October 22nd, 2009

Target Lawsuit Over Counterfeiting Claim Settles After $3.1M Verdict


Last year I wrote about Rita Cantrell, who was falsely accused by Target of using a counterfeit $100 bill. The bill was authentic, but lacking some of the modern anti-counterfeiting devices simply because it was an older series.

The resulting suit led to a $100,00 compensatory damage verdict with $3,000,000 in punitive damages for the defamation. Some tort “reformers” smelled an opportunity and a small kerfuffle was set off in the legal blogosphere (see: Target Hit for $3M in Defamation Punitives (And Tort “Reformer” Sees Opportunity).

The suit, Cantrell v. Target, has now settled. While this is good for the parties involved, it’s not so good for the opinionators who were wondering what the Court of Appeals would do with the verdict and the 1:30 compensatory:punitive damage ratio. A Magistrate Judge had previously refused to toss out or modify the damage award, leading to the appeal. (And the Supreme Court had let stand a 1:100 ratio earlier this year.)

According to this paper, the 4th U.S. Circuit Court of Appeals dismissed the appeal “upon such terms as have been agreed to by the parties.” The parties didn’t disclose the terms.

(h/t Stegmaier)

The case was discussed previously here:

Links to this post:

October 23 roundup
Is it against the law to report police movements on Twitter? [Valetk, Law.com; Volokh]; “Attorney Charged With Posting Ad Seeking ‘Secretary With Benefits’” [Legal Profession Blog via Bruce Carton, Legal Blog Watch]; Maker of Monster …
posted by Walter Olson @ October 23, 2009 8:43 AM

 

October 22nd, 2009

Virginia Bar Exam Foul Up? (Can the Bar Examiners Be Beaten in Court?)


Last week Virginia posted the results of its July 2009 bar exam. But are the results accurate? It seems that New York is not the only state that can foul up a test (as I know from my own experience as well as others), Virginia apparently fouled up the July 2008 exam.

The problem is simple:

  1. There was a software glitch during the test regarding the essays that were typed on laptops; and
  2. Virginia doesn’t permit test-takers to see their essays.

What follows is an affidavit from Jon Bolls, who is chronicling his fight through the courts to see his essay answers after he and others were victims of a software problem. The affidavit below describes the problem. (And if you think bar examiners can’t be beat, read this.)

According to Bolls, 43 states allow for some form of transparency. Virginia is not one of them. And over half now allow typing essays on laptops.

And the question for bar takers in the face of multiple technology problems comes down to this: Is pen and paper better than the keyboard? Proceed at your own risk…

————————————-
I, Jonathan Bolls, “Declarant,” am a resident of Springfield, County of Fairfax, Commonwealth of Virginia, and do hereby certify, swear, affirm, and declare, that I am competent to give the following declaration based upon my personal knowledge, unless otherwise stated, and that the following facts and things are true and correct to the best of my knowledge:

1. On July 29, 2008 I took the Virginia Bar Exam essay section on laptop.

2. During the afternoon session of the Essay/Short Answer portion, an announcement was made by microphone that there were approximately 24 students who had answers that were misplaced in the system from the morning session. These students did not know who they were and would find out how to correct the problem through special instructions enclosed in their afternoon test booklets. I am not one of the 24.

3. During the saving stage of both the morning and afternoon sessions, my Exam4 software, administered by Extegrity, halted and displayed a dialogue box wherein the program refused to proceed despite my following the instructions exactly. On each separate occasion, I had to call a technician over who handled my computer to circumnavigate the dialogue box. On at least one of these occurrences, I was instructed to reboot my computer and resubmit the essays. After both occurrences I was instructed to transfer the data from the laptop to the USB drive and hand it in.

4. Both of these instances were very similar but were handled by two different technicians. Neither of these technicians said that I had done anything wrong or offered any explanation as to what happened.

5. Both instances took place about midway through the crucial saving stage of the exam, an approximately ten-step process that was delivered orally by microphone. These approximately ten steps pertained entirely to saving the data to the personal laptop. The last remaining two or three steps were very straightforward and consisted of inserting the USB drive into the laptop and clicking on the icon that says “Save to USB Drive.”

6. While applicants had many opportunities to take practice exams on their own time prior to the exam, the saving stage consisted only of a simple step of clicking on the icon that said save. The approximately ten steps given orally at the exam were entirely new to every applicant and were read as if they were written down for the proctor. On the other hand, setup instructions for a procedure we had already practiced on our own time, were written down for the applicants.

7. I was instructed to reboot my computer on at least one of these two instances. In the sequence of instructions, this took place prior to the step where the USB drive is to be inserted.

