It's
like magic, we'll just make Big Business pay:
Washington, D.C., lawyer Thomas Fay has spent years hounding the Libyan government
for money on behalf of victims of terrorist attacks. Now he's hoping to collect -- from
American companies.
Fay has sent letters to 13 brand-name corporations, including Exxon Mobil and
Chevron, notifying them that if he wins his case against Libya, he'll be coming after
them. He has even sent one to White & Case, the prominent law firm that recently
signed on to defend Libya.
The gambit stems from a change in the law meant to make it easier for plaintiffs
to secure judgments and collect from countries found responsible for sponsoring terrorist
attacks. Until recently, those who had prevailed in court had few options for collecting.
But on Jan. 28, President George W. Bush signed a bill amending the Foreign
Sovereign Immunities Act to allow plaintiffs to seek any asset owned by the
terrorist-sponsoring country in reach of American courts, including frozen accounts or
property managed by others. The amendment also permits victims to request punitive
damages, which they couldn't before, and eliminates some avenues for appeal. Under the new
law, plaintiffs with pending cases had 60 days to file or refile claims.
Attorney Fay was among those lobbying for the new provision, which was
sponsored by Sens. Frank Lautenberg (D-N.J.) and Arlen Specter (R-Pa.). (W.J. Hennigan,
Legal Times, Apr.
15).
The
Eleventh Circuit on Monday "held that Ingrid Reeves could proceed to trial with her
hostile environment harassment claim -- which is to say, that if the jury agrees with her
on the facts, it's entitled to award potentially hundreds of thousands of dollars in
damages -- even though the case didn't involve any sexual extortion, any offensive
touching, any sexual propositions, or even any insults targeted to her personally. Rather,
her complaints, as described by the Eleventh Circuit were chiefly related to
"sexually crude language that offended her." Among the sources of that offense,
per the court opinion, was "a radio program that was played every morning on the
stereo in the office", per Eugene Volokh "a morning program on Birmingham's
107.7 FM during 2002-03, according to one brief". (May 2; title post borrowed from Bader).
More: Fulton County Daily
Report, Evil
HR Lady ("And you wonder sometime why we HR types put a damper on the
fun.").
"Stacy
Hanson and wife Colleen are suing Rocky Mountain Enterprises of Nevada, owner of the West
Valley City pawn shop where Sulejman Talovic purchased a shotgun with a pistol grip.
Talovic killed five people and injured four at Salt Lake City's Trolley Square mall in
February 2007." (KSL, May 2).
Another
bunch of things not to do if you're a member of the legal profession.
- Send insulting
letters to opposing counsel. (G.F. Pignato, ordered
to write an article about civility.) [Legal
Profession Blog via ABA
Journal]
- Leave your innocent client in jail by failing to act on new evidence. (William S.
Gebbie, surrenders his California license; also accused of stealing client funds.) [ABA
Journal]
- Use the NY Yankees trademark without permission in advertising for asbestos
clients. [ATL]
- Make "jerk-off" motions in court. (Adam Reposa, Texas, sentenced to
ninety days for contempt of court; many in blogosphere are appalled at what they call an
overreaction.) [ATL; Simple
Justice; Mark
Bennett and again;
and Patterico notes an
interesting coincidence]
- Mock the plaintiffs' attorney at a jury trial with "Overruled" signs and
soccer-style red cards. (Judge James M. Brooks, admonished.) [ATL]
- As a prosecutor, conceal exculpatory evidence. (Former Sonoma County Deputy
District Attorney Brooke Halsey Jr., suspended.) [ABA
Journal]
- And even if you're a pro se, don't send a death threat to opposing counsel by fax.
[Milwaukee Journal-Sentinel]
Earlier: Feb. 24.
Norm
Pattis (here
and here)
and Scott Greenfield (here)
have some highly interesting coverage of the efforts of the colorful Michigan lawyer and
his defense lawyer, Gerry Spence, to turn his trial on charges of contribution-laundering
into a trial of the feds' efforts to "get" him.
- Contriving to give Sheldon Silver the moral high ground: NY judges steamed at lack
of raises are retaliating against Albany lawmakers' law firms [NY
Post and editorial.
More: Turkewitz.]
- When strong laws prove weak: Britain's many layers of land use control seem futile
against determined builders of gypsy encampments [Telegraph]
- "U.S. patent chief: applications up, quality down" [EETimes]
- Plenty of willing takers for those 4,703 new cars that survived the listing-ship
near-disaster, but Mazda destroyed them instead [WSJ]
- "Prof. Dohrn [for] Attorney General and Rev. Wright [for] Secretary of
State"? So hard to tell when left-leaning lawprof Brian Leiter is kidding and when
he's not [Leiter
Reports]
- Yet another hard-disk-capacity class action settlement, $900K to Strange &
Carpenter [Creative HDD MP3
Player; earlier.
