen. John Cornyn's 20 questions for Sonia Sotomayor [Senate via Adler] Nominee's extensive involvement with PRLDEF included challenges to public employment exams [DRJ at Patterico] "Voting booths in Sing Sing" a logical implication of her felon-franchise Hayden v. Pataki dissent? [Alt, NY Post, more] Trading odds on confirmation: 98.5 with 100 = certainty [MargRev]

Claims the star legal writer at The New Yorker, "In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Yesterday, before the cameras, Sen. Sheldon Whitehouse (D-R.I.) repeated that line, and he was by no means the first politician to do so. But the charge is "simply untrue", writes Carissa Hessick at Prawfsblawg, citing the key sentencing decisions Kimbrough and Gall. And a commenter adds the Confrontation Clause case of Giles v. California, where Roberts was a member of a 6-3 majority ruling against prosecutors.

P.S. Mickey Kaus has made something of a specialty of Toobin fact-checking over the years, but it's evidently too big a job for one person. And Jonathan Adler's diplomatically worded critique last month adduced other cases that belie Toobin's "which side are you on?" caricature, including Rapanos, Heller, and a pair of campaign finance cases.

Tom Kirkendall is troubled by what just happened to Joseph P. Collins:

The jury verdict against Collins crosses the Rubicon in terms of the federal government's willingness to prosecute an outside deal lawyer for merely advising a client in regard to structuring transactions that are not intrinsically illegal. As is typical of most business prosecutions over the past several years that criminalize questionable business judgment rather than clear white collar criminal acts such as embezzlement, the case against Collins was a jumble of conclusory allegations of fraud without any specific allegations of what Collins did that was criminal.

Heck, it was undisputed at trial that Collins barely worked on the transactions on which the prosecutors based their case against him. Essentially, the prosecution alleged that Collins assisted former Refco CEO and controlling shareholder Phillip Bennett in using Refco's credit to reduce indebtedness to Refco of an affiliate controlled by Bennett. That's not a crime, but the government asserted that Collins committed a crime by aiding Bennett in misleading Refco auditors and investors by not telling them about the use of Refco's credit to reduce the affiliate's debt to Refco.

Wisconsin lead paint decision

If you haven't visited the Manhattan Institute's website in a while, you'll find it's just been redesigned for easier navigation and viewer appeal. Give it a look.

At Overlawyered: Blawg Review #220

Over at my other site, I'm playing host to Blawg Review, the traveling roundup of highlights of the week's posts on law blogs. Check it out. Point of Law hosted Blawg Review three years ago, and is scheduled to do so again on November 23. One passage worth excerpting:

The defense-side post of the week comes from the Beck & Herrmann team at Drug & Device Law. Mark Herrmann takes a big-picture look at how pharmaceutical product liability law has evolved over the past quarter century, and in particular how well it has done in pursuing the goal of appropriately screening out meritless cases. He gives the law a grade of "A" or thereabouts in tackling dubious expert testimony (with the Daubert revolution), in preventing the unwarranted extension of class action concepts from financial-injury cases to the realm of personal injury, and -- a much newer development -- in introducing serious scrutiny of claims at the pleading stage through the Supreme Court's recent Twombly and Iqbal decisions. He is also relatively pleased with trends on preemption (despite the widespread view that defendants have suffered a decisive rebuke on that front) and on resistance to novel theories of action. On the other hand, he gives the courts a "D" on their handling of discovery and its burdens, and a grade of "F" when it comes to their overall inability to reduce the amount of litigation.

Other topics covered: the Sonia Sotomayor confirmation hearings, an automotive preemption case, and this report of a judge's ruling in a Bluetooth class action settlement to which Ted Frank's new Center for Class Action Fairness raised an objection.

CAFA Law Blog on a Wisconsin suit against a railway company over flooding: "Note to all those dreaming of one day bringing a class action lawsuit of your own: don't bring suit on behalf of your entire town unless you want the case removed to Federal Court." [Irish v. BNSF Railway Co., No. 08-CV-496-SLC, 2009 WL 276519 (W.D. Wis. Feb. 4, 2009).]

