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April 2008 Archives

Crossposted from Shopfloor.org. This might fit better at Overlawyered, but it had become such a flash in the cause celebre, thought a mention here was warranted.

Raelyn Campbell had her 15 minutes of fame but lost out on the $54 million she claimed she deserved. A Washington, D.C., Superior Court judge has dismissed her lawsuit against Best Buy (a fact we have not seen reported elsewhere).

Campbell is the D.C., woman who sued the electronics retailer after she took her laptop in for repairs to the Tenleytown store (that's a neighborhood in northwest D.C.) and the computer went missing. According to her account, Best Buy wasn't up front with her about losing the device and then tried to buy her off with coupons and settlement offers. That and her supposed concerns about identification theft led her to file a $54 million suit in D.C. Superior Court last November.

The very ridiculousness of the amount -- which mimicked the $54 million suit by D.C. Judge Roy Pearson against his drycleaners for misplaced suit pants -- undermined any legitimacy of her grievances.

There is no truth to the rumor that the appellants' brief began "This is an appeal from a decision by Judge Weinstein of the Eastern District of New York, and there are also other reasons to reverse." Weinstein struck down the immunity legislation on questionable grounds, after previously permitting a public nuisance suit to proceed. The court found that the PLCCA did not violate the Commerce Clause, separation of powers, or the Tenth or First Amendments. The Second Circuit decision was 2-1, so there is likely to be further litigation. [Bashman roundup of links] (h/t M.B. & C.W.)

In the wake of the September 11 bombings, Congress established a Victims Compensation Fund and limited liability for a number of deep-pockets who were also victimized by the attacks. A number of academics questioned that it was even conceivable that innocent third parties could be held liable for a terrorist attack. Anthony J. Sebok, What's Law Got to Do With It? Designing Compensation Schemes in the Shadow of the Tort System, 53 DEPAUL L. REV. 901, 917 (2003); RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 104 (2007); Peter Schuck, Special Dispensation, AM. LAWYER (June 2004); see also LLOYD DIXON AND RACHEL KAGANOFF STERN, COMPENSATION FOR LOSSES FROM THE 9/11 ATTACKS (RAND Institute for Civil Justice 2004).

Overlawyered readers knew better, because they had seen the Port Authority get socked with a $1.8 billion verdict (Oct. 27, 2005; Oct. 29, 2005; Nov. 2, 2005) after being held 68% responsible for the deliberate bombing of the World Trade Center by terrorists in 1993. The Port Authority appealed the absurd ruling, but the Appellate Division has affirmed unanimously (via) since, after all, such absurdities are central to the modern tort regime and thus not "legal error" to abandon the centuries-old concept of intervening causation. As I noted in a related Wall Street Journal editorial, contingent-fee attorneys' incentives are not to seek out the truth behind wrongdoing, but to construct a narrative that will hold the deepest pocket the most responsible, regardless of the effect on justice. This distortion has worked its way into popular culture; a survey of family members of September 11 decedents found that the median respondent held the terrorists only 30% responsible for losses. Gillian Hadfield, Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund, 42 L. & SOC. R. __ (forthcoming 2008). See also my House testimony on the expansion of the 9/11 Fund.

In the blogosphere: Mass Tort Prof; Entrekin.

Can't Smoke 'Em If You Don't Got 'Em

Most of the anti-tobacco campaigning we've seen lately has been at the state and local level, bans on smoking here, there and everywhere (city parks!).

Must frustrate federal officials. How can we get back into the spotlight for regulating, fining, criminalizing and stigmatizing smoking?

A hearing tomorrow in House Judiciary:

Thursday 05/01/2008 - 10:00 AM
2237 Rayburn House Office Building
Subcommittee on Crime, Terrorism, and Homeland Security
Hearing on: H.R. 4081, the "Prevent All Cigarette Trafficking Act of 2007"; and
H.R. 5689, the "Smuggled Tobacco Prevention Act of 2008"
H.R. 5689 has been around in various forms for a few years; here's the sponsor, Rep. Lloyd Doggett's, position on the bill. The bill with less prospects, H.R. 4081, introduced by Rep. Anthony Weiner (D-NY), has only one cosponsor. The CRS description suggests a far-reaching expansion of federal regulatory, law enforcement and judicial authority. And do we spot a pre-emption issue?
Prevent All Cigarette Trafficking Act of 2007 or the PACT Act - Amends the Jenkins Act to: (1) include smokeless tobacco as a regulated substance; (2) impose shipping and recordkeeping requirements on delivery sellers (sellers using the telephone, mails, or the Internet) of cigarettes and smokeless tobacco; (3) require common carriers of cigarette products to obtain age and identity verification upon delivery of such products; (4) require the Attorney General to compile and publish a list of delivery sellers of cigarettes or smokeless tobacco who have not complied with the registration or other requirements of such Act; (5) increase criminal penalties and impose new civil penalties for violations of this Act; (6) grant jurisdiction to U.S. district courts to restrain violations of such Act and direct the Attorney General to administer and enforce such Act; and (7) treat cigarettes and smokeless tobacco as nonmailable and prohibit such items from being deposited in or carried through the U.S. mails.

Prohibits a tobacco product manufacturer or importer from selling or delivering in states cigarettes not in compliance with model or qualifying state statutes.

Indian tribes excepted, of course.

Around the Web, April 30

  • Good Wall Street Journal opinion section today. Business columnist Holman Jenkins updates us on the pursuit of corporate backdating cases, which he says deserve skepticism: "Two hundred civil lawsuits remain, and the trial bar is stuck on the wicket of showing any harm to shareholders. Sayeth the National Law Journal: 'Of those made public, few settlements have reached proportions that lawyers anticipated at the start of the backdating scandal.' What about criminal cases? All eyes now are turned to Henry Nicholas III, former CEO and cofounder of the chip company Broadcom."
  • Also in the WSJ, Floyd Abrams writes on the increasing ability of British libel law to chill speech in the United States. He cites the case of Rachel Ehrenfeld, sued in England by Saudi banker Khalid Bin Mahfouz for her 2003 book, "Funding Evil: How Terrorism is Funded and How to Stop It." New York legislators have passed a bill to give U.S. citizens sued for libel abroad the right to obtain a declaration here that their works are protected under American law. Gov. Paterson has until today to sign the bill.
  • NAM lobbying lawsuit update, from the Blog of Legal Times: "The U.S. Court of Appeals for the D.C. Circuit yesterday granted an expedited schedule to an appeal of lobbying disclosure laws filed by the National Association of Manufacturers...The ruling set a briefing schedule with the last brief due July 2, which leaves open the possibility that the court could rule on the appeal by July 21, the next deadline for a quarterly disclosure filing." The NAM's materials on the case are available at the NAM Legal Beagle website, here.
  • NPR's Morning Edition carries a story on U.S. Border Patrol checkpoints affecting purely domestic ferry runs among the San Juan Islands, Wash. It's easy enough to kayak over from a Canadian island and just board a ferry, hence the checkpoints. Checkpoints are common in the southwest, but new for Washington State, so outrage ensues. The NPR story copies an April 22 piece in the Seattle Times. "[In] this comparatively affluent county, where there isn't a single stoplight, angry islanders are unsatisfied. They've complained to their congressional delegates and recently asked the American Civil Liberties Union to monitor the situation and provide legal advice." Did we mention the outrage?
  • The Grand Junction (Co.) Daily Sentinel reports: "Local doctors rejoiced Tuesday after state lawmakers on the House Judiciary Committee struck down a bill aimed at increasing the amount of money medical malpractice victims could seek in court...[snip] Senate Bill 164 would have redefined damages in medical malpractice cases and allowed malpractice victims to seek up to $468,010 in damages."

A lawyer with close business ties to another attorney who pilfered funds from their common client may be liable to that client for damages if he knew about the thievery but kept silent, the New Jersey Superior Court, Appellate Division, ruled April 23 (Estate of Spenser v. Gavin, N.J. Super. Ct. App. Div., No. A-0424-06T5, 4/23/08) in what I consider to be an excellent opinion.

Although there was no partnership among the lawyers that would support a finding of vicarious liability, the court reasoned that direct liability is justified by principles of "legal ethics, tort law, and public policy" if on remand the plaintiffs can prove that the lawyer knew about the theft but said nothing.

One of the sources the court cited as support for its conclusion is New Jersey Rule of Professional Conduct rule that requires lawyers to denounce lawyers who breach their professional duties in a way that raises a substantial question about their honesty, trustworthiness, or fitness.

From the featured article in the May issue of "Trial," the magazine of the American Association for Justice, "Predatory-lending litigation looms":

Last year, 278 subprime-mortgage-related cases were filed in federal court--with the number in the second half of the year nearly twice the number in the first half--and that figure is likely to continue growing, according to a report by Navigant Consulting. Forty-three percent of those cases were borrower class actions, most involving inadequate disclosure regarding option adjustable-rate mortgages (ARMs) and discriminatory lending practices.

And ...

Paul Kiesel, a Beverly Hills, California, lawyer, also represents borrowers suing over option ARMs. His firm has filed 56 class actions, most of which revolve around TILA violations, all on behalf of borrowers who stand to lose their primary residences. He estimated that half had loans with low interest rates before signing up for the option ARMs. "They were eligible for far better mortgages than they got," he said.

Fifty-six. Phew. Anyway, the article is a good wrap-up of foreclosure litigation from the plaintiff's view, also including an update on Cleveland public nuisance and whistleblower complaints about mortgage companies.

The Navigant Consulting study mentioned above, "2007: Looking Back at What's Ahead," is available at the firm's website, here. The news release is headlined, "Subprime Mortgage Litigation Outpacing Savings-and-Loan Crisis of the Early 1990s, According to Navigant Consulting Study." Well, Mr. Kiesel is doing his share.

The Costs of Lead Paint Hype

From WIBV-TV, Buffalo:

BUFFALO, N.Y. (WIVB) - - The North Park Branch Library located at 2351 Delaware Ave., will be closed temporarily as of Friday, April 25, 2008.

During a recent construction assessment to repair plaster walls, lead paint readings came back elevated. The highest elevated levels reported are confined to window areas of the library that are enclosed in plastic for energy savings.

As a precaution and to ensure the safety of staff and patrons, in consultation with the Library's Board of Trustees, B&ECPL Director Bridget Quinn-Carey has decided to temporarily close the library. "While we do not believe that our staff or patrons are at risk for lead exposure, we have decided to err on the side of caution and temporarily close the facility until further assessments and remediation work can be done," Quinn-Carey said.

"The highest elevated levels reported are confined to window areas of the library that are enclosed in plastic for energy savings." And the risk is, what, that children will claw throught the plastic, repeatedly, to eat ALL the paint from windowsills, over the course of years?

You have to wonder how often this sort of expensive overreaction is going on. Any dispassionate risk analysis has been buried by litigation, media hype and government-expanding politicians.

(More at Shopfloor.org.)

Around the Web, April 29

  • Loyola Law Professor Rick Hasen, who blogs at ElectionLawBlog.org, has numerous links with reaction to yesterday's Supreme Court ruling in the Indiana voter ID suit. His initial analysis is here. John Fund of The Wall Street Journal is the leading journalistic commenter on voter fraud, and in his "A Victory Against Voter Fraud," he argues, "The Supreme Court had to deal with the claim that such laws demanded the strictest of scrutiny by courts, because they could disenfranchise voters. All nine Justices rejected that argument."
  • The Journal also editorialized.

  • From The Recorder, via Law.com: "The Judicial Council will consider new rules for electronic discovery in California, a long-awaited package that's been received warily by the high-tech industry."
  • A new tort reform group to be launched Wednesday in Missouri, the Missouri Justice Alliance, a project of the Missouri Chamber Legal Foundation. Judging by the media advisory, it's quite the event, even featuring Chris Manning of Manning & Sossamon, the D.C. attorney who defended the Chungs in Judge Roy Pearson's $54 million lawsuit over misplaced suit pants. And a satellite feed for a local news conference...huh. The key lobbying target is HB2241, entitled, "Changes the laws regarding merchandising practices, the requirements for maintaining an action for unlawful merchandising practices, and the qualifications of expert witnesses in civil actions."
  • The Chamber's LegalNewsLine story, "Lead poisoning at new low in Rhode Island," highlights a new state study, "Childhood Lead Poisoning in Rhode Island." And in New Jersey, the Star-Ledger reports: "Gov. Jon Corzine today is expected to sign an executive order on lead abatement after accepting a report from the state Public Advocate on the dangers of lead paint."
  • Michigan is the latest Legislature to see an outbreak of insurance companies versus trial lawyers (labor, consumer groups, etc.), in this case over a bill that would motorists to choose less expensive insurance coverage. From AP: "Michigan is the only state to require unlimited personal injury protection benefits, which policyholders pay for through a $123 annual fee per vehicle. Legislation introduced last week in the state Senate would let motorists choose medical coverage worth between $50,000 and $400,000, or continue paying for unlimited coverage through the Michigan Catastrophic Claims Association." The Detroit Free Press has more about this effort by a new group, "Drivers for Savings."
  • Today's Diane Rehm show (WAMU in Washington and nationally broadcast on NPR stations) examines the issues of bisphenol A (BPA) in plastics. The guests are stacked on the public health, big threat, regulate/ban now! side, but at least Steven Hentges of American Chemistry Council is there to respond. (Program details.) We wrote about the issue and biased news coverage in this post.
  • In Rex Morgan, M.D., news, TV-adverting attorney Max the Ax has now had a news conference to attack the local doctors and hospital for failing to stop an outbreak of drug-resistant staph infections.

