Coyote Blog

Apparently, Blackwater wants to be tried under Sharia law:

I learn that Blackwater has filed a motion in a lawsuit claiming
that since the mishap they're being sued for (a plane crash) happened
in Afghanistan, the lawsuit should be adjudicated via sharia law, not
U.S. law. That's ironic enough on its own merits, but the explanation is even better:

In
April, Blackwater asked a federal judge in Florida to apply Islamic
law, commonly known as Shari'a, to the case. If the judge agreed, the
lawsuit would be dismissed. Shari'a law does not hold a company
responsible for the actions of employees performed within the course of
their work.

LOL, my guess is that they really don't want the precedent set that Blackwater will henceforth be held to Sharia law in Afghanistan.  By the way, don't miss your chance to buy some gear or posters in the Blackwater company store.  I found it randomly checking out their site.  They actually have some really good looking posters, much better looking than the stuff sold in company stores where I have worked.

WSJ, via Libertarian Leanings:

One of the worst places, in
term of frivolous lawsuits, was Jefferson County. It became renowned as
the lawsuit capital of the country, with more plaintiffs than
residents. This is the infamous county where one pharmacist was named
in more than 1,000 lawsuits. In one legendary case against a
pharmaceutical company that sold the diet pill Pondimin (part of the
weight-loss combination known as fen-phen, which was later banned), a
Jefferson County jury awarded $1 billion to the family of a woman who
had taken the drug.

But four years ago, Mississippi transformed itself
from judicial hell hole to job magnet, a story that is instructive for
other states trying to attract jobs in turbulent economic times. The
lessons here are especially timely, because the pro-growth tort reform
trend that was once spreading across the country may soon reverse
course....

Almost overnight, the flow
of lawsuits began to dry up and businesses started to trickle in.
Federal Express invested $1 billion in a new facility in the state.
Toyota chose Mississippi over about a dozen other states for a new $1.2
billion, 2,000-worker auto plant. The auto maker has stipulated that
the company would pull up stakes if the tort reforms were overturned by
the legislature or activist judges.

That hasn't happened. About 60,000 new jobs have
arrived in four years "“ not a small number in a workforce of about 1.3
million "“ and a sharp improvement from the 30,000 jobs lost in the four
years before Mr. Barbour took office. Since the law took effect, the
number of medical malpractice lawsuits has fallen by nearly 90%, which
in turn has cut malpractice insurance costs by 30% to 45%, depending on
the county.

From the Arizona Republic:

Three day laborers filed a lawsuit Tuesday that seeks to overturn a
suburb's law prohibiting people standing on public streets from
soliciting employment from occupants of cars.

The federal lawsuit alleges Cave Creek's law passed is unconstitutional
because it restricts the free speech rights of people trying to find
work as day laborers.

"Cave Creek does not have the right to pick and choose who has free
speech rights," said Monica Ramirez, an attorney for the American Civil
Liberties Union, one of the group's representing the day laborers. "The
town cannot bar people from peaceably standing in public areas and
expressing their availability to work."

The stated reason for the law is this, but don't believe it:

Mayor Vincent Francia said the law was a response to concerns raised by
residents over traffic being impeded by people congregating on street
corners.

If you followed the genesis of this law, it has less than zero to do with traffic.  It was crafted as a way to prevent people of Mexican birth, with or without the proper papers from the US government, from seeking work in Cave Creek.  Which explains why sheriff Joe Arpaio is so eager to help enforce the law, and why, by some statistical fluke, everyone arrested under the law seems to be of Mexican Latin descent  (the three laborers filing the suit are Mexican and Guatemalan and are in this country legally).

I am happy to see this suit get filed under whatever auspices that it can, and have in the past supported using the first amendment to protect free commerce.  Further, I am thrilled to see the ACLU, given its Stalinist origins, for once actively support the right to publicly advertise and conduct commerce.  However, it is sad to me that Thomas Jefferson and company did not think it necesary to enshrine the right to free commerce as an protected right up there with speech and association.

One might argue that the enumerated power concept and the 9th amendment should be protection enough, but obviously Jefferson did not think so or he would not have pushed for the Bill of Rights.   And saying the following may just prove that I am not a Constitutional expert, but it strikes me that another problem with the original Constitution that probably wasn't fixable at the time was the fact that the Bill of Rights did not originally restrain the states, only the Federal government.  Only with the beat-down of states rights concepts in the Civil War and the passage and later interpretation of the 14th amendment did the Supreme Court begin to apply the Bill of Rights to states and municipalities as well.  It is good that they have done so, but these protections enforced on states only tend to be the enumerated protections of the Bill of Rights.  In fact, in this context, the 9th is meaningless because it reserves unenumerated powers to the people or the states, so it contributes nothing to reigning in municipalities, only the Feds. 

All that being said, it should would have been nice to have three extra words such as "or conduct commerce" inserted after assembly:

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble [or conduct commerce], and to petition the Government for a redress of
grievances.

The City of Phoenix is subsidizing a mall developer to the tune of $100 million dollars.  Why?

Desperate to keep another Nordstrom store out of Scottsdale, the City
of Phoenix put together a $100 million incentive deal to lure the
upscale retailer to the new CityNorth development.

That picture emerged in Maricopa County Superior Court arguments Monday over the constitutionality of the package.

That deal bought a parking deck -- at $30,000 per parking spot.

You see, the developer and its allies in city hall were afraid that Nordstrom's might instead locate their new store waaaaayyyyy over in Scottsdale, probably at the shopping development getting started ... about a mile away and all of one exit further down loop 101, as show below or here.

Here is the gist of it:

At issue in the lawsuit is an agreement between the developers
of CityNorth and the city of Phoenix that enables the developers,
Related Urban Development and the Thomas J. Klutznick Co., to retain
half of the project's sales taxes in exchange for free public parking
spaces in a parking garage. The agreement goes for 11 years or $97.4
million, whichever occurs first.

Now, those of you who are from New York or Boston may be saying -- Hmm, free public parking.  Thats a good deal.  Well, in Phoenix, its absurd.  All the mall parking is free.  All the mall parking garages are free.  Every mall around these two locations provide free parking and parking garages.  In fact, a mall developer would get run out of town on a rail in north Scottsdale or Phoenix for even uttering the words "paid parking."  People freak out around here if the valet parking is not free.  Further, the city is trying to somehow portray that the parking is a useful asset for the community at large.  Look at the Phoenix site above.  Do you see a lot of stuff in the surrounding acres that is demanding a lot of parking?