From Poland: proof that "interesting" tort suits are not an American monopoly. Magdalena Kwiatkowska seeks compensation after her 13-year-old daughter came back from a family holiday in Egypt expecting a baby. "Tourist authorities in Warsaw confirmed they had received the complaint [filed in Poland, presumably against the tour organizer] which states that the girl conceived because of stray sperm in the pool." The mother is adamant that her daughter didn't meet any boys while in Egypt....

NYT columnist Floyd Norris is on the warpath today, assailing the Justice Department's deal with the homebuilder as not punitive enough. Miriam Baer (Brooklyn) at Prawfsblawg offers a needed antidote, pointing out that "corporate criminal liability inevitably morphs into an often simplistic and not very helpful discussion about corporate governance":

But that above answer [involving weighing and balancing what is best for shareholders and other affected parties going forward] is not very satisfying if you are coming from the "throw the bums out and punish them" camp. And if you approach a corporate governance problem with a criminal law frame, emotions like anger quickly crowd out more cautious, introspective responses. That's the problem with corporate criminal liability and Deferred Prosecution Agreements. The mere presence of a criminal case suggests that People Did Very Bad Things and that a good dose of punishment is in order. But it's hard to punish companies without punishing a lot of people who had nothing to do with the Very Bad Things, and tossing CEO's out of their jobs for failing to prevent Prior Bad Things does not at all guarantee that their successors will prevent Future Bad Things. For a prime example of that, see AIG.

Sotomayor and white-collar crime

Tending to confirm her reputation, a new report has found that during her six years on the trial bench, Sotomayor was more likely to send white-collar offenders to prison than an average colleague, and handed down more long terms. She was tougher than colleagues in sentencing other types of offender (drug and general criminal) as well, but the disparity was not as pronounced in those cases.

Per Eugene Volokh, "If you're a young law professor with Federalist Society sympathies, you should definitely apply".

Our newest Featured Column is by Ronald Rotunda, the distinguished constitutional scholar at Chapman University School of Law in California. He looks at a California judge's recent findings of fraud in Nicaraguan-based injury claims against Dole Food (Apr. 27, May 13, etc.) and suggests a rethinking of why the case belonged in the California courts in the first place. An excerpt:

In Stangvik v. Shiley Inc. (1991) the California Supreme Court declared that California should hear the foreign case, "no matter how inappropriate the forum may be," if the foreign statute of limitations would bar the plaintiff's suit, unless the defendant agrees that he will not raise this defense in the foreign jurisdiction.

Why should U.S. courts impose on U.S. companies a statute of limitations that is more generous to foreign plaintiffs than the statute of limitations the foreign country applies to its own citizens?

Class actions come to Italy

As part of a "so-called development package". [Reuters via Karlsgodt]. But it'll differ sharply from the American model: "Under the law, effective from January 2010, consumers teaming up in class actions will have to turn to the judge individually to request compensation, exposing them to possible costs and fines if the suit is rejected."

In the Highlights section of the American Association for Justice's convention brochure (starting on page 16), the AAJ lists the major speakers for the event. Speaks for itself...

AAJ PAC Eagles Reception ($5,000 PAC Contributors)
Featuring: Senator Bob Menendez (NJ), Chairman, Democratic Senatorial Campaign Committee

Opening Plenary
Featuring: Speaker of the U.S. House of Representatives Congresswoman Nancy Pelosi (CA-8)

AAJ Leadership Breakfast
Featuring: Virginia Governor Tim Kaine, Chairman, Democratic National Committee

Women Trial Lawyers Caucus Brunch
Featuring: Nan Aron, President, Alliance for Justice

AAJ PAC M Club Luncheon ($1,000 PAC contributors)
Featuring: Senator Barbara Boxer (CA) and Congressman Henry Waxman (CA-30)

Membership Luncheon and Awards
Featuring: David Frederick, partner at Kellogg, Huber, Hansen, Todd, Evans, & Figel P.L.L.C in Washington, DC

(Frederick represented Diana Levine in Wyeth v. Levine, the key preemption case.)

