CJAC: Civil Justice Association of California

Should you be allowed to invest in a lawsuit?

Posted on 10/26/2015 @ 10:00 AM

A recent New York Times article tackles the question, “Should you be allowed to invest in a lawsuit?” This practice is also known as litigation finance.

Those involved argue that it allows smaller companies to afford a day in court. Detractors worry that it could give rise to a litigation arms race, with speculative money aggravating already high litigation costs.

To read the story, click here.

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REPOST: The $10 Million Bedtime Story: Yankees Sued by Sleeping Spectator

Posted on 10/19/2015 @ 12:00 PM

By Olivia Davidson Summer Intern, Manhattan Institute's Center for Legal Policy

Two weeks ago, supposed baseball fan Andrew Rector filed a defamation lawsuit against Major League Baseball, ESPN, commentators Dan Shulman and John Kruk, and the New York Yankees for $10 million. Rector, who was caught sleeping on camera during a Yankees-Red Sox game on April 13th, claims that the commentators "unleashed an avalanche of disparaging words" commenting on his weight and ability to sleep through a home run.

Defamation is not a crime, but a tort, and for a statement to qualify as slander (a defamatory statement that is spoken), the following elements must be proven, writes attorney Emily Doskow:

"Published" means that a third party heard or saw the statement... A defamatory statement must be false -- otherwise it's not considered damaging. Even terribly mean or disparaging things are not defamatory if the shoe fits...

The statement must be "injurious". Those suing for defamation must show how their reputations were hurt by the false statement -- for example, the person lost work; was shunned by neighbors, friends, or family members; or was harassed by the press...

"Unprivileged": Lawmakers have decided that in [some] situations, which are considered "privileged," free speech is so important that the speakers should not be constrained by worries that they will be sued for defamation...

In Rector's case, the alleged slander is evidently published and unprivileged, though whether or not it was injurious and false remains to be determined by the Court. According to a NY Times article,

Mr. Rector maintains the announcers used words like 'fatty' and 'stupid' to describe him, but neither Mr. Shulman nor Mr. Kruk uttered such insults in the clip [of their commentary]. It is unclear whether they commented later in the game on Mr. Rector's lengthy nap, implying perhaps the falsehood lies in Rectors idiosyncratic and frequently grammatically incorrect complaint.

Undeniably, following the upload of the clip to Youtube by MLB, Rector was subject to public ridicule, being called 'Sleeping Beauty' by one Twitter user. Rector goes as far as to say he has "suffered substantial injury" to his "character and reputation," as well as "mental anguish, loss of future income and loss of earning capacity." Rector's mother supported his claims saying he had missed work because of the public scorn he had experienced and that "everyone made fun of him everywhere he went."'

Rector is also suing for intentional infliction of emotional distress which requires an intentional or reckless act, outrageous conduct, causation and sufferance of emotional distress by the plaintiff.

As Texans for Lawsuit Reform wrote, "Lampooning the lawsuit industry has become an industry unto itself." We'll have to see if Rector has what it takes to make it in this business and win his plea.

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Now even monkeys are suing in California Courts!

Posted on 10/01/2015 @ 01:00 PM

Jordan Weissmann of Slate.com, reports that People for the Ethical Treatment of Animals (PETA) has filed a copyright infringement suit against wildlife photographer David Slater, who while on expedition in Indonesia left his camera unattended and a black crested macaque seized the opportunity to snap selfies. One perfectly focused shot and was republished around the world.

Slater claims ownership of the photo. PETA claims that the image belongs to the finger that pressed the shutter – a macaque by the name of Naruto.

PETA is suing Slater on behalf of Naruto in Federal Court in, you guessed it — California — claiming that the macaque is the rightful owner of the copyright. The lawsuit seeks unspecified damages, and, of course, attorney’s fees. The full complaint is here: http://www.mediapeta.com/peta/PDF/Complaint.pdf.

According to PETA's lawyers, U.S. copyright law never explicitly states that an "author" must be human. Apparently lawyers at mega-firm Irell and Manella don’t think plaintiffs need be either.

To read the Slate.com story, click here.

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Survey: California’s lawsuit climate ranks among worst in country, again

Posted on 09/10/2015 @ 01:00 PM

California’s lawsuit environment again places among the worst in the country with a rank of 47 out 50 states, tying its all-time low ranking recorded in 2012, according to a recently released Harris Poll by the U.S. Chamber Institute for Legal Reform (ILR). The survey also names Los Angeles and San Francisco among the “least fair” jurisdictions in the nation.