A 6-3 ruling in Crawford et al. v. Marion County Election Board et al. The opinion is available here, allowing states to require photo identification for casting a vote. Majority opinion written by Justice Stevens, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito in the majority. Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer dissented.

Bloomberg story highlights the purported political benefits to Republicans. Reuters essayed a more straightforward story.

Eric Posner on Ledbetter Act

Slate's Eric Posner provides a devastating rebuttal to the overwrought claims of Dahlia Lithwick about the misnamed Lilly Ledbetter Fair Pay Act. He leaves out an important argument, which I noted for the Justice Talking blog: existing law, the Equal Pay Act, already permits lawsuits with a longer statute of limitations than 180 days, and Ledbetter's suit failed because she used the wrong statute.

From The Financial Post:

An Ontario judge has taken the extraordinary step of ordering a Toronto man and his lawyer to pay $80,000 in legal costs to a pair of the world's biggest vitamin suppliers. The judge also barred the pair from launching a lawsuit over allegations stemming from the largest price-fixing settlement in Canadian history.

Ontario Superior Court Justice Paul Perell told Lars Ingmar Soderstrom and his lawyer, J. Perry Borden, to knock it off -- stop the legal maneuvers against Hoffman- La Roche Ltd. and BASF Canada Inc. Judge Perell: "There has been repeated re-litigation of causes of actions, of issues, and of arguments, and there have been collateral attacks and circumventions of court orders. It is time for all of this to stop."

Justice Perell's ruling is available online, here.

Around the Web, April 28

  • Supreme Court Justice Antonin Scalia's interview with "60 Minutes" is online at the CBS News website. A 4,200-word story AND video. The major revelation: Scalia's an originalist. NPR's Nina Totenberg also had an interview with Scalia on "Morning Edition" today.
  • Business Week celebrates the successes of Tanya Andersen, who has back pain and a quiet voice, "Yet this woman is behind a fierce assault on the music industry and its tactics for combating music piracy on the Internet." Relevance, your editor! Andersen is suing the Recording Industry Association of America for conspiracy, committed while it pursues music pirates. The article in the April 24th issue is entitled, "Does She Look Like a Music Pirate?" The class-action lawsuit is Andersen v. Atlantic, filed in the U.S. District Court, Portland (OR) District.
  • In New York, the AP reports: "A federal appeals court on Friday reinstated a lawsuit by credit card holders that claimed some of the nation's biggest banks joined forces to prevent class-action suits...The 2nd U.S. Circuit Court of Appeals in Manhattan said lawyers for the credit card holders might prove the banks agreed to make it harder for individuals to make legal claims by requiring them to go to arbitration.
  • The case, a class-action antitrust suit, is Ross v. Bank of America N.A. (06-4755-CV), and the court's order is here. The plaintiff's counsel is Merrill G. Davidoff of the Philadelphia firm, Berger & Montague.

  • An editorial in the Memphis Commercial Appeal, "Only a baby step": "Supporters of tort reform in Tennessee are touting a measure approved by the General Assembly as a step toward eventual passage of comprehensive legislation that will revolutionize medical malpractice litigation...That's an optimistic assessment that might be borne out in the future, but it's far from a certainty."
  • Is Rex Morgan from Tennessee? Anyway, from the Sunday Rex Morgan comic strip, dialogue in a storyline about an outbreak of methicillin-resistant Staphylococcus aureus (MRSA) and a dead boy. That nice Dr. Reed was just served in a malpractice lawsuit. "Dr. Morgan: Isn't Max Mallory one of those lawyers who advertises on TV? June Morgan, R.N: That's right. He's Max the Ax, Legal Warrior."

Update (4 p.m.): The Comics Curmudgeon website notes something we overlooked: Max the Ax can't spell subpoena.

In working up the post below about The Washington Post's story, "Studies on Chemicals in Plastics Questioned," we were struck by that quote from David Michaels:

"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product."

That's a vague identifier that raises questions: a federal regulator in the Clinton administration. Wonder where? From his bio:

Nominated by President Clinton and confirmed by the US Senate, Dr. Michaels served as the Department of Energy's Assistant Secretary for Environment, Safety and Health from 1998 through January 2001. In this position, he had primary responsibility for protecting the health and safety of workers, the neighboring communities and the environment surrounding the nation's nuclear weapons facilities.
Oh, a Department of Energy administrator in the nuclear weapons program -- might have warranted a mention, don't you think? And what does Michaels do now? We learn further down in the story that he "runs the Project on Scientific Knowledge and Public Policy at George Washington University and wrote the book 'Doubt is Their Product,' which details how various industries have used science to stave off regulation."

The Project on Scientific Knowledge and Public Policy's homepage is www.defendingscience.org. There's a recent paper on the studies of BPA by Sarah Vogel, entitled, "Battles Over Bisphenol A," which makes the basic argument accepted as the thesis in today's Post story.

For decades, industry trade associations and their lawyers staved off the regulation of unsafe products like tobacco, lead and asbestos by arguing that scientific uncertainty precluded government action. [41] Similarly, the plastics and chemical industries seek to deny, delay, and dismiss the low dose research on bisphenol A.

And there's also a study on diacetyl and "popcorn workers lung," another favorite target of the trial bar.

Wonder who's financing the Project on Scientific Knowledge and Public Policy, aka SKAPP? To its credit, the group explains:

Funding: Major support for SKAPP is provided by the Open Society Institute and the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability litigation. The opinions expressed on the DefendingScience website are ours alone. We do not provide our funders advance notice or the opportunity to review or approve the content of this site or any documents produced by the project.
George Soros' Open Society Institute (www.soros.org) and some of the cash thrown off in class-action lawsuits against silicone breast implants -- i.e., the largess of the trial bar.

A major point raised in the Post's story is that the chemical industry finances studies, a notable if not objectionable conflict of interest. And when a left-wing billionaire and trial lawyers finance counterstudies, that doesn't warrant a mention?

The Washington Post gives prominent Page One display Sunday to the ongoing scientic, policy, PR, political and legal disputes over the use of Bisphenol A (BPA) in plastics. It's an archetypical story: Industry under attack for methods, motives -- doesn't care about the public. Congress investigates. From "Studies on Chemical In Plastics Questioned":

Despite more than 100 published studies by government scientists and university laboratories that have raised health concerns about a chemical compound that is central to the multibillion-dollar plastics industry, the Food and Drug Administration has deemed it safe largely because of two studies, both funded by an industry trade group.

The agency says it has relied on research backed by the American Plastics Council because it had input on its design, monitored its progress and reviewed the raw data.

The compound, bisphenol A (BPA), has been linked to breast and prostate cancer, behavioral disorders and reproductive health problems in laboratory animals.

Congressional Democrats are investigating, and here's the basic line of attack:

"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product."

As said, this is a typical story -- although more thorough than many -- with industry as the bad guy, the FDA as the bought-and-paid-for lackeys, and scientists and activists as heroes interested only in the public good.

Missing, though, is an acknowledgement of the trial bar's role in the debate. All signs point to an orchestrated campaign to exaggerate the risks, villify industry, and then...Well..

LOS ANGELES (Reuters) - A California mother sued Nalge Nunc International Corp, claiming the company knew, but downplayed risks, that a toxic substance in its popular Nalgene plastic sports bottles could leach into the bottles' contents and sicken consumers.

The case, filed on Tuesday [April 22], is believed to be the first consumer class action over the use of Bisphenol A, or BPA, in plastic sports bottles since Canada moved to ban baby bottles containing the substance and the U.S. government expressed concern over its safety last week.

In other BPA news, Wal-Mart will stop selling products with the chemical and Nalgene will phase out its use in water bottles.

P.S. The alleged "politicization of science" is a favorite line of attack these days. Over at Shopfloor.org we took a look at how the Union of Concerned Scientists "entrusted" a Washington Post reporter with a story about Endangered Species Act listings, eventually creating a Washington, D.C., "scandal" that destroyed a public servant's reputation over a policy dispute. The post is "Anatomy of a Beltway Takedown."

We'll admit to being amused by the phrase "jerked on her lanyard" in a Washington Post story about a personal injury lawsuit against a Smithsonian executive, but the article also highlights an application of the Federal Tort Claims Act that comes up with some frequency inside the Beltway. From "Suit Against Smithsonian Executive Dismissed":

The suit by former custodian Mary T. Majano against Smithsonian Business Ventures Vice President Jeanny Kim was tossed out late Wednesday by U.S. District Judge Rosemary M. Collyer, who found that Kim was covered by a law that protects some federal employees from injury lawsuits.

Collyer determined that Majano had exaggerated the violence of the encounter, but she also said that "neither was the incident as tame as Ms. Kim would like to portray; she was definitely angry and rude to Ms. Majano."

The court's ruling is available here as a .pdf file; Ms. Kim comes off better than in the Post story.

In other sovereign immunity news, Radley Balko of Reason analyzes the issues raised by the U.S. Supreme Court's decision to hear Goldstein v. City of Long Beach on appeal from the U.S. Court of Appeals for the Ninth Circuit. Thomas Goldstein spent 24 years in prison for a murder he didn't commit, a conviction based on testimoy from jailhouse snitches. Goldstein is suing John Van de Camp, the district attorney who supervised that prosecutor for violating his civil rights under 42 U.S.C. 1983. Balko concludes in "Suing the DA":

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed--if uncomfortable--sunlight on a part of the criminal justice system that has for too long been immune from real accountability.
More on the Goldstein case at WSJ Law Blog and Los Angeles Times.

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.

Mind-Numbing, Indeed

Forgot to include a Geoffry Fieger update in today's Around the Web entry. Jury selection ended, opening arguments were Thursday, and the tedium commenced today.

  • Detroit News: "Attorney Geoffrey Fieger's felony trial shifted Friday from the elevated drama of Thursday's opening statements to the mind-numbing numbers associated with a financial crime investigation."
  • Detroit Free Press: "A lawyer in Geoffrey Fieger's law firm testified in federal court today that he was proud to contribute $2,000 in 2003 to John Edwards' presidential campaign, and never felt under pressure to do so... "Absolutely, no way," attorney James Harrington IV testified under cross-examination by Fieger lawyer Gerry Spence.
  • And an earlier Freep story, highlighting the famed, flamboyant lawyer for the other famed, flamboyant lawyer being flamboyantly famous: "A lawyer for flamboyant lawyer Geoffrey Fieger put the federal government on trial today in the case against Fieger and partern Vernon (Ven) Johnson, who are accused of breaking campaign laws by illegally funneling money to John Edwards' 2004 presidential campaign....'The prosecution sees them only with one eye and it's the evil eye," famed Wyoming defense lawyer Gerry Spence told jurors in his opening statement this morning.'"

  • From Ryan Young, blogging at The American Spectator:

    Here's one for the annals of overreaction: Fields made of artificial turf are being investigated as major health hazards because some of them contain lead.

    Now, fans and players alike have hated artificial turf for years. Purists don't like the fake-looking fields. Old-fashioned grass stains on a player's jersey from a diving catch or a hard tackle are badges of honor, worn with pride. But lead poisoning? That's a new one.

    There's a good reason we haven't heard about this problem before. There is no evidence of synthetic fields causing lead poisoning in even a single athlete. Anywhere. Ever.

    In other leadigation news, the indispensable Rhode Island blogger Jane Genova has a new post up at Law and More, contemplating "RI Lead Paint III - That's What Smart Money Is Betting."
    Since both the defendants and the plaintiff claim errors by the trial court, a sweet compromise would be a new trial. In that new trial, the plaintiff could play it more conservative and request compensatory damages vs. abatement. In its brief, the state makes a persuasive argument, rooted in liberal ideology, why state agencies should be reimbursed for the millions plowed into diagnosing, treating and preventing childhood lead poisoning. In addition, the private counsel hired on a contingency basis - Motley Rice - will finally get paid - something. The 16-something percent the firm would derive from the compensation damages is better than nothing.
    She reports the scuttlebutt that the defendants have set aside funds anticipating yet another trial round.

