Coyote Blog

It would be difficult to find many folks who are more paranoid protectors of privacy information than I am.  But I have to say the tone of this is really pathetic.  (via Overlawyered)   Seriously, how many people think these folks feel truly harmed and how many think they are acting in order to try to score a tort payoff?

Consumers are hoping to cash in on last week's state Supreme Court ruling that it's illegal for retailers to ask customers for their ZIP Codes during credit card transactions, except in limited cases.

More than a dozen new lawsuits have been filed against major chains that do business in California, including Wal-Mart Stores Inc., Bed Bath & Beyond Inc., Crate & Barrel andVictoria's Secret. More filings are expected in the coming weeks.

The flurry of litigation stems from a decision last week againstWilliams-Sonoma Inc. in which the state high court ruled unanimously that ZIP Codes were "personal identification information" that merchants can't demand from customers under a California consumer privacy law.

This rush to court is pathetic on a number of levels

• Zip code is personal, really?  Do you believe that?
• Just say no.  Seriously.  I do it all the time -- I get asked for a phone number or a zip code and I always answer "no, sorry."  You know how many retailers have decided they did not want to make a sale to me at that point?  Zero.
• It's ex post facto law.  Nowhere was it made clear to retailers that the law barred collecting zip codes.  Not until a group of judges effectively made this individual practice illegal did it become so, and then it was enforced retroactively on stores.  If the legislature wants collecting zip codes to be illegal, it should have written in the law that collecting zip codes is illegal.  Or, as a minimum, liability should begin on the day after the court decision.  Suing someone for taking a zip code last year when it only became clear this week it was illegal is classic ex post facto law.
• Ira Stoll has a funny comment - guess what the first piece of information Jerry Brown's web site asks for?

I hope JD is wrong:

Further complicating this picture is that Sheriff Joe Arpaio, despite erratic and confrontational conduct that has repeatedly put him at the wrong end of lawsuits and press coverage, is immensely popular with Maricopa County voters. In fact, recent polling suggests that the governor's office is his for the asking. He's a favorite for the Republican nod and an apparent shoe-in in the general election.

I was under the impression that the Repub's cut Arpaio loose in the last election, but I don't really follow the politics stuff much.  JD has an update on the latest Arpaio shenanigans, as does Radley Balko:

• The Maricopa County Sheriff's Office announced on Tuesday that Stoddard would surrender to jail ahead of his midnight deadline to aplogize. But when Stoddard showed up, the jail refused to book him, citing a "clerical error." Stoddard insisted on spending the night in jail anyway.
• Maricopa County Sheriff Joe Arpaio announced he has filed a federal lawsuit against the county and its judges, alleging a "widespread conspiracy" against Arpaio and his officers. Arpaio remarkably and apparently with no self-awareness whatsoever called the county a "good ole boys network," and commented that he had "never seen these kinds of things occur in the justice system." Arpaio also called Donahoe's contempt finding against Stoddard a "vendetta," and said, "For political reasons, [Stoddard's] been thrown to the wolves."
• Yesterday, the day after Stoddard spent a night in jail, 19 sheriff's deputies scheduled to work security at the courthouse called in sick, throwing the day's court proceedings into disarray. The building also had to be evacuated after a phone-in bomb threat.
• As crowds returned after the bomb threat was cleared, the law enforcement unions commenced with a conveniently-timed rally in front of the courthouse, calling Stoddard a "victim" and demanding that he be released from jail.

Wow, it sure is a real coincidence when a bomb threat against the public defenders (it was a public defender the deputy originally stole the document from) at the exact same moment the sheriff's were trying to disrupt the courthouse over a dispute involving the public defenders office.

Those who don't live here would be appalled and disgusted by how such a large segment of the local population absolutely revere this man.  He's like the right-wing Obama, living off a manufactured image.