More: Sullum, Reason "Hit and
Run".]
- Filipino ship whistleblowers' case: judge slashes Texas attorney's fee,
"calling the lawyer's attempt to bill his clients nearly $300,000 'unethically
excessive.'" [Boston
Globe, earlier]
- RFK Jr. Watch: America's Most Irresponsible Public Figure
(r) endorses Oklahoma
poultry litigation [Legal
NewsLine]
- Just what the budget-strapped state needs: NY lawmakers earmark funds for three (3)
new law schools [NY
Post editorial; PoL first,
second
posts, Greenfield]
- In Indiana, IUPUI administrators back off: it wasn't racial harassment after all
for student-employee to read a historical book on fight against Klan [FIRE; earlier]
- Fiesta Cornyation in San Antonio just
isn't the same without the flying tortillas [two years ago on
Overlawyered]
This
website is mentioned in an article on allergies and chemical sensitivities in the
workplace, specifically on the case of Susan McBride, who's suing her employer, the city
of Detroit, for not preventing a co-worker from wearing perfume to the office (see Jul. 6
and Jul.
18, 2007; earlier Detroit case, May 25,
2005). (Lisa Belkin, "Sickened by the Office (Really)", May 1).
In
the April American Spectator, William Tucker has a lengthy piece on the question of
whether scandals, legislative setbacks and a more critical public view toward litigation
together signify that the power and influence of the trial bar has peaked. This site is
mentioned in the piece and I'm quoted, observing that "People have called the top of
this market before and they've always turned out to be wrong." (not online,
apparently; Jane Genova discusses).
I
have an op-ed in today's New York Sun
on the affirmance of the "Port Authority is 68% responsible for the 1993 World Trade
Center car bomb" verdict. Earlier.
Updating
our Jan.
18, 2007 post: "Connecticut's Commission on Human Rights and Opportunities says
that the city of Stamford violated anti-discrimination law because they wouldn't give
extra time on a promotion exam to David Lenotti. Lenotti is a fire lieutenant with
attention deficit disorder." [Excerpting coverage in the Apr. 15 Stamford Advocate*]:
The city defended the denial by claiming a fire captain, the position Lenotti
sought, must be able to read and process information quickly at a fire scene. But state
officials said the city never proved that was true, never consulted with disability rights
experts and does not use a promotional test that actually measures how fast a candidate
can read.
(Dave Statter, Apr.
20; Created Things, Apr.
16; decision in
PDF format).
*An odd aspect of the Stamford Advocate article, preserved
on GoogleCache: it quotes disability consultant Suzanne Kitchen making the very same
comment, word for word, that we criticized
her for making more than a year ago. Does Ms. Kitchen really repeat herself so
precisely?
Overlawyered
is now among the blogs carried by
the "content on demand" news service.
A
major victory for the good guys, of which Ted has a discussion at Point
of Law. I would add that Mayor Bloomberg and other promoters of the gun litigation
should take very little comfort from Judge Katzmann's dissent, which is based on two
themes -- that the majority could have decided the case without reference to
constitutional analysis, and that it could have certified the case to the New York courts
for an authoritative account of local law -- that in no way imply any endorsement of the
city's case on the merits. (Larry Neumeister, AP/SFGate, Apr.
30).
More from Hans Bader:
"The Brady Center to Prevent Gun Violence has claimed that the law violates
"separation of powers" by changing the outcome of pending court cases (an
argument that, if taken to its logical conclusion, would require invalidating the 1964
Civil Rights Act because it legislatively overturned trespass convictions of civil-rights
demonstrators who engaged in sit-ins)."
AP @ Volokh, from Greece:
Three islanders from Lesbos ... have taken a gay rights group to court for using
the word lesbian in its name. ...
"My sister can't say she is a Lesbian," said Dimitris Lambrou. "Our
geographical designation has been usurped by certain ladies who have no connection
whatsoever with Lesbos," he said.
Sports
doctors say more youngsters are coming in with arm injuries from excessive hard pitching
on the baseball field. In Washington state, Jason Koenig has lost his lawsuit claiming
that North Mason High School was negligent in not overriding his wishes to stay in for all
nine innings, 140 pitches, in a game in April 2001, resulting in injury to his arm. (Tom
Wyrwich, "Former high school pitcher hopes rules are changed to protect young
arms", Seattle Times, Apr.
29).