Effectively, this is all a smoke screen for the city giving a $100 million handout to developers to build something, ie free parking, they already had to build.  And the incremental sales revenue argument is absurd.  All the wealthy Scottsdale folks who want to shop at Nordstrom's are already doing so, or are shopping at nearby Desert Ridge.  Only the worst sort of analysis would show incremental sales from this location - all it will do is shift sales around a bit.

I am reminded of my previous post on the subsidization of business relocations as a prisoners dilemma problem.

Frequent readers will know that I don't think much of our County Sheriff Joe Arpaio.  Sheriff Joe gains a ton of PR for himself as the "toughest sheriff in America" and relishes in making jail conditions as miserable as possible.  Recognize that this is the jail that holds many people after arrest but before conviction. 

Now on to the figure mentioned in the Dickerson piece of 2,150
"prison condition" lawsuits since 2004. Anyone with two licks of sense
can go online at pacer.psc.uscourts.gov, or dockets.justia.com,
enter "Arpaio" into the federal court docket, then count the lawsuits
that name "prison conditions" as the cause. Count back to 2004, and as
of mid-December, that number was more than 2,150.

The same search for
the top jail custodians in L.A., New York, Chicago, and Houston nets a
total of only 43 "prison condition" lawsuits.

Remember, those 2,150
lawsuits against Arpaio are only in federal court. There are hundreds
more listed online with the Maricopa County Superior Court, at superiorcourt.maricopa.gov/docket/civilcourtcases/.....

                                       

"For the period January 1, 1993, to [November 29, 2007], the county
has paid $30,039,928.75 on Sheriff Department General Liability
claims," state the docs. "This figure includes all payments, attorney
fees, other litigation expenses, settlements, payments on verdicts,
etc."

Additionally, New Times
asked Crowley how much the lawsuit insurance policy that also covers
the sheriff has cost taxpayers. Crowley croaked, "The county has paid
for General Liability coverage for the period 3-1-95 to 3-1-08 total
premiums of $11,345,609.50."

Keep in mind that this
liability coverage figure is high, in part, because of all those
lawsuit payoffs to relatives of dead inmates.

From 1995 to 1998, the county paid $328,894 a year for an insurance policy with a $1 million deductible.                                       

Today,
Maricopa County pays a yearly premium of $1.2 million for outside
insurance with a $5 million deductible. For any lawsuit that costs $5
million or less, the county foots the entire bill. It's the best policy
the county can buy because of Arpaio's terrible track record.

In the earlier days of this blog, I used to post links to a lot of insane lawsuits.  The lawsuits just keep coming, but I have lost the energy to keep posting such stupidity.  And besides, Overlawyered does such a good job and seems to have infinite patience. 

But it was worth noting a silly shareholder suit that the media actually seems to have sniffed out for what it is:  Pure garbage.  For those who are not aware, there are a group of law firms who immediately file suit against any company whose stock drops by more than a few percent.  Bill Lerach, soon to be taking up residence in jail, used to keep a whole bullpen of folks on a sort of retainer to hold shares in numerous companies, so he instantly had someone close at hand who could file suit when any stock drops.  And since stocks go up and down, often in ways that the company itself has no control over, this leads to a lot of lawsuits.

Recently, the maker of Crocs sandles apparently had an IPO, had its stock price shoot up, and then had its stock price fall back when the company could not sustain its previous torrid growth pace.  Al Lewis of the Denver Post takes it from there:  (HT Overlawyered, of course)

Anybody who purchased stock in
Niwot-based Crocs Inc. between July 27 and Oct. 31 should not join the
class-action shareholders lawsuit that was recently filed against the
company and its stock-dumping executives.

Instead, they should look themselves in the mirror and admit two things:

      

I look ridiculous in these plastic shoes.

      

Anybody
who would pay an average of more than $60 a share for a company that
makes ugly plastic shoes deserves to take a hit in the stock market.

He continues:

Crocs and its officers also allegedly
misrepresented or failed to disclose their distribution problems in
Europe and their rising inventory levels, the lawsuit alleges. They
also failed to disclose that sales of their hole-riddled plastic clogs
were suddenly becoming more of a seasonal item. Imagine that! Sandals
seasonal? Who knew?

By the way, if you really want your head to explode, take a minute a think about shareholder lawsuits.  A group of shareholders are suing the company for a fall in the stock price.  Who do you think pays?  Why, current shareholders!  Though I do not accept the "logic" of these suits, if one were to accept their logic, then the most guilty party is the stockholder who sold the plaintiffs their stock just before the drop.  But these folks are exactly who will NOT owe any money on the suit.  They are no longer owners.  The people who will pay will be the owners of the stock at whatever time the suit settles, likely many people who bought in after the plaintiffs did.  The only real winner when the shareholders pay themselves such a verdict are the lawyers, who rake off 30%.  More on this bizarre situation here.

Update:  I will have to think about this more, but it kind of reminds me of a prisoners dilemma game in which the prosecutor gets a monetary bonus that increases with longer prison terms.

Here they go again.  Another company is attempting to commit public relations suicide by blowing up the negative commentary of a small, low-traffic blogger into a national story.

An unlikely Internet frontier is Paris, Texas, population 26,490,
where a defamation lawsuit filed by the local hospital against a
critical anonymous blogger is testing the bounds of Internet privacy,
First Amendment freedom of speech and whistle-blower rights.

A state district judge has told lawyers for the hospital and the
blogger that he plans within a week to order a Dallas Internet service
provider to release the blogger's name. The blogger's lawyer, James
Rodgers of Paris, said Tuesday he will appeal to preserve the man's
anonymity and right to speak without fear of retaliation.

Rodgers said the core question in the legal battle is whether a
plaintiff in a lawsuit can "strip" a blogger of anonymity merely by
filing a lawsuit. Without some higher standard to prove a lawsuit has
merit, he said, defamation lawsuits could have a chilling effect on
Internet free speech.

