May 8, 2008

Mortgage bill $35 million earmark

It's for "legal counseling" for borrowers... hmmm. Republicans "raised objections" to the committee-added provision, "which they called a slush fund for trial lawyers to sue lenders." (via Chamber Post).

Colorado's other revenge-initiative war, and the NYT

As Carter reported yesterday, trial lawyers in Colorado have apparently reached a truce with some of their critics: a former state treasurer won't try to qualify a ballot measure limiting contingency fees, and CTLA won't try to qualify nine (9!) separate counter-measures which sought to inflict pain on realtors, doctors and other nonlawyer groups. That skirmish having calmed down, however, there remains a ballot war very much in progress between organized labor and some of _its_ critics. Amendment 47 would add Colorado to the ranks of states with a "right to work" law preventing unions from negotiating contracts that require the dismissal of nonmembers. A Better Colorado, the group promoting that initiative, has thus far been backed mostly by CoorsTek, which is related to the large brewing interest. As revenge, a group called Protect Colorado's Future, whose biggest support has come from the politically active Service Employees International Union (SEIU), is pushing two business-bashing ballot measures, one to allow lawsuits over firings without "good cause", and the other to menace company executives with lawsuits if they so much as know about legal infractions at their firms, even if they do not themselves participate.

The New York Times showcased the executive-criminal-liability measure in a lengthy and overall quite flattering April 1 report, but omitted any discussion of the revenge initiative aspects or of the union backing, describing Protect Colorado's Future merely as "a coalition of advocacy groups that supports the initiative".

May 2, 2008

GOP House Leader Calls for Hearings into Milberg Weiss

Today, House Republican Leader John Boeher and Rep. Lamar Smith (R-TX), the ranking Republican on the House Judiciary Committee, sent a letter to Committee Chairman John Conyers asking for a hearing prompted by the criminal conspiracy and convictions involving the Milberg Weiss law firm. (Copy of the letter here.)

As the two note in their letter: "Mr. Lerach himself told the Wall Street Journal his illegal conduct and that of his law partners was an 'industry practice.' At his sentencing, one of his supporting letters quoted Mr. Lerach as saying, 'Everybody was paying plaintiffs so they could bring their cases.'"

The two ask for hearings by May 19th, the date Weiss is to report to prison. The questions they want asked:

How many of these cases are brought as a result of illegal payments to plaintiffs?

What other types of conflicts exist between trial lawyers and the injured investors they purport to represent?

What reforms should Congress enact to eradicate these abuses from our judicial system?

More at Shopfloor.org, where we conclude:

We would be naive to think partisanship didn't enter into this request. Trial lawyers represent a major political force within the Democratic party, much appreciated for their generosity in campaign contributions. If Chairman Conyers declines to hold a hearing, the Republicans will make an issue of it.

But so what?

UPDATE (11:59 a.m.) Nathan Koppel reports on the letter at the WSJ Law Blog, noting that Congress passed the PSLRA in 1995 to prevent this sort of thing. The point being?

April 27, 2008

Obama Cites His Tort Reform Credentials

Walter signed us to a second, 10-day contract, so here we are again. One more contract and he has to keep us on the roster for the rest of the season.

Sen. Barack Obama appeared on Fox News Sunday today (after weeks of digging from Fox for declining the program's invitations). Relevant passage from his interview with Chris Wallace (transcript): "WALLACE: "And so people say, do you really want a partnership with Republicans or do you really want unconditional surrender from them?" OBAMA: "No, look, I think this is fair. I would point out, though, for example, that when I voted for a tort reform measure that was fiercely opposed by the trial lawyers, I got attacked pretty hard from the left." He's no doubt referring to his February 2005 vote for S. 5, the Class Action Fairness Act, which passed 76-26. Ted Frank analyzed Obama's CAFA vote and tort reform record in this December 2006 post, concluding, "As a reform supporter, I'm far from convinced that this makes him someone willing to cross the plaintiffs' bar." Senator Clinton voted no.

