November 2, 2009

Schwab v. Reilly Overview

I have thrown together a few thoughts about the Schwab v. Reilly case, which will be argued before the Supreme Court tomorrow, over at PrawfsBlawg. This case could have significant ramifications for how consumer debtors claim exemptions in bankruptcy and how courts protect creditor interests in consumer bankruptcy cases in the future.

September 11, 2009

Around the web, September 11

• U.K. high court: "TV cameras to capture new era for law lords" [Times Online]
• Silly, baseless lawsuits do exist -- and illustrate need for Twombly/Iqbal pleading standard [Joel Cohen/Katherine Helm, Law.com]
• "After Chevron Posts Youtube Video, Ecuador Judge Steps Down in $27B Case" [ABA Journal] Case could test momentum of "international jackpot justice" [Glenn Garvin, Miami Herald] More: Carter at ShopFloor;
• "South Africa Drops Opposition to Pending Apartheid Lawsuits in New York" [AmLaw] "Leading Business Groups Urge Federal Court to Dismiss South African Alien Tort Lawsuit" [NFTC]
• A critical conservative look at public relations firm Fenton Communications [Rowan Scarborough, Human Events]
• More on push to overturn Stoneridge [Sarah Johnson, CFO mag]
  

August 28, 2009

Around the Web, August 28

A politically oriented compendium today, since the interesting law developments escape either our attention or our comprehension.

• Wall Street Journal, "Chrysler Agrees to Take on Pre-Bankruptcy Product Liability Claims." New York Times Wheels blog, "Chrysler Reverses Stance on Product Liability." Public Citizen claims victory (statement).
• Howard Dean continues to draw attention for his admission that Congress isn't talking tort reform in health care because the trial lawyers are too politically powerful. Charles Krauthammer, a doctor in his past life, observes: "You got to love Howard Dean. He is our best friend. He speaks the truth -- on this he did."
• Philip K. Howard comments in The Atlantic online, "Stonewalling Legal Reform," on the difficulty of finding numbers to make the case for medical malpractice reform -- or any health care reform, for that matter: "Congress should listen to doctors and patients. They see these problems with modern healthcare. The fact that it's hard to 'score' the precise savings doesn't mean that the changes are unimportant."
• Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform, has a commentary, "Who Really Speaks for Consumers in the Arbitration Debate?," arguing that the motive behind the campaign against arbitration by "consumer activists" and lawyers is to stimulate creation of large class actions: "[The] plaintiffs' lawyers want first to cripple consumer arbitration. And next, they want to skim those few lucrative class action lawsuits from the sea of consumer disputes."
• Florida Governor Charlie Crist has named the successor to Sen. Mel Martinez (R-FL), who is retiring early from his term. Crist tabbed his former chief of staff, George LeMieux, who will resign from the law firm law firm of Gunster Yoakley & Stewart. Mark Wilson, president of the Florida Chamber of Commerce issued a statement: "We appreciate Governor Crist's decision to pass on applications from trial lawyers and other agendas which would be detrimental to future job creation during this important time." Martinez, of course, was a trial lawyer as well.
• Still in Florida, the hot political race has attacks and counterattacks being levied over trial lawyer connections. Former House Speaker John Thrasher is running for Senate District 8 in a special election, with all the action on the Republican side. An amorphously ad hoc group, Conservative Citizens for Justice Inc., has attacked his character; the group appears to be funded by politically active personal injury lawyers. (Jacksonville News story and column.) Former Gov. Jeb Bush has just cut an ad in response, saying lawyers are attacking Thrasher because he had the courage to rein in frivolous lawsuits.

August 27, 2009

Around the Web, August 27

A mish mash today. That is a legal term, isn't it? Mish mash?

• The Washington Times, an editorial acknowledging Dr. Howard Dean's frankness at a Rep. Jim Moran town hall in explaining why health care legislation fails to include tort reform. But, so what if he was frank? From "Health care run by trial lawyers": "[There] is no good, substantive reason for refusing to rein in the wealthy plaintiffs' bar. There is no good, substantive reason for refusing to protect doctors from ridiculous jackpot justice while the rest of us pay through the nose for the cost of additional malpractice insurance."
• The U.S. Chamber of Commerce's Institute for Legal Reform has the video from the town hall in Reston.
• Workforce Management Online, "Seven New Labor Law Proposals to Keep an Eye On." Good list, with lots of legal liability implied. Meanwhile, Senate Majority Leader Harry Reid downplays the possibility of Senate action on the Employee Free Choice Act, telling the Las Vegas Chamber of Commerce, "We have too many other things on our plate."
• The Wall Street Journal (sub. req.) on the Alien Tort Statute, "Arcane Law Brings Conflicts From Overseas to U.S. Courts, a primer.
• Law.com on steroids, sports and investigations, "9th Circuit Sets Doctrine for Electronic Searches, Finds Steroids Case Search Unlawful."
• Ist Hier Tote Hose: The Blog of Legal Times reports that former D.C. Administrative Judge Roy Pearson -- who sued for $54 million because his drycleaners supposedly misplaced his suit pants -- is still trying to regain his job: "Pearson, who filed a pro se notice of appearance today, wants the federal appeals court in Washington to overturn the dismissal of a wrongful termination suit he filed in May 2008 against the city, among other defendants, seeking reinstatement to his post as an administrative law judge."
• Mississippi unveils its new electronic judicial records system, available to the public. Associated Press story, and Mississippi Supreme Court news release.
• The Great Train Robber, Ronnie Biggs, has been released from a British prison so he can die on the outside. His son sees a connection to the release of the Lockerbie bomber, that is, political positioning by Minister for Justice Jack Straw. Heck of an interesting read in The Guardian.
• Ruben Bolling, cartoonist behind the smart Tom The Dancing Bug, examines the growing importance of "children's law" in corporate legal disputes.