The American Association for Justice has posted the official brochure for its summer convention, July 25-29 in San Francisco. It's just a fascinating document, full of revealing information about today's trends, strategies and tactics in the litigation industry.

Let's just choose one example, something related to the timely topic of health care. On Tuesday, the all day Professional Negligence Session devotes itself to the theme, "Connecting with the Jury--Strategies to Help Tell Your Client's Story Effectively" with sessions on:

  • Dental Malpractice--How to Select a Winning Case
  • The Use of a Grief Therapist in a Wrongful Death Case
  • Making Complex Medical Negligence Cases Simple
  • Speaking Through Your Expert
  • Avoiding a Legal Malpractice Action (ethics)
  • Recognizing and Prosecuting Claims Related to Hospital Acquired Infections
  • Calling the Defendant Health Care Provider in Your Case-in-Chief: Pros and Cons

Grief counselors as part of a legal strategy! But once you think about, it makes sense: Every bad thing that happens at a school now requires the provision of government-sponsored grief counselors, and yet their very presence reinforces the severity of the BAD THING for purposes of liability. Attorney: "Were the children traumatized?" Counselor: "Oh, yes, terribly so."

A good read, the AAJ convention brochure.

Around the web, July 9

  • Asbestos: "UK Advisory Panel Advises Against Treating Pleural Plaques as a Compensable Industrial Disease" [Hartley, see also]
  • MI's Heather Mac Donald on Ricci, Sotomayor, and the "race industry" [City Journal]
  • TJX will pay $9.75 million to settle state AG's complaints over data breach [Kevin Funnell, Bank Lawyer's Blog]
  • Protectionism watch: London think tank provides "portal for keeping track of new trade-distorting policies or measures that creep up around the world." [Global Trade Alert from Center for Economic Policy Studies via NYT "Economix"]
  • Despite its success, Obama doesn't want to emulate California's MICRA law on medical liability [California Civil Justice]
  • 1,100 lawprofs sign Alliance for Justice letter backing Sotomayor, no doubt after very careful examination of her jurisprudence [Adler @ Volokh]

It seems Gotham smokers just haven't been hectored enough, so City Hall's nanny brigade wants to force shopkeepers to post grotesque photos of the disease process. Same thing with fattening foods or booze? They're not ruling it out.

California electronic discovery

The state finally has some rules.

Jonathan Adler at Volokh continues his scrutiny of various much-circulating memes about the presently constituted Supreme Court (earlier here and here).

Sotomayor "and Associates"

When practicing a bit of law on the side during her time with the Manhattan D.A.'s office and at a larger law firm, the nominee called her very small practice "Sotomayor & Associates" even though it had no lawyers but herself. That would appear to be an infraction, if a minor one, of the relevant New York ethical rules.

Before the New York Times had the story yesterday, blogger Eric Turkewitz had it, though the Times gives him no credit. More: Scott Greenfield, David Wagner, Beldar, DRJ @ Patterico, Legal Ethics Forum, and Turkewitz again ("What should she do now?").

And: A Washington Times editorial had it before the NYT, and did credit the blog source.

Around the web, July 8

  • Hmmm: "Classified American intelligence documents related to Saudi finances were leaked anonymously" to plaintiff lawyers suing the Saudis over 9/11, and thence to New York Times [NYT]
  • Were WVU occupational-disease researchers forthcoming about conflicts in toxic-solvents case? [Chamber-backed WV Record]
  • Topic of buzz among Ontario lawyers: "'Mary Carter'-type deal backfires on plaintiff" [Lawyers Weekly, Canada]
  • Wrist fracture in Washington, D.C. likely to be worth higher sum than in nearby Maryland or Virginia [Miller]
  • Nevada: "On home defect legislation, lobbyists went to the wire" [Las Vegas Sun]
  • Voice of moderation? Vice President Biden labels opponents "blackshirts" for disagreeing with him on labor law issues [Carter @ ShopFloor]

In our newest audio podcast, Marie Gryphon, senior fellow at the Manhattan Institute's Center for Legal Policy and contributor to Point of Law, interviews John Hasnas, an associate professor of business at the McDonough School of Business at Georgetown University. They discuss Hasnas's new book Trapped: When Acting Ethically Is Against the Law (Amazon affiliate link), about how criminal law creates moral dilemmas for corporate officers. You can listen to or download the interview here.