"Anybody could file a lawsuit and say, 'I feel like I've been defamed. Give me the name,' " Rodgers said.

The blog about problems at Essent Healthcare is here, called The-Paris-Site.

Interestingly, the hospital, owned by a company called Essent Healthcare, appears to be using the medical privacy act HIPPA as a bludgeon to try to stifle criticism.  To make a case against the hospital, general criticisms about poor care and medical mistakes are best backed up with real stories.  But the hospital is in effect saying that real stories can't be used, since doing so violates HIPPA.  I don't know if this is or is not a correct application of HIPPA, but it is a danger of HIPPA that I and others warned about years ago.  The hospital goes on hilariously about how they are not really worried about the damage to their reputation, but for the poor patients whose medical details ended up in the blogger's hands.  Memo to health care workers in the future:  If you think the hospital screwed up my care, you have my blanket permission to release the details of said screw-up.

Before starting my own company, I have worked in a number of senior jobs at publicly traded companies and a few soon-to-be-f*cked Internet ventures.  In several of these cases, I and my fellow managers came in for pretty rough and profane criticism.  In many cases the posts were hilarious, positing well-oiled multi-year conspiracies from a management team that was just trying to survive the day.  Most of us were pretty rational about these sites - the more you try to respond to them, the more attention you give them.  The best response is to ignore them except maybe on Friday night when you can drink some beers and laugh out loud reading the commentary.  But there were always a few folks whose ego just got inflamed by the comments, even though they were seen by maybe 12 people worldwide.  They wanted to put a stop to the commenters.

I am sure that this is what is happening here.  Because any good PR person who has been in the business for more than 5 minutes would tell you that the worst thing you could do for a critic with a small audience is to a) turn them into a martyr and b) increase their audience about a million-fold.  These guys at Essent are just nuts, and in the heat of ego preservation are in the process of making a massive mistake.

I am reminded of TJIC's response when a lawyer threatened to file a BS copyright suit against him:

With regards to your statement that you've been "looking forward for a
class action lawsuit on a case like this", I, too, would enjoy such a
lawsuit. The publicity that we would derive from defeating your firm in
court over a baseless allegation of copyright infringement, brought
about by a law firm and a lawyer that does not understand the First
Sale doctrine, and which are entirely ignorant of the Supreme Court
case law on the topic, would be of incalculable value to us, and would
be a very cost efficient way to further publicize our service.

Hat Tip to Overlawyered for the link.

Update: The blogger appears to have been around since 2005.  The article said that as of June, or after about 2 years of operation, he had 170,000-ish page views.  He now appears to be at about 230,000 just three months later and only a few weeks after the story went public.  Q.E.D.

Update #2:  I forgot to include my opinion on the case.  There has got to be some higher legal bar to be cleared to strip the anonymity of a blogger than just asking for it to happen during discovery on a lawsuit.  If the legislature is not going to establish this bar, then a higher court is going to have to do so. 

Many of us remember the old Pepsi challenge commercials, where blind taste tests vs. Coke showed people preferring Pepsi.  One of the interesting results of these commercials was that Pepsi gained market share, but Coke did not lose it -- much of the Pepsi market share gain came from other brands.  In essence, the commercials established in consumer's minds that the cola choice was Coke or Pepsi, and so it did as much for Coke as it did Pepsi.

So now take this experience to anti-smoking commercials.  It turns out that they may backfire:

The more anti-smoking ads middle schoolers see, the more likely they are to smoke, according to a study in the August issue of Communication Research.
Hye-Jin Paek, an assistant professor at the University of Georgia's
College of Journalism and Mass Communication, and Albert Gunther, a
professor of life sciences communication at the University of
Wisconsin at Madison, analyzed data from surveys that asked middle
school students about their exposure to anti-smoking messages and their
intention to smoke:

They found that, overall, the
more the students were exposed to anti-smoking messages, the more
inclined they were to smoke. The exception"”where exposure to
anti-smoking ads correlated with a reduced intention to smoke"”occurred
among students who said their friends were influenced by anti-smoking
messages.

In the context of other advertising research, such as the old Coke/Pepsi campaign, this is not surprising.  It is even less surprising for this type of ad, where a certain amount of anti-authoritarian response can be expected.  In fact, I have seen a number of ads that use this anti-authoritarian streak and distrust of the government as a feature.  Ads that say "The government doesn't want you to know about X" or "What the oil companies don't want you to know."

I wonder when the first member of the plaintiff's bar will initiate a lawsuit against the tobacco companies for promoting teenage smoking by running... anti-smoking ads.

Patterico has a link to this interesting account of a week in the life of Jarek Molski, who makes a living from filing ADA suits (emphasis added):

For example, in Molski v. El 7 Mares Restaurant, Case
No. C04-1882 (N.D. Cal. 2004), Molski claims that, on May 20, 2003, he
and significant other, Brygida Molski, attended the El 7 Mares
Restaurant for the purposes of dining out. Molski alleges that the
restaurant lacked adequate handicapped parking, and that the food
counter was too high. After the meal, Molski attempted to use the
restroom, but because the toilet's grab bars were improperly installed,
he injured his shoulders in the process of transferring himself from
his wheelchair to the toilet. Thereafter, he was unable to wash his
hands because of the lavatory's design.

Although this complaint appears credible standing alone, its
validity is undermined when viewed alongside Molski's other complaints.
In Molski v. Casa De Fruta, L.P., Case No. C04-1981 (N.D. Cal. 2004),
Molski alleges that he sustained nearly identical injuries on the exact
same day, May 20, 2003. In Casa de Fruta, Molski alleges that he and
significant other, Brygida Molski, patronized Casa de Fruta for the
purpose of wine tasting. On arrival, Molski was again unable to locate
van accessible parking. Once inside, Molski again found the counter to
be too high. After wine tasting, Molski again decided to use the
restroom, and again, injured his upper extremities while in the process
of transferring himself to the toilet. Thereafter, he was once again
unable to wash his hands due to the design of the lavatory.