Via Maggies Farm and a commenter on TigerHawk:

During consideration of H.R. 3126, legislation to establish a Consumer Financial Protection Agency (CFPA), Democrats on the House Financial Services Committee voted to pass an amendment offered by Rep. Maxine Waters (D-CA) that will make ACORN eligible to play a role in setting regulations for financial institutions.The Waters amendment adds to the CFPA Oversight Board 5 representatives from the fields of "consumer protection, fair lending and civil rights, representatives of depository institutions that primarily serve underserved communities, or representatives of communities that have been significantly impacted by higher-priced mortgages" to join Federal banking regulators in advising the Director on the consistency of proposed regulations, and strategies and policies that the Director should undertake to enforce its rules.

By making representatives of ACORN and other consumer activist organizations eligible to serve on the Oversight Board, the amendment creates a potentially enormous government sanctioned conflict of interest. ACORN-type organizations will have an advisory role on regulating the very financial institutions from which they receive millions of dollars annually in direct corporate contributions and benefit from other financial partnerships and arrangements. These are the same organizations that pressured banks to make subprime mortgage loans and thus bear a major responsibility for the collapse of the housing market.

In light of recent evidence linking ACORN to possible criminal activity, Democrats took an unprecedented step today to give ACORN a potential role alongside bank regulators in overseeing financial institutions. This is contrary to recent actions taken by the Senate and House to block federal funds to ACORN.

ACORN was an important actor in the housing bubble, responsible for numerous lawsuits and other political pressure to force banks to lend to borrowers who by objective standards did not have the income or credit history to sustain mortgage payments.  It would be interesting to see how many mortgages ACORN was involved with have gone belly up.  But now, as part of the "solution" to the financial crisis, we will put ACORN in charge.

I remember the fuss a number of years ago that a disproportionate number of heavily polluting industrial plants were in poorer neighborhoods.  I suppose it is no surprise that companies look to site plants where there are large labor forces and cheap land, which probably means that they are not going to buy of large swaths of Grosse Pointe for their new auto plant.  But there also seemed to be some chicken and egg here - residential land around industrial tracts probably attract residents who can't afford to live somewhere else.

Anyway, I had never realized just how destructive public policy had become in response to this "problem," nor how much our current climate czar had to do with it:

Case in point is "Climate Czar" Carol Browner, former EPA chief under Bill Clinton and ghostwriter of Al Gore's apocalyptic book Earth in the Balance. In the late 1990s, Browner championed the effort to apply Title VII U.S. civil rights law to plant permitting, arguing that locating industrial facilities in majority black cities "disproportionately impacted" minorities and was there "environmental racism."The policy provoked outrage among those black elected officials across the country who believe it's a good thing to have jobs available in minority areas.

Some of those officials were in Michigan, where Browner's green allies tried to use EPA rules to shut down electric power facilities and auto plants. At the time, Browner had already bagged the pelts of two major facilities in Louisiana -- a plastics plant and nuclear fuel facility -- that would have brought hundreds of jobs to minorities.

As can be expected, African-American politicians who were told it was racist to locate jobs in their communities were not amused:

Horrified by this threat to jobs within poor communities, Detroit mayor Dennis Archer led the primarily Democratic U.S. Conference of Mayors to scrap "green redlining" -- so called because the EPA actually drew circles around plants located in minority areas that would encourage lawsuits. The mayors were joined by a rainbow coalition of groups from the National Association of Black County Officials to Republican pols like L.A.'s Richard Riordan and Michigan Rep. Joe Knollenberg.

Addressing the Black Chamber of Commerce's annual meeting, then-U.S. Chamber president Thomas Donahue said: "I'm trying to think of a policy that would be more effective in driving away entrepreneurs and jobs from economically disadvantaged areas -- and I can't do it."

Apparently, the whole to-do was BS anyway

Mastio's News investigation further uncovered that Browner's EPA had suppressed documents finding that there was not a corporate conspiracy to locate polluting industries in black areas (in fact, they are mostly in white areas), and the bipartisan outrage eventually led to a Congressional vote blocking the EPA rule.

It is amazing to me that there can be numerous health care plans in Congress plus a jillion speeches on the topic by the President and not once does anyone mention "torts."  Now, I am not one to ascribe all cost problems in the medical field to defensive medicine and tort settlements.  Buthey t certainly are a factor.  It is just stunning that a President can stand up and talk numerous times about "unnecessary tests and procedures" and ascribe all of these to some weird profit motive by the doctors - weird because generally, the doctor gets no extra revenue from these tests, so somehow he or she is motivated by the profits of a third party lab.