April 22, 2008

On the Lobbying Lawsuit

If you're interested in the National Association of Manufacturers' lawsuit against certain onerous disclosure provisions of last year's lobbying law, please check out this post at Shopfloor.org -- "Where the NAM Now Stands on Lobbying Lawsuit." Short version: Our requests for an injunction to halt enforcement of the law went up to Supreme Court Justice Roberts, but were rejected. The NAM's legal challenge to the "affiliated organizations" provision of Honest Leadership and Open Government Act of 2007 continues, and we did meet yesterday's filing deadline.

Ledbetter: No Limitations, Just Litigation

Cross-posted at Shopfloor.org. Walter has also written on the Ledbetter court ruling and legislation here, here and here.

Senate Majority Leader Harry Reid filed cloture Monday on H.R. 2831, the Lilly Ledbetter Fair Pay Act of 2007, which supporters claim restores the ability of employees to sue for pay discrimination, supposedly abrogated by the Supreme Court's ruling in Ledbetter v. Goodyear Tire & Rubber Co. (U.S. Supreme Court 2007).

As the NAM summary of the case explains, what the court actually did was uphold the law that set a 180-day statute of limations for filing employment discrimination actions with the EEOC. Congress knew what it was doing when it wrote the law, the court said: "Congress clearly intended to encourage the prompt processing of all charges of discrimination." Eliminating a statute of limitations would open up employers to potentially decades of increasingly difficult-to-defend litigation. Memories fade, people die, and yet the lawsuits carry on....and on....

Just as importantly, the 180-day requirement also compels employers and employees both to address real discrimination with a sense of urgency. Sometimes it takes an EEOC complaint to make management aware of a problem.

The legislation goes too far in other ways. The NAM sent a "Key Vote" letter (text here) to the Senate today, which notes, "[The bill] would grant standing for the first time to not just employees but those potentially 'affected by' discrimination. It would also broaden the bill's reach to cover unintentional (disparate impact) discrimination suits and allow retirees to file claims over actions that took place decades earlier." Wow. "Affected by" discrimination -- bet that would be creatively interpreted.

Expect a vote Wednesday, which allows a full day of rallies and fulminating today, Equal Pay Day -- the day that women supposedly have to work into 2008 to equal men's 2007 pay. Organized labor is observing the day, as are the National Organization for Women and other activists who want government to set wages.

The last time Senator Kennedy orchestrated a big vote to coincide with rallies and other observances was in June, when he brought H.R. 800 to the floor. That was the Employee Free Choice Act, labor's No. 1 priority, which would replace secret ballots in union representation elections with the intimidation-inviting card-check process. No one expected the measure to gain cloture -- and it didn't, falling short by a 51-48 vote -- but the Senator maximized the PR value with his timing. Same thing this week with the Ledbetter legislation.

So consider Senate action on this terrible bill to be the raising of a flag as organized labor and a band of employment lawyers watch, marking on their checklists who salutes -- and who will be rewarded and punished accordingly.

Sundry

• Geoffrey Fieger's dream team: The Detroit Free Press profiles Fieger's legal team, defending the notorious trial attorney against charges of campaign fraud for giving money to John Edwards' campaign via straw donors. Lead counsel is the fringe, er, fringed Gerry Spence from Wyoming and David Nevin of Boise. "[Nevin] was tapped this month to help defend Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11, 2001, terrorist attacks. Mohammed is being held at Guantánamo Bay, Cuba, and faces the death penalty if convicted in an upcoming military trial." The stakes aren't THAT high for Fieger or his partner, Ven Johnson. Jury selection entered its second week yesterday.

• Skip Campbell Back in a Campaign: The Orlando Sentinel reports today on Florida's legislative scene in "GOP rift widens in Florida legislative session's last lap." Of note: "Incoming Senate President Jeff Atwater, R- North Palm Beach, faces a stern re-election fight from millionaire Democratic trial lawyer Skip Campbell, who previously served a decade in the Senate." Stern, eh? Campbell's bio at Krupnik Law is here. According to the Boca Raton News : "Among the many things for which Campbell is known is his opposition to the insurance industry's attempts to intimidate state regulators into approving higher rates, along with an effort to suspend the state's gas tax to ease high gas prices. Campbell and another legislator also made many headlines when suing the state Department of Education over the state agency's handling of temporary workers grading the FCAT exam being found to have inadequate skills." Florida, we note, ranked dead last in the Pacific Research Institute's 2008 U.S. Tort Liability Index, but the authors considered the state "salvageable." Depending on the Legislature.