This was, apparently, not the end of Molski's day. In Molski v.
Rapazzini Winery, Case No. C04-1881 (N.D. Cal. 2004), Molski once again
alleges that he sustained nearly identical injuries on the exact same
day, May 20, 2003. Molski, again accompanied by Brygida Molski, claims
he visited the Rapazzini Winery for the purpose of wine tasting. Again,
Molski complains that the parking lot lacked adequate handicapped van
accessible parking. Upon entering the establishment, he discovered that
the counter was too high. After tasting wine, he again needed to use
the restroom. In the course of transferring himself from his wheelchair
to the toilet, he injured himself yet again. Thereafter, he was again
unable to wash his hands due to the lavatory's design.

The Court is tempted to exclaim: "what a lousy day!" It would be
highly unusual "” to say the least "” for anyone to sustain two injuries,
let alone three, in a single day, each of which necessitated a separate
federal lawsuit. But in Molski's case, May 20, 2003, was simply
business as usual. Molski filed 13 separate complaints for essentially
identical injuries sustained between May 19, 2003 and May 23, 2003. The
Court simply does not believe that Molski suffered 13 nearly identical
injuries, generally to the same part of his body, in the course of
performing the same activity, over a five-day period. This is to say
nothing of the hundreds of other lawsuits Molski has filed over the
last four years, many of which make nearly identical allegations. The
record before this Court leads it to conclude that these suits were
filed maliciously, in order to extort a cash settlement.

For several years, I have been wondering why punitive damage awards like this one, that punish a company for various misdeeds, don't create a double jeapardy situation where defendents must pay over and over for the same "crime" (since the next individual suing also gets punitive damages).

Here's the problem:  A jury in Texas already hit Merck with $259
million in punitive damages*.  This number was based on a lot of
testimony about Merck's sales and profits from Vioxx, so it was
presumably aimed at punishing Merck for "errors" in their whole Vioxx
program.  So if that is the case, how can Merck end up facing a jury
again coming up with a separate punitive damage award for the same
"crime"?  Sure, it makes sense that Merck can owe actual damages to
individual claimants in trial after trial.  But how can they owe
punitive damages for the whole Vioxx program over and over again?
Aren't they being punished over and over for the same misdeed,
violating their Constitutional protection against double jeopardy?

In the recent Supreme Court decision involving a judgment against Philip Morris, the SCOTUS didn't really take this issue on, but did take on a related issue, arguing that punitive damage awards that take into account damages against more than just the defendant violate due process, since these other damages were not tried on the facts in that case.

Today, in a decision involving an astonishing $79.5 million punitive
damage award to the widow of an Oregon man who died of lung cancer
after smoking Marlboros for 42 years, the U.S. Supreme Court ruled
that a jury in a civil case may not punish a defendant for harm to
people who are not parties to the case. To do so, the five-justice
majority said,
violates the defendant's right to due process because he cannot defend
against hypothetical damage claims by people who are not involved in
the lawsuit. Furthermore, the Court said, "to permit punishment for
injuring a nonparty victim would add a near standardless dimension to
the punitive damages equation." Although this makes sense to me, the
Court's proposed solution"”that juries may consider harm to nonparties
in judging the "reprehensibility" of a defendant's conduct but not to
"punish a defendant directly" for that harm"”seems untenable.

A few weeks ago I wrote about the changing relationship between attorney and client:

It used to be that clients would suffer some sort of injury and seek
redress in the courts.  To do so, they would hire an attorney to help
them.  The attorney was the hired help, compensated either hourly or
via a percentage of any awards.

Today, the situation is often reversed.  It is the attorney who is
identifying lawsuit targets for class actions and shareholder suits,
and then seeking out clients who can maximize his chances of success.
Clients, who typically make orders of magnitude less than the attorney
in class actions (think 50-cent coupons and $8 million attorney fees)
are selected because they are sympathetic, or give access to a
particularly plaintiff-attractive jurisdiction, or, in cases such as
ADA suits in California, because they have effectively become partners
with the attorney in serial torts.

At that time, the issue was Bill Lerach suing his clients for dropping him as attorney (Because, after all, it was really his lawsuit and not theirs).  This time, the issue is in a class action against Microsoft (emphasis added, via Overlawyered)

Judge Scott Rosenberg ruled Friday that Microsoft attorneys could
not ask the named plaintiffs about their relationship with attorney
Roxanne Conlin. The company's lawyers wanted to question the
plaintiffs, arguing that Conlin had referred to them during jury
selection as "just regular people who bought software" and who
volunteered to step forward to sue Microsoft.

The lawsuit was brought by Joe Comes, a Des Moines businessman who
owns a chain of pizza restaurants, and Patricia Anne Larsen, a retiree
from northwest Iowa, and two business _ Riley Paint Inc. of Burlington
and Skeffington's Formal Wear of Iowa Inc. of Des Moines.

Microsoft attorney David Tulchin said Larsen has been a friend of
Conlin's since 1982, when Larsen held fundraisers for Conlin's failed
run for governor. In 1999, Conlin represented Larsen in an employment
discrimination case against Larsen's former employer, Eaton Corp.

Tulchin said Comes has been Conlin's son's best friend since high school.

Microsoft attorneys claimed Conlin recruited these friends to act as
plaintiffs in the case so she could sue the company and that her
comments during jury selection opened the door for Microsoft to
challenge the plaintiffs' motivation in filing the lawsuit.

Who would even imagine such a thing?  In this class action, as in many, the class members will probably get coupons while Conlin makes millions.  Or, as Microsoft observes:

Tulchin claimed that Conlin and her co-counsel, Richard
Hagstrom of Minneapolis, have the most to gain in the lawsuit

Attorneys like Conlin know they are vulnerable on this

Conlin said Microsoft wants the jury to believe that class-action
lawsuits are attorney-driven cases brought for money when in reality
they are a way for individuals with small claims to come together to
take on large, powerful companies.

"Businesses like Microsoft have poisoned the public view of these
forms for seeking redress by spending billions of dollars to spread
propaganda. Now they seek to collect on their investment by improperly
suggesting to the jury that the plaintiffs are not real plaintiffs,"
she said.

You think?

Overlawyered today provides a link to this article in Roger Parloff's blog at Fortune

The nation's leading class-action lawyer, Bill Lerach, is currently in
an ugly scrape in federal court in Dallas, where the sole lead
plaintiff in a high-profile shareholder suit against Halliburton (HAL)
no longer wants Lerach or his firm to act as its co-lead counsel. (I've
posted about it before here and here.)
To recap, the fund has said that it is concerned about all the
distractions and the sleaze factor now surrounding Lerach and his prior
firm, Milberg Weiss Bershad Hynes & Lerach (which Lerach co-ran)...

