August 23rd, 2012

NYC Marathon Cancels Baggage Check (Legal Fallout?)

Verazanno-Narrows Bridge at the start of the NYC Marathon

Ahh, running and the law, my sweet spot. Before going on to read this story about the New York City Marathon, I need to tell you that I am planning to run this November for the 14th time. I once did a Blawg Review devoted to the event and had a letter published in the New York Times regarding this magnificent piece of urban theatre. My passion for the event, however, will not temper my comments here.

In the news today, the NYC Marathon decided to cancel its baggage checking at the beginning of the race. And legal problems could result by killing off a service that had been promised, and on which participants relied, when signing up for the race many months ago.

This is the way the service has worked in years past: Runners show up at Fort Wadsworth in Staten Island, sitting at the base of the Verazanno-Narrows Bridge. We arrive by buses and ferry and private cars hours before the event start, because you can’t have 40-50,000 people arrive at the same time. It is a logistical issue that gets coordinated with military precision.

Runners bring many things to this village, including extra clothes to wear in the early morning November chill, as well as dry clothes for the end of the run. Many will bring disposable clothes for the start — I’ve made many a trip to the Salvation Army in the week before to buy a few items that will be discarded as the canon booms for the race’s start.

But the clothes needed for the end of the marathon are what’s really important (not to mention car/house/hotel keys, phones, cash,metro cards, etc.). Once the body cools down at the end of 26.2 you will still wearing wet clothes, socks and sneakers. Any commute longer than an hour is not something you want to be doing while dressed like that.

Because those dry clothes are so valued, runners check their bags on dozens of UPS trucks in the staging area to be reclaimed later.  And that leads to the finish area of the NYC Marathon being turned, each year, into the world’s largest locker room as runners strip down and change.

Now that service is gone, and runners are stuck in the wet, smelly clothes. If you live on Manhattan’s Upper West Side and are walking home it isn’t a big deal. But most don’t. And the only solution to the keys/phone/cash problem, is to carry them during the race, which few people really want to do.

The reason for killing off the service is that, at the end of the race in the tight confines of a Central Park roadway, it could take a good 30-45 minutes to retrieve that checked bag. The walk will be another mile, on top of the ones you just ran, as you wind your way through the finishers chute getting food, water, finisher medals, heat shields, medical attention and finally to the endless line of UPS trucks and the lines at each truck waiting for the bags.

The New York Road Runners Club, which puts on the event, has found this logistical nightmare to be too much, even when pulling trucks out of the park last year to use side streets. As they expand upwards to the 50,000 runner barrier – and perhaps beyond in the year to come — they can no longer manage. They either cap the growth of the event, or kill the baggage check.

Because they decided to kill it they will offer to the runners a one-size-fits-all fleece hooded poncho in the finish area. But that only covers up the now-disgusting clothes that are glued to the body; it doesn’t get rid of them.

Is there a legal angle here? I think so. Runners pay a hefty fee to run this race, $216 this year. And one of the things they knew they were getting was the transportation of their clothes, cell phones, wallet, etc. Some stuff can still be stuffed in pockets for those of us who are non-elite, but many really don’t want to carry anything for the race.

Does this lead to a potential consumer class action on behalf of runners? That is certainly a possibility, because they have not offered runners the option of cancelling and getting their money back due to the policy change. According to Business Week:

There will be no reimbursements for runners who don’t agree with the policy change, said Richard Finn, a spokesman for the organization.

Runners, after all, paid for one thing and will receive another. If they wanted to make this change, it was something that should have been announced before registration was opened up.

One other note on my running credentials, I’m also the founder and Race Director of a half marathon trail race just north of New York City. The idea of not having a baggage check is unthinkable to runners. We even have the showers at ours (since we finish at a High School, we use the locker room). I know what it means to runners, both as participant and race director, to have such services.

If you go to Twitter right now, you will see it lighting up with complaints. Mary Wittenberg, the CEO of the New York Road Runners (and former BigLaw attorney and marathon champ), invited comment at #NYRRListens and has been getting an earful. A few select comments:

From @ashlyntastic @INGNYCMarathon There’s nothing I dislike more than marinating in wet running clothes post race. #NYRRlistens

From @arunninglifetc This organization isn’t about serving the runners anymore, not when you don’t listen to the runners. #NYRRListens

From ‏@mldemmons SUPER excited about being soaking wet in 50+ degree weather after running 26.2 miles in November in NYC! #NYRRlistens #NoTheyDont

From ‏@UrbanRunr Makes no sense for a race in Nov. I’ve never been so cold as after my first NYC. People need their dry clothes after. #NYRRlistens

Someone, somewhere, may elect legal action. (And no, it won’t be me.) Whether it succeeds or not is another story, but clearly the better move would have been to implement the policy change before people started to pay their money.