    * McCoy Stadium, also known for its expansive foul territory.

    Around the Web, April 25

    • Springfield (Mo.) News-Leader, covering a news conference: "Gov. Matt Blunt is declaring victory in fighting frivolous lawsuits and "runaway personal injury" financial judgments against physicians....Since Blunt got medical malpractice tort reform passed three years ago, total claims against Missouri doctors dropped 61 percent from 2005 to 2006, according to state figures." The AP story is here.
    • The Daily Oklahoman reports that tort reform appears to have died in this year's legislative session the sponsor pulls the bill. "Rep. Daniel Sullivan, R-Tulsa, pulled Senate Bill 156 after Republicans joined Democrats to defeat an amendment that would have let voters decide whether to cap contingency fees at 33 percent instead of 50 percent for attorneys in personal injury cases." SB 156 generally tracked the tort reform measure vetoed by Gov. Brad Henry last year. More at The Journal-Record.
    • The U.S. Chamber and Institute for Legal Reform publish web columns providing more context on their 2008 Legal Climate survey of the states. Bryan Quigley dissects the shoddy responses of the American Association of Justice: "It seems that the entire set of plaintiffs' lawyer talking points are recycled, tired, and out of step, along with their notion of the actual facts. But we do appreciate the help they bring in drawing attention year after year to our study." And the ILR's Lisa Rickard reminds us all: "Legal Reform is a Constant Process, Not a One-Time Event."
    • And your guest blogger makes a point at the NAM blog, Shopfloor.org, about the inconsistency of the New York Times' editorialists over the years. On Thursday, the Times attacked the National Association of Manufacturers for suing to stop new lobbying disclosure provisions: "The law was plainly written to smoke out stealth lobbying organizations, not to protect Washington insiders." Yet in a 1995 editorial on McIntyre v. Ohio Elections Commission, the Times applauded a U.S. Supreme Court ruling that found the First Amendment protected the distribution of anonymous election pamphlets. The NYT: "The Court thus protects unpopular people who might not voice their views if forced to identify themselves." Our point: The First Amendment protects both the lonely pamphleteer AND Washington insiders.

    Colorado's business groups and trial lawyers are fighting their latests battles via the initiated measure. Or measures, to be more precise. From The Rocky Mountain News.

    The latest spate of ballot initiatives aimed at Colorado businesses comes from a group of lawyers that wants voters to back limits on executive pay and real estate commissions.

    In an apparent retaliation for an earlier filing to limit attorney fees, the head of the Colorado Trial Lawyers Association has filed with the state to put nine measures on the November ballot.

    "For too long, corporate interests have been put ahead of consumer interests in this state," said John Sadwith, executive director of the 1,200-member trial lawyers' group. "Real people in this state deserve a break."

    In March, former State Treasurer Mike Hillman filed a proposed initiative to limit amount of money attorneys can collect in contingency fees -- to 30 percent for the first $250,000 recovered for clients; 25 percent for awards of more than $250,000 but less than $500,000; 10 percent for awards of more than $500,000.

    The Denver Business Journal has more in "Battle raging again with dueling Colorado ballot initiatives." The trial bar's measures target doctors, real estate brokers, corporate executives and homebuilders.

    According to the Secretary of State's office, initiated measures require 76,047 valid signatures to qualify for the ballot. The lawyers' language is not yet on the Election Divisions' website list of proposed ballot measures. The Colorado Trial Lawyers Association doesn't have anything on the measures yet on its website, although there's this:

    Annual Spring Dinner
    "An Evening with Valerie Plame Wilson"
    Presented by Gersh & Helfrich LLP and Moriarty Leyendecker Erben PC
    Thursday, May 1, 2008
    Marriott Denver City Center

    The Senate voted 95-0 (roll call vote) to pass H.R. 493, the Genetic Information Nondiscrimination Act. The text of the substitute amendment is available here.

    West Virginia Attorney General Darrell McGraw, responding to the Chamber of Commerce's Institute for Legal Reform's newly released report, "Lawsuit Climate 2008: Ranking the States."

    I do subscribe to the idea that the means and methods the National Chamber uses to influence public opinion are like those Hitler used...Exaggeration and propaganda of all sorts.
    From the Chamber-sponsored Legal Newsline.

    National Chamber? Surprised he didn't call it the Volkskammer.

    Last year, a gang of middle-schoolers riding on a Baltimore city bus beat the holy crap out of a woman because she failed to show them adequate respect. Appalling, brutal crime by kids so young, and it's been a continuing judicial/education/collapse-of-Western-civilization story in Baltimore. (Michelle Malkin has been keeping tabs.) This week, some justice: "A 15-year-old girl believed to be the ringleader of a vicious attack on a woman aboard a Maryland Transit Administration bus has been sentenced to a secure juvenile jail, called a 'residential treatment facility.'" Other teen attackers were sentenced to home detention except for two 15-year-olds, who were ordered to perform community service. And here's where law and common sense take a beating.

    Attorneys for those two Baltimore teenagers meanwhile plan to sue the Maryland Transit Administration, the bus driver and the city school system.

    The attorneys claim the students - both eighth-graders - were suspended from school and denied their bus privileges without a hearing or due process.

    Attorney Quinton Herbert said his 15-year-old client is barred from riding MTA buses, and the city is paying for a tutor because the boy isn't allowed at school. Attorney Jay Ortis' client, also 15, has been accepted by a different school, but he also isn't allowed to ride on MTA buses, which double as school buses in the city.

    Each boy is seeking at least $10 million in damages - $5 million each for the school suspension and the loss of bus privileges. That amount could increase if the lawsuit includes more complaints, Ortis said.

    The Senate is scheduled this afternoon to debate H.R. 493, the Genetic Nondiscrimination Act, with the new legislation in question being a "bipartisan compromise" substitute introduced by Senators Snowe, Kennedy, and Enzi. According to Senator Kennedy's news release:

    With regard to health insurance discrimination, the Act will:
  • PROHIBIT enrollment restriction and premium adjustment on the basis of genetic information or genetic services;

  • PREVENT health plans and insurers from requesting or requiring that an
    individual take a genetic test; and

  • COVER all health insurance programs, including those under ERISA, state
    regulated plans, and the individual market.
  • With regard to employment discrimination, the Act will:

  • PROHIBIT discrimination in hiring, compensation, and other personnel

  • PROHIBIT the collection of genetic information, and allow genetic testing only
    to monitor the adverse effects of hazardous workplace exposures;

  • REQUIRE genetic information possessed by employers to be confidentially
    maintained and disclosed only to the employee or under other tightly controlled
    circumstances; and

  • COVER employers, employment agencies, labor organizations, and training
  • Well, the devil is in the legislative DNA. Last year, Hans Bader at the Competitive Enterprise Institute blogged on the House-passed bill, noting its failure to include a "direct threat" exception "to preserve public safety in scenarios like the bus driver who is prone to seizures." And employers and insurers can consider family medical histories, why not genetic indicators?

    Because it's new and scary? Hans has surveyed the scene again today and still doubts the need for legislation.

    In any case, news coverage doesn't indicate a lot of controversy and we anticipate overwhelming passage. Here's the AP story and The Washington Post.

    UPDATE (2:05 p.m.): CQ Politics reports, "[Sen.] Coburn argued that the [House] bill would expose companies and insurers to undue risk of lawsuits, an objection shared by the White House. ...The compromise headed for Senate passage Thursday addressed those concerns and won approval from the White House."

    Dr. Egilman responds

    Our post on the JAMA articles provoked a response by Dr. David Egilman in the comments-section at Shop Floor:

    Around the Web, April 24

    • The headline says it all (almost). From today's Examiner, "Pelosi betrays her own House for a slew of trial lawyers." It's a tough editorial on the Speaker's preference for the Senate version of CPSC legislation, instead of the more balanced House-passed version. "In the name of reforming the Consumer Product Safety Commission (CPSC), the Senate version would create bureaucratic red tape galore, while enabling the sort of class-action jackpot justice that enriches plaintiffs lawyers at the expense of consumers and shareholders." The bill also turns state attorneys general loose on a territory ripe for even more politically motivated litigation.
    • Back to the House. Andrew C. McCarthy at The National Review Online reminds us that legislation to enact needed Foreign Surveillance Intelligence Act amendments remains blocked by House leadership over the issue of retroactive legal immunity for telecom companies that complied with lawful federal requests to aid in the monitoring of cross-border communications. The trial lawyers are calling the shots, he argues in "Dems Unserious on Surveillance": But now: "Democrats legal position has become even more untenable, thanks to an unlikely Bush ally: the U.S. Court of Appeals for the Ninth Circuit, generally regarded as the nation's most liberal. In a significant Fourth Amendment decision on Tuesday, a three-judge panel unanimously held that laptop computers, including the e-mail communications stored in them, may be searched without a warrant if a person attempts to carry them into or out of the United States."
    • The election fraud and conspiracy trial of Geoffrey Fieger and Ven Johnson gets under way today in Detroit. The Detroit Free Press reports the trial is expected to take 5-1/2 weeks. Thank goodness it's not 5-2/3rds weeks.
    • Good piece in Legal Newsline covering blogger Kathleen Seidel's victory over abusive claims from trial lawyer Clifford Shoemaker of Virginia, who sought information about "documents pertaining to the setup, financing, running, research and maintaining." Shoemaker is a vaccine-mercury-autism attorney.
    Ledbetter: Cloture Fails

    To finish off the day's posting on H.R. 2831, the Ledbetter Fair Pay Act (earlier posts here and here and here): The Senate voted 56-42 (roll call vote), failing to invoke cloture, which allowed everyone to cast his or her vote for the record. Senator Clinton and Senator Obama were the last two speakers before leadership had its turn.

    Majority Leader Reid voted no, preserving his parliamentary options; Senator Kennedy is talking about today's vote being "an early skirmish." All the other Democrats voted yes, as did the following Republicans: Collins and Snowe of Maine, Smith of Oregon, Coleman of Minnesota and Sununu of New Hampshire. All save Snowe are up for re-election this year.

    Meanwhile, tomorrow is the vote on the Genetic Information Nondiscrimination Act.

    Marcia Coyle at National Law Journal parrots the conclusions of Professor Michael LeRoy's study attacking employment arbitration, even though those conclusions are, as I discussed last week, completely divorced from his underlying dataset and thus have no empirical basis. The article does have a good discussion of the trial bar's divide-and-conquer strategy to gradually eliminate consumers' ability to choose the benefits from mandatory binding arbitration, though not of the tactic of trumpeting bogus studies to further that goal.

    Hans Bader of the Competitive Enterprise Institute takes a look at today's Washington Post editorial, "Fair Pay, Fair Play," calling for passage of the Ledbetter Fair Pay Act, and finds certain facts and legal context missing. Again. From the Open Market blog:

    The Post seems completely unaware of the existence of another law, the Equal Pay Act, that already has a generous deadline (3 years) for bringing pay discrimination claims.

    In Ledbetter v. Goodyear (2007), the Supreme Court enforced the explicit 180-day deadline for bringing discrimination claims under Title VII, ruling that Lilly Ledbetter's pay discrimination suit under Title VII was untimely because she brought it long after 180 days had elapsed. But the court specifically noted in a footnote that the plaintiff had (for unknown reasons) dropped her claim under the Equal Pay Act -- which has a longer deadline (3 years) for suing. Liberal court reporters deliberately ignored the footnote and the very existence of the Equal Pay Act in order to cynically create the false impression that the Supreme Court's enforcing the Title VII deadline as written would leave women without any redress for sex-based pay discrimination after 180 days had passed.

    Good legal issues to discuss once the Senate takes up the bill.

    As for the political context, from FoxNews.com, "McConnell Complains About Delay in Senate Vote So Candidates Can Return." From the minority leader:

    Now, look, we understand people have to run for president and are not likely to be here much of the time. But to have the schedule of the Senate completely revolve around the schedule of the Democratic presidential candidates strikes me as particularly ridiculous.

    News inferno reports that Kamie Kendall, a 24-year-old Utah hairdresser has been awarded $10.5 million by a New Jersey jury for damages to her colon following use of the anti-acne drug Accutane. The trial judge refused to allow the jury to consider punitive damages.