The squeamish plaintiff, the Archdiocese of Milwaukee
Supporting Fund, has asked that Lerach Coughlin be replaced by David
Boies and his firm, Boies Schiller & Flexner, which firm has
indicated that it is ready, willing, and able to assume the role.

Needless to say, Lerach is fighting the uppity plaintiff to keep control of the case.

Parloff goes on to question some of Lerach's statements in the case.  However, I want to make a different point.  This points out fairly clearly that Lerach and other top litigators have adopted a whole new theory of litigation and of the relationship between lawyer and client.

It used to be that clients would suffer some sort of injury and seek redress in the courts.  To do so, they would hire an attorney to help them.  The attorney was the hired help, compensated either hourly or via a percentage of any awards.

Today, the situation is often reversed.  It is the attorney who is identifying lawsuit targets for class actions and shareholder suits, and then seeking out clients who can maximize his chances of success.  Clients, who typically make orders of magnitude less than the attorney in class actions (think 50-cent coupons and $8 million attorney fees) are selected because they are sympathetic, or give access to a particularly plaintiff-attractive jurisdiction, or, in cases such as ADA suits in California, because they have effectively become partners with the attorney in serial torts.

So if you wonder why Lerach is suing his client for not using his services, and if that makes you wonder who is working for whom, now you know.

Update: By the way, this reversal of the relationship between attorney and client is one of the recurring themes in my novel BMOC.

This is a weird case, via Radley Balko:  A court issues a search warrant for a bullet, correctly stating the specific location to be searched and the reasons the bullet is needed.  No problem so far, but unfortunately, the bullet is inside someone and must be surgically removed.

In the middle of Joshua Bush's forehead, two inches above his eyes,
lies the evidence that prosecutors say could send the teenager to
prison for attempted murder: a 9 mm bullet, lodged just under the skin.

Prosecutors
say it will prove that Bush, 17, tried to kill the owner of a used-car
lot after a robbery in July. And they have obtained a search warrant to
extract the slug.

But Bush and his lawyer are fighting the
removal, in a legal and medical oddity that raises questions about
patient privacy and how far the government can go to solve crimes
without running afoul of the constitutional protection against
unreasonable searches and seizures.

They go on to mention this problem:

Police then obtained a second search warrant and scheduled the
operation for last week at the University of Texas Medical Branch
hospital in Galveston. It was postponed again, however, after the
hospital decided not to participate for reasons it would not discuss.

Prosecutors said they continue to look for a doctor or hospital willing to remove the bullet.

Duh.  No private doctor or hospital is going to do this procedure.  Whoever removes this bullet is 100% guaranteed to get named on at least one lawsuit seconds after the procedure.  Even if they win the suit, the cost of defending themselves will outweigh anything they might get paid for the procedure.

Via Captains Quarters:

The fundamental attack on free speech that McCain-Feingold foisted upon America has finally received recognition
from the federal judiciary. Portions of the BCRA got struck down today
in a lawsuit filed by a right-to-life group, as a judge ruled that the
campaign-finance restrictions violated the First Amendment...

It's not for nothing that many have termed the BCRA the Incumbent
Protection Act. The restriction on political speech that keeps groups
from buying advertising that names politicians violates the fundamental
reason for the First Amendment -- to allow Americans to criticize their
elected officials. While the court did not recognize the entire
egregiousness of this BCRA provision, it did recognize that the idea of
never being able to name elected officials in advertising within 60
days of an election regardless of the nature of the reference is a
ludicrous standard.

A reader sent me this article on the new proposition F passed in San Francisco. 

Under the Sick Leave Ordinance, employers must provide one hour of paid
sick leave to an employee for every 30 hours worked. The Ordinance
limits the amount of paid leave to a maximum of 40 hours of paid leave
for "small businesses," defined as employers who employ fewer than 10
employees, and of 72 hours of paid leave for larger employers.

Note that this applies to everyone -- part time workers, day laborers, housekeepers, nannies, you name it.  Everyone gets an extra paid hour vacation for every thirty they work.

But Coyote!  How can you say its vacation - the law says sick leave.  Yes, I know, and I am sure supporters can fill any number of 30-second TV ads with heart-rending stories of people who got sick and needed paid time off.  But all of us who have actually worked in real jobs and real companies know how most sick days get used - they become extra vacation days.  Here is a guide to getting the most vacation possible out of your sick days.  For this reason, many companies have done away with the distinction of sick and vacation days and just call them "personal days."

But the law makes sure that employers can't ask any of those nagging questions like "you don't sound sick on the phone."  Because you don't actually have to be sick to take paid sick leave in San Francisco. 

Proposition F, the "Sick Leave Ordinance," also expands existing state
law "kin care" requirements so that covered employees must be permitted
to use paid sick leave to care for siblings, grandparents,
grandchildren and a "designated person" of the employee's choice.
Employees must be permitted to use any or all accrued paid sick leave for such kin care.

"Yep, old Uncle Ed is sick again.  I won't be coming in today but you still have to pay me."  And who's to say "care" for uncle Ed shouldn't include companionship in the form of some fishing.  After all, California recognizes a service animal designation for companionship only.

But just to make sure that the employer does not ask any nagging question when Uncle Ed needs care on nine Fridays in a row, the law includes this:

In addition, Proposition F prohibits an employer from taking any
adverse action against an employee who exercises his or her rights
under the Ordinance. An employee's mistaken but good faith complaints
of employer violations of this Ordinance are protected. Any adverse
action by an employer against an employee within 90 days of the
employee's exercise of a right under the Ordinance creates a rebuttable
presumption of employer retaliation....

The Office of Labor Standards Enforcement has authority to
investigate alleged violations of the Ordinance. If the Office
determines that a violation has occurred following an investigation and
hearing, it may order relief including reinstatement, back pay, the
payment of any sick leave unlawfully withheld and various
administrative penalties.

