January 1st, 2010

US Chamber of Commerce Wins Golden Turkey Award


A hearty congratulations to the U.S. Chamber of Commerce on this New Year’s Day. They won my prestigious Golden Turkey Award for the most ridiculous and hypocritical lawsuit of the year, after many hours of super-secret deliberations. The vote was unanimous, after I cast the sole vote just moments ago.

The competition was stiff, with the Chamber railing against everyone else bringing lawsuits but forgetting that they brought one of their own.

While I mentioned it’s suit in my Halloween-themed Blawg Review, the suit really does deserve to shine separately.

In October a group called the The Yes Men staged a fake news conference to pretend they were the Chamber and they had seen the light (angels and hosannas flow through background), and that they were reversing course on their opposition to climate legislation.

Not happy about being parodied, mocked and ridiculed, they sued the The Yes Men in a suit that is no doubt destined for the trash heap of hypocrisy, apparently forgetting about that First Amendment thingie.

Some posts on the subject here:

  • Chamber Suing Yes Men For “Commercial Identity Theft” (TPM-Muckraker)
  • EFF to represent Yes Men in Chamber of Commerce lawsuit (Boing Boing)

Congrats to the Chamber on their fine work, and welcome to the growing stable of tort “reform” hypocrites. We can always count on them to shoot themselves in the foot with over-the-top conduct.

My Golden Turkey, of course, is not to be confused with the book by that name about the worst movies in Hollywood, or any other Golden Turkey awards, of which I imagine a few others might exist. With a last name like mine, I claim squatters rights. Or something like that.

 

December 31st, 2009

Linkworthy (End of Year Edition)


Let’s clear out the old in-box of things I’d like to blog about but never found the time for (because Martindale–Hubbell, Yahoo and FindLaw sucked out my recent time here).

And so, without any attempt to organize by subject or in any other rational way:

If you pay the cost of medical care, should you (or someone else?) get the benefits? (Walter Olson @ Point of Law);

Which is better for a law professor, a PhD or actual experience as a lawyer? Both Marc Randazza and Scott Greenfield have sharp opinions, with dozens of comments that follow;

Opinions on lawyers ethics and honesty dropped 5% in one year. Why? And does it matter? (Tannebaum @ My Law License);

Personal injury cases are not funny. People get hurt. But when a moose head falls on someone in a bar, it’s hard for some to wonder how the moose got loose…Did anyone blame Sarah Palin? And was it Woody Allen’s moose? (Kevin Underhill @ Lowering the Bar, the Gothamist, and NY Mag);

It was nice to be included in the ABA Blawg 100, as I previously noted, but now it seems some are so desperate to win that votes are for sale (@ Simple Justice)

What value is Twitter to a personal injury lawyer? Is it zero, or just close to zero? (Mark Zamora @ A Georgia Lawyer)

Someone in Florida gets steamed at lousy treatment from Route 60 Hyundai, they send a cease and desist letter, and then get a sharp lesson in the Streisand Effect and some brilliant legal writing from Marc Randazza (@ Overlaywered)

Criminal defense lawyer Norm Pattis writes about Another Year in the Trenches, and man, can this guy write. Just one small piece:

Summoning fight is usually not hard for me. I was born on the other side of the tracks and know firsthand how thin the line that separates me from the folks I represent. And for all my bold irreverence, I know a truth Christians know: All have sinned, and fallen well short of the glory of God.

But I am having a hard time summoning fight just now. I am tired, discouraged and filled with misgivings about the law and my role as a lawyer…

Grrr. Bark. Woof. Good dog. (Wise Law Blog);

Blawg Review # 241 came on Pearl Harbor Day from Infamy and Praise;

Blawg Review #242 at Liklihood of Confusion, inspired by the Festival of Lights, was a joy;

Blawg Review #243 from Silverman Sherliker came out of London;

A round-up of the Blawg Reviews of the past year, and a time to vote for the best one.

And now, since Mrs. NY PI Blog is yelling at me to get off the damned computer and come have a drink, best wishes to all for a happy and healthy new year. (Except you, FindLaw, I’ll see you Monday morning.)

 

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 http://centerforclassactionfairness.blogspot.com/ (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:

Miscellaneous
First, I’m taking suggestions. If there is anything you want me to include or change, email me at thecplrblog@gmail.com. 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 28th, 2009

Would you rather have a law professor on a jury or a practicing litigator?


Over at Concurring Opinions, law professor Adam Benforado asks this simple question, after being called for jury duty:

For trial attorneys out there, I’m curious: would you rather have a law professor on a jury or a practicing litigator?

The question isn’t really framed well. It is a popular misconception that lawyers get to pick the jurors that we desire. But it doesn’t work that way.