    Kendall is the third Accutane plaintiff to successfully sue Hoffman-LaRoche over inflammatory bowel disease. In May, another New Jersey jury awarded $2.62 million in damages to a patient who needed to have his colon and most of his rectum removed after taking the drug Accutane. In October, A Florida jury awarded $7 million in damages to another Accutane user who developed the disorder and said Hoffman-LaRoche failed to adequately warn of the drug's risks.

    Kendall started taking Accutane at age 12. She was diagnosed with ulcerative colitis at the age of 14, and in 2006 she had her colon removed and now suffers from debilitating diarrhea.

    Hoffman-LaRoche is apparently appealing all three verdicts, and insisted that the link between Accutane and inflammatory bowel disease has not yet been proven. In a possibly contradictory statement, however, the company also said that "the Accutane labeling has contained a warning about IBD for more than 20 years."

    Accutane may well go the way of Bendectin....

    And Here's the Chamber's Report

    The U.S. Chamber's Institute for Legal Reform has its report now online, "Lawsuit Climate 2008," with a link to the full Harris Interactive survey (1MB, .pdf)

    From the news release:

    WASHINGTON, DC - Senior attorneys at America's largest employers say state court liability systems have steadily improved over the last several years, but less than half of them rate the state courts as "excellent" or "pretty good." These lawyers say Delaware still has the best legal climate in the country, and West Virginia remains the worst.
    Reason to be of good cheer: "An analysis of the data over the seven years Harris has conducted the survey indicates an overall improvement in state legal climates. In a number of states, this trend correlates with legal reforms enacted over the same period."

    Don't see the U.S. Chambers Institute for Legal Reform's survey, "Lawsuit Climate 2008: Ranking the States," online yet, but according to the news coverage, West Virginia continues to suffer its litigation tribulations at the bottom of the list. From The Charleston Daily Mail:

    West Virginia ranks last among the 50 states, behind Louisiana and Mississippi, in an annual assessment of state liability systems conducted by Harris Interactive, a national market research firm. The report was released today by the U.S. Chamber's Institute for Legal Reform.

    Delaware ranked tops for the fifth consecutive year.

    Lisa Rickard, president of the Institute for Legal Reform, said in a prepared statement, "While there is still more to do, Governor Manchin and the West Virginia Legislature have started taking steps to improve the state's legal climate." She noted several recent reforms, including the "slight improvement" to laws allowing out-of-state plaintiffs access to West Virginia courts and "efforts to rein in the attorney general's misuse of funds from lawsuit settlements.

    More coverage...

    Oh, and the American Association of Justice is now assuring us it managed to get an advance copy of the report on which to base an updated news release. You can't really tell, though. The criticisms and vituperation are the same as the news release it issued before seeing the survey. Definitely a case of PR malpractice.

    Lobbying Lawsuit Update, II

    We've got a new post up at Shopfloor.org with the latest on the National Association of Manufacturers' lawsuit against the "affiliated organizations" provisions of last year's lobbying disclosure law, AKA the Honest Leadership and Open Government Act. The NAM decided to go ahead and file the names of the member companies covered by the new disclosure requirements, even as the legal challenge against the law continues.

    Basic statement of principle comes from NAM President John Engler:

    Denial of our request for an injunction does not address our basic challenge to the Constitutionality of this pernicious law which constitutes threatens the viability of business trade associations. It will require associations like the NAM to release the names of many members who contribute more than $5,000 for lobbying activities and who actively participate in the association's lobbying activities, violating their right to privacy, association, speech and to petition the government for redress of grievances. The penalties for failure to disclose this information are severe. As businesses become aware of the serious implications of this law, many of them will curtail their membership or restrict their involvement in trade associations. The effect will be to compromise their First Amendment right to express their opinions in the legislative process, and also undermine trade associations which play a critical role in the development of public policy by government.
    The Shopfloor.org posts links to the news coverage.

    Ledbetter: The Politics of Scheduling

    The Senate rolls into action at 5 p.m. this evening, thanks to a scheduling maneuver by Senate Majority Leader Harry Reid, D-NV. In order to have the Democratic presidential candidates, Sens. Clinton and Obama, back in town for the cloture vote on H.R. 2831, the Majority Leader had to postpone the usual morning convening, since a cloture vote is supposed to follow one hour after the Senate is called into order.

    That's politics and nothing to get too excited about, especially since the tactics make it clear the bill is not intended to become law. No, it's just another way just to measure loyalty to the agenda of organized labor, trial lawyers and various grievance groups. Although....Senate Republican have a point about being cynically criticized for going slow on a veterans benefits bill. Where the demand for alacrity now? (The Swamp from The Baltimore Sun has a good rundown of the machinations, and The Corner relates the Republican objections.)

    Just as long as the legislation goes down. Contrary to what editorialists at The Washington Post ("Fair Pay, Fair Play") and the New York Times ("Pass the Fair Pay Act") claim, this bill does not correct a faulty Supreme Court ruling, this bill opens the floodgates to discrimination lawsuits ad infinitum nauseum. As the NAM's Key Vote letter makes clear, statutes of limitations were written into the law for a reason -- one being the prevention of decades of increasingly tenuous employment discrimination suits.

    It won't come to that, but the President is indicating a veto. The White House released its Statement of Administration Policy on the bill yesterday, which you can read here. A good statement, emphasizing the value of statutes of limitations.

    This legislation does not appear to be based on evidence that the current statute of limitations principles have caused any systemic prejudice to the interests of employees, but it is reasonable to expect the bill's vastly expanded statute of limitations would exacerbate the existing heavy burden on the courts by encouraging the filing of stale claims.

    Around the Web, April 23

    • Sen. Tom Coburn, R-OK, appears to have been satisfied that legislation to ban employers and insurers from discriminating on the basis of genetic testing will not open the gates to civil rights lawsuits from employees, The New York Times reports in "Congress Near Deal on Genetic Test Bias Bill." Coburn says, "We would have created a trial lawyers' bonanza." The bill is the Genetic Information Nondiscrimination Act (S. 358).
    • Authority and funding for a Central Florida commuter train system is making its way through the Florida Legislature in fits and starts, The Orlando Sentinel reports, "Orlando-area commuter-rail deal gets sidetracked." Senate Majority Leader Dan Webster, R-Winter Garden, is trying to salvage the $450 million plan, financed in part through a $2-a-day surtax on rental cars. Welcome to Disneyworld. The plan also raised to $250 million of insurance coverage the state would buy to pay accident claims, and, AND, "And it would allow trial lawyers to collect higher fees after rail accidents."
    • From the AP, West Virginia: "CHARLESTON -- A federal judge has blocked West Virginia election officials from enforcing several disclosure rules governing political advertising, agreeing with an advocacy group that they are too vague...U.S. District Judge David Faber partly granted the preliminary injunction sought by the Center for Individual Freedom, which seeks to run ads in the state Supreme Court race before the May 13 primary." The Center for Individual Freedom's website is here, and a March news release on its lawsuit is here. The case is Center for Individual Freedom, Inc. v. Ireland et al. Filing briefs against the Center were Citizen Action Group, the Ohio Valley Environmental Coalition and the state Democratic Party, Employment Lawyers Association and Association for Justice.
    • This has been a big issue in the blogosphere, a harassing subpoena against a blogger for criticizing trial lawyers. From Slashdot: "Ares writes.. "In a follow-up to Blogger Subpoenaed for Criticizing Trial Lawyers, Kathleen Seidel's blog indicates that not only has she successfully quashed her subpoena, but the lawyer issuing said subpoena is now under orders to appear and explain why the courts shouldn't sanction him for it. This should be interesting, because in addition to Ms. Seidel's subpoena in New Hampshire, the lawyer issued a similar subpoena to a doctor and a Harvard professor under similar circumstances." Congrats!

    The U.S. Chamber of Commerce's Institute for Legal Reform on Wednesday is releasing its 2008 Lawsuit Climate report, an annual exercise in which the ILR surveys in-house counsels on their perceptions of how reasonable and balanced each state's tort liability system is. (The 2007 survey is available here.) It's one of three prominent reports/ratings that attempt to quantify state tort climates, the others being the Pacific Research Institute's Tort Liability Index and the American Tort Reform Association's Judicial Hellholes report. Different methodologies, different results, but all have their merits, and taken together they paint a pretty good picture of a state's civil litigation environment.

    To the Chamber's contribution the American Association for Justice responds with a PR blunderbuss, a news release issued today before anyone over there has even seen the report.

    Yes, it's one of these prebuttals that some PR expert decided was an effective way to pre-spin the media. Presumably. The headline: "AAJ: U.S. Chamber 'Study' Part of Extreme Corporate Agenda to Destroy Civil Justice System"

    Did we mention that THEY HAVEN'T READ THE STUDY?

    It's the usual ad hominem: The Chamber represents corporations and corporations are evil, especially insurance companies. As are the counsels they surveyed: "The 'study' is based on a survey of corporate defense lawyers from multi-million dollar corporations who are paid to avoid accountability for their misconduct and negligence."

    Really? Every single one of them? Is that part of their job description?

    We're used to the over-the-top rhetoric and personal attacks, and the intellectual dishonesty is par for the course. But you have to wonder -- As a news release, this document is aimed at the media. Does the AAJ think all reporters are that stupid? If this release came across my newsroom computer, I'd be pretty insulted.

    To Mark Today's Celebrations

    Since today is Giants of the Earth Day -- that is, Ole Edvart Rolvaag's birthday in 1876 -- it's timely to revisit just how the trial bar is addressing critical environmental issues like global warming. Now where would we find that? Ah, yes, the latest issue of Trial magazine, the official magazine of the American Association for Justice, i.e., the national trial lawyers association.

    Global warming litigation heats up
    Matthew F. Pawa

    Scientists believe that global warming is primarily caused by human activities, especially those that add to growing levels of carbon dioxide in the atmosphere. If this trend continues, the results could be devastating: floods, deadly heat waves, and the loss of entire ecosystems are just a few of the possibilities. So who is to blame for this state of affairs, and can they be held to account?

    Representing Mother Earth
    Interview with Trip Van Noppen

    Trip Van Noppen is the president of Earthjustice, a nonprofit, public-interest law firm whose motto is, "Because the earth needs a good lawyer." His firm represents national, state, and local environmental groups, health advocates, and people harmed by environmental pollution. In this interview, Van Noppen discusses some key legal victories and describes the hard work that still lies ahead.

    Alternative theories for environmental contamination cases
    Burton LeBlanc and Misty A. Farris

    Environmental pollution cases are usually grounded in allegations of negligence, but plaintiff lawyers shouldn't ignore the possibility of bringing nuisance and trespass claims, too. The additional cost of bringing these claims is minimal, and the benefits--including saving a case from a statute-of-limitations challenge--can be enormous.

    Unfortunately, the articles are behind a subscriber/membership wall, but you get the gist. How do we address global warming? Expansively....

    P.S. We're told that it's actually Earth Day, not Giants of the Earth Day. More's the pity.

    Another Ledbetter Observation

    In writing about the Ledbetter "fair pay" legislation to be considered in the U.S. Senate tomorrow, we neglected to link to a good analysis of the bill that Ted Frank wrote for NPR's "Talking Justice" blog last February. His conclusion:

    Employers are not stupid. To the extent every employee is a potential lawsuit, that is a cost of hiring an employee. As those costs go up, employers will hire fewer employees, and charge "insurance" to the employees they do hire by reducing their wages to account for the possibility of a future lawsuit. If the misnamed "Lilly Ledbetter Fair Pay Act" passes, the vast majority of workers will be worse off, as money that would have gone to pay employees will instead go to pay attorneys. There should be a better reason to pass such harmful legislation than the fact that Ms. Ledbetter's attorney sued under the wrong statute. If Congress really wishes to help workers, they should reject this legislation, and aim a closer eye at the liability system that hurts our economy.

    Cheney at the Manhattan Institute

    And the Vice President has some kind words for the publisher of this site:

    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.

    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.


    • 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 Robison 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.

    The Dallas-Fort Worth Star Telegram has the AP report on a declined cert petition. Normally such petitions are not very worthy of note, but when an individual receives $112 Million in damages eyebrows are naturally raised.

    The case began in 1997 when a former Louisiana judge, Joseph Grefer, and his family sued Exxon, alleging that a contractor working for Exxon had contaminated the family's land with radioactive waste. The contractor was entrusted with cleaning pipes for Exxon Mobil and other companies and left the waste, which occurs naturally as a result of oil and gas production, on the judge's property. None of the Grefers were sickened by the waste, and the only damage claimed was property damage. Nonetheless, a Louisiana jury awarded the Louisiana judge $1 billion in punitive damages and $56 million in compensatory damages. On appeal the punitive award was reduced to twice the compensatories, or $112 million. [How much was this judge's land worth, anyway?]

