The frivolous lawsuit canard often turns on whose ox is getting gored. When a consumer files a class action, it is–according to representatives of business interests–a frivolous lawsuit. But when someone who wants to close the courthouse doors files their own class action, it is to take on illegal conduct.

When a politician who is opposed to frivolous lawsuits or too many lawsuits threatens to file her own case, that, too, is a different story.

The latest chapter comes from this stinging rebuke of the so-called Birther movement. It seems that one Captain Connie Rhodes sought an injunction prohibiting her deployment to Iraq because President Obama has not established that he was born in the U.S. As a result–the lawsuit claims–he is not the Commander-in-Chief. And so, she claims, she should not be required to ship out to Iraq because President Obama isn’t the real president.

The opinion makes entertaining reading. The court takes a dim view of Capt. Rhodes’ lawyer’s antics in this and other cases. Correctly so, I might add. Still, I’m going to wager that the court was a bit too restrained for the message to get through. Maybe next time.

I can hardly wait to see this opinion crop up on Freedomworks web site. They claim to be concerned with frivolous lawsuits. Any takers on whether they list it?

David Sugerman

Wonders never cease. Here’s a blog post at the Oregon Class Action blog about the California tort reform advocate who filed a class action against the City of Sacramento for towing his illegally parked car. Can’t hardly wait to see how this one comes out!

David Sugerman

It’s one of those cases that causes those of us who represent consumers to shake our heads. An affluent woman who has been bleaching her hair since childhood sues an upscale salon for botched hair treatment. She seeks $50,000 in humiliation damages, plus substantial out-of-pocket expenses for hair treatment and childcare.

Deliberating for just an hour, the jury found against her by a margin of 11-1.  That’s about as quick and complete a rejection as you see in a jury trial case.

The lawyer representing the dissatisfied salon patron, Leta Gorman, is a shareholder at Bullivant Houser, a large west-coast law firm.  She  typically defends manufacturers in injury cases.  According to the news account, the lawyer defending the salon argued that this was a “frivolous lawsuit.”

Oddball cases get twisted, and I imagine this one will show up in the echo chamber of distortion. What the Chamber of Commerce and others who decry lawsuit abuse miss is this: most damage lawsuits are filed by businesses. Here, an affluent and sophisticated consumer seeking beauty in a bottle sued when things went bad. It’s fine for the Chamber of Commerce to complain, but it ought to be truthful about how only the wealthy can afford the luxury of litigation of thin cases.

For those of us who represent injured people, this is one of those eye rollers. It’s an eye roller because cases for people with profound injuries have to wait in line behind luxury litigators. It’s an eye roller because our judicial system–which is strained and underfunded–has to deal with this type of claim. And it’s an eye roller because it gives squawk box material to those who can’t discern between claims for those wrongfully injured and those who litigate simply because they can afford to do so.

For all the heat and the noise, the true story is about quiet wisdom. That wisdom came from the jury. One of the jurors, Del Shaw, was quoted in The Oregonian. His simple assessment is the real story: “We took a look at the facts and didn’t feel the facts supported the claim.” That left me smiling because it simply shows that the jury considered the evidence and made a decision based upon the merits.

In that way, the case proves what those of us who work in the trenches know. Juries generally get it right.

David Sugerman

George Orwell would have marvelled at the name, “The Center for Consumer Freedom.” Is that a great name or what? So why are they opposed to food labeling requirements? Why do they claim that the obesity epidemic is a contrivance? And why do they counsel consumers to get written waivers from guests before serving unlabeled Thanksgiving dinners that might have lots of calories and fats?

The “Center for Consumer Freedom” is a front for food processors, manufacturers, and fast food restaurant chains. It was started with seed money from tobacco giant Philip Morris.  According to the Center, it’s the evil trial lawyers that you need to fear at the Thanksgiving table. Full disclosure: While I don’t think of myself as evil, I am, in fact, a trial lawyer.