But I think the rest of us understand that American tort law, which allows juries to make multi-million dollar judgements based on emotions and empathy rather than facts and true liability, has at least a share of the blame.   Not just the settlements, but the steps doctors go through to try to protect themselves from frivolous suits down the road.  Here are two interesting stories along these lines.  The first from Carpe Diem:

Zurich University Hospital has stopped treating North American "medical tourists," fearing million-dollar claims from litigious patients if operations go wrong. Hospitals in canton Valais have also adopted measures to protect themselves against visitors from the United States, Canada and Britain.

"The directive applies only to patients from the US and Canada who come to Zurich for elective, non-essential health treatments," said Zurich University Hospital spokeswoman Petra Seeburger.

"It is not because treatment is not financed; it is because of different legal systems." In a statement the hospital said it was "not prepared to risk astronomical damages or a massive increase in premiums." Seeburger emphasised that the restrictions only affected people not domiciled in Switzerland.

Apologies to Mark Perry for quoting his whole post, but if you are not reading Mark Perry, you should be.  The second example comes from Overlawyered:

Oh, I miss the days when you got a radiology report that said, "fracture right 3rd rib, no pneumothorax". Because of frivolous lawsuits radiologists have learned to be vague, noncommittal and to pass the buck of possible litigation. So now you get a 2 page report that says "linear lucency in right 3rd rib, clinical correlation recommended, underinflated lung fields cannot exclude underlying interstitial disease and or masses. CT recommended for further evaluation, if condition warrants." along with several other paragraphs of lawyer imposed legalmedspeak"¦.

I realize I did not comment on the Joe Romm oil price bet per se.  Here are two reasons I don't like the bet:

1.  Romm is making a catastrophic forecast (ie oil >$200) but wins his bet at $41, what one might consider a fairly normal current oil price.  This is very equivalent to Romm forecasting a 15F increase in world temperatures in the next century (which he has) but making a bet that he would win if temperatures go up by only 0.1F.  Clearly, a 0.1F increase over the next century would be considered by all a thorough repudiation of catastrophic anthropogenic global warming forecasts.  So why should he win the bet at this level?

2.  The bet, particularly in the next few years, has more to do with the current government's actions than Exxon's or Saudi Arabia's.  To bet that oil prices will stay low in nominal dollars, one must bet that Obama's deficits won't destroy the value of the dollar, that the Fed's expansionist monetary policy won't lead to inflation, that Congress won't pass some kind of legislative restrictions making oil production more expensive, and that the world won't sign a treaty to restrict carbon.  In short, Congress will have more effect in the near term on oil prices than flow rates in Saudi fields, and I am certainly not going to make a bet in favor of Congressional or Presidential restraint.

Postscript: Here is what you have to believe to accept Romm's 15F global warming forecast.   Here is how I opened that post.  It is interesting how similar the forecasting issues are:

For several years, there was an absolute spate of lawsuits charging sudden acceleration of a motor vehicle "” you probably saw such a story:  Some person claims they hardly touched the accelerator and the car leaped ahead at enormous speed and crashed into the house or the dog or telephone pole or whatever.  Many folks have been skeptical that cars were really subject to such positive feedback effects where small taps on the accelerator led to enormous speeds, particularly when almost all the plaintiffs in these cases turned out to be over 70 years old.  It seemed that a rational society might consider other causes than unexplained positive feedback, but there was too much money on the line to do so.

Many of you know that I consider questions around positive feedback in the climate system to be the key issue in global warming, the one that separates a nuisance from a catastrophe.  Is the Earth's climate similar to most other complex, long-term stable natural systems in that it is dominated by negative feedback effects that tend to damp perturbations?  Or is the Earth's climate an exception to most other physical processes, is it in fact dominated by positive feedback effects that, like the sudden acceleration in grandma's car, apparently rockets the car forward into the house with only the lightest tap of the accelerator?