    Lawyers for the Grefers had urged the court to reject Exxon's appeal because the company had already paid the damage award (to avoid huge interest payments).

    In his latest column, "Stones Left Unturned," Kenneth Jost of CQ Press lists the predations of Melvyn Weiss and William Lerach, their decades of offenses angrily denied.

    Today, those denials are inoperative, the firm has broken up, and Lerach and Weiss are headed to federal prisons after pleading guilty to felony charges. But the head of the American Tort Reform Association, Sherman Joyce, says the full story of ethical misconduct by plaintiffs' lawyers in securities fraud suits remains to be written -- and he wants Congress to investigate.

    Joyce notes that, in a pre-sentencing interview with The Wall Street Journal, Lerach claimed his firm was just following an "industry practice" when it solicited and then paid shareholders who served as plaintiffs in securities suits. If Congress has time to investigate steroid use by baseball players, Joyce says, it ought to have time as well to look into the extent of unethical conduct over the years by plaintiffs lawyers in securities cases.

    Hard to disagree. In fact, it's such a strong argument, others have made it as well. There was the March 21st editorial in The Wall Street Journal, "The Felony Bar," which asked, "In the wake of the felony admissions of Weiss and Lerach and last week's bribery plea by Dickie Scruggs, where are the cries in Congress to crack down on these wealthy wrongdoers who abused their positions of legal trust?" The same day The Examiner made a similar point in "Four felony guilty pleas, but Congress sees no evil," asking, "Doesn't anybody in Congress wonder about copycat crimes?"

    Come to think of it, we proposed something along those lines at Shopfloor.org last October:

    It is time for high-profile investigations and oversight hearings from Congress into the lawsuit industry, demanding accountability from these spoilers. Let's investigate their impact on the economy, the abusive model that Milberg-Weiss established, and the harm their predations do to the children. Make the witnesses take the Fifth, if it comes to that. At the very least, the public shaming will serve an educational and deterrent effect.
    Still, no hearings. Strange. Wonder why.

    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.

    Walter Pincus also considers the national security angle in his Washington Post column, "Cabinet Officials Cite Concerns About Senate Version of Reporter's Shield Law," noting the objections of Attorney General Mukasey and Director of National Intelligence McConnell to the Senate bill, S. 2035.

    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.

    Thanks for the Invitation

    Carter Wood of the National Association of Manufacturers here, taking up Walter Olson's much-appreciated invitation to guest blog. I blog daily at the NAM's site, Shopfloor.org, where legal reform is a frequent topic.

    And I've been following tort reform since my newspaper reporting days in the early '90s, when the North Dakota Legislature debated statutes of repose for the aviation industry. (And Cirrus Design Corp. seems to be doing well. Coincidence?) North Dakota -- that's a "sucker" state according to the Pacific Research Institute's 2008 Tort Liability Index, with the lowest tort costs in the nation but weak laws just waiting to be abused.

    In any case, it's a pleasure to have the opportunity, etc. Lots to follow in the week ahead...like that Ledbetter legislation.

    Around the web, April 21

    • Harassment and cover-up charges engulf office of Ohio AG Marc Dann [Overlawyered]
    • Cue laugh track: Pamela Gilbert predicts fewer product liability suits if Senate CPSC bill passes [Mark Hofmann/Financial Week]
    • Judges who hire clerks from Yale see their decisions reversed more often -- but which way (if either) does the causation run? [Volokh thread]
    • Campaign against medical errors leads to curtailment of hospital reimbursement for "never events" -- but are patient falls, delirium, hypoglycemia truly avoidable? [Happy Hospitalist, Overlawyered, Mello et al/Commonwealth Fund via MPT]
    • Ford Explorer loss-of-value coupon deal: "As an attorney that does a fair amount of class action work, I think this is a poor settlement." [Perlmutter/Schuelke; KickingTires/Cars.com, CalLaw "Legal Pad"]
    • Defendants pleading guilty in Milberg Weiss scandal have agreed to cough up $32 million, a long way short of the $251 million prosecutors say was gained by the scheme [NLJ]
    • Obama-Ayers controversy brings press attention for non-repentant-sounding retired terrorist Bernardine Dohrn, whose project at prestigious Northwestern Law reaps mucho foundation grants [Chapman]

    Per the WSJ, Europe's moves toward expanding the scope of antitrust litigation are very much informed by a view of the U.S. experience as cautionary:

    The European Union proposed rules that would make it easier for businesses and consumers to sue for price fixing and other forms of antitrust abuse, but the measures would fall short of U.S.-style class-action litigation. ...

    Taking direction from a 2001 ruling by the EU's highest court, the European Commission has tried to construct a system that would let victims of anticompetitive behavior seek damages. But it has been something of a reluctant effort given deep reservations in Europe about litigation. ...

    ...the EU shied away from the most aggressive aspects of the U.S. system: Plaintiffs should be able to seek compensation for damages, the commission proposed, but only once over -- no triple damages. And while groups of plaintiffs can sue jointly, the European system should be opt-in, unlike U.S. class actions, where individuals are assumed to be members of a class unless they opt-out.

    Having plaintiffs' lawyers bring cases representing broad classes is "not our cup of tea," said Neelie Kroes, the EU's antitrust chief. Mrs. Kroes also proposed allowing "qualified" organizations, like consumer groups, to sue -- but in practice few groups would have the resources to take on multiple cases at once.

    Indeed, while proposing a system that would make it easier to sue, Mrs. Kroes appeared acutely concerned with not going far. In a news conference, she referred several times to worries over "excessive litigation" and said that to prevent "procedural abuses" courts should have firm control over discovery.

    The paper, which attempts to harmonize the disparate approaches of the 27 EU nation members, is open for public comment through mid-July; no doubt U.S. plaintiff's-bar interests, which have sought to encourage the expansion of litigation across the Atlantic, will find ways to make their views known.

    Brian Stimson (Alston & Bird) has a working paper from WLF (press release) on how prosecutors are using the False Claims Act "as a tool for enforcing compliance with federal health care quality standards". Under something known as the "implied false certification doctrine," accepted by some courts, "implied misrepresentations of statutory, regulatory, and contractual compliance are as actionable as express falsehoods" -- which can have the effect of turning the FCA into a general federal health law barbed with treble-damage provisions as well as per-incident fines, even in cases where patients were not harmed or duplicative or unneeded services billed for.

    That's what was spent by the trial lawyers in Albany last year, an off year as elections go. Health care and hospital groups spent more -- in excess of $3 million on lobbying, $931,000 on contributions -- but their attention was divided among a variety of policy issues, most prominently those relating to state reimbursement of health care outlays. The Commission on Public Integrity's 2007 annual report is here.

    Josh Gerstein in the NYSun:

    A federal judge in Texas is ordering lawyers seeking a record $695 million fee in a class-action securities lawsuit to submit records detailing the 247,000 hours they allegedly spent working on the case over the collapse of Enron Corp.

    On Wednesday, Judge Melinda Harmon of Houston gave the plaintiffs' attorneys two weeks to file "contemporaneous time or billing records reflecting which tasks were performed, when, and for how long."

    Around the web, April 18

    In the U.K., it looks as if what used to be called champerty and maintenance isn't just for plaintiffs any more.

    Abraham, "The Liability Century"

    Haven't seen this new volume by Virginia lawprof Ken Abraham yet, but it looks to be of much interest:

    From its beginning late in the nineteenth century, the availability of liability insurance led to the creation of new forms of liability, heavily influenced expansion of the liabilities that already existed, and continually promoted increases in the amount of money that was awarded in tort suits. A "liability-and-insurance spiral" emerged, in which the availability of liability insurance encouraged the imposition of more liability, and, in turn, the imposition of liability encouraged the further spread of insurance.

    Liability insurance was not merely a source of funding for ever-greater amounts of tort liability. ...The very idea behind insurance--that spreading losses among large numbers of policyholders is desirable--came to influence the ideology of tort law. To serve the aim of loss spreading, liability had to expand.

    (Harvard U. Press description via Robinette)

    The circle of life (Ortho Evra edition)

    Yesterday, the DC Circuit heard arguments appealing the dismissal of a challenge to the constitutionality of the Public Company Accounting Oversight Board (Feb. 2006), an institution whose members are appointed by the SEC, which would seem to violate the Appointments Clause. (The lawsuit also alleges nondelegation doctrine problems.) A panel of Judges Brett Kavanaugh, Judith Rogers, and Janice Rogers Brown expressed substantial skepticism to the PCAOB's position, as Michael Carvin argued that the board was a permanent government-like agency with extraordinarily broad and unchecked prosecutorial powers, but outside the power of the president to appoint or remove officials. (Judith Burns, "Accounting Oversight Board Case Heard By Appellate Court", Dow Jones Newswires, Apr. 15; Jurist summary; CEI press release). Because of a nonseverability provision in Sarbanes-Oxley, a finding that PCAOB is unconstitutional would strike down the law entirely, but the argument was not reported on by any newspaper—not even the Wall Street Journal.

    The latest issue of Journal of the American Medical Association publishes two pieces by plaintiffs'-side experts (including the infamous Dr. David Egilman (e.g., Oct. 2007; Dec. 2005; Jul. 2005)) slamming Merck over Vioxx studies. Ross/Hill/Egilman/Krumholz accuse scientists of ghostwriting studies for Merck, but as Merck and Reuters note, Egilman et al. are smearing dozens of scientists without factual basis. As one tells the Washington Post:

    Ted has an important article in National Review Online today on the ill-considered campaign to revive old claims against the Roman Catholic Church and other defendants. The idea of reopening lapsed statutes of limitation has also been pursued extensively in the context of asbestos, lead paint and other product liability, as Ted notes at greater length in his recent AEI Liability Outlook piece.

    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).

    The Daily Business Review reports that Miami-Dade Circuit Judge David C. Miller has awarded $218 million in legal fees Tuesday to Stanley and Susan Rosenblatt for work they did on the now-dismissed class action litigation against the nation's biggest cigarette markers. "I find it very reasonable," Miller said from the bench, referring to fee calculations estimating the couple worked for 77 hours a week on average at an hourly rate of $274. "These are reasonable and conservative hours."

    "In fact, in some firms that would not have been acceptable billing," the judgee joked before a courtroom packed with at least 200 people.

    Incredibly, the fees would come out of a common "guaranteed fund" of about $800 million that Big Tobacco put up as legally required collateral in 2001 to appeal the record $145 billion punitive verdict the Rosenblatt's had obtained against cigarette makers. The verdict was later thrown out by the Florida Supreme Court along with a class certification order uniting sick smokers in a single lawsuit. The court also rebuked the Rosenblatts' craven appeals to racial prejudice of jurors.

    The judge still must determine how to distribute the rest of the $800 million fund.

    Tobacco attorney Robert Heim, a partner with Dechert in Philadelphia, argued that "it would be wrong under common fund law" to award fees to the Rosenblatts, saying a guardian ad litem should be appointed to administer a fund "to protect the interests of the class."

    This fascinating case is of course a mockery of the contingent fee (the lawyers collected nothing for their clients) and demonstrates the corrupting effect of supersedeas bonds.

    Around the web, April 15

    • "Paid at the end of the day": "eye-popping" ambiguity of former Mississippi AG Mike Moore's multiple roles as Katrina insurance "resolution counsel" [Parloff]
    • Called in Jones v. Scruggs fee dispute, Scruggs takes the Fifth at least 19 times [AP, YallPolitics, NMC @ Folo and more, Rossmiller]
    • Updating earlier item: appellate court stays Suffolk County's prosecution of lawyer who advised Filipina nurses they were free to quit jobs [Greenfield]
    • Kudos to SUNY Binghamton where they've cut back mandatory student fee outlays to Litigation Lobby pillar NYPIRG; official of that group claims cuts are a "direct violation of student rights" [BU Pipe Dream]
    • An "immediate" little uptick in the local crime rate when a house goes into foreclosure? Really, Sen. Dodd? [Mark Lieberman/FoxBusiness via Crime and Consequences]
    • Oh look, a company actually defending itself in public debate [Chevron on Ecuador environmental suit in SFChron; Reuters; ChrSciMon; earlier. More: IBD and WSJ editorials]
    • Jonathan Adler versus Jeffrey Rosen on supposed Bush "legal war against the environment" [Volokh]

    It's actually worse than we thought in our report the other day about earmarks in the state budget to establish new law schools at SUNY Stony Brook and at St. John Fisher College near Rochester. "State politicians have guaranteed $3 million to fund initial design and planning stages of a proposed Binghamton University [SUNY Binghamton] law school, Sen. Tom Libous announced Wednesday," according to the student newspaper at the state-run school, which reported the legislative sponsors' fairly shameless rationale: "the proposal would benefit BU's reputation and offer economic development. ...[quoting Libous:] 'It will provide a very significant long-term economic benefit to the Southern Tier.'" More: May 28.