We don’t pick the ones we do want, but rather, do everything we can to make sure the lemons don’t ever see opening statements.

Thus, peremptory challenges get used on the the potential jurors sitting with their arms folded and a scowl on the face, who nevertheless answers all the questions appropriately about how fair they can be.

You do your best to dump the bad apples and are stuck with the rest. That’s jury selection in a nutshell. Picking between practicing lawyers or law professors isn’t a choice many will ever get, and will be superceded by a million other factors.

But all other things being equal, I would pick the one I most want to have a beer with.

For more on that, see: Who Sits Jury Duty? (The Turkewitz Beer Test)

Links to this post:

How to get bounced on peremptories
Prospective jurors, listen up: if you want to get out of serving you should try to give “correct” answers in voir dire, the kind that don’t result in a for-cause removal, but do it with folded arms and a scowling expression [Turkewitz]
posted by Walter Olson @ January 17, 2010 12:16 AM

 

December 28th, 2009

NY Labor Law: What Is an "Elevation Related Injury"?

The Second Circuit Court of Appeals needed to know what, exactly, an “elevation related injury” was and sent the question to New York’s high court for interpretation.

The issue in Runner v. New York Stock Exchange arose when workers were asked to lower an 800 pound reel of wire down four stairs. This was attempted by attaching a rope to the giant spool and wrapping it around a metal bar set against a door jam. The rope was then held by the plaintiff and another to act as a counterweight as the giant reel was lowered.

Want to guess what happened? The plaintiff was drawn into the bar by the huge weight and injured.

Enter here, New York’s Labor Law section 240(1) (also known as the Scaffold Law) which holds contractors and owners 100% liable to workers from gravity related injuries when proper safety devices are not made available to them. These suits usually arise from people falling from heights or an object falling from a height and hitting the worker. But in this case, the worker didn’t fall, and nothing fell on him. Rather, the item he was trying to lower fell at an uncontrolled rate.

The federal jury dumped the plaintiff, after being instructed that that “liability pursuant to Labor Law 240 (1) could not be assigned unless plaintiff’s injuries had been attributable to a gravity-related risk.” They found that this was not a gravity related risk.

The District Court disagreed, and tossed the verdict. The defendants appealed and the Second Circuit wasn’t clear on the answer, and therefore certified these two questions to New York’s Court of Appeals:

I. Where a worker who is serving as a counterweight on a makeshift pulley is dragged into the pulley mechanism after a heavy object on the other side of a pulley rapidly descends a small set of stairs, causing an injury to plaintiff’s hand, is the injury (a) an elevation related injury, and (b) directly caused by the effects of gravity, such that section 240 (1) of New York’s Labor Law applies?

II. If an injury stems from neither a falling worker nor a falling object that strikes a plaintiff, does liability exist under section 240 (1) of New York’s Labor Law?

New York’s Court of Appeals answered the first question 10 days ago with a “yes,” and re-cast the actual issue:

The relevant inquiry — one which may be answered in the affirmative even in situations where the object does not fall on the worker — is rather whether the harm flows directly from the application of the force of gravity to the object.

While the defense argued that 4 stairs made the elevation de minimis, the court said otherwise “given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent.”

This also rendered the second question — of whether the injury must come from either a falling worker or falling object — moot.

Why is the issue important? (You didn’t think I would simply digest the case, did you?) New York’s Labor Law holds many contractors and owners strictly responsible for injuries when they don’t provide proper safety devices in such circumstances. There are, of course, exceptions to the rule such as recalcitrant workers and times when the worker was the sole proximate cause for the accident, as well as for owners of smaller dwellings. (See Blake v.Neighborhood Housing Services of NYC, which has a history of the law.)

But as a result of the laws, New York has a rather safe construction trade relative to other states. Because so much of the onus is placed on the contractors and owners, the Labor Law is under constant assault from big business. Safety, however, must come first in construction. Particularly since so many of the workers are immigrants or others similarly situated that aren’t in position to demand safety equipment, or to produce the witnesses after an accident. Co-workers, oddly enough, tend to see things in the light most favorable to their job security when their own jobs may be on the line.

Thus, the need for the strict Labor Laws, and the need for the courts to interpret them fairly. In recent years, decisions from our top court seem to have been more defense oriented, as you can see from this article from the Wilson Elser firm, which does defense work.

In this case, however, the NY Court of Appeals seems to have reversed that trend of limiting the scope of the Labor Law protections. And that is good news for those that care about worker protections.

Other takes on the case:

  • Construction Accident Liability Clarified By Court of Appeals In Runner v. New York Stock Exchange (Kreppein @ Dissent of Man)
  • New York Court of Appeals Finds Gap in Labor Law Case Law To Justify Recent Holding (Lerner @ New York Civil Law)