I don't tend to shop at Whole Foods because they offer a value proposition that does not appeal to me.  Their prices are too high for products that generally don't seem noticeably better than ones I can get in other stores.  To some extent the placebo effect of having "all natural" on the package does not really work for me, though I do buy most of my fish and meat there  (and not just because I like the irony of buying only meat products from a store populated by vegans).

That said, I like having the choice in stores.  I even drop by a farmers market once in a while, though generally the hassle is not worth it for me.  The same is true in beers -- I am seldom in the mood for something as dark and rich as a Belhaven, I love the explosion of choices in beer we have seen since the dark days of the late 70's/early 80's.  Other people will make different choices.  Cool.

Which makes it all the more ironic that those who benefit from the explosion in retail choice in the free marketplace are using that choice to protest the CEO of Whole Foods for advocating similar levels of choice in health care.  Anyway, I would write more but Radley Balko did a much better job here.

You see, he shared his ideas on health care reform, thinking that you, being so famously open-minded and all, might take to a few of them, or that it at least might start a conversation. I guess he felt he'd built up some cache with you, and wanted to introduce you to some new ideas. His mistake wasn't in intentionally offending his customers. He's a businessman who has built a huge company up from the ground. I'm sure he knows you don't deliberately offend your customers. His mistake was assuming you all were open-minded enough consider these ideas without taking offense"”that you wouldn't throw a tantrum merely because he suggested some reforms that didn't fall in direct line with those endorsed by your exalted Democratic leaders in Washington. In retrospect? Yeah, it was a bad move. Turns out that many of you weren't nearly mature enough to handle it.

Its hard even to understate the how absolutely nuts self-styled "progressives" have gone over this pretty tame and sober editorial in the IBD.  Here is just one example -- this is a mainstream green blogger and not some weird comment to a Kos post.  I honestly thought this was satire at first:

I agree with CEO John Mackey that it's okay to make money by making your green business big. But Mackey crossed the line with an op-ed in the Wall Street Journal this weekend, whose very publication put him in the company of the lunatic right-wing fringe who edit the paper's opinion section.

The op-ed reads like a page from the Republican playbook, touting individual responsibility for one's health. What a load of unorganic crap!

Holy brothers-keeper Batman - He's advocating individual responsibility!!  Here, since I have not reproduced it before, are the "lunatic" ideas of Mr. Mackey:

"¢"‰Remove the legal obstacles that slow the creation of high-deductible health insurance plans and health savings accounts (HSAs).

"¢"‰Equalize the tax laws so that employer-provided health insurance and individually owned health insurance have the same tax benefits.

"¢"‰Repeal all state laws which prevent insurance companies from competing across state lines.

"¢"‰Repeal government mandates regarding what insurance companies must cover.

"¢"‰Enact tort reform to end the ruinous lawsuits that force doctors to pay insurance costs of hundreds of thousands of dollars per year.

"¢"‰Make costs transparent so that consumers understand what health-care treatments cost.

"¢"‰Enact Medicare reform.

"¢"‰Finally, revise tax forms to make it easier for individuals to make a voluntary, tax-deductible donation to help the millions of people who have no insurance and aren't covered by Medicare, Medicaid or the State Children's Health Insurance Program.

The tort reform area is one where Obama is particularly disingenuous. It is just amazing that anyone could write about the cost of medicine being driven by too many useless procedures without once mentioning the words malpractice or defensive medicine.  I wonder if this might explain Obama's silence on tort reform (via maggies farm)

A portion of my novel BMOC was satire of oddball lawsuits.  In that book, for example, I had a woman suing Disney because she found that the characters at Disney World were people in costumes rather than the actual animated characters she had expected.  I thought that was enough beyond reason and reality to constitute satire, but I guess I was wrong:

On May 21, a judge of the U.S. District Court for the Eastern District of California dismissed a complaint filed by a woman who said she had purchased "Cap'n Crunch with Crunchberries" because she believed "crunchberries" were real fruit. The plaintiff, Janine Sugawara, alleged that she had only recently learned to her dismay that said "berries" were in fact simply brightly-colored cereal balls, and that although the product did contain some strawberry fruit concentrate, it was not otherwise redeemed by fruit. She sued, on behalf of herself and all similarly situated consumers who also apparently believed that there are fields somewhere in our land thronged by crunchberry bushes.