August 26, 2009

Around the Web, August 26

• From Shopfloor, Howard Dean at a town hall meeting in Reston, Va., sponsored by Rep. Jim Moran (D-VA): "The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth." More from NYTimes.
• Investor's Business Daily, op-ed by Sherman "Tiger" Joyce of the American Tort Reform Association, "Tort Reform Is Key To Health Reform."
• The Orlando Sentinel, a Dana Summers editorial cartoon on tort reform. Summers' recent portfolio is here; they're very good.
• Jane Genova at Law and More, "Contingency - Greek Chorus of Amicus Briefs Signals Issue's Importance," noting the abundance of amicus briefs filed in the Pennsylvania "pay-to-play" litigation and the California suit over Santa Clara County's hiring of contingency attorneys.
• American Association for Justice news release, "Labor Day Holiday Travel Alert: New Analysis of Federal Motor Carrier Safety Administration Data Shows Over 28,000 Motor Carrier Companies Have Safety Reg Violations." AAJ's latest lobbying disclosure shows general lobbying on minimum insurance coverage for trucks.
• Associated Press, Michigan, writing on McCormick v. General Motors, "Michigan Supreme Court to reconsider when injured motorists can sue for pain and suffering":

  The Michigan Supreme Court has set the stage for reversing a 2004 precedent that restricts when people injured in auto accidents can sue for pain and suffering.

  In a 4-3 order released Friday, the court decided to reconsider the case of man whose ankle was broken when a co-worker at a Flint auto plant backed a truck over it. The court had voted 4-3 to deny his appeal last October.

  But that was before Democrat Diane Hathaway unseated Republican incumbent Clifford Taylor in the November election, ending conservatives' control of the court.




• Which brings us back to Dan Pero, writing last week (before the latest McCormick v. General Motors ruling) at his American Courthouse blog, "Activists On Michigan Supreme Court."

August 24, 2009

Around the Web, August 24

• In today's Examiner, "Hot coffee is back!," Ted Frank marvels at the mythic quality of the "woman scalded by McDonald's coffee" litigation, adapted and distorted to help support other legal claims: "[These] new urban legends have been adopted wholesale by many law professors and by left-wing supporters of the trial bar. The latest iteration is a documentary called 'Hot Coffee'; statements by the makers show that they are buying (or at least are willing to sell) the trial bar's story hook, line and sinker."
• Hugh Hewitt, radio talk show host and Chapman University law professor, notes the filing of the first lawsuit in Nevada over Chinese drywall and says the last thing a recovering housing industry needs is a wave of asbestos-like litigation: "If President Obama wants to push for some legislation that will actually contribute to the recovery as opposed to hindering it via massive uncertainty and exploding deficits, he'd ask the Congress for a law that limits the drywall exposure and which caps the damages --and the lawyers' fees-- in all such disputes."
• From a few weeks ago, Miami Daily Business Review, "Federal Judge Puts Chinese Drywall Cases on 'Rocket Docket'": "With thousands of homeowners claiming their houses and health are deteriorating from sulfur-emitting Chinese drywall, a federal judge in New Orleans is intent on fast-tracking a handful of cases for trial, attorneys say....About 600 tainted Chinese drywall lawsuits have been consolidated in multidistrict litigation under U.S. District Judge Eldon E. Fallon for pretrial issues. With the help of plaintiff and defense steering committees, Fallon will select five cases to test the waters."
• The Wall Street Journal's Weekend Interview was with the governor of Texas, Rick Perry, who cites tort reform as one element -- but not the whole story -- in his state's pro-growth policies. From "Fiscal Conservatism and the Soul of the GOP": "As governor, Mr. Perry has honed in on four policy issues he believes are drawing people and businesses to the state in record numbers. Businesses like Medtronic and Caterpillar, to name two, are "coming here [because] we haven't spent all the money, the taxes are low, the regulatory climate is fair--they won't be frivolously sued--and they know when they get here that they'll find a skilled work force."
• And in The Minneapolis Star-Tribune, which covers Medtronic as a local story, the personal anecdote leads the way in a report on the Medical Device Safety Act, "On mission to sue med-tech makers."