8. Both of the Exam4 glitches took place even before the USB drive was supposed to be inserted into the laptop.

9. After the oral instructions were read at the saving stage, a proctor then asked for a show of hands if there were any problems. There were quite a few hands that immediately went up in both sessions of the test, which visibly overwhelmed a full team of technicians on standby. My hand was raised for ten to fifteen minutes both times before someone could come to my aid.

10. I was so delayed during the afternoon session because of this that I was the last applicant to leave the room.

/s Jonathan Bolls

 

October 20th, 2009

The Unseen Danger of Social Media (Twitter, Facebook, and More)




The marketers and promoters love social media. They just don’t talk about the hidden risk. They think every lawyer should be involved and that those not involved just don’t get it.

All I ever seem to read is how great it is for connecting with others and drumming up business. But never a word about how it can kill business.

Yes, social media such as Twitter and Facebook can kill your business. And it’s better to learn that lesson now than later. Lawyers can lose clients, or simply miss the opportunity to be retained.

I saw this today when I Googled myself. I did this after Scott Greenfield wrote a piece that created abundant commentary, centering on the fact that he types his posts up with exceptional speed, but never edits. Anyone that reads his Simple Justice can see this in many a post.

And I wondered, if a potential new client was given my name by another, and that person Googled me, what would they see?

Well, the first page of my results shows three separate social media sites: Twitter, Facebook and LinkedIn. They show up there despite the fact that I’ve not exactly been the biggest user of those sites over the last year. (My opinion that Twitter stinks remains unchanged, though I continue to drop links into it when I post something new here.)

So this is what the potential new client will see, even if you have an active presence on the web. Since I’ve written over 800 posts in this space since I started in November 2006, and received thousands of inbound links, I probably fit the definition of active presence. And yet, those three sites still manage to crowd out links from so many others.

So if social media sites will be on the first page of what your potential client sees, then those sites must be appealing to the client. And by appealing, I don’t mean that you have to strut your legal stuff. Rather, you have to make sure you don’t turn off the client.

And that’s the danger; turning off the potential client by prattling away with all types of trite tidbits that only the most devoted of significant others could care about. Is this what you want your new clients to see? Because if that is what you are typing, that is what they will see.

And not only will they see it, but they will see when you wrote it. Ten posts written during business hours will make a client think two things:

  1. Why is the lawyer writing about this stuff during work hours? I want a lawyer that is busy with a good book of business. (Crowded restaurants are usually crowded for a good reason; empty ones usually empty for a good reason.)
  2. Will the lawyer be Twittering instead of working on my case?

The same risks, of course, may exist for blogs. And it is one that I often think about when writing. (For the record, I generally write at night or in early morning, but can edit the time stamp. I’ve composed many a post in my head while going for early morning runs on taking the train to/from the city.)

While many lawyers write with the hopes that future clients will read their stuff, I often fear it, particularly when going off topic. It is that fear of clients reading my words that makes me kill many a story before it gets published. It may be one too many that goes off-topic or it tackles a subject in a way that just turns people off. Personal attacks on certain people, for instance, can easily lead to backlash.

But at least I know that if I write something dumb, it will be quickly buried on the blog and (hopefully) forgotten in two months time. That won’t happen as easily with the big social media companies though. Those links, which likely contain “fluffier” stuff than a law blog would handle, will be right there on page 1 of your results. And you may lose the biggest case of your career because the client went elsewhere. And you never even knew.

And one last thing to think about, since someone somewhere will holler, “But there are privacy options that allow me to shield the public from seeing my Facebook page!”

Sure there are, but what will you do when a current client asks to friend you Facebook? Insult them by saying no?

It’s often been said that you should never write anything that you are afraid to see on the front page of the local paper. The story of Flea made that clear.

But let’s take that one step further: Never write anything that you don’t want your clients to see. Because you may not get to keep them as clients.

 

October 19th, 2009

Chamber of Commerce Credits Apple’s Success to Trial Lawyers


I love the U.S. Chamber of Commerce. It’s utterly over-the-top arguments have lead it to the conclusion that the success of Apple is due to trial lawyers.

Apple, you see, became the latest company to tell the Chamber of Commerce to go crap in a hat when it came to its stance on climate change. Apple quit. But according to the chamber, they weren’t told by Apple to take that proverbial long walk of the short pier because its position on global warming was out of touch with science and the opinions of the vast majority of people. No, it couldn’t be that.

According to the chamber, Apple must have quit the organization because of the trial lawyers. I kid you not.

In Friday’s Washington Post the chamber said its critics were organized by “our normal adversaries– trial lawyers, activist unions [and] environmental extremists.”