Here is a real journalistic triumph -- the story of a multi-party conflict in which I immediately dislike absolutely everyone in the story on all sides of the conflict, up to and including the jury and the third parties quoted.  Via Overlawyered.

Update: I failed to make clear that what really makes the article special is that the writer herself is at least as bad as everyone involved.  She writes in the first paragraph, "If you are black, you probably call the act of disciplining a child with corporal punishment 'a whupping.'"  Really?  What's next, is she going to tell us that they all like watermelon too?  Is this kind of blanket unsupported supposition about the habits of a particular race really in the the Chicago Sun-Times style manual on how to open a news feature?  I grew up in Texas and "getting a whupping" was a term favored right across racial lines.  Anyway,  I gotta go now and chase some varmints away from my cement pond out back.

Update #2: I just got an email that said "If you are white, you probably trade jars of Grey Poupon out the windows of your Rolls Royce."  LOL.

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.

Via TJIC, on Hillary:

In 1973 she worked for a non profit.

In 1974 she was a government employee.

In 1975 she failed the D.C bar exam, and married Bubba.

In 1976 she joined the Rose Law Firm, and somehow made partner
three years later in 1979, despite rarely appearing in court "¦a
stunningly quick rise!

Oh, and Bubba became the Governor of Alabama in 1976, but that's unrelated.

In 1976 she was made, through political appointment by Jimmy
Carter, head of a government funded non-profit corporation which did
nothing but launch lawsuits.

In 1978 she laundered $100,000 of bribes through cattle
trading contracts. Despite having never engaged in cattle trading
before, she somehow managed to pick the two best times to trade each
day: she bought cattle contracts at the absolute lowest price each day,
and sell them at the absolute highest price. After laundering the
bribes, she quite cattle trading forever.

From 1993 to 2001, Hillary attempted, from her unelected
position, to socialize American health care, and routinely violated
open meetings laws.

In 2000 Hillary carpet-bagged her way into a senatorship.

Women's groups seem to be supporting Hillary's contention that being married to the President counts as presidential experience.  Wow!  If that is the case, the glass ceiling is exploded!  Melinda Gates has 20 years of experience as Microsoft CEO!

I'd like to say that I would love to see someone who has actually tried to run his/her own business running for the White House, but most of the candidates who claim to have business experience seem to have the politically-connected rent-seeking business experience (e.g. GWB) rather than the real try to make a business work against the general headwind of government bureaucratic opposition type of experience.

I would prefer not to see warrantless searches without judicial oversight be legal under any circumstances, so I am happy there are roadblocks in the FISA extension.  What I am unclear about, though, are the exact issues surrounding telecom immunity from lawsuits which is apparently what has the thing held up.  By no means do I wish to give telecoms some blanket immunity from the consequences of their handling of private data.  However, it seems odd to want to hold them liable for complying with what would be, under the new law, a legal government order.  Or, is the immunity issue all retroactive to past compliance with government orders when it wasn't so clear if the government orders were legal?

I must say I have some sympathy for businesses, particularly those that are highly regulated as telecom, who bow under government pressure and then get sued for doing so.  For example, as I wrote before, I am required by Arizona law to take actions that the Feds consider illegal.  Its a frustrating place to be.

Anyone who can provide clarity on the issues here (not the FISA issues or wiretapping issues but narrowly on the immunity issue) is encouraged to do so.

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.

Kevin Drum observes that yet another study has put to rest the theory that Thimerosal, a preservative that used to be put in some childhood vaccines, causes autism:

However, despite the equivocal (at best) scientific evidence linking
thimerosal to autism, conspiracy theories abounded and the issue deeply
split the autism community. Firm evidence in one direction or the
other, though, had to wait until now. Thimerosal was ordered removed
from most childhood vaccines in 1999, and by the early 2000s children
had stopped receiving virtually all thimerosal-based vaccines. If
autism rates then decreased, it would be good evidence that thimerosal
really had been to blame.