January 16th, 2010

FindLaw in Class Action?

A comment came in yesterday about a possible class action suit against FindLaw. I didn’t publish it because it was a blatant advertisement for a couple of firms who bizarrely thought I created this blog so that they could freely advertise. Go figure.

But the ad itself is worth discussing so it now follows with the names of the law firms redacted.

The potential class deals with FindLaw promising attorneys that it will put them on the first page of Google, which, of course, is impossible to do for all of your clients if you have more than a few clients and you use normal keywords. Lawyer search service hustlers are pretty much everywhere these days, and slime predominates from WhoCanISue and SueEasy to FindLaw, to MalpracticeLawOffice and AnAttorneyForYou amongst the gazillion companies sleazing their way across the web.

The redacted version of the ad, originally submitted on the post on how to save thousands of dollars a year by dumping FindLaw, looks like this:

We understand that many attorneys are dissatisfied with services and products provided by FindLaw. Many laws firms have told us that their business dealings with FindLaw did not come close to meeting their expectations. For example, we have been informed that FindLaw made promises about placement on the “first page” of search engines that were not delivered?

Attorney [redacted] and [redacted] have joined forces to investigate any potential causes of action that may flow from FindLaw’s business dealings with lawyers across the United States. A number of attorneys have contacted us and have asked to retain our services, therefore we are in the process of gathering more information and documentation to assist us in our investigation. Any feedback, documentation and suggestions that you would like to share with us would be greatly appreciated. We are also looking for experts in the areas of legal marketing and the Internet.

If you would like to learn more about this matter or offer your assistance, please click on the link below in order to connect with our law firms. You can expect to receive a prompt and confidential response. [redacted]

While I certainly see the anger in those that wasted big bucks with FindLaw, such a suit on these terms seems to be a no-win situation since the actual contract that the lawyers signed with FindLaw would govern, there are unlikely to be any such written “first page” assurances, and the verbal assurances (even if admissible given the existence of a written contract) would likely differ from case to case. That would tend to be problematic given the need for common questions of fact for the victims in a class action.

It would also be problematic given the sophisticated nature of the potential plaintiffs and the fact that only a moron would believe every customer could be on the first page.

To the lawyers that tried to use my blog to chase clients: If you want to chase, do it on your own dime.

While the above class action seems to be a likely loser, there may be another avenue to explore. If lawyers want to claim that FindLaw‘s dreck-blogs tarnishes their reputations (as well as the reputations of every other attorney in the country) and constitutes a breach of contract, then more power to you. Perhaps a suit lies in such a claim and I wish you well in nailing them to the wall for their scuzzy conduct. Here is a copy of the FindLaw Master Agreement.pdf for you to go looking for additional ammunition.

I’m just trying to help. If anyone goes that route, give FindLaw my best regards. If you succeed based on my tip, please remind them where it came from.


December 29th, 2009

Turkewitz v. Yahoo (Part 2: Class Counsel Responds To My Objections With Nonsense)

As I wrote two weeks ago, I’m a member of the class of people victimized by Yahoo! click-fraud, and was stunned at being given the shaft in the proposed settlement. You can read the details of said shafting at that link, but it includes over four million dollars for class counsel — the lawyers that represented the class of victims — and virtually nothing for the actual victims. I get zippo in this deal if the judge approves it, which led me to object to the settlement.

When I first wrote, I wondered how class counsel would justify taking the fat fee while the class members got reamed. And I wrote “I look forward to the response to my objection where the attorneys get to state in open court that my interests were protected by giving me nothing.”

Well, now they’ve filed their response to my objections (YahooClassCounselResponse.pdf), as well as the objections of nine other victims. And that response can only be described as moronic. Unless, of course, you prefer the words dopey, dimwitted, inane, pointless, ludicrous, bizarre, and flouting the basic premise of attorney-client relations. Yes, I know that last part isn’t a word, but I’m on a roll and I’ve got a thesaurus. Stay with me here.

In their response, the lawyers counter my objection by saying it was filed by a professional objector, Ted Frank at The Center for Class Action Fairness:

The Turkewitz objection was filed by the “Center for Class Action Fairness” (“Center”), a professional objector to class action settlements. See (blog of the Center for Class Action Fairness discussing three objections it filed in the month of December 2009 alone).