    Santa Clara v. Superior Court

    On April 26 and May 19, Walter noted the important 2007 Santa Clara v. Atlantic Richfield Superior Court decision barring government entities from using contingent-fee attorneys to prosecute governmental claims grounded in public-policy balancing of costs and benefits like public nuisance abatement. The decision was a natural consequence of People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985), where the California Supreme Court noted the ethical conflict of interest stemming from contingent fee agreements:

    "[T]he abatement of a public nuisance involves a balancing of interests. On the one hand is the interest of the people in ridding their city of an obnoxious or dangerous condition; on the other hand is the interest of the landowner in using his property as he wishes. And when an establishment such as an adult bookstore is the subject of the abatement action, something more is added to the balance: not only does the landowner have a First Amendment interest in selling protected material, but the public has a First Amendment interest in having such material available for purchase. Thus, as with an eminent domain action [to which the absolute neutrality requirement applies], the abatement of a public nuisance involves a delicate weighing of values. Any financial arrangement that would tempt the government attorney to tip the scale cannot be tolerated."

    So the appellate court has ruled in a remarkably poorly-thought-out opinion that, well, financial arrangements that would tempt government attorneys to tip the scale can be tolerated, so long as "in-house counsel retain control over all decision-making."

    We'll see if the California Supreme Court believes that Clancy only applies to attorneys named Clancy or has broader precedential value. If the reversal holds, however, all is not lost for defendants: "The record before us contains absolutely no evidence [sic] that private counsel have ever engaged in any conduct that invaded the sphere of control exercised by the public entities' in-house counsel. ... No doubt the companies will seek disqualification of the public entities' private attorneys if they acquire evidence that the private attorneys are improperly exercising control over this action."

    1) That "no evidence" line is remarkably disingenuous: the city of Oakland's fee agreement states private counsel have "absolute discretion in the decision of who to sue and who not to sue, if anyone, and what theories to plead and what evidence to present." The appellate court, reached to find facts to override it in Oakland's assertion that the agreement did not actually reflect the deal it had with counsel. It's one thing (and bad enough) for an appellate court to find facts, but it's another to blatantly misrepresent the state of the record. And one wonders if Oakland's contingent-fee counsel will be so eager to ignore the parol evidence rule down the road if there is a later dispute over the size of the fee.

    2) Meanwhile, it sure sounds to me like the California appellate court just opened to discovery the internal workings of the relationship between the in-house and outside contingent-fee counsel. Which is normally impermissible under the attorney work product doctrine. Every time a brief is filed, it's cause for additional discovery and scrutiny of whether the line has been crossed. Such are the knots that the court has tied itself in to avoid the bright-line statement of Clancy.

    The same appellate court rescued the illegitimate public-nuisance claim from a lower court dismissal in County of Santa Clara v. Atlantic Richfield Co., 137 Cal. App. 4th 292 (2006).

    Shorting Stein

    Speaking of weak opinion pieces in the pages of the Times, Felix Salmon once again enjoys a field day at Ben Stein's expense:

    Stein also can't conceive of a world in which some people suffer losses without other people (invariably investment bankers) finding themselves with enormous gains. "The false god of deregulation allows unscrupulous people to loot the system," he says, convinced that a cabal of cackling capitalists is somewhere cheering the present crisis, making billions of dollars every time another bank implodes.

    The really funny bit is where Stein contrasts the winners and the losers. On the winning side you have "Wall Street", while on the losing side you have "the people who were wiped out in Bear Stearns stock", as though such people were widows in Omaha rather than the very investment bankers who Stein thinks are gaming the system so that they always win.

    Scott Greenfield ventilates (in the Warner Bros. sense of "blasts holes in") an op-ed in today's NYT proposing the unleashing of legal services lawyers to go after mortgage lenders:

    Sant's view is that the LAS should be at the forefront of a political campaign to win cash and prizes for the subprimers. ...

    But [Legal Aid] lawyers are hamstrung by federal regulations that limit homeowners' access to speedy, low-cost legal relief.

    No, No, No. There are no regulations that limit homeowners' access to anything. There are regulation that limit the LAS, which receives governmental funding, from engaging in political activities. Homeowners are free to go hire a lawyer, whether by fee or contingency, any time they want. A good time might have been before they signed their names 37 times on the mortgage papers. ...

    Finally, federal law forbids legal aid lawyers to undertake class action litigation, preventing them from attacking systemic abuses in the real estate industry. Class actions offer the best chance for taking on foreclosure fraud, identifying illegal fees, recovering stolen equity and sending powerful signals to would-be predators. Instead, legal aid lawyers must prosecute cases one at a time.

    While I seem to recall Michele Maxian, formerly of the New York Legal Aid Society, doing some "special projects" involving class actions, let's assume that Sant's correct. When it comes to his poor homeowners, what class actions is Sant talking about? Downtrodden Homeowners who agree to take mortgages they can't afford versus Evil Subprime Lenders who give mortgages to people with no assets and no income? Don't they teach students at Georgetown that when claims are dependent on the individual facts of each case, they really aren't class action material? And if he wants speedy justice, class actions certainly aren't the way to go.

    Whole thing here.

    With the debate in full swing at the moment, now is the time to catch up with Jim's analysis if you missed it in the Washington Post recently.

    Michael LeRoy of the University of Illinois Law School has posted a working paper to SSRN that is getting a lot of blogosphere attention: Storm's Employment Law; Workplace Prof Blog. Unfortunately, the paper follows a disturbing academic trend of correctly compiling quantitative data sets that are qualitatively ambiguous, and then jumping to a qualitative conclusion when the quantitative data is more likely to reject that qualitative hypothesis. Torturing the data set to make it confess to information it does not have, however, tends to tell us more about the confirmation biases of the author than the state of the world.

    Daniel Schwartz on a decision this month called Curry v. Goodman: "the Connecticut Supreme Court today held, in an issue of first impression, that employers have a duty to provide a reasonable accommodation to disabled workers under state law, even though the law does not explicitly say so." A noteworthy aspect of the ruling is that the Connecticut legislature had "ignored various bills that have been proposed over the years ... to add reasonable accommodation language to the statute" -- which now doesn't seem to matter, since the court is willing to declare victory for the disabled-rights enforcers without that little formality. The practical significance goes beyond simply providing duplicative coverage on matters already reached by the federal ADA; Connecticut's conjured-up duty to accommodate reaches smaller employers (3-14 employees), unlike its federal counterpart. Beyond that, Schwartz notes, the Court in Hartford found "that state law imposes a duty on employers to engage in an 'interactive process' [when accommodation is requested] -- a term of art found in the Americans with Disabilities Act regulations."

    Although expanded supervision of insurers by Washington, D.C. sounds like a step in a vaguely Naderite direction, don't assume that plaintiff's lawyers necessarily support it. Texas's Perlmutter & Schuelke explain why some don't.

    Antitrust damages to state economies

    The implacable in pursuit of the unknowable? In Connecticut, Virginia and Nevada, legislation provides that state legal officers may sue antitrust offenders for the notional general damage done to the states' economies by the economic offenses charged. The Connecticut Supreme Court on that basis has just green-lighted AG Richard Blumenthal's legal action against insurance broker Marsh & McLennan, rejecting Marsh's argument that the economic damage theory inherently involves double-counting of damages already included in private parties' right to sue. (Legal NewsLine; opinion, PDF).

    P.S. Correspondent Skip Oliva of the Voluntary Trade Council writes, "Of course, no state AG would ever consider the possibility that antitrust itself does far more damage to the economy by removing private capital from the market."

    Because we all know if there's anything New York needs to subsidize, it's the creation of more lawyers: In the bloated new state budget, Sen. Ken LaValle (R-Port Jefferson) managed to insert $45 million for the purchase or construction of a new law school at SUNY Stony Brook. Touro Law School, a private school, had been in talks (now discontinued) over a possible affiliation with Stony Brook; the new budgetary move "could put pressure on Touro because a Stony Brook-created law school could undercut Touro, which charges much more in tuition than a state school would, and take away its student base." (Long Island Business News). And Sen. Joseph Robach (R-Greece) got $2.25 million in state funds to support a proposed new law school at St. John Fisher College in Fairport, which would be the first law school in the Rochester area. The future lawyers of New York thank you, taxpayers! (Rochester Daily Record/RedOrbit, Democrat and Chronicle). More Apr. 15: SUNY Binghamton, too, which will get $3 million.

    Medical no-fault for New York?

    Per the New York Sun, whose coverage of these matters runs rings around some of its larger competition, trial-lawyer-allied groups are trying pre-emptively to head off medical no-fault proposals that had been under serious consideration by the administration of departed Gov. Spitzer. No indication just yet of the view Gov. Paterson will take. Bonus extra moment of pawky humor: the Center for Justice and Democracy, a group that would ardently defend any and every $30 million infant-injury award the NYC hospital system might be ordered to pay, repositions itself as being oh, so concerned about the danger of, you guessed it, government budget deficits.

    Cumberland/Samford lawprof Michael DeBow, an occasional contributor to this site, weighs in on the judicial-selection debate (on the election side) in this article in the Federalist Society's Engage.

    For years smokers of "light" cigarettes have sued manufacturers for "failure to warn" that they would in fact smoke more cigarettes in order to achieve the desired nicotine intake. Norma Rose tried the opposite, alleging that Brown & Williamson and Philip Morris negligently designed cigarettes by continuing to market a product with higher levels of tar and nicotine than so-called "light cigarettes." [Yet another instance of "darned if you do...."]

    The 73-year old Ms. Rose won a $3.4 million compensatory damage award against the two industry giants, plus $17.1 million in punitive damages against Philip Morris [perhaps they "deliberately" marketed the light cigs?]. Yesterday, as the New York Law Report (via Law.com) reports, New York's Appellate Division, 1st Department, quashed the judgment in a 3-2 opinion.

    Justice David S. Friedman wrote that Rose simply provided no evidence that low-tar, low-nicotine cigarettes would "have been acceptable to the consumers that constitute the market for the allegedly defective product," regular cigarettes.

    Roger Parloff on Dickie Scruggs

    Must-read profile of the Fall of Scruggs in the latest Fortune.

    Scruggs was someone who could render all of State Farm's actuarial calculations irrelevant, because he had the power and know-how to force it to rewrite its contracts retroactively. ...

    While the bribery accusations have attracted most of the media attention, the story of Scruggs's siege upon the insurance industry is more jaw-dropping still. These were lawsuits in which the law itself played only a bit part. Victory was to be secured by aggregating pressure points, of which the most valuable were press attacks, threats of legislation harmful to the target or its industry, and the instigation of paralyzing state and federal investigations of the target.

    Notwithstanding Scruggs's initial reliance on legal arguments that have been rejected by every federal appeals judge who has considered them, he still managed to squeeze out of State Farm $150 million for policyholders who, from a cold, contractual perspective, were probably entitled to only a fraction of that.

    $568 million to fen-phen trial lawyers

    After receiving "interim fees" of $156 million in 2002, trial lawyers received another $412 million in In re Diet Drugs Monday, just short of $1000/hour for the 578,000 hours billed to the case—assuming that that latter number wasn't as inflated as the number of claims of heart-valve problems from "echo mills." (Shannon P. Duffy, "$412 Million in Attorney Fees Awarded to Plaintiffs Lawyers in Fen-Phen Litigation", The Legal Intelligencer/law.com, Apr. 10). That $568 million figure doesn't include the contingent fees for the billions stolen from Wyeth in opt-out litigation.

    Temple lawprof Dave Hoffman (via Bainbridge):

    The big idea to agree with here is that it is a terrible fact that law deans, and law professors, continually push out the message that corporate lawyering is a less moral & desirable career path than "public interest" lawyering. The reason isn't that it makes students feel guilty (though it does) but that those students, when in practice, are probably less likely to be ethical because they've been told they've "sold out."

    I noticed this last semester in my corporations class. When asked whether they would draft ethically troublesome documents, most students professed to say that they would. Why? Because by going into big firm practice in the first instance, they'd have already decided to be ethically gray. When deans (and well-meaning liberal professors) reinforce the idea that corporate practice is "corrupting and essentially random and beyond your control, and there's not a whole lot you can do about it", students are more likely to let the situation corrupt them. If instead academics were to celebrate the pro-social, professional, aspects of corporate practice, perhaps we'd have less situationally-motivated fraud.