But that didn't happen. Interim studies have shown no decrease in
autism rates, and a study released today puts the nail in the coffin of
the thimerosal story. It tracks children born in California and
includes enough years of data to show pretty definitively that autism
diagnoses continued to rise even after thimerosal was removed

I thought it was time to move on from this theory years ago, but Drum says that it continues to be carried forward by parents desperate to find an explanation for their child's autism.  I guess I am a bit more cynical, for I would argue that this bad science of Thimerosal has been carried forward, just like the bad science of breast implant caused immune deficiencies, by trial lawyers desperate for another easy extortion target.  And, just as medical studies did not stop lawyers from pressing forward implant lawsuits, I am sure the Thimerosal lawsuits are not going to go away either.

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.

Yesterday, I talked about my fondness for private conservation projects.  Today, the NY Times makes it clear that they are not so fond of private conservation.  In an article about environmentalist-triggered death of logging in the west, the Times observes that many rich folks are taking up the opportunity to buy large tracts of western forests for second homes and ranches.

William P. Foley II pointed to the mountain. Owns it, mostly. A timber
company began logging in view of his front yard a few years back. He
thought they were cutting too much, so he bought the land.

Mr. Foley belongs to a new wave of investors and landowners across the
West who are snapping up open spaces as private playgrounds on the
borders of national parks and national forests.

Cool, a win-win -- conservation without use of tax funds or government coersion.  But instead of being thrilled, the Times adopts their patented sneering tone they use with anything having to do with wealth.

The rise of a new landed gentry in the West is partly another
expression of gilded age economics in America; the super-wealthy elite
wades ashore where it will.

Hmm, I would have thought it an example of how increases in wealth in the US has always driven higher environmental standards and more conservation.  The NY Times tries to portray this as something like turning national parks into sprawling suburbs, lamenting the "increase in density," but this is just a joke and a product of a bunch of New Yorkers who have never really spent time in Montana.  There is zero danger of any kind of urbanization here, and their very story belies this fact when it talks about 640 acre lot sizes. 

The real problem for them seems to be one of access, and they lament that these new owners tend to put up no trespassing signs rather than allowing public access as private loggers used to.  But in so arguing, the Times is trying to have it both ways.  Eliminating recreation access from western lands is a HUGE priority for environmentalists.  In fact, though many in America don't know it, within a few decades it may be impossible to drive into national parks like Yellowstone and Yosemite.  I know and work with the management of the National Parks, and many of their leaders do not consider their job finished until they get all the visitors out of the parks.  So throwing up no trespassing signs to recreators is exactly what environmentalists want on these lands.  What they don't like, because many are openly socialist, is private ownership of these lands.  They know that increasingly, because they have gotten so good at filing lawsuits and forcing public lands officials to do their bidding, that public ownership means, effectively, ownership by the environmental groups. 

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. 

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.

I have always thought the logic of shareholder law suits were crazy to start with, and even crazier given that shareholder suits over loss of stock value tend to result in ... declining stock value.

I have never been able to justify most lawsuits by shareholders
against companies in which they own shares.  Any successful verdict
would effectively come out of the pockets of the company's owners who
are.. the shareholders.  So in effect, shareholders are suing
themselves, and, win or lose, they as a group end up with less than if
the suit had never been started, since a good chunk of the payout goes
to the lawyers.  The only way these suits make financial sense (except
to the lawyers, like Bill Lerach) is if only a small subset of the
shareholders participate, and then these are just vehicles for
transferring money from half the shareholders to the other half, or in
other words from one wronged party that does not engage in litigation
to another wronged party who are aggressively litigious.  Is there
really justice here?