The cloutmongering Service Employees International Union wants to represent tens of thousands of tellers and office workers at Bank of America. Such a prospect might seem ridiculously unlikely, except that B of A is a recipient of TARP funds and obliged to pay close attention to its new Washington masters. [Charles Gasparino, New York Post via John Carney/Business Insider]

Ted Olson will round up highlights of the just-finished term. More details on the July 10 midday event here.

Kevin Funnell at Bank Lawyers' Blog says Justice Scalia's majority opinion is not nearly as helpful to broad regulatory efforts by state AGs as one might have thought from some of the first reports. Earlier coverage here.

Chinese drywall litigation

A case against government-imposed first contracts (PDF) from the Competitive Enterprise Institute. More: Jackson Lewis.

Regulation of sectors like health and auto insurance is often explained as an response to market failures arising from adverse selection, but, say Alex Tabarrok and Bryan Caplan, most of the real-world elements of regulation are hard to explain that way: "Adverse selection is an easy story to tell but a hard story to verify."

As noted Thursday, a Brooklyn state senator with clout over the issue of city school reorganization simultaneously, as a private attorney, represents a former assistant principal suing Chancellor Joel Klein for wrongful termination. The problem of two-hatted state lawmaker/attorneys is hardly confined to New York, as Massachusetts' Lowell Sun confirms in a report on a veteran state lawmaker whose private practice includes both representing local governmental units with extensive interests in statehouse affairs, and representing employees negotiating with such governments.

Kirk Hartley has been tracking developments.

Michelle Mello and Troyen Brennan in the July 2 New England Journal of Medicine:

What kinds of malpractice reforms might be candidates for bundling [with comprehensive federal health care reform]? The warhorse of federal tort reform efforts in the past has been caps on noneconomic damage awards. However, in the current political environment, the chances are nearly nil that tort reform of this sort could pass -- it is anathema to most House Democrats. The realistic contenders are more moderate measures that address physicians' complaints about the unfairness of court decisions that appear to be out of step with medical expertise. ...

Around the web, July 3

Missed this NYT column from him the other week:

I don't mind the A.M.A. lobbying on behalf of doctors in the many areas where physicians and patients have common interests. The association is dead right, for example, in calling for curbs on lawsuits, which raise medical costs for everyone.

An excellent study published in 2006 in The New England Journal of Medicine found that for every dollar paid in compensation as a result of lawsuits against doctors, 54 cents goes to legal and administrative costs.

That's an absurd waste of money. Moreover, aggressive law leads to defensive medicine, in the form of extra medical tests that waste everybody's money. Tort reform should be a part of health reform.

(h/t Common Good).

Securities Docket is presenting a webcast at 2 p.m. Eastern July 9 with panelists Kevin LaCroix (D&O Diary); Tom Gorman (SEC Actions) Francine McKenna (re: the Auditors); and Lyle Roberts (10b-5 Daily).

Lawrence Ebner's paper for the Washington Legal Foundation is here (PDF).

Below we note the June 16 Roll Call story, "Trial Lawyers Now Playing Defense," a debatable assessment but still informative enough. The article includes the first reference we've seen in a news publication about Jon Haber's replacement as CEO of the American Association for Justice, the trial lawyers' lobby: "Meanwhile, the AAJ is looking for a new CEO after Jon Haber resigned this spring. Tom Henderson, a longtime veteran of the group, is serving as interim CEO. 'They're going forward with a search, but I can't tell you when it's going to be filled,' Lipsen said."