The Ordinance also permits civil actions by the Office of Labor
Standards Enforcement, the City Attorney, "any person aggrieved by a
violation" (the term could encompass affected employees but also any
person for whom the employee sought to care or aid), and "any other
person or entity acting on behalf of the public as provided for under
applicable state law." The prevailing party may recover all "legal or
equitable relief as may be appropriate to remedy the violation"
including, but not limited to, reinstatement, back pay, the payment of
any sick leave unlawfully withheld, liquidated damages, injunctive
relief; reasonable attorneys' fees and costs. Employees and plaintiffs'
attorneys who sue employers on behalf of similarly-effected employees
and the general public may be entitled to equitable and injunctive
relief, restitution, and reasonable attorneys' fees and costs.

So, any violations by employees will be called "good faith" mistakes and are protected from any punishment.  Employers, on the other hand, are liable for penalties and lawsuits should they make even a good faith mistake.  Attempting to determine if an employee is cheating on his sick day designations will be treated as "retaliation" and punished.  Note that while the office of labor standards have investigation abilities, all the investigative actions listed in their purview are employer violations.  For example, there is language about employers reimbursing employees for sick days they should have paid, but where is the language about employees reimbursing employers for sick days taken fraudulently?

This is exactly how the unemployment system works.  There is a heavy state enforcement arm, but only aimed at fraud by employers, not employees. Pick any state unemployment office at random and look at their web site.  They will probably have a link for filing complaints.  When you click on it, you will quickly see that the complaints they accept are only for employer fraud or impostor fraud, not employee cheating.  In fact, as I wrote here about people taking vacation on unemployment, I was threatened with a lawsuit by an employee and with fines by the state agency in California for even suggesting that an employee was lying when he said he was "looking for work" (when I knew for a fact he was on a winter-long vacation in Mexico).

Unemployment insurance is a disaster for a seasonal business like mine.  As background, most of my employees are retired, and don't really need to work.  They work for me in the summer, and then frequently take the winter off.  Unfortunately, some of the more unscrupulous ones will file for unemployment over the winter, telling the state office they are looking for work (usually a requirement) when in fact they have no intention of working.  I had two employees last year for whom I received a notice of their unemployment filing the very same day they called me to tell me what a great time they are having over the winter fishing in Mexico.

For those who don't know how it works, if I get a lot of unemployment claims I am punished with a higher rate the next year, despite the fact that by the nature of the business I have absolutely no work I can offer people in the winter.  Not surprisingly, I guess, my worst problems with such behavior are in the three Pacific coast states (CA, OR, WA) where the prevalent culture of big government benefits and limited individual responsibility combine to make people feel totally OK about such malfeasance  (this behavior is 20 times more prevalent for me in these three states vs. the other ten we operate in).  In fact, I have challenged several people who I knew were not looking for work and cheating me and the unemployment system and, rather than deny the charges, they threatened me with a lawsuit if I either reported them to the state or disciplined them in any way.

I'm not really going anywhere with this -- this is just my annual rant I post every year when I get my unemployment insurance rates for CA and OR.  I pay over 6% of wages as premiums in CA, and there is not a thing I can do about the fact that all the facilities we run are under 10-20 feet of snow in the winter and don't need employees.

Via Overlawyered, this is the hilarious account from a Doctor Hebert about finding out that he was suing Cisco.  He was a little non-plussed by this:

Did I want to sign up for the largesse, it inquired. It politely
offered me the option of declining, saying, "IF YOU DO NOT WISH TO BE
INCLUDED IN THE CLASS AND YOU DO NOT WISH TO PARTICIPATE IN THE
PROPOSED SETTLEMENT DESCRIBED IN THIS NOTICE, YOU MAY REQUEST TO BE
EXCLUDED." (The capitalization is theirs. I am not usually that
annoying.) Well, THANK GOD, I said. I can opt out of a lawsuit that was
filed in my name without my approval if I should have, well, you know,
scruples.

Except, as lawyers like to say, don't neglect to
read the next sentence. And the next, and the next, and the next, and
the next. Somewhere in there is the  gotcha. "TO DO SO, YOU MUST SUBMIT
A WRITTEN REQUEST FOR EXCLUSION THAT MUST BE RECEIVED ON OR BEFORE
OCTOBER 31, 2006."

All right, now. I got the letter on
November 13, 2006. Admittedly the U.S. Post Office is slow, but I'll
give them credit for getting a letter from the West Coast to
Mississippi in less than 14 days. Unfortunately, the letter was mass
mailed and thus bypassed the local post office. It bore no postmark. In
other words, I got the letter two weeks too late to opt out of the
lawsuit, and I had no postmark to prove it was intentionally mailed out
late to prevent me from refusing to participate. The old expiration
date trick. That was slick, Mssrs. Lerach, Coughlin, Stoia, Geller,
Rudman, Robbins, Levin, Papantonio, Thomas, Mitchell, Echsner, &
Proctor -- real slick.

He is even more non-plussed to learn that he is in line for a check for $0.90, while the lawyers are in for $23.9 million.  I feel his pain.  I, for example, have been informed on several occasions that Visa and Mastercard, among others, are being sued in my name, though I never engaged anyone to do so.

Update:  Another huge fee for the attorneys, 50-cent coupons for customers class action is in the midst of an ugly fight over attorney billing rates - ironically in a cosmetics lawsuit alleging overpricing.

Among the alleged abuses were
bills of $195 an hour for work by paralegals who were paid just $30,
claims that attorneys and paralegals worked 24-hour or even 72-hour
days, and charges of $90 an hour or more for cleaning desks and
filing....

                           
                           
                              

According
to records filed with the federal court, individuals at one legal group
representing the class, the Law Offices of John Burris in Oakland,
billed as much as 72 hours in a single day for document review and, in
dozens of instances, billed for 24-hour days.

Of course the attorneys had a strong rebuttal to these revelations:

The lawyers accused of overstating their hours and expenses responded
by strenuously objecting to Judge Armstrong about the public disclosure
of their billing records, which the attorneys said were confidential.

"These very simple guidelines,
You can rely upon:
You're gouging on your
prices if
You charge more than the rest.
But it's unfair competition if

You think you can charge less!
"A second point that we would make
To
help avoid confusion...
Don't try to charge the same amount,
That would
be Collusion!
You must compete. But not too much,
For if you do you see,

Then the market would be yours -
And that's Monopoly!