• Winds of Petrochemical Change in Texas: Houston Chronicle columnist Clay Robinson wonders if the Texas Supreme Court -- once Democratic and beholden to the trial bar -- is distancing himself from the business community. "In an unusual move, the Supreme Court agreed to reconsider a controversial decision that, critics say, gives refineries and other industrial plants a new shield against liability claims from contract workers injured on the job. ...The Supreme Court rarely grants rehearings, particularly in cases, such as this one, which were decided unanimously. But this decision, dismissing claims brought by an injured contract worker, John Summers, against Entergy Gulf States, sparked an unusually large protest, not only from plaintiffs' lawyers and labor unions but also from lobbyists and even some legislators." The court's actions are being seen through the lens of election-year politics, at least by a Houston Chronicle columnist.

April 21, 2008

One Man's Shield, Another's Sword

Sen. John McCain's announcement last week that he supports a federal media shield bill kicked off another round of editorials, commentaries and all-around journalistic special pleading for the legislation. You have The New York Times public editor Clark Hoyt's column on Sunday, "Squeezed by the Courts," in which he recounts the troubles of former USA Today reporter Toni Locy. She is facing excessive contempt penalties after a judge ordered her to reveal her sources about the "person of interest" in the anthrax attacks, Steven J. Hatfill. The Times also weighed in with today's editorial, "Protecting a Basic Freedom," with a whack at the Administration's "excessive secrecy and aggressive targeting of reporters by prosecutors" and what the editors consider bogus arguments about national security. The Times contends,

Their opposition overlooks both the measure's ample protections for law enforcement and national security and the urgent need to protect whistle-blowers and other government insiders who expose government corruption and wrongdoing.

In an effort to muster the votes necessary to beat back a filibuster threat, the bill's chief Senate backers are trying to hammer out a few revisions. The bill already contains exceptions to the journalistic privilege for cases where the information is needed to prevent death, kidnapping or serious bodily harm.

We're concerned, too, you know. Business envisions the disgruntled employee, politically motivated activist and accommodating trial attorney all hiding behind the media shield's protection to disclose sensitive, confidential personal or corporate information under the guise of "whistleblowing." Steal a document, get it to your lawyer, pass it to a disgruntled and politically motivated reporter for publication, and then sue on the basis of the published document. Blather, rinse, repeat.

Over in the House, the sponsors of H.R. 2102 considered some of these business objections. Section 2, paragraph a(3), allows the judicial compelling of disclosure in the case of trade secrets, identifiable health information, or confidential financial information. So the House version is better than it once was, but there are still lots of ways an inventive litigator could turn a media shield into a sword to strike at business.

The Senate version lacks even those protections, making it easier for an attorney to orchestrate an anti-corporate media campaign as a strategy in a class-action or punitive damages suit.

There's corrective language available -- judicial balancing tests, etc. -- that could make the bill not so potentially damaging to the private sector, and committee staff seem to appreciate business concerns. Trouble is, a head of steam is building behind the legislation, stoked by an obviously self-interested media. Slow down, we say. There's more to this bill than what you read in the papers.

April 16, 2008

N.C.: From vaccine-autism lawsuits to the statehouse?

Attorney Bill Graham, who has filed numerous lawsuits claiming injury to children from the vaccine preservative thimerosal, is now running for governor of North Carolina ... as a Republican. The Raleigh News & Observer's blog coverage quotes Jim Copland. More here (2003 WRAL coverage) and here (Graham reported trailing in poll).

April 10, 2008

Washington Post calls for "comprehensive tort reform"

Hear, hear to a Washington Post editorial:

What is needed now is a sober discussion about how best to achieve a fairer, more balanced legal system through comprehensive tort reform. Such a system would not be lopsided but would shield businesses from legal blackmail, just as it would protect the rights of legitimate plaintiffs to win just compensation from negligent businesses that caused them real harm. Smart and ethical businesspeople and lawyers -- and, yes, there are many who fit the bill -- would be wise to start working together to craft such a fix.