So here’s a question for the Orwellian people at Center for Consumer Freedom: What are you afraid of? What do you and your funders fear? Is it that informed consumers might make choices that hurt sales and profits? Is it that the calorie dense corn syrup-fueled commodities might lose their sweet and profitable allure once consumers have the ability to make choices? One of the things lost on the deregulation crowd (say, “oink!” all) is that disclosure rules provide the best form of regulation. When consumers have information, they can choose with knowledge. Isn’t that preferable to rules that prohibit things?

At bottom, the food industry makes choices in what it puts in its products. If you want to blame us for “being fat” then surely you can’t oppose giving us the information that allows us to make smart choices. Or can you?

In the end, it’s easy to demonize the trial lawyers. But we didn’t start spiking processed foods with high-fructose corn syrup. But even worse, the disclosure rules opposed by the “Center for Consumer Freedom” would lessen lawsuits.  If consumers know what they’re getting, they have literally no cause to complain. So–to quote one of their fund sources from an old campaign–Where’s the beef?

David Sugerman

Back on the kleptocracy, and it looks like the Chamber of Commerce is working to keep its position at the trough by threatening to go to war with the incoming Obama administration. It seems that the Chamber is concerned about how new or revised regulations that reverse the Bush-era’s kleptocracy may affect the Chamber. The Chamber, of course, opposes the rules, claiming that they will benefit plaintiffs’ trial lawyers.

Classic diversion tactic, as the Chamber fails to take responsibility for its role in the financial meltdown. In fact, the Chamber got paid handsomely to lobby against regulation.  In their rush to demonize trial lawyers, the Chamber always forgets to mention its role in lobbying for failed insurance giant, AIG. I’m going to guess that when and if the real story of the U.S. Chamber of Commerce gets told, trial lawyers will be the least of their concerns.

Meanwhile, let’s be clear about a few things. Americans of all backgrounds, ages, races, and political persuasions voted for change. The kleptocracy is over. No more feeding at the trough. It’s time to put regulations in place because taxpayers–and our children–are going to pay for your greed and the lack of oversight that got us here. It’s time that corporations paid their fair share of taxes. It’s time to make sure that juries decide product safety issues. It’s time for equal pay for the same work, regardless of race or gender. In short, the Chamber of Commerce’s time at the trough is over.

David Sugerman

It’s a bit hard to read about the details of Bill Coultas’ injuries from a helicpoter crash, but doing so gives good insight into why we need a fair and open justice system. Mr. Coultas suffered profound injuries in the helicopter crash. No wonder that survivors and relatives of those who died are pursuing claims arising out of the crash.

The talking heads who criticize the civil justice system mouth stock phrases like, “frivolous lawsuits” and “McDonald’s coffee.” If you’ve heard or uttered those words, you should take a look at Mr. Coultas’ story, as it explains in detail what we mean when we talk about profound injuries.

I don’t know anything about Mr. Coultas’ situation other than what is reported in the linked article. Still, it’s a good read for crticis of the civil justice system.

David Sugerman

I’m not a big fan of the U.S. Chamber of Commerce. For years, they’ve led a concerted effort to bar the courthouse doors for ordinary Americans.  And now we learn that the Chamber is at the center of the deregulation frenzy that led to the Wall Street financial collapse.  Among the many points of interest:

• U.S. Chamber received  some $23 million (through a foundation) paid by AIG to lobby for changes in regulatory oversight
• The same U.S. Chamber champions the $700 billion bailout (Query: How much is that really going to cost us?)
• The U.S. Chamber used “tort reform” as the wolf-in-sheep’s-clothing approach to strip away post-Enron reforms.

Look at this video where the Chamber begs and bullies for the bailout.  Against the backdrop of their responsibility, this is goofy.  Shameless.

David Sugerman

I do most of the grocery shopping for the family, so like everyone else, I’ve been wide-eyed at the steep increase in food prices.  I’ve heard a lot about rising fuel prices, credit crunches, and inflation as part of the talking heads’ various explanations for the whys of it all.

I almost missed this piece on a federal lawsuit against a vegetable processor, SK Foods, that alleges that SK bribed purchasing agents at various food companies to keep SK’s prices high. If it’s true, some big companies like Safeway, Heinz, Kraft, were getting bribes to inflate prices on SK’s goods.