OK, you could argue that many of these shareholders are not suing
themselves, because they are past shareholders that dumped their stock
at a loss.  But given these facts, these suits are even less fair.  If
these suits are often made by past shareholders who held stock at the
time certain wrongs were committed, they are paid by current and future
shareholders, who may well have not even owned the company at the time
of the abuses, and may in fact be participating in cleaning the company
up.  So their argument is that because the company was run unethically
when I owned it, I am going to sue the people who bought it from me and
cleaned it up for my damages?  Though it never happens, the more fair
approach would be for current shareholders to sue past shareholders for
the mess they left.

Tom Kirkendall quotes a related notion from the Economist:

This suggests to The Economist the need for a new Apple rule
to guide prosecutors"”at least in cases, such as backdating, where the
main supposed victim is a company's shareholders. Our rule: if a
criminal prosecution is likely to hurt a company's share price, then
don't prosecute.

Are we serious? Well, we think it's worth a discussion . . .
Cost-benefit analysis is largely absent from America's approach to
regulating business wrongdoing, not only in criminal prosecutions, and
that is probably one of the main reasons why America's capital markets
are indeed losing their competitive edge. At the very least,
encouraging the Department of Justice and the Securities and Exchange
Commission to employ a few less lawyers and a few more economists would
be a step in the right direction.

Every day, the government makes it a little bit harder to run a business.  Today's water drop in the ongoing Chinese water torture comes from TJIC up in Massachusetts

Governor Deval Patrick, returning to one of the more contentious
issues of his campaign, has begun quietly putting together a plan to
limit employers' access to the criminal records of potential employees.

Aides have been meeting with lawmakers and advocates working
to limit the scope of the Criminal Offender Record Information law,
which gives many employers broad access to criminal records. Activists
argue that many applicants are rejected for jobs based on minor
criminal convictions, crimes unrelated to the post"¦

Somehow, they are going to do this:

Patrick has not yet settled on specific legislation, an aide said, but
wants to give employers access only to criminal information that is
relevant to the job being sought.

Let me ask you readers a question:  If a company hires an employee with a criminal background who then does harm to someone (say a customer or another employee) in the workplace, who get's sued:

1. The employee, who is held individually responsible for his own actions
2. The employer, who hired the employee in good faith but was not able to get a reference (because lawsuits have pretty much ended the practice of giving honest information about ex-employees) and was not able to do a background check (because the government would no longer share criminal records)

If you answered "1", then you either have been in cryogenic sleep for 30 years or you have never run a business.  No hope, I suppose, of tying liability protection for employers to this legislation, I guess.

By the way, the 800 pound gorilla in the room is the war on drugs.  I am sure the concern here is that more and more white collar workers are saddled with petty drug convictions that are hurting their ability to get jobs.  I would have not problem wiping all the drug possession offenses off the record, particularly since I don't think these possession offenses should be crimes anyway.

Update: From the indispensable Overlawyered.com

TJIC has a great link to a new law blog called CopyOwner focused no free speech issues.  CopyOwner observes that Culver City, California appears to be emulating the Chinese Internet model, providing access for free, but only if you accept state censoring:

First, they offer Internet access, but you must agree to "limited"
Internet access. And they don't mean limited hours of the day, limited
locations, or a limited amount of time you can be on. No, when they say
"limited," they mean that they will censor access to parts of the
Internet. ("By using this free wireless network you are agreeing and
acknowledging you have read and accepted these terms and conditions of
use, and this wireless network provides only limited access to the
Internet.") In other words, they do not offer Internet access at all....

Second, in order to gain the right to enjoy
this free, public, non-Internet access, no matter what you read in the
Bill of Rights (and the First Amendment, in particular) you must agree
that the government may abridge your freedom of speech and you further
agree that when it does so (as it promises to do), you will not
exercise your right to sue for the violation of your First Amendment
rights!

I'm not making this up. Here's the fine print:
"Further, [by using it] you are agreeing to waive any claims,
including, but not limited to First Amendment claims, that may arise
from the City and Agency's decision to block access to "¦ matter and
websites [of its choosing] through this free wireless network "¦."

From
a legal standpoint, it is the same as if the Culver City public library
were offering you free access to newspapers, but was first clipping out
the articles it didn't like and making you agree not to sue for
censorship if you wanted to read what was left.