    Around the web, April 10

    All-opinion edition:

    • "Litigation does collateral damage, too. ... We ought to avoid using lawyers the way we avoid firing missiles." [John Stossel, Real Clear Politics]
    • Legal ethics more honored in the breach when winning at all costs is the fashion [Hepp/Battle Creek Enquirer]
    • Rest of country should take a leaf from California and Texas on medical liability [David Ridenour/IBD]
    • Weiss, Lerach, Scruggs scandals should spur Congress to action [Sherman Joyce/LADJ, PDF]
    • Bear Stearns' Schwartz next? Dept. of Justice in recent years has routinely launched criminal probes of business people and other "professionals who have engaged in seemingly routine requirements of their job" [Silverglate, WSJ]
    • Lefty bloggers thrilled at thinly supported Eric Lichtblau NYT front-pager depicting deferred prosecution agreements (DPAs) as mere pretext under which softy DoJ lets defendants off; virtually unmentioned is several years' worth of controversy over the agreements' often harshly coercive nature [disguised as news article; Heritage]

    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.

    "Smoke test for Supremes"

    Our own Jim Copland is in the New York Sun today on Altria Group v. Good, in which the Supreme Court may decide whether federal labeling law pre-empts lawsuits claiming that it is a deceptive trade practice for tobacco companies to promote cigarettes as "light" or "low tar and nicotine."

    Recent opinion roundup

    Greenspan's case

    There's a big effort to blame the former Fed chairman for the rise and fall of the housing bubble -- though in fact comparable run-ups in housing prices went on simultaneously in many other advanced countries, with their own monetary policies and systems of housing finance regulation. His response?

    The problem is not the lack of regulation but unrealistic expectations about what regulators are able to prevent. How can we otherwise explain how the UK's Financial Services Authority, whose effectiveness is held in such high regard, fumbled Northern Rock? ... Even with full authority to intervene, it is not credible that regulators would have been able to prevent the subprime debacle.

    Martin Wolf argues in the FT that central banks "can surely lean against the wind" even if they cannot eliminate bubbles. I know of no instance in which such a policy has been successful.

    Whole thing here.

    Ideas for narrowing qui tam

    Congress seems if anything more interested in expanding the bounty-hunting law and its liability for federal contractors, but should it reverse direction at some point, Todd Canni (McKenna Long & Aldridge) has some ideas in this new paper for WLF (via Heritage Insider):

    Private plaintiffs' enforcement of the federal False Claims Act through qui tam actions have proliferated significantly over the past two decades. While such lawsuits have their merits, because of the relaxed pleading standards, a large number of such cases are dismissed or, even if successful, are overturned on appeal. Speculative qui tam suits impose damage on government contractors and the contracting process. In order to reduce the number of baseless suits and the cost of defending against them, the False Claims Act should require that qui tam plaintiffs demonstrate that they had actual, proven knowledge of a fraud committed against the government, and that such allegations are detailed with particularity in the plaintiff's complaint.

    On the same general topic, on Apr. 18, the Federalist Society is holding a lunchtime panel discussion in Washington, D.C. to discuss proposed Congressional expansion of the False Claims Act. Panelists include Jonathan Diesenhaus (Hogan & Hartson), Andrew Grosso (Andrew Grosso & Associates), Marcia Madsen (Mayer Brown), Shelley Slade (Vogel, Slade & Goldstein), and moderator R. Christopher Cook (Jones Day).

    One day of asbestos exposure?

    In the mail: David Frum's much-discussed new book Comeback: Conservatism That Can Win Again, which contains the following mention of our topics on pp. 71-72:

    Litigation abuse has transformed the American judicial system into a lottery where most find only delay and frustration, but a lucky few win amazing prizes. George Priest of Yale Law School likes to tell the story of the plaintiff who was exposed to asbestos for one day when his church was renovated, and won a $4.5 million settlement.

    Further details are earnestly solicited from Prof. Priest, if he's reading this...

    "Resurrect Rule 11"

    In 1993 the U.S. Congress, urged on by organized litigators, gutted Rule 11, which for ten years had provided relatively strong remedies to those targeted by groundless litigation in federal courts. It's time to look again at the case for a stronger Rule 11, argue Zeke J. Roeser and Karen Harned (National Federation of Independent Business, in a new article for the Federalist Society's Engage.

    In many of the sweeping suits filed these days under the Alien Tort Statute, gigantic sums are demanded based on purported human rights violations half a world away which arrive at U.S. courts as tangled and hard-to-check factual allegations, often at odds with the foreign government's own account of the events in question (or, at other times, conveniently congruent with it). Do you ever get the feeling that the factual predicates of these ATS cases are more plastic and manipulable than those offered in, say, a tort suit arising from a crash at exit 31 of the Interstate? Last month, reported the SFChron's Bob Egelko, "Nigerian villagers who are suing Chevron Corp. in a San Francisco federal court have quietly moved to withdraw half of their claims that the oil company was responsible for military attacks on protesters in the late 1990s." Plaintiff's lawyers gave no explanation for the abrupt change of course, though a National Law Journal account has the lawyers cryptically citing a conflict of interest as the reason. Chevron describes the occupation of its oil platform, which was eventually broken by a commando assault, as "a violent occupation of private property by aggressors seeking to extort cash payments from the company". The remainder of the case is headed for a trial this fall.

    Autres pays, autres moeurs

    The Associated Press reports that victims of Northern Ireland's deadliest bombing began Monday their lawsuit against five alleged leaders of the Irish Republican Army. The lawsuit, seven years in the making, seeks at least 10 million pounds ($20 million) in damages. "It represents the first time in legal history that victims of Northern Ireland terrorism have sought justice through a civil action", reports AP.

    Think about that! How many suits would there have been if the IRA bombings had taken place stateside? Too many, I can hear readings thinking. But one is surely too few, as well. Perhaps as in all good things there is a moderation that both we and the Brits can emulate. [Sorry for calling the Irish Brits...]

    BREAKING: WR Grace settles

    Plaintiffs asked for $6 billion; WR Grace said the asbestos claims were worth only $500 million because of extensive fraud. According to Bloomberg, the parties settle for "$1.8 billion," though this amount consists of in-the-money options and payments over 15 years beginning in 2019, so is substantially inflated in present value--depending on the discount rate one uses, the total is more like $600 to $900 million. I haven't yet explored the filing in detail to see what audit protections the settlement will have: will the plaintiffs' lawyers have a blank check to divvy up funds, or will allocations be decided by a neutral administrator as in the Vioxx settlement? And, alas, the settlement means we won't get a federal judge making authoritative pronouncements on the extent of fraud by the asbestos plaintiffs' bar, though the fact that the plaintiffs are settling for less than a quarter on the dollar (well under $1.3 billion of the $5.5 billion in dispute) is telling. More: the 8-K filing; Reuters; Thomson/CNN/Money.

    Readers may have noticed that when we cite the NYT's legal coverage favorably (honest, that does happen sometimes), a disproportionate share of the time the byline on the linked stories will read "Adam Liptak". Apparently, favorable regard from people like us has not served as a bar to his advancement. Congratulations are in order to him, to the Times, and to its readers.

    Forbes compiles its list and is kind enough to quote me at some length. Scariest of the scary? Los Angeles (ADA filing mills); Miami (med-mal); Atlantic County, N.J. (pharmaceutical); Starr County, Tex. (personal injury); Cook County, Ill. (product liability; I'm quoted on the Cook premium for otherwise routine injury cases); Mississippi (class actions; more properly, group and other mass actions, given the state's peculiar way of handling such claims); Clark County, Nev. (construction litigation); West Virginia (environmental lawsuits); Philadelphia (I'm quoted on the city's tradition of libel suits by public officials); (William Pentland, Forbes, Apr. 7; slideshow) (cross-posted from Overlawyered).

    The Recorder (via Law.com) reports on the Boring family, who have sued Google for more than $25,000 for taking a picture of their home for its Street View map service.

    It seems the Boring's house is on a private street, and the family claims Google trespassed in order to take the picture. The Google photo is not the first time that the Borings' house has been photographed and put on the Web. The Allegheny County Assessor's Office makes one available on its Web site. Moskal did not return e-mails seeking comment on that photo.

    True, as the report points out, in Daily Times-Democrat v. Graham, 162 So.2d 474, a newspaper was held liable for printing a photo of a woman whose skirt had been blown over her head, even though the picture was taken in a public place (a county fair). A judge found the photo was not essential to the story. But whether or not the Graham case is sound, no embarrassing or indecent exposure of the Borings occurred here. Apparently no one was in the Borings' swimming pool when the photo was shot -- where is the emotional distress they claim?

    It will be interesting to see if this case progresses. With the increase in the number of private streets, even a $1 trespass award could lead to a class action....

    Hofstra lawprof Julian Ku in the Federalist Society publication Engage notes that after 2004's Sosa v. Alvarez-Machain, the Supreme Court was praised for taking a middle position on the Alien Tort Statute, leaving the door "ajar" but not wide open for suits based on alleged violations of international law, especially international human rights law. However, writes Ku, lower federal court interpretations of Sosa, on topics like "aiding and abetting" liability,

    have actually exposed multinational corporations to potentially enormous liability for overseas cooperation and business dealings with foreign governments. Such judicial development of important but highly debatable standards of liability under international law, I argue, undermines the idea that Sosa represents any meaningful limitation on the ability of plaintiffs to pursue wide-ranging expensive litigation against a broad array of multinational corporations.

    New from Washington Legal Foundation: former AG Dick Thornburgh interviews lawprofs Craig Lerner (George Mason) and Moin Yahya (University of Alberta) on the costs, benefits and lingering malincentives of the 2002 Sarbanes-Oxley law (PDF), just in case you needed a reminder that the fundamental problems with Sarbox are in no way a thing of the past.

    Around the web, April 6

    A fairly spectacular rebuke to the lawyers formerly allied with Dickie Scruggs in the hurricane litigation, as well as to the now-disgraced Scruggs himself: the judge has disqualified both the lawyers and the Rigsby sisters from participating in Katrina claims in the Southern District of Mississippi because of the gross conflicts of interest created when the (former) Scruggs Katrina Group hired the sisters as consultants despite their status as fact witnesses. Tons of coverage from David Rossmiller, from NMC/Folo, and at YallPolitics here, here, and here. Plus: more from David Rossmiller.

    "Overwarning, Undercuring"

    In City Journal, Marie Gryphon explores the need for preemption if the FDA is to stop the problem of overwarning. (I am quoted.) Earlier: Feb. 25; Jan. 2; Mar. 2006.

    Whelan on Posner's How Judges Think

    Ed Whelan extensively comments on Judge Posner's new book, How Judges Think:

    What we have is not a book that sheds any particular insights about how judges actually think, but rather a book that, in the end, is really much more about how Judge Posner thinks judges should think.

    Of course, that in and of itself will be interesting.

    From the Center for Individual Freedom:

    A former New York lawyer has filed a $20 million racketeering lawsuit in federal court against several Atlantic City casinos and one Las Vegas casino, charging that they had a duty to notice her compulsive gambling problem and cut her off.

    Arelia Margarita Taveras, who had represented many families of victims of American Airlines Flight 587, which crashed in Queens in 2001, admitted becoming a regular at the casinos. Her suit alleges that she spent days at a time at the tables, not eating or sleeping, subsisting on orange juice and candy bars, and brushing her teeth with disposable wipes, neglecting her law practice. When her losses rose to nearly $1 million, she dipped into her clients' escrow accounts. Ultimately she was disbarred, lost her apartment and her parents' house (they had presumably co-signed on a loan) and owes the IRS $58,000.

    "They knew I was going for days without eating and sleeping," Taveras said. "I would pass out at the tables. They had a duty of care to me. Nobody in their right mind would gamble for four or five straight days without sleeping."

    The casinos deny any wrongdoing. Joe Corbo, president of the Casino Association of New Jersey, said, "This can be a delicate situation, and it comes down to an individual's personal responsibility. We can only suggest that they receive assistance and provide information how they can obtain help, but it is up to them to commit to seek it."

    --Ultimate Source: The Star Tribune (Minneapolis-St. Paul)

    Zombie Litigation

    My latest Liability Outlook examines the problems of retroactive lawmaking and litigation, especially reviver statutes, and even Obama fans will find something to like:

    The controversy over whether and how to seat the Michigan and Florida delegations at the Democratic National Convention shows the danger of changing rules midstream and upsetting settled expectations. Reviver statutes not only obviate statutes of limitations, which are a critical aid to justice, by "reviving" claims that have expired or never existed, but they can also pose the danger of undoing the benefits of future prospective legislation. In evaluating laws, the issue is not merely one of retroactivity, but of the importance of promoting legal certainty. For example, the FISA Amendments Act, S. 2248, while ostensibly acting retroactively to grant immunity to telecommunications companies that cooperated with the Bush administration's antiterror surveillance program, works to protect settled expectations.