Except that Frank isn’t the objector. I am. Frank is counsel. I really shouldn’t have to explain this concept to anyone who went to law school and now wants four million bucks in legal fees. If their lawyering is that lame (or feeble, faulty or ineffective — I’ve still got that thesaurus out), maybe they deserve zero for a fee.

Let’s be clear about this since class counsel can’t figure it out: I contacted Frank to handle the objection for me. Frank has familiarity with the laws surrounding class action objections. I toyed with the idea of hiring a matrimonial or real estate lawyer to represent me but, oddly enough, chose someone familiar with the field. Go figure.

They attack Frank, of course, because they can’t attack me. I’m a plaintiff’s guy. I think class actions under Rule 23 are a highly effective means of dealing with situations like this, and I said so in my court filing. In addition, I’ve never objected to a class action in my life, despite being involved as a class participant in many. And that appears to be why class counsel tried to shift away from the merits of the argument — that most victims are being shafted — to the lawyer representing me.

In fact, the reply papers are so miserably superficial on this point I don’t know how it made it past the first draft. Was there more than one draft? There are four separate lawyers listed below the signature line. Did any of them read it? Don’t any of these folks know how to edit out awful?

Next up, class counsel disputed my assertion that this suit was about click-fraud. Why bother with another irrelevant and idiotic argument? Likely because they know what they’ve done to the victims and again need to distract.

You see this suit was about pay per click advertising and it was about misrepresentation, and numerous others have, therefore, referred to this as a suit about click-fraud or misrepresentation. (See, for example: Virtual Blight, eBrandz, and Seeking Alpha.) Yahoo! was alleged to have permitted ads to be displayed in spyware, domain name parking sites, pop-ups, pop-unders ad typosquatting sites. Yuck. I get sick just thinking about where Yahoo! wasted my money.

More importantly, Yahoo! has confirmed that I’m a member of the protected class, making this issue moot as well. Even if I asserted that the case was about Crazy Eddie stock, it wouldn’t matter. Because I’m a member of the class and that is what matters. I need not make any showing of individual facts to receive compensation — assuming that I was getting any compensation which, if you’ve been reading you know by now, I’m clearly not.

So class counsel figures, I guess, that if you can’t beat an objector on the merits then you just try to distract the judge. If you got the facts, after all, you argue the facts. And if you got the law, you argue the law. Class counsel has neither, so they shovel manure. Think the judge will notice?

I’ll leave it to Ted Frank to argue the legal merits in a reply and beat the crap out of them further, since they all deserve it.

The issue has been picked up, by the way, by TechDirt and Todd Zywicki @ Volokh (who focuses on Frank, and the reason I chose him).

Links to this post:

First, I’m taking suggestions. If there is anything you want me to include or change, email me at [email protected]. Do not email me with questions. If you want to pay me, that’s a different story. But if there is something that
posted by David M. Gottlieb @ January 01, 2010 9:20 PM


December 14th, 2009

Turkewitz v. Yahoo! (Part 1: Meet My Lawyer, Ted Frank)

I’ve hired a lawyer because I’m objecting to the settlement of a Yahoo! class action regarding click-fraud. And I’d like you to meet that lawyer, though many of my regular readers already know something about him. His name is Ted Frank, a man the Wall Street Journal once called a “leading tort-reform advocate.” He has promoted ideas that, I think, would close the courthouse for many. He is a frequent contributor to Overlawyered, a member of the conservative Federalist Society, and was, until recently, a fellow at the conservative American Enterprise Institute where big corporations seem to get a lot more favor than Joe Sixpack.

So why’s a guy like me, that does personal injury litigation for plaintiffs, consorting with the likes of Ted, who often rails against trial lawyers? Well as it happens, Ted is also one of the nation’s most knowledgeable people in the country in a niche of a niche. He doesn’t just know about class actions, but knows first hand how to object to a settlement if it fails to actually protect the class of people that are supposed benefit from the action.

Class actions can be a beautiful thing. Started pursuant to Federal Rule of Procedure 23, they allow large numbers of people with similar claims to bring an action together. Since without class status the suits wouldn’t be economical to bring, the suits tend to hold large wrong-doing companies accountable for conduct they might otherwise have gotten away with. Big companies hate class actions.

But if the settlement doesn’t seem fair, members of the class get to object. That might happen if the lawyers get a big fee relative to the financial benefits to the class victims. And Ted has a history of having done just that with a class suit regarding the video game Grand Theft Auto. He objected on his own time and his own dime, and it landed him in the New York Times, among many other places (Above the Law; Heritage Foundation; National Law Journal). Forbes later called him “a lawyer who tries to block class action settlements.”