April 17, 2009

Around the web, April 17

• Hearing discloses that Coughlin Stoia provides suit-sniffing "portfolio monitoring services" to potential big lead plaintiffs. "Shocking conflict of interest", as Judge Rakoff contends? Routine, standard practice for firms in securities class action biz? Both? [Kevin LaCroix, D&O Diary; David Bario, AmLaw Daily]
• California legislature nixes interlocutory appeal of class certification [Calif. Civil Justice]
• One trial lawyer's riposte to Philip Howard's health courts proposal [Kennerly]
• Leverage for complainants dept.: EPA will now require grant recipients to disclose pending civil rights lawsuits [Chris Horner, American Spectator]
• Officials in Spain signal displeasure at prospective prosecution of Bush lawyers [WSJ law blog, NRO "Corner"]
• Lawmakers in Oregon, Nevada move to raise some liability-suit limits [TortsProf and again]

April 5, 2009

Around the web, April 5

• Healthy banks urged to be patriotic and take part in TARP program -- and now not being allowed to escape the heavy regulatory hand by paying back the money? [Varney, WSJ; Bank Lawyer's Blog and more]

• Elizabeth Burch on conflict within aggregate litigation [TortsProf]
  
• "Veteran Employment Attorney Defends AIG Bonuses" [NLJ, Carolyn Plump]
  
• Which are the best Torts textbooks? The worst? Law teachers and students compare notes [Volokh]
• "California High Court Imposes Reality Check on Consumer Class Actions" [Washington Legal Foundation, PDF]
• Lower house of Michigan legislature votes to strip drugmakers of FDA immunity defense [Pero]

March 30, 2009

Around the web, March 30

• David Bernstein (Volokh, George Mason) on the unfinished Daubert revolution in expert evidence [Engage/SSRN]
• "The State-Of-The-Art Defense In Drug/Device Cases After Levine" [Beck & Herrmann]
• Prof. Geoffrey Miller discusses class actions in Australia and the U.S. [Melbourne Age] Australia: Busy Times for Class Action Litigation Funder [Securities Docket]
• Same case, same injuries, two NYC trials produce awards differing by a factor of 25. Why? [John Hochfelder]
• A bibliography on apology-immunity laws [Robinette, TortsProf]
• "Med Mal Reform Moves Forward in Hawaii" [Scheuerman, TortsProf]

March 29, 2009

Around the Web: March 29, 2008

• W.R. Grace, the Criminal Trial: Strange how little media attention this case has gotten. In Missoula, Mont., the federal criminal trial continues of W.R. Grace executives charged with covering up the asbestos-related health consequences of vermiculite mining in Libby. From the Missoulian, via the Seattle Times: "In an argumentative cross-examination, the lead defense counsel for W.R. Grace & Co. suggested Wednesday that a key government witness has a personal ax to grind in claiming corporate malfeasance by Grace." Imagine that, an argumentative cross-examination. The Missoulian has a special web section devoted to the Libby asbestos issue.
• The Howling, ESA Edition: Also from The Missoulian, "Litigation over wolves far from over": A revised rule will be published this week delisting the gray wolf as an endangered species in Montana and Wyoming. Staff attorney Jenny Harbine of EarthJustice says the group will sue. Again. "We've already shown that such a state-by-state approach to delisting is unlawful. And we will argue the recovery numbers the Fish and Wildlife Service established are inadequate for long-term sustainability."


• Unused Arbitration: From the Asheville (N.C.) Citizen-Times, "NC malpractice arbitration going unused": "Before it became state law in 2007, a new method of resolving lawsuits against doctors was hailed as a historic detente between physicians and trial lawyers...The two biggest malpractice insurers of North Carolina doctors say none of their clients have gone through the special kind of arbitration, which requires both sides' consent and caps damages at $1 million." David Sousa, general counsel of Medical Mutual Insurance Co., says "There are just no plaintiffs' lawyers who are going to concede at the outset that their case (isn't) worth more than what the cap is."


• More Doctors to Sue, Now the Military: The American Association for Justice hails a new bill that would allow active service members to use the civil courts to sue for medical malpractice. The news release's headline: "Carmelo Rodriguez Military Medical Accountability Act Will Restore Rights of Servicemembers Injured By Medical Negligence." The bill is H.R. 1478, introduced by Rep. Maurice Hinchey (D-NY) with no cosponsors. The Congressman issued a news release, "Hinchey Testifies Before House Judiciary Panel on His Bill to Reverse Military Medical Malpractice Injustice." We'd count this among the "trial lawyer" earmarks being considered by Congress.


• Nigeria Reaching into U.S. Courts: Also from the trial lawyers' association is the featured article from this month's "Trial" magazine, "Second Circuit lets Nigerian children's drug case proceed in U.S." At issue is an Alien Tort Claims Act suit against Pfizer for the 1996 trial of its anti-meningitis drug, Trovan. Pfizer issued a statement upon the court's ruling: "The Appeals Court's divided decision is only a procedural ruling that may return the cases to the District Court for further consideration; it is not a determination on their merits. Indeed, the strong dissent by one of the judges may be grounds for further appellate proceedings." In addition, patients given the drug had a higher survival rate than those who underwent other treatment.