In a May 28 post, we observed, "AAJ is a powerful group, has an aggressive legislative agenda and is clearly recognized by the White House as an ally. Obviously AAJ isn't publicizing its leadership moves, but shouldn't the beat reporters be paying a little closer attention to the goings on there?"

So there you go.

P.S. Here's a photo of Tom promoting the AAJ convention in San Francisco.

Medical malpractice and liability reform DID come up yesterday at President Obama's town-hall-style-flavored event on health care. Rep. Michael Burgess (R-TX), a physician, drew attention to Texas' success in capping non-economic damages and challenged the President to push for reforms that work. (Burgess has introduced the Medical Justice Act, HR 1468, to establish national liability limits.)

The President responded by reprising his June 15th remarks in Chicago to the AMA:

I don't like the idea of just an artificial cap. I do want to work with doctors to find ways that we can reduce their liabilities where they haven't done anything wrong, where they've performed effectively. I want to see, are there ways that we can reduce the constant threat of lawsuits that doctors and hospitals experience, because I do think that that causes defensive medicine. And so I've committed to working with the AMA to see ways that we can reduce some of these litigation costs and malpractice rates.

If this were really a priority, wouldn't we be seeing a high level of activity, table pounding and persuasion coming from the trial lawyers? News releases, op-eds, floor speeches? Have you seen anything on the TV about medical liability reform?

The silence speaks for itself. Roll Call interviewed the American Association for Justice's Linda Lipsen after the President's AMA speech, and she said the expected things, but two weeks later the story's headline seems unwarranted: "Trial Lawyers Now Playing Defense."

As the Wall Street Journal editorialized post-AMA in "Obama's Malpractice Gesture," "Mr. Obama's cri de coeur might have had more credibility had he not specifically ruled out the one policy to deter frivolous suits."

In the extended entry below you'll find the transcript of yesterday's event dealing with malpractice, as well as Rep. Burgess' response to the President.

In his capacity as a private lawyer, State Sen. John Sampson of Brooklyn "is suing Schools Chancellor Joel Klein on behalf of a former assistant principal who alleges wrongful dismissal". At the same time, wearing his public hat as Democratic leader in the State Senate, Sampson is helping to mount political resistance to mayoral control of the schools. Must get confusing to sort out all the different powers and responsibilities [NY Post reporting/editorial]

Daniel Schwartz points out angles that might become traps for the unwary:

For example, Connecticut's wage and hour laws require employers to keep track of various records of the employee including hours worked, etc. The catch? Such records need to be kept at the employer's place of business for three years. Does storing the information in "the cloud" satisfy that?

And suppose an employee is fired for improper use of the Internet and you want to "image" (or copy) the computer that the employee has worked on to preserve the evidence. How do you do that when the computer you want to image may be in a server thousands of miles away?

Or consider the lawsuit filed by an employee and the call that needs to go out to your IT department to put a "litigation hold" on your data. How do you do that when it's based in the "cloud"?

In a very interesting case, California's intermediate appeals court has affirmed that state's assumption of risk defense.

Once a year, tens of thousands of participants pay hundreds of dollars in fees for the privilege of participating in the "Burning Man Project", which consists of creating "Black Rock City" in Nevada's Black Rock Desert. The atavistic gathering is dedicated to "community, art, self-expression, and self-reliance" [see here for a fuller description of Burning Man]. Anthony Beninati, the general manager of a company that rehabilitated property for resale, was attending his third Burning Man event. He approached the event's climax fire (a 60-foot-high wooden "burning man") to toss in a photograph of a recently deceased friend. Attendees were "authorized and invited to approach the flames," his complaint stated, "to deposit tokens, mementos and other commemorative objects into the fire so attendees can participate more fully and completely in the Burning Man experience." Unfortunately, he apparently tripped and fell so close to the fire that he was severely burned, occasioning more than $1 million in medical expenses that he sought to recover from the allegedly negligent organizers of the event. Negligent or not, said the appellate judges, the organizers were not liable to Beninati as a matter of law, since he was fully apprised of the risks of the Burning Man fire and chose to assume them. The court analogized to the firefighters's rule: if a rescuer who chooses to confront a negligently created hazard may not recover, one who confronts said hazard for his own self-fulfilling purposes may not either.