In the survey, 2015 Lawsuit Climate Survey: Ranking the States, general counsels or senior attorneys at major companies rank their perceptions of state lawsuit environments, including laws, courts, judges and juries. States were also ranked for their overall treatment of tort, contract, and class action litigation. The survey and 50 state list can be viewed here.

The survey identifies California as “ground zero for lawsuit abuse in several areas.” Cases such as ADA and Prop 65 shakedown lawsuits and food labeling class action lawsuits, among other factors such as the state’s high business and regulatory costs and high taxes, are creating an environment that makes it even more difficult to attract new businesses to California.

“More business leaders than ever have identified a state’s lawsuit climate as a significant factor in determining their growth and expansion plans,” said Lisa A. Rickard, president of ILR. “California ought to take notice that the results of this survey are of vital significance to continue attracting good jobs.”

“The ILR/Harris Poll puts California at the very bottom for class action lawsuits and for damage awards. I can’t say I’m surprised,” Kim Stone, President of the Civil Justice Association of California said. “Our state has a ‘sue me’ sign on its back. Most of our tort laws, but particularly our class action rules, heavily favor plaintiffs.”

In a similar report, California has been ranked by the American Tort Reform Foundation as the #1 Judicial Hellhole in 2013 and 2014. California would have been #1 again this year but fell second to New York City due to its biased treatment of asbestos cases. That report can be viewed here.

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Judge Was Right to Dump DA’s Suit Against Drug Makers

Posted on 09/03/2015 @ 10:00 AM

By Kim Stone

The lawsuit that Orange County District Attorney Tony Rackauckas filed against five makers of opioid painkillers was dismissed last week. This case is a great example of why local governments should not partner with private attorneys to sue businesses.

We give governmental prosecutors great power because they can lock people up and because they represent us, the people. However, we also expect them to have a higher ethical duty – to try to be just and fair. Private attorneys have a different duty – a duty to zealously represent the interests of their client. We should not mix the two together.

I trust a government lawyer who is going to get paid the same whether the case wins or loses to do the right thing more than I trust a contract contingency fee plaintiff lawyer who only gets paid her fees if the case settles or wins. We as citizens need to watch these kinds of dangerous liaisons between local prosecutors and plaintiff attorneys and try to stop them from happening.

The Orange County/Santa Clara case against the drug makers, where local prosecutors partnered with private plaintiff attorneys to sue pharmaceutical companies, was an example of extreme overreach.

The complaint (available in full, all 105 pages of it, thanks to the LA Times, here) alleges that the companies that make opioid painkillers should pay for the counties' costs for substance abuse treatment, unemployment, emergency room visits, and other social services, as well as paying the full legal fees of the private attorneys who sued them.

The prosecutors alleged that some people who took the painkillers get addicted to them, they then switch to heroin when they can no longer get the opioids. Then those addicts lose their job, their families, their homes and then commit crimes or die, so, pay up Pharma!

And the prosecutors alleged this despite the fact that all these painkillers went through the regulatory process of our Federal Food and Drug Administration, a group of scientists who decided that for sick people or people in extreme pain, the benefits of the medicine outweighed the risks. The prosecutors sued, despite the fact that you can only get these painkillers via prescription from a doctor who has determined, that, for you, the benefits to taking the medicine outweigh the risks.

Judge Moss issued a sternly worded smackdown to the prosecutors in the case:

"Not one case cited by plaintiff involved, and indicated the propriety of, a court immersing itself in the convoluted, exacting, expertise-driven, issue-expanded, nuanced action which is involved here. The patients, potential patients, and the medical community deserve more. This action could lead to inconsistencies with the FDA’s findings, inconsistencies among the States, a lack of uniformity, and a potential chilling effect on the prescription of these drugs for those who need them most. The proposed ongoing role of the court in this litigation, and in the monitoring of any decision it makes, is a monumental endeavor. The court does not shrink from its responsibilities to handle complex, convoluted litigation; it handles such matters every day of the week. It does, however, take pause at involving itself in an area which is best left to agencies such as the FDA who are designed to address such issues."

This case, and its dismissal, shows why local governments should be loath to partner with private plaintiff attorneys to prosecute business. When dollar signs become more important than justice, we all lose.

Kim's op-ed appeared in the Orange County Register/Voice of Orange County on September 1, 2015, which can be viewed here.

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