Flush with the fame and fortune of his Grand Theft Auto objection, or at least the fame part, he left the American Enterprise Institute to start up the Center for Class Action Fairness, devoted to knocking down some of the settlements that don’t really benefit the class. Ted, in his own quirky way, had become a plaintiff’s lawyer, standing up for the little guy. He had, as Scott Greenfield aptly put it, found his groove. And that groove is the place between the class lawyers and the victims, and the conflict of interest that can occur.

So after Yahoo’s notice of settlement of the class action regarding pay-per-click fraud arrived in my mailbox — and having read it and realized I’d gotten the shaft — I knew who to call. I had received that notice because I had used Yahoo’s pay per click service from 2001 to 2005. I dumped the company in late 2005 when I strongly suspected click-fraud and the company did nothing about it. Over the years I spent about $5,000 per year on these ads, about $22,000 in total. I imagine that makes me a typical small business owner in the world of pay-per-click advertising.

There was just one bitty problem with the settlement that I took issue with. While the lawyers were asking for over four million dollars in legal fees, I got nothing. As in nada. Zip. Bupkus. And not just me, but if this settlement is approved the vast majority of the class will come away with checks for a similar amount: Zero.

Now the Rules governing class action are supposed to prevent this from happening. Federal Rule 23(a)(4), asserts that “the representative parties will fairly and adequately protect the interests of the class” and Rule 23(g)(1)(B) provides that “An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.”

Here’s how they are trying to settle this case: The proposed click-fraud class settlement chopped up the thousands of paying customers into these three categories:

a. Those who still advertise with Yahoo!;
b. Those whose companies failed; and
c. Those whose companies are going concerns and no longer advertise with Yahoo!

Then they decided to “settle” the case by paying a whole 20 bucks to those people and companies that formerly used Yahoo! but their business failed. The rest got stiffed. No, this didn’t make sense to me either. Until I realized that this group of defunct businesses is the least likely to fill out paper work and make a claim. So the payment isn’t just measly beer money to a few, but beer money that even fewer will try to collect.

Another aspect of the “settlement” is that Yahoo! will improve its service. Well jolly good for them. They’ve been destroyed by Google, so trying to figure out a better way to treat your customers makes sense. But don’t try to sell that as part of a settlement. Yahoo! does that for its own survival, and no other reason.

So I spent money on Yahoo! for the ads, yet I got nothing back in this settlement. I have, quite literally, nothing to lose by objecting to this settlement. From where I sit, the Rules were clearly violated in that the class representatives and the lawyers didn’t “fairly and adequately protect” my interests. I look forward to the response to my objection where the attorneys get to state in open court that my interests were protected by giving me nothing. That should be a fun hearing.

And that’s why I contacted Ted. Sometimes strange alliances form in life. Ted Olson and David Boies, who fought opposing sides of Bush v. Gore, are now working together on the California gay marriage issue. Left wing political strategist James Carville married right wing political strategist Mary Matalin. And now, Turkewitz and Frank, together at last. Not quite Bogey and Bacall but you get the idea.

One thing I learned early on as a lawyer was not to pick personal fights. I watched my father try a case once, and he and the other lawyer would knock heads in the courtroom, then go out for coffee. Personal animus is not helpful in any way for winning a case. But it can hurt you if you need to talk to the other side about anything from adjournments, to witness schedules to settlement. So I try not to do it in life, and I don’t generally do it here.

The differences Ted and I have are those of ideas, so it was easy for me to contact him. In fact, we often agree that certain cases are dumb and frivolous, but we differ on whether those anecdotes support changes in policies.

For this case, it was a no-brainer that Ted Frank should be my lawyer. And so he is.

Stay tuned…
License plate of Ted Frank’s car, via Byron Stier @ MassTorts

Links to this post:

Former Yahoo Advertisers Objecting To Class Action Settlement
We’ve discussed in the past how the class action lawsuit process if often abused mercilessly. While the concept of a class action lawsuit can make a lot of sense, as you look at the details of many of the lawsuits, they do little to

posted by Mike Masnick @ December 16, 2009 8:59 PM

Class action objection
Eric Turkewitz, noted plaintiff’s-lawyer blogger, teams up with Ted Frank, noted blogger, to object to a Yahoo! class action settlement. Tags: class action settlements, legal blogs, Ted Frank
posted by Walter Olson @ December 15, 2009 8:50 AM