Legal Pad

AT&T Ruling Can't Spoil Trial Lawyers' Party

[Scott Graham]

The San Francisco Trial Lawyers Association threw a party Thursday evening and the U.S. Supreme Court rained on it.

The high court's decision Wednesday striking down California's ban on class action waivers was an undercurrent -- well, more like an over-current -- throughout SFTLA's annual Trial Lawyer of Year Gala at the Mark Hopkins Hotel.

"Since yesterday morning there's been a kind of grieving," said SFTLA president Jonathan Gertler in opening remarks. The court's conservative majority was "condoning systematic ripoffs" by letting corporations force consumers to waive class action rights, said Gertler, of Chavez & Gertler.

"They don't know what they're talking about," declared past president Nancy Hersh, of Hersh & Hersh, calling AT&T v. Concepcion "a horrible case."

But trial lawyers are nothing if not fighters, and on Thursday some used the unwelcome ruling to help fuel the celebration.

You Don't Wanna Mess With Dan, Who Hates Spam

[Kate Moser]

Dan Balsam hates spam.

No, really, the San Francisco lawyer despises it. Note his URL: danhatesspam.com.

Fresh out of business school at UCLA, Balsam jumped into online marketing and developed both a love for the power of email and a distaste for the malevolent forces that clog his wife’s inbox with penis-enlarging pitches and his own with enhance-your-breast-size offers.

“It was as a marketer that spam pissed me off,” Balsam noted. “You don’t have to quote that. It was as a marketer that spam angered me.”

Balsam the marketer became Balsam the lawyer after he turned, for kicks, to small claims court in San Francisco in 2002. The taste of victory there led him to Hastings College of the Law. His website says he’s had 37 small-claims court victories (“and counting”). And Balsam has turned to bigger fish.

Lerach Scheduled to Shape Young Minds

[Cynthia Foster]

Remember that time I told you that Bill Lerach had landed on a law school campus post-home confinement? Well, looks like he felt right at home. 

The WSJ Law Blog, via The National Law Journal (sub. req.), is reporting that University of California, Irvine is "considering having" the plaintiffs' lawyer teach an upper-level course next year. According to an interview with Lerach on Sign On San Diego, the course will be called "Regulation of Free Market Capitalism — Why Have We Failed?" Maybe he should also teach a course on how to stay entertained when one is disgraced and disbarred. 

Chamber of Commerce Only Likes Its Own Frivolous Lawsuits

[Zusha Elinson]

The U.S. Chamber of Commerce sent me their annual press release, railing on what it considers too many frivolous lawsuits, with the headline “U.S. Chamber to Release List of Worst State Lawsuit Climates.”

Maybe they should be called the Chamber of Irony. Put it this way: the Chamber has a lot of first hand experience with frivolous lawsuits — filing them, that is.

Botox-maker Sued in Orange County Superior Court

Jury selection began today in the first of 15 lawsuits against Botox-maker Allergan, according to the Orange County Register (via LA Legal Pad).

This particular suit was brought by the mother of a 7-year-old who died after receiving Botox injections to ease muscle spasms caused by her cerebral palsy.

Allergan has denied wrongdoing and says the girl's death was caused by a bacterial infection. Botox has not been explicitly approved by the FDA to treat muscle spasms, but doctors are allowed to prescribe it for medical purposes.

— Cynthia Foster

Looking Back at Some of the Year's Biggest Plaintiff Verdicts

Over at The Recorder’s site, we just posted an "Exhibits" page (a regular feature that appears in print and online once every other week). This one looks back at 10 of the biggest plaintiff jury verdicts in California this year.

The Exhibits page itself has a shorthand description so you can see, say, what kind of claims jurors thought were worth $16 million or more (up to $350 million!). But we thought we'd post the verdict forms behind each case, too, in case you're one of those really detail-oriented types.

For the links to all of 'em, flip to the jump …

In Wal-Mart Class Action, Huge Judgment Followed By Still-Quite-Big Settlement

Wal-Mart has agreed to a $77 million to $152 million settlement for denying a class of employees meal and rest breaks -- less than the $172 million an Alameda County jury awarded the class in a 2005 verdict.

The company made the potential settlement in the case, Savaglio v. Wal-Mart Stores Inc., public Wednesday in a quarterly SEC filing, and reported the deal was reached in mid-July. “In order to get my class members, many of whom live in Sonoma County, their money and to short circuit the legal process, we decided to settle the matter,” Fred Furth told the Press Democrat, which reported the news earlier this week.