    Among matters discussed: litigation against Catholic priests and the Michigan legislature's proposed retroactive repeal of pharmaceutical tort reform in H.R. 4045. Walter has previously discussed the subject.

    Wisconsin Supreme Court redux

    Judge Diane Sykes, who formerly held the seat contested by Louis Butler and Michael Gableman before joining the Seventh Circuit, gave a 2006 speech with a discerning analysis of the leftward drift of the Court after Butler replaced her.

    Separately, I'm still waiting for one of the proliferating non-partisan organizations campaigning against judicial elections to speak out against trial-lawyer influence in judicial elections and selections. If judges respected their role in constitutional government, there wouldn't be cause to campaign against those who don't; if judges have the capability of acting as super-legislators, then voters can hardly be blamed for wanting a say on who is a judge.

    The ABC broadcaster has a TV special tonight and a companion piece in today's WSJ arguing that other lawyers are likely to step into the shoes of the disgraced Lerach, Weiss and Scruggs. The true scandal? What it remains legal for these lawyers to do. As for the securities class actions filed on behalf of one broad investor class against, effectively, another broad investor class:

    What do we get from this kind of "private law enforcement"? Very little. James Copland of the Manhattan Institute points out, "The small, diversified investor is as likely to be a buyer as a seller and thus a payer in a class action settlement. The 'little guy' pays money to himself." Actually, it's worse than that: Little guys come out behind because the lawyers pocket so much.

    More from Ted at OL.

    Very good story in the Fulton County Daily record (via Law.com) about Fulton County Superior Court Judge Marvin S. Arrington, who cleared his courtroom of white people so he could have a "fireside chat" with the black defendants assembled before him.

    "It was not done for race reasons," said Arrington, who is black, explaining that he is confronted daily with a stream of criminal acts, "most committed by African-Americans."

    "At some point, it needs to come to a halt," said the judge. He cited several cases of senseless violence -- killings over $15 worth of crack cocaine, a wristwatch or for no reason at all, even the night his own sister and brother-in-law were held up at gunpoint at the door of their Atlanta home -- that compelled him to try to reach the young defendants before him. "These young people are completely out of control," he said, adding, "People can't go to a gas station in my neighborhood at night without somebody coming up and putting a gun on them."

    A significant victory for product liability defendants, from a unanimous high court in Sacramento: "A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm or danger, if the sophisticated user knew or should have known of that risk, harm or danger." CalBizLit has more details on the decision in Johnson v. American Standard. The defense has been accepted in some other courts, but was on first impression at the California court. Per the Civil Justice Association of California (not yet online), "The state's personal injury lawyers association fought against the Court of Appeal ruling in an amicus brief filed by its former president Sharon J. Arkin." Lawyers Weekly has an account of the appellate decision, partly behind a pay wall. More: The Recorder, Lex Communis.

    The Legal Times Blog has a nice summary of the U.S. Chamber of Commerce's Institute for Legal Reform press conference yesterday, apropos the fight over the "Arbitration Fairness Act" pending in both houses of Congress. That bill, supported strongly by the would ban mandatory arbitration agreements from consumer and employment contracts. At the press conference, the business group made its case in triplicate:

    First came anecdotal evidence in the form of a Michigan woman who took Sears to arbitration over a $288 boiler repair bill and won (she believed strongly in pre-dispute arbitration agreements).

    Next came the focus group results suggesting that consumers don't support an end to mandatory arbitration. Compiled by the bipartisan polling team of Public Opinion Strategies and the Benenson Strategy Group, the study finds that consumers are averse to lawsuits "and, if given the choice, would prefer arbitration" in the words of presenter Bill McInturff of Public Opinion Strategies. ...

    Finally, Catholic University professor Peter Rutledge made the academic and legal case against the legislation. Dropping mandatory arbitration, he said, "unravels the quilt of dispute resolution." Citing numerous categories of arbitration in which consumers already win a majority of cases, Rutledge suggested that allowing lawsuits would kill the incentive for businesses to respond to smaller claims. Lastly, he noted, the prohibition of pre-dispute resolution agreements would lead to a greater burden on judges' dockets by smoothing the path for class actions.

    [Peter Rutledge's paper is available on SSRN; I cite it in my most recent law review article. For more on arbitration, see the Overlawyered arbitration section. – THF]

    The McLaughlin v. Philip Morris USA opinion, issued today, finds that "because individual issues outweigh issues susceptible to common proof, the class is not maintainable under Federal Rule of Civil Procedure 23(b)(3)." I'd criticized Judge Weinstein's underlying Schwab decision in a Liability Outlook last year. Earlier on POL: Sep. 25, 2006; Sep. 27, 2006; Oct. 1, 2006; Mar. 2006.

    I've often linked in the past to the work of New Hampshire blogger Kathleen Seidel, whose weblog Neurodiversity presents a fearless, systematically researched, and frequently brilliant ongoing critique of autism vaccine litigation. A prominent plaintiff's lawyer in that litigation, Clifford Shoemaker of Vienna, Virginia, has just hit Seidel with an astoundingly broad and sweeping subpoena (PDF) demanding a wide range of documents and records relating to her publication of the blog. Seidel has been sharply critical of Shoemaker's litigation, and indeed the subpoena arrived only hours after she posted a new Mar. 24 entry, "The Commerce in Causation", critical of his legal efforts.

    The subpoena contains no indication that Seidel herself is accused of defaming anyone or violating any other legal rights of any party. Instead it seems she is being dragged in as a third-party witness in Shoemaker's suit on behalf of his clients, Rev. Lisa Sykes and Seth Sykes, against vaccine maker Bayer. Although Seidel has been a remarkably diligent blogger on autism-vaccine litigation, I can find no indication that she is in possession of specialized knowledge that Shoemaker would not be able to obtain for his clients through more ordinary means.

    Instead, the first phrase that occurred to me on looking through the subpoena was "fishing expedition", and the second was "intimidation". Several clauses indicate that Shoemaker is hoping to turn up evidence that Seidel has accepted support from the federal government, or from vaccine makers, which she says she hasn't. Also among the documents demanded: Seidel's correspondence with other bloggers.

    The Democracy Project announces happy news: New York's Libel Terrorism Protection Act has just been adopted by its legislature. The act declares overseas defamation judgments unenforceable in New York unless the foreign defamation law provides, in substance and application, the same free speech protections guaranteed under our own constitution, and it gives New York residents and publishers the opportunity to have their day in court here in New York. Wahabists have used British defamation rules to silence American authors, such as the valiant Rachel Ehrenfeld, who have "outed" their links to terrorism. Now they will not be able to enforce such judgments in New York.

    Around the web, April 3

    • St. Petersburg, Fla. is latest locale where trauma center coverage is flickering due to shortage of that much-sued specialty, emergency neurosurgeons [SP Times]
    • NY Times runs articles on consecutive days making case for wider "bullying" liability -- anyone sense a campaign in the air? [ATL]
    • Some further thoughts on European non-enforcement of punitive damage awards [E. Posner, Slate "Convictions"]
    • Remember that asbestos case where a Reaud Morgan lawyer said duPont's safety policies were so bad the company should forfeit its right to exist? Jury disagrees and returns defense verdict [SE Texas Record]
    • More patients signing agreements with docs to arbitrate disputes, and lawyers trying to figure out how to do something about that [NLJ]
    • Continued rise of Alabama tort czar Jere Beasley [Houston Chronicle courtesy Chamber]
    • John Phillips has been doing blog roundups of employment law [for instance, and again]
    • Can a newspaper basically sympathetic to class action litigation nonetheless acknowledge lessons of latest Weiss, Lerach, Scruggs scandals? Yes, if it's the Philadelphia Inquirer; but the New York Times still hasn't weighed in and maybe never will [no link because, well, no editorial]

    Felix Salmon traces the connections between Ben Stein's apparent view that conspiracies by nefarious hedge-funders brought down Bear Stearns, and Stein's cinematic efforts as a promoter of creationism "intelligent design".

    In a race that drew heavy nationwide attention and charges on both sides of underhanded campaigning, conservative challenger Michael Gableman narrowly upset incumbent Wisconsin Supreme Court justice Louis Butler. In the now-familiar pattern of state high court battles, Gableman had been backed by business groups, Butler by trial lawyers and unions. The result may be to tip the balance on the court away from the steady expansion of liability that has characterized its recent decisions in areas like lead paint and medical malpractice. (Wisconsin State Journal, Badger Blogger, Freedom Eden, Milwaukee Journal Sentinel). Earlier here.

    More: NAM "Shop Floor" multiple posts here, here, and here; Dan Pero; Althouse.

    There's no realistic prospect that international law norms are going to start being imposed to force changes in U.S. domestic policy, right? Well, don't be so sure: the AFL-CIO, for one, seems intent on using such mechanisms to win fights it has been unable to win through the conventional democratic process. A paper by Michael Muggeridge (PDF) for the Federalist Society's Engage (PDF) explains:

    For more than half a century, large U.S. labor unions, alone or in concert with other labor organization federations, have regularly filed complaints with the International Labour Organization (ILO) against the U.S. Government. This article analyzes the significance of organized labor's forays into international law through the ILO process....

    We can see from this quick overview of a half-century of complaints how the ILO's Committee on Freedom of Association went from a blunt dismissal of a complaint as unsubstantiated and "vague" in 1950, to requesting wholesale federal and state legislative action in 2007. There is no reason to suppose that the CFA will hesitate in recommending that the "Bush Board's decisions" be condemned as well, as a violation of international law and the commitments entered into by the United States.

    Paul Offit in NYT

    On the recent Poling vaccine-injury case:

    The system [the National Vaccine Injury Compensation Program, financed by a tax on every dose of vaccine] worked fine until a few years ago, when vaccine court judges turned their back on science by dropping preponderance of evidence as a standard. Now, petitioners need merely propose a biologically plausible mechanism by which a vaccine might cause harm -- even if their explanation contradicts published studies.

    Check the date

    Before reading this post, or this one, or this one.

    Martin Grace saves me the trouble of refuting a dishonest and silly Concord Monitor op-ed by trial lawyer Christopher Seufert (via Robinette) claiming that doctors don't care about medical malpractice laws when making location decisions.

    What I want to know is: don't trial lawyers realize they're shooting themselves in the foot when they claim doctors don't respond to incentives? After all, if the medical malpractice suits don't affect doctors' behavior, why have the suits at all? Surely trial lawyers can make the intellectually honest argument against medical malpractice reform: they think doctors should be paying higher malpractice rates than they do. Of course, to be intellectually consistent with the trial lawyer argument that malpractice is underpunished, they then have to believe that doctors do more harm through malpractice than they do through practice, and should just be banned. Which is why I guess we never see the fully-fledged intellectually consistent or honest argument against medical malpractice reform: if you oppose reform, you have a choice between disingenuous or untenable.

    Wisconsin high court vote today

    Voters in Wisconsin go to the polls today in a race that might (or might not) serve as a referendum on the Wisconsin Supreme Court's recent pro-plantiff lurch. Justice Louis Butler, closely identified with that lurch and in particular with the court's opening of lead paint liability, is facing a challenge from Judge Michael Gableman, who's strongly backed by business groups. Earlier here. Separately, an appeals court race on today's ballot may be causing friction between Gov. Jim Doyle and the state's organized plaintiff's bar, up to now close allies. More: The WSJ had an editorial last week on the high court race. Update: Gableman wins narrowly, tipping court's probable balance.

    Yes, it's a sort of coincidental intersection between the Eliot Spitzer and Milberg Weiss scandals: the money transfers that take place during seemingly unrelated misconduct can fall afoul of federal money-laundering and "structuring" laws. A federal judge yesterday declined to throw out those counts in the federal prosecution of the once-dominant class action firm.

    Vince Vitkowsky (Edwards Angell Palmer & Dodge LLP) connects some of the dots between the Ecuador suit against Chevron Texaco, the Alien Tort Claims statute, and the audacious case (greenlighted recently by the Second Circuit) seeking to blame European and American businesses for the evils of South African apartheid, against the wishes of that country's current multiracial government.



    Rafael Mangual
    Project Manager,
    Legal Policy

    Manhattan Institute


    Published by the Manhattan Institute

    The Manhattan Insitute's Center for Legal Policy.