That is from the Incredible Bread Machine by R.W. Grant.  And it seems to sum up the position of gasoline retailers given this story from Denver, where a grocery store chain was successfully sued for $1.4 million because it provided gasoline discounts to customers who bought over $100 of groceries.

Gasoline retailers can't win. One day, they're
accused of "gouging" us at the pump with outrageously high prices; the
next, they're accused of "predatory pricing," which means giving us a
deal so good it's illegal....

The effect of the $1.4 million jury verdict against Dillon Co.
means that two of its grocery chains, King Soopers and City Market,
will no longer give customers gas discounts based on grocery purchases.

Safeway wasn't a defendant but it got the message and likewise
suspended its discount program at 43 of its fuel centers. Discounts
sponsored by other supermarket or big-box chains are also expected to
end.

The lawsuit was based on Colorado's 69-year-old "Unfair
Practices Act," which prohibits selling a product "below cost." The law
is supposed to be enforced by the attorney general's office, but the AG
hasn't brought an action for years because of the near impossibility of
proving that gas sales are below cost when so many grocery products are
also involved.

But the law also permits private civil suits in which winning
plaintiffs are entitled to treble damages. The plaintiffs here were a
couple of independent gasoline dealers in Montrose spurred on by a
trade group representing the state's independent petroleum marketers....

The theory behind predatory pricing laws is that a large
company will sell certain products below cost in order to drive out
competitors. Once the competitors are gone, goes the hypothesis, the
big company will jack up prices to a monopoly level.

The only problem is, this never happens. New competitors always
move fast into markets where prices are unjustifiably high.
Predatory-pricing suits are generally filed by existing companies
unable or unwilling to meet competition provided by more efficient
firms. Legal restrictions on cutting prices invariably work against the
consumer.

I pointed to a similar situation a while back in Maryland.  Thanks to Overlawyered for the pointer.

Yet another nutty jury has decided that it should be national policy to have warning signs every few feet on a railroad to warn trespassers against danger:

Jeffrey Klein and Brett Birdwell were 17 "when they trespassed onto
railroad property and climbed atop a rail car" because they wanted to
see the view from there. They were shocked by a 12,500-volt wire and
severely injured. The incident took place in Lancaster, Pa. but through
the miracle of forum selection the lawsuit against Amtrak and Norfolk
Southern landed before a jury in Philadelphia, a locality notably more
favorable for plaintiffs than Lancaster. An attorney said the railroads
should have posted signs for the benefit of trespassers warning of the
overhead hazard and also should have had the electricity turned off at
the time.

This is by no means the first such verdict.  I featured another here:

By the way, the exact wording on the complaint against the railroad is even better than I thought:

"The
[engineer] did not stop the train in a timely manner, and failed to
yield the right of way to a pedestrian walking along the tracks in
plain view"

A freight train's topping distance is measured in miles, even with full emergency braking.

She and her attorney's further argue:

that
the railroad was negligent for failing to post signs warning 'of the
dangers of walking near train tracks and that the tracks were actively
in use

Lets leave aside the obvious point
about individual responsibility, and ask what would happen if this were
the legal standard, to have such signs.  To make sure someone saw one,
you would have to have one say every 30 feet.  Since there are just over 200,000 miles of freight railroads in the North America that works out to a bit over 35,000,000 signs that need to be posted.  At $100 per sign this would cost $3.5 billion.

With the proviso that I don't know anything about the people involved, I will say this controversy seems to be about nothing. 

Maryland Lt. Gov. Michael S. Steele accused a leading Democratic
congressman yesterday of racial insensitivity for saying the Republican
candidate has "slavishly" followed the GOP.

Steele, an African
American running for the U.S. Senate, was reacting to remarks by House
Minority Whip Steny H. Hoyer, who characterized Steele this week as
having had "a career of slavishly supporting the Republican Party."

To say someone is "slavishly following" or showing "slavish devotion" is so common that I think you have to give the benefit of the doubt that the intention was not racial.  Here are some Google searches:

• Slavish devotion: 221,000
• Slavish supporter: 161,000
• Slavish follower: 49,900

This is perhaps the dumbest fake-racial-gaffe since the kerfuffle in Washington about the word "niggardly" or the airline passenger lawsuit against saying "eenie meenie minie moe."  I could not find even one article in a quick scan that seemed to have any racial context -- these are merely very common phrases used in political discourse because they imply someone is somehow an unthinking tool of some organization rather than a person who thinks for himself.

By the way, it's illuminating to see the Republicans play the race / political correctness card in the
heat of political battle just as fast as the Democrats would.  Which, ironically, seems to be just as fast as Democrats are willing to play the "Don't vote for the gay guy" card, which is usually thought of as a Republican political tool.  Can anyone still believe that there is any real difference between the two parties?

From the Boston Globe today:

"We do not understand the natural internal variability of climate
change" is one of Lindzen's many heresies, along with such zingers as
`"the Arctic was as warm or warmer in 1940," "the evidence so far
suggests that the Greenland ice sheet is actually growing on average,"
and "Alpine glaciers have been retreating since the early 19th
century, and were advancing for several centuries before that. Since
about 1970, many of the glaciers have stopped retreating and some are
now advancing again. And, frankly, we don't know why."

When
Lindzen published similar views in The Wall Street Journal this spring,
environmentalist Laurie David, the wife of comedian Larry David,
immediately branded him a "shill." She resurrected a shopworn slur
first directed against Lindzen by former Globe writer Ross Gelbspan,
who called Lindzen a "hood ornament" for the fossil fuels industry in
a 1995 article in Harper's Magazine....

For no apparent reason, the state of California, Environmental
Defense, and the Natural Resources Defense Council have dragged Lindzen
and about 15 other global- warming skeptics into a lawsuit over auto-
emissions standards. California et al . have asked the auto companies
to cough up any and all communications they have had with Lindzen and
his colleagues, whose research has been cited in court documents.

"We know that General Motors has been paying for this fake science exactly as the tobacco companies
did," says ED attorney Jim Marston. If Marston has a scintilla of
evidence that Lindzen has been trafficking in fake science, he should
present it to the MIT provost's office. Otherwise, he should shut up.