Beninati v Black Rock Inc., LLC is a refreshing reminder to those courts who have chosen to eliminate Assumption of Risk as a torts defense. Defendant's negligence is not sufficient for tort liability.

Calling in consultants in the ER

It's partly a function of defensive medicine, says Throckmorton: "Indigent patients are less likely to follow up and more likely to sue. So, you consult more to make someone else responsible. As one of our ER docs put it, you are recruiting co-defendants."

That's how the New York Times described attorney Helen Davis Chaitman, but Christopher Fountain, looking into the matter, finds that description less than adequate.

Also, Joseph Nocera in the Times on Madoff-victim compensation: "the government is not in the business of reimbursing for robberies".

No shrinking regulatory violet

David Vladeck, the new director of the Federal Trade Commission's Bureau of Consumer Protection, held his first news (joint) conference today, "FTC Cracks Down on Scammers Trying to Take Advantage of the Economic Downturn." Obviously an enforcement effort under way for quite some time, and who can object?

The news prompts us to follow up on yesterday's post on regulators and regulatory philosophy, finding additional coverage of Vladeck's remarks to a recent ABA conference on consumer protection. Vladeck, who came to the FTC via Georgetown Law, formerly headed the Public Citizen Litigation Group, and you can see the litigation-driven regulatory philosophy on display in the ABA speech.

From the Consumer Advertising Law Blog from Arnold & Porter, LLP:

He believes he was chosen by Chairman Leibowitz to run the Bureau because he is an experienced litigator with a background in bringing test case litigation and also because of an interest in someone with "vision" and "fresh eyes." (For more on his background, see our post here.)

UPDATE: More from Kelley Drye & Warren LLP: "New Director of Consumer Protection Addresses Leaders at ABA Conference: Focuses on Enforcement and Privacy"

"Did the Court move right?"

Jonathan Adler challenges a pervasive press meme.

Around the web, July 1

  • My other blog, Overlawyered, turns ten years old today -- so far as anyone knows, the oldest weblog on law [Overlawyered]
  • Look before you leap, guys: report for British courts suggests weakening loser-pays rule for class/collective actions [Hartley]
  • You've probably never heard of this obscure federal appointee, but if EFCA passes he could soon be deciding your firm's labor future [ShopFloor]
  • Blawg Review #218 [Adrian Dayton's Marketing Strategy and the Law]
  • Fluoride -- yes, the same stuff dentists recommend and that figured in the plot of Dr. Strangelove -- is latest high-profile chemical set for mandatory warnings under California's Prop 65 [Cal Biz Lit, Popehat]
  • Back pay awards for illegal-alien workers, notwithstanding the Supreme Court's ruling in Hoffman Plastics? [Workplace Prof]

At City Journal: "The Supreme Court's commendable Ricci verdict won't change the Catch-22 logic of discrimination law. ...It won't happen in this Congress, but ultimately, let's hope that disparate impact finds itself in the dustbin of history."

Some other noteworthy reactions to Ricci: Ilya Somin at Volokh (decision may increase costs of litigation and compliance for employers, shedding further doubt on critics' contention that Roberts Court is "pro-business"); Michael Fox (noting Ginsburg language about majority ruling lacking "staying power"); Daniel Schwartz (rounding up reactions) and followup (five things employers can learn from case); Marc Alifanz, Stoel Rives "World of Work" (Congress may undo, as it undid Wards Cove); NYT "Room for Debate". And as mentioned earlier, I've discussed the decision in pieces for Forbes.com and the New York Post.

Tom Freeland has details on the Supreme Court's agreement to review a controversial body of federal criminal law, at least as regards one of its aspects: does the defendant's conduct in an "honest services" case have to violate a duty imposed by state law? The case, which originated in Alaska, is called Weyhrauch v. U.S.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.