My thought at first was that this was a liability response, but my sense is that the courts have been pretty consistent in protecting ISPs when plaintiff lawyers try to drag them in as deep pockets into lawsuits  (e.g. trying to sue Earthlink because it was the medium for delivering a MySpace page which in turn allegedly facilitated some action someone is suing over).  I am left with the sense that this is just politicians trying to protect themselves from criticism.  I am almost tempted to see how this thing plays out - censorship really gets ugly in a democratic environment.  You end up with a million interest groups all lobbying that they know best what should be censored.  You would have people in the town office arguing for censorship of pornography, religion (both pro and con), evolution (pro and con), nazis, Israel, global warming skepticism.  Whatever.  (By the way, I have seen people arguing in some context for censoring every item in the preceding list)

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?

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).

I thought this article by Robert Johnson (via Instapundit) about the Duke Lacrosse case was interesting in that it highlighted how many people on the Duke campus believed that the actual guilt of innocence of the players involved was irrelevant.

First, there was the Duke administration.  I don't think anyone can doubt at this point that the players' guilt or innocence was irrelevant to the actions of the Duke administration, since they meted out their punishments long before the investigation into the facts of the case had even really begun.  Duke was clearly worried most about its reputation and about protecting itself from lawsuits, a not unreasonable fear given this.

It is the actions of the faculty that are truly amazing.  Johnson shows us the thinking of a number of members of the Duke faculty, known as the group of 88, that came out with public statements about the matter.

[Duke Professor Wahneema Lubiano] was pleased "that the Duke administration is getting the point":
the banging of pots and pans had hammered home that a specific claim to
innocence in this case mattered little. "Regardless of the 'truth'
established in whatever period of time about the incident at the house
on N. Buchanan Blvd.," she mused, "the engine of outcry in this moment
has been fueled by the difficult and mundane reality that pre-existed
this incident." To Lubiano, the "members of the team are almost perfect
offenders in the sense that [critical race theorist Kimberle] Crenshaw
writes about," since they are "the exemplars of the upper end of the
class hierarchy, the politically dominant race and ethnicity, the
dominant gender, the dominant sexuality, and the dominant social group
on campus."

Professor Alex Rosenberg added:

The sole defenders of the lacrosse players in this case, the professor
suggested, are extreme advocates of the economic status quo

Though its not really news nowadays, I guess, the article is a nice reminder that universities tend to have a hard core of faculty that see the world in terms of race, class, and gender rather than individuals and individual action.  Makes you wonder how they go about assigning grades.  In fact, their desire to see the Duke case cast in terms of race and gender apparently caused them to ignore outright political abuses one would normally expect them to decry:

Most stunningly, Rosenberg claimed that every member of the
Group of 88 believed that Nifong was motivated not by the pursuit of
justice but by the looming Democratic primary for D.A. If true, this
breathtaking assertion means that the Duke faculty, despite recognizing
that a local prosecutor was abusing his office to railroad their own
institution's students, chose to go public instead with a mass
statement denouncing the students targeted by that very same prosecutor.

Ken Lay and Jeff Skilling were convicted on numerous counts of fraud but were acquitted on most counts of insider training.  Professor Bainbridge has some quickie analysis.

I worked for Jeff Skilling for a brief period of time at McKinsey & Co.  Jeff was easily one of the smartest men I ever met, as well as the most detail-oriented.  It was this latter quality that forced me to concede that he was probably lying to Congress back when he said "I didn't know any of this stuff was going on in my organization."  Whatever else they did, Lay and Skilling will never be forgiven by my family for sucking in a couple of our family friends who were not business people (doctors and such) onto the Enron board, perhaps as dupes who had no hope of crying foul at the complex business machinations that were taken place.  Whatever the reason, our friends will spend the rest of their lives dealing with Enron lawsuits.

My only regret in this case is that I hate seeing some pretty scary prosecution practices get rewarded.  The guilt of Lay and Skilling does not change the fact that we need to start reigning in heavy-handed prosecutors, and disavowing the Thompson memo would be a good start. Update: Tom Kirkendall has much more on prosecutorial abuse in this case and possible appeal points.