Furth added that he would seek more than $50 million in attorneys fees for the suit, which he filed in 2001: “I’ve invested millions in this case,” he noted.

The settlement amount does include attorneys fees, but it will be up to a judge to decide the amount, according to a Wal-Mart spokeswoman. We couldn't reach Furth for comment this afternoon.

The settlement isn’t directly related to a lawsuit Carolyn Burton, a former lawyer at Furth’s firm and now a courtroom frenemy of his, has brought against him for allegedly denying her bonuses from the firm’s annual profits. But Burton’s lawyer, Robert Mills of San Rafael’s Mills Law Firm, said Friday it’s “further vindication” of the work she did on the Furth firm’s Wal-Mart cases.

— Kate Moser

Ninth Circuit Says 'Litigation Mills' = Bad (Well, Sometimes)

The Ninth Circuit just put out some pretty strict limits on who can sue e-spammers.

Namely, who can’t: people like this “professional plaintiff” who tried to use the federal CAN-SPAM law to set up a “litigation mill.”

What makes a whole bunch of lawsuits a mill, exactly? The Ninth knows it when it sees it, and it goes something like what pro se appellant James Gordon Jr. did: He registered a domain and leased out server space to host it. Then he set up @gordonworks.com email accounts for some friends and family, and used those accounts when registering for a lot of online promotions and giveaways. Then he sued the online marketers who inevitably spammed them. He claimed the defendant in today’s appeal, for example, sent about 13,800 illegal e-mails to @gordonworks.com accounts. For that, he asked for injunctive relief, “several millions of dollars in statutory and treble damages,” and his attorney’s fees and costs.

So what’s wrong with being a courthouse entrepreneur? Why CAN-SPAM ain’t your father’s ADA, after the jump …

A Theory On Minnesota's Quickie (Settlement) With the National Arbitration Forum

Minnesota Attorney General Lori Swanson put a behemoth in the world of credit card arbitration out of that business over the weekend, but the seeds of her victory may have been laid in a year-old court battle in San Francisco.

City Attorney Dennis Herrera sued the National Arbitration Forum in March 2008, alleging that the corporation was “retained by debt collectors and serves their interests alone in a non-neutral, biased and unfair manner.” The NAF, represented by lawyers from Los Angeles’ Loeb & Loeb, claimed that the corporation was immune because it was an arbitrator, according to Deputy City Attorney Ronald Flynn.

Last week — about 16 months after S.F. sued — Minnesota swooped in with a complaint of its own, plus a new alleged link between NAF and one of the country’s largest debt collectors. The NAF settled with the state within days.

But Minnesota is still finding a way to get the best of both worlds. See what happens if S.F. does better in its suit, after the jump.

No Class Status for 'Ladies Day' Ski Promotion

Yesterday our sister publication Cal Law had the man-bites-dog story of the Consumer Attorneys of California backing a tort reform measure: Senate Bill 367, which would explicity declare that promotional discounts and giveaways for laid-off and furloughed employees don't constitute a violation of the Unruh Civil Rights Act.

Nobody has actually brought such a lawsuit, as best we could tell. But it appeared Consumer Attorneys might have had at least one lawyer in mind: Alfred Rava, a San Diego attorney who has brought numerous Unruh Act challenges to gender-oriented business promotions. Rava has generated negative headlines in the mainstream press and on the blogosphere for challenging such giveaways as an Oakland A's Mother's Day gift of floppy hats to women in 2004.

It looks as if Consumer Attorneys may be too late to stop Rava from making bad caselaw for plaintiffs. Today we got word that he lost a class certification motion against Bear Valley Ski Resort over a "ladies day" promotion. Los Angeles County Superior Court Judge Anthony Mohr issued a 13-page order [pdf] holding that, because the Unruh Act provides for minimum statutory penalties of $4,000 per violation, there's no need for a class action.

"Assuming plaintiff succeeds on the merits, Bear Valley Ski Resort would be liable for mandatory statutory penalties of $4,000 X 995 putative class members," Mohr wrote. "The product of $3,980,000 constitutes a draconian sum that would strip Bear Valley of its assets."

Rava was acting as the name plaintiff in the case, not as counsel. He was represented by Gregory Cartwright of The Cartwright Law Group in San Diego and Joseph M. Grant of Houston. Brian T. Clark of San Francisco's Knott & Glazier was lead counsel for Bear Valley while John Golper of Universal City's Ballard Rosenberg Golper & Savitt led a team for co-defendants Anheuser-Busch and Bacardi.

— Scott Graham