Nothing like graft, corruption and bribery to add to the cost of living. I couldn’t resist the urge to check in with my good friends at the U.S. Chamber of Commerce. They’re the ones that keep screaming about “lawsuit abuse” as the great drag on the American economy. Of course, they don’t seem to discuss this lawsuit as an example of “lawsuit abuse.” In fact, they don’t talk about bribery at all. I suppose in the Chamber’s world, the government shouldn’t bring lawsuits to address bribery and corruption by large corporations.

David Sugerman

Here’s some good news in what is something of a sleeper. Measure 51, a one-sided and unnecessary ballot measure that would limit consumers rights failed to qualify for the November ballot.  The measure would have limited attorney fees to 10 percent in most contingent fee cases.

Contingent fees are those paid as a percentage of what a lawyer recovers for an injured person.  They are an equalizer. While the wealthy and big businesses can afford to pay lawyers by the hour, the rest of us don’t have the means to do so. The contingent fee system levels the playing field, allowing middle income Oregonians and small businesses the ability to hire skilled lawyers who will work for a percentage of what they obtain for the client.

The measure limited only contingent fees; it didn’t limit what those who afford to pay by the hour could pay. Had it passed, the measure would have limited consumers’ access to the best legal talent by artificially limiting fees.

My son–a somewhat sardonic 18 year old–saw through it immediately. “Wouldn’t limiting fees actually encourage lawyers to file more frivolous lawsuits?” (He’s  smarter than his dad; I never thought of that…thanks kiddo, you’re doing the old gray fart proud.)

Here’s the thing. At bottom the one-sided measure would favor insurance companies, HMOs, and manufacturers of dangerous products. They don’t want consumers to have access to the courts. They know that the best way to close the courthouse doors is to make sure that injured consumers can’t afford to hire lawyers. This, by the way, is part of the Bush/Cheney/Rove agenda. And as with many other things they failed.

Thankfully, Oregon consumers knew better. We’ve come to realize that the initiative process is one that is used by special interests to advance a radical agenda. It’s getting harder to qualify measures, and Oregonians are getting more skeptical about the unintended consequences of poorly drafted initiatives.

That’s great news.

David Sugerman

The Oregoinian’s Brent Hunsberger reports on this eye-catching honking huge trade infringement verdict handed down in U.S. District Court in Portland yesterday. Looks like the grand total–some $305 million–is a lot of cash for a dispute over whether Payless stores ripped off Adidas by selling knock-off products.

I’ve got no cause to question all this, except that business vs. business disputes leave me yawning and struggling to stay awake. But here’s what’s interesting. We’ve heard for years about how we’re overlawyered, how class actions take too much money from businesses for ripped off consumers, and how people recover too much money in lawsuits. A lot of the drumbeat comes from the Chamber of Commerce. Here’s a window on one of its slick mouthpieces–I mean affiliates–that gives a great snapshot of the Chamber of Commerce’s view of litigation.

So here’s the question that I can’t avoid asking: What’s the Chamber going to say about a verdict where a business recovers $300 million for a claim of trade infringement? What are the going to say over at overlawyered? How about the institute for legal reform? How about the American Tort Reform Association? I’ll be watching. Because I’m sure that they will trumpet this case of a business getting too much money from a jury. I imagine we’ll see screeds about frivolous lawsuits. And there will surely be concerns raised about how lawsuits like these are ruining society. And that it’s too much money. Oh yeah, and the lawyers are behind it all.

Don’t get me wrong. While trade infringement lawsuits don’t get me juiced, I can see the logic and the need. As Mr. Hunsberger’s report makes clear, companies like Adidas’ intellectual property represents the true value of the enterprise.  So they’re aggrieved, and they use our civil justice system to defend themselves. I get that.

But here’s the deal:  I have the sneaking suspicion that all the outrage about big verdicts is really nothing more than class warfare on the middle class. So as you can imagine, I’m grabbing one of those big things of popcorn and settling in for the show.  I can’t wait to hear what the Chamber of Commerce and its friends say about this one.

David Sugerman