47-year-old
archaeology professor Chris Ratte is perhaps not the most careful of parents; he says he
didn't realize when he bought a $7 "Mike's Hard Lemonade" at a Tigers game, it
was an alcoholic beverage (all of 10 proof), and let his 7-year-old son Leo drink the
12-ounce bottle. A vendor noticed the boy with the drink; the boy had no symptoms of
inebriation but said he was nauseated; and stadium officials, in a prime example of
defensive overreaction, summoned an ambulance, which found Leo fine with no trace of
alcohol in his system.
Silly enough so far, no harm, no foul, but Michigan Child Protective Services
intervened, held Leo in foster care for two days (refusing to release him to the custody
of his aunts, who drove from New England on short notice for just such a possibility), and
forced Ratte to move out of the house until a second hearing okayed his return. If Ratte
and his wife weren't upper-middle-class academics with access to the University of
Michigan Law School clinic professors, it could have been much worse. "Don Duquette,
a U-M law professor who directs the university's Child Advocacy Law Clinic, represented
Ratte and his wife. He notes sardonically that the most remarkable thing about the
couple's case may be the relative speed with which they were reunited with Leo."
(Brian Dickerson, Detroit Free Press, Apr.
28 (h/t B.C.)).
Some policy proposals are for taxpayers to fund attorneys to defend parents
victimized by Child Protective Services; some go so far as to call it a constitutional
right, albeit one having nothing to do with the underlying text of the Constitution. But
that would only treat the symptom and ossify the underlying problem of abusive government
intervention into the home.
In
the wake of the September 11 bombings, Congress established a Victims Compensation Fund
and limited liability for a number of deep-pockets who were also victimized by the
attacks. A number of academics questioned that it was even conceivable that innocent third
parties could be held liable for a terrorist attack. Anthony J. Sebok, What's Law Got to
Do With It? Designing Compensation Schemes in the Shadow of the Tort System, 53 DEPAUL L.
REV. 901, 917 (2003); RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 104 (2007);
Peter Schuck, Special Dispensation, AM. LAWYER (June 2004); see also LLOYD DIXON AND
RACHEL KAGANOFF STERN, COMPENSATION FOR LOSSES FROM THE 9/11 ATTACKS (RAND Institute for
Civil Justice 2004).
Overlawyered readers knew better, because they had seen the Port Authority get
socked with a $1.8 billion verdict (Oct. 27,
2005; Oct.
29, 2005; Nov. 2,
2005) after being held 68% responsible for the deliberate bombing of the World Trade
Center by terrorists in 1993. The Port Authority appealed the absurd ruling, but the
Appellate Division has
affirmed unanimously (via)
since, after all, such absurdities are central to the modern tort regime and thus not
"legal error" to abandon the centuries-old concept of intervening causation. As
I noted in a related
Wall Street Journal editorial, contingent-fee attorneys' incentives are not to seek
out the truth behind wrongdoing, but to construct a narrative that will hold the deepest
pocket the most responsible, regardless of the effect on justice. This distortion has
worked its way into popular culture; a survey of family members of September 11 decedents
found that the median respondent held the terrorists only 30% responsible for losses.
Gillian Hadfield, Framing the Choice between Cash and the Courthouse: Experiences with the
9/11 Victim Compensation Fund, 42 L. & SOC. R. __ (forthcoming 2008). See also my House testimony on the
expansion of the 9/11 Fund.
"Kristen"
from the Spitzer affair wants $10 million, saying the notorious
video series photographed her when she was 17, not the requisite 18 -- it seems likely
that she had a hand in this deception herself -- and now owes her $10 million for injury
to her "business, reputation and good will". (Curt Anderson, "Spitzer call
girl sues 'Girls Gone Wild' for $10 million", AP/Philly.com, Apr.
28; WSJ law blog, Apr.
29).
"Priya
Venkatesan (Dartmouth '90, MS in Genetics, PhD in literature) emailed members of her
Winter '08 Writing 5 class Saturday night to announce her intention to seek damages from
them for their being mean to her." Venkatesan, who is working on a book entitled A
Postmodernist in the Laboratory, was the instructor in a class called Science, Technology
and Society, evidently an example of the Science Studies genre.
"Essentially, I am pursuing litigation to see if I have a legal claim, that is, if
the inappropriate and unprofessional behavior I was subjected to as a Research Associate
and Lecturer at Dartmouth constitutes discrimination and harrassment [sic] on the basis of
ethnicity, race and gender. This includes not just students, but a few faculty members
that I worked with." (Gawker, Apr.
29; Dartlog, Apr.
26; IvyGate, Apr.
29; Above the Law, Apr. 29).
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