Chamber COO David Chavern went on to write in his letter, that “[I]nterest groups are looking for public leverage to force us to do things against the best interests of the business community…”

You see, according to the chamber, Apple, one of the most successful consumer businesses on the planet, doesn’t really know what is in its best interests. Apple, according to the chamber, is being pressured by trial lawyers. We’re responsible for Apple being what it is today.

It’s nice to see such a feather in the cap of the trial lawyers. Usually we must be satisfied knowing only that there are safer playgrounds, safer cars, safer drugs, and safer consumer items of all kinds as a result of lawyers holding companies accountable for what they make.

But now we get to add in Apple’s success. Cool. I can live with that.

h/t Legal Reader
————————————–
See also:

  • The Chamber and Climate Change Debacle: Ignoring the First Rule of Holes (NRDC):

    …it is clear that the US Chamber is worried about the impact of the controversy over their climate position, but it isn’t worried enough to have an honest discussion with its members as to what’s going on. Instead, the Chamber is firing wildly at its traditional scapegoats – lawyers, unions and environmentalists – and blaming the troubles on them. But what the Chamber is burying here is that it has created this mess for itself, and the companies that have quit the chamber and criticized it have done so of their own accord. (more)

  • Chamber: They Just Hate Us Because We’re Awesome (Mother Jones):

    The US Chamber of Commerce has had a very rough week. Mother Jones exposed their inflated membership numbers, forcing the Chamber to shrink its tally by 90 percent. Following a series of high-profile departures by members who opposed the leadership’s position on climate change, a group of liberal NGOs has organized a “Stop the Chambe”” campaign, and the San Francisco Chamber is publicly divorcing them. The Chamber is so beleagured that it is now painting itself as the victim of—wait for it—a “corporate campaign.” (more)

  • Chamber fires back at climate critics (Politico):

    The U.S. Chamber of Commerce fired back at critics on Thursday, after a series of defections by member companies angry over the business lobby’s opposition to climate change legislation.”The only regrets we have is that we maybe have not always used the right language,” Chamber CEO Tom Donohue told reporters. “We don’t have regrets about our position, and we don’t intend to change it.” (more)

 

October 14th, 2009

Counterfeit Drugs and Their Deadly Consequences


It’s been awhile since I’ve written on this subject, but the appearance this month in Smithsonian Magazine of a long article on the subject pulls the topic out of hibernation. That counterfeit drugs make up a stunning 50% of the drugs in some places in the world boggles the mind, and speaks to the dangers in the US of infiltration of our markets.

It also speaks to the miserable state of our law with respect to investigating and tracking fakes. It was over 20 years ago that Congress passed the Prescription Drug Marketing Act that was designed, in large part, to track the pedigree of our nation’s pharmaceuticals so that we could tell where they came from, much the way blood products or airplane parts are tracked. It still has not been fully implemented.

And it was six years ago that a Florida grand jury concluded that “an alarming percentage of the drugs flowing through the wholesale market have been illegally acquired. That is, they have been stolen from shipments, pharmacies, clinics, and hospitals; purchased on the black market from recipients and health care professionals who are defrauding insurance companies or Medicaid with bogus prescriptions; or illegally imported from overseas.”

And now this week Time has an article on How to Stop the Counterfeit Drug Trade.

My interest in the subject dates back to 2002, when I started representing Tim Fagan, who had been injected with counterfeit Epogen after an emergency liver transplant at the age of 16. I put up a counterfeit drug resource page at my website to give some of the background on the problem, and continue to write about it in this blog. That lawsuit contributed in large part to significant changes in how drugs are distributed in the country, and it shined a spotlight on a large gray market of secondary wholesalers that pedaled prescription drugs in this country with little oversight. As a result of the suit, and the press, much of that gray market has been eviscerated.

Unmentioned in the Smithsonian and Time articles, however, is pending legislation by Representative Steve Israel named after my client (and his constituent): Tim Fagan’s Law. Passage of the law would be a good way to bring safe prescription drugs to our pharmacies.

With such spectacular quantities of counterfeits being sold throughout the world, there is little doubt that they will be sold on our shores. (Tim’s fakes were home-grown, not imported.) And since some fakes are nearly impossible to detect by the average consumer, and even by many pharmacists, sophisticated law enforcement is a key element in protecting the nation.

As Willy Sutton may have said about robbing banks, he did it because that was where the money is. Given the vast profits to be made in counterfeit drugs, we must assume that criminals will pry open any window they can to get into the pharmaceutical distribution system. And we need vastly better law enforcement and FDA oversight to combat those dangers.

Links to this post:

Blawg Review #234
Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” — a space in which “we can move around directly in our own lives and indirectly by touching the …
posted by [email protected] (Victoria Pynchon) @ October 17, 2009 8:22 PM