"This
is the criminalization of opposition to global warming," says Lindzen,
who adds he has never communicated with the auto companies involved in
the lawsuit. Of course Lindzen isn't a fake scientist, he's an
inconvenient scientist. No wonder you're not supposed to listen to him.

My position on global warming and the state of global warming science is here.

I think it was George Carlin (?) who used to ask "Do you know what the worst thing is that can happen when you smoke marijuana?" His answer was "Get sent to prison".  The implication, which I have always agreed with for most drug use, was that it is insane as a society to try to save someone from doing something bad to himself by ... doing something worse to him.

I think of this whenever I get in a discussion about security responses to 9/11.  The worst thing that can happen to this country as a whole  (as differentiated of course from the individual victims of 9/11) is to turn the country into a police state to combat potential future terrorist actions.  I personally would greatly prefer to live with a 1 in 100,000 chance of being the victim of terrorism than find myself living in an America that has abandoned its constitution.  I wrote more on this topic here.

To this end, though I tend to be slow to believe these type of stories, this one (via Reason) about domestic NSA wiretapping is pretty frightening:

AT&T provided National Security Agency eavesdroppers with full
access to its customers' phone calls, and shunted its customers'
internet traffic to data-mining equipment installed in a secret room in
its San Francisco switching center, according to a former AT&T
worker cooperating in the Electronic Frontier Foundation's lawsuit
against the company....

The source is just one low-level guy, so this story is still pretty soft.  I hope the investigation is allowed to play out.

A guy in Lodi, California seems to have discovered the lawsuit-equivalent of perpetual motion by suing himself (via Overlawyered)

When a dump truck backed into Curtis Gokey's car, he decided to sue the
city for damages. Only thing is, he was the one driving the dump truck.
But that minor detail didn't stop Gokey, a Lodi city employee, from
filing a $3,600 claim for the December accident, even after admitting
the crash was his fault.

Wow, up to this point, you needed an accomplice for this kind of thing, but now you can just do it yourself -- hop in the company car, run it into your house (or maybe the wife and kids for a really big payday) and sue the company.  Genius.

Oakland is fed up with high school kids that litter, throwing the lunch wrappers from their Big Mac on the ground rather than putting them in the trash.  The city is arguing that these folks' inconsiderate littering is making a mess of the town and costing the city a fortune in clean up.  The city wants to send a clear message to its kids that this is not going to be tolerated and they expect people to take responsibility for this, so the City Council has boldly passed a new law to ... tax McDonalds to clean up after the little darlings.

So City Council Member Jane Brunner is proposing to charge major fast
food restaurants a fee of $2,400 to hire crews to pick up garbage
around town. She says a study shows fast food restaurants account for
20-percent of Oakland's litter.

Vince Thomas, Kentucky Fried Chicken franchise owner: "I don't have any control over it once it leaves my lot."...

The Restaurant Association reminded the council it could be getting itself into a discrimination lawsuit.

Johnnise Downs, California Restaurant Association: "Because it singles
out and penalizes one specific group of businesses, and basically
places the entire burden of Oakland's litter problems on those
businesses."

You know what this reminds me of?  It's as if parents were frustrated that their kid never cleaned up after himself and always left messes around the house, so they choose to deal with it by hiring a maid to clean up after him.  What about actually, you know, enforcing litter laws.

By the way, here's another question.  We all know how little of the tobacco settlement that was ostensibly to fund health care actually went to health care.  I wonder in this case how much will actually go to incremental trash pickup and how much will just be dumped into general revenue.

Those on the left and the right often try to laugh off libertarians, ascribing to "paranoia" our fear of the power of government. 

Well, I could argue that if this is paranoia, I share a similar phobia with men like Thomas Jefferson and James Madison, whose fear of government power permeate all their writings, as well as the Constitution they helped to produce.  They believed that even good men could be corrupted by the government, and they were proven correct in an incredibly short time by John Adams.  Adams is by all accounts a good man, dedicated to freedom and democracy, and one of the chief intellectual architects both of the Revolution and the Constitution.  But it was Adams that signed into law the Alien and Sedition Act, perhaps the worst piece of illiberal and unconstitutional legislation in the history of this country.

Or, if I didn't want to make the founding father's / original intent argument, I could just point to this (hat tip Marginal Revolution):

A federal judge in Texas, calling the Federal Deposit Insurance Corp. a "corrupt
agency with corrupt influences on it," awarded a Houston financier $72 million
to cover his legal fees in a decade-long suit involving a failed savings and
loan and the government's efforts to take control of a stand of endangered
California redwood trees in the 1990s.

The FDIC, a regulatory agency that insures deposits at banks and
savings and loans, filed suit against Charles E. Hurwitz in 1995, seeking to
collect more than $800 million because Hurwitz indirectly controlled a Texas
S&L that failed in 1988. The FDIC, after a series of legal setbacks, dropped
its suit against Hurwitz in 2002....

On Tuesday evening, Hughes issued a scathing, 131-page ruling. In it, he cited
evidence that the FDIC brought the case largely because of pressure from
environmental groups, members of Congress and the Clinton administration. The
reason: Hurwitz's Pacific Lumber Co. owned 3,500 acres of endangered redwoods in
Northern California. Hughes found that the FDIC, in close concert with
environmental groups, sued Hurwitz to pressure him into a "debt-for-nature"
swap, in effect giving the government his trees in exchange for his supposed
liability in the failure of the United Savings Association of Texas....

Hughes said FDIC officials and lawyers, in depositions, "ranged from
manipulative evasiveness to plain perjury." He cited records of two years of
communications, including extensive discussions of legal strategy and political
matters, between the FDIC and environmentalists over the proposal to use a
banking-practices lawsuit as pressure on Hurwitz to give up the
redwoods.

Hughes said FDIC officials "discarded the mantle of the American
Republic for the cloak of a secret society of extortionists. If the vice
president called, they responded. If a congressman called, they responded. If a
lobbyist called, they responded. They heeded every call but that of duty and
honor."

Wow.  I know many people are paranoid about the lack of accountability of major corporations, and felt vindicated by the Enron case, over which the press spilled acres of ink.  However, Enron is nothing compared to this.  While fraud is bad, Enron at least was never able to use the coercive regulatory and police power that the government has to seek its ends.