Law And More

November 1, 2008 - 3rd anniversary of RI lead paint trial

"Remember Rhode Island" might be just the right slogan for tort reform.

Career Adversity & Competitive Advantage, particularly over-50

A lot of us must be getting that professional edge which is supposed to come from adversity.  After all, we have been losing our hopes of promotion, our jobs, and maybe even our entire career paths [those knocked out of the box may never find comparable positions]. 

That theory of adversity as career-enhancer has been current since Steve Jobs's magnificent comeback.  It's been reinforced by management books such as "Firing Back: How Great Leaders Rebound After Career Disasters" by Jeffrey Sonnenfeld [who had one of those himself ]and by autobiographies such as T. Boone Pickens's.

Having lived through career adversity and come out the other side I can agree that it can be a definite plus, especially if we're over-50, smug/tired/underachieving.  Here is my story Download geezerguts.pdf.  The nice twist is that it has more than a lucrative ending.

Howdy [Unemployed] Partner - "Geezer Guts: Making a buck, no matter what"

We were too smart, too shrewd, too hard working for it to happen.  But happen it did.  Here we were geezers and out of work, and maybe also out of our mind. 

There's more than hope. There's the promise of a whole new life, in addition to a new career path.  Here hot-off-the-press is my e-book on how I got back after losing it all at age 58 Download geezerguts.pdf.

"Biopure v. Natanson" - Of course, it's come to this

If the issue's on "Boston Legal," it's out there.  This week's episode was focused on how BigPharma, government agencies, scientific journals and the docs are all in bed together.  The suit made public also this week - "Biopure v. Natanson" - is a permutation of that theme. 

In that suit in federal court, instead of attacking parties for being in bed together, Cambridge, Massachusetts Biopure Corporation, reports Sheri Qualters in THE NATIONAL LAW JOURNAL, attacks an author for a negative article. [Subscription required by clip available on Law.Com.]

Biopure contends that Charles Natanson of the National Institute of Health co-authored an article in the JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION, published on April 28, 2008, which includes "defamation, trade libel and interference with prospective business advantage."  The company manufactures the Hemopure blood substitute product, being sold in South Africa.  It is awaiting regulatory approval in other areas.  

The article is titled "Cell-Free Hemoglobin-Based Blood Substitutes and Risk of Myocardial Infraction and Death." Here is the abstract.  The conclusion is this: "Based on the available data, use of HBBSs is associated with a significantly increased risk of death and MI."  In addition, the suit claims that Natanson's letters to foreign health experts about Biopure's products also constitute defamation and trade libel.  Biopure also contends that Natanson is in the process of seeking a patent and marketing a technology which reduces alleged negative side effects of HBBBs.

What Biopure seeks is a preliminary and permanent injunction against the defendant that would prevent him from making public "malicious, false, defamatory, and/or misleading statements concerning Biopure." 

Of course this lawsuit throws a chill through the scientific community, which is already under fire for its research methods and publication of results in supposed peer-reviewed journals. Free speech could be on the chopping block.  So could the ability of the scientific community to discuss in public controversial findings and issues. 

Legal experts see the plaintiff as having rough sledding. Gag orders are tough to obtain except in extreme situations such as those involving national security.  In the end, the consumer might suffer the most in not having diverse scientific opinion to review.  Thanks to the Internet, more and more patients and clients go online to become an informed participant in choosing treatment options.

More Promising than lead paint: Class action employment suits in Dickensian Era

In this era of new populism and hostile employer-employee relations, class-action employment suits may be the fresh lead paint, only more promising to win.  Both the plaintiff bar which files these suits and the defense attorneys which represent companies are seeing a brisk up-tick in business. And the publicity surrounding these suits, just as with lead paint public nuisance, favors the plaintiff.

The ideal place to file these is California.  Its Attorney General Jerry Brown has anointed this as one of his causes.  For ambitious pols, employment suits provide plenty of high-profile positive publicity.  Not since the Industrial Age has the working man/woman been undergoing such Dickensian conditions - or at least that's the way the media depict it.

Today, Pamela A. MacLean reports in THE NATIONAL LAW JOURNAL that four female former personnel managers at Dell Inc. have filed a class-action suit in federal court in San Francisco.  They allege that there has been gender and age discrimination in compensation, promotions and terminations. [Subscription required but clip available on Law.Com.]

In class-action suits, just as in selling services or products, rule number-one is: Identify the supposed source of the pain and propose the remedy, better than your opponent.

State AGs - Yet another rising star

A rising tide lifts all boats.  And the populist tide sweeping America post-Wall Street meltdown is creating new stars among state attorneys general. One of the brightest to begin shining is Illinois AG Lisa Madigan.

Her latest high-profile, just-the-right-cause action is to sue SFCA Inc., the maker of a bassinet which allegedly caused the deaths of two infants in IL. In addition, reports Nick Rees, Madigan has issued a Rest Assured guide for parents which lists other baby products that have been recalled.  Given the huge number of recalls parents can lose track.

BigLaw Seeks Access

No slouches when it comes to reading the political winds, BigLaw has been increasing its contributions to Barack Obama, so says the Center for Responsive Politics. Yeah, the objective is to become an FOB [Friend of Barack] asap. 

In THE NATIONAL LAW JOURNAL, Amanda Bronstad reports that in the past two months, donations from legal sources for Obama have increased by 53 percent.  On the other hand, contributions to John McCain have gone up only 20 percent. [Subscription required but clip available on Law.com.]

Money equals access.  Many of BigLaw's clients will need plenty of that when a new Administration takes over Inside the Beltway.

AG Races: Dems expected to win all but one & The Implications [plenty]

Results of Election Day will be heavily covered by the media, including this blog.  But there will probably be few surprises.  The Dems are expected to win the lion's share of what is up for grabs. Already mainstream is the phrase Friends of Barack [FOB].  If you're not an FOB you're instantly an outlier.

The least surprising will be the victories in state attorney general races.  In LEGAL NEWSLINE, Chris Rizo reports that Dems are expected to win four of the five open seats.  Those wins will be in Missouri, Montana, Ohio and Oregon. A GOP win is anticipated in Indiana. 

It's no newsflash that the influence and power of state AGs have returned, after a number of hard hits.  Those included scandals such as in OH and Mississippi and high-profile losses in litigation as in the Rhode Island lead paint public nuisance lawsuit.

The new breed of AG, such as New York Andrew Cuomo, is much shrewder about choosing targets [e.g. forget lead paint] and less bullying [e.g. letting targets know the AG will "work" with them.].  Because of the resurgence of the state AG brand, federal pre-emption is going to have the battle of its life.  That's one reason all eyes will be on the "Levine" case being heard by the U.S. Supreme Court next month.

Snitches, especially anon ones, should wind up in a ditch

Obviously Walter Olson doesn't like this "innovation."  Neither do I. Maybe we both grew up in working class neighborhoods where snitches wound up in ditches, especially kid snitches. The innovation, as Olson reports  it in Overlawyered.com, is the establishment of anonymous snitch lines. Through this mechanism bullies can be reported.  Yeah, and who's going to report the bullies doing the anonymous reporting.

Part of growing up is gaining the knowledge and skills to stay alive, preferably on our own terms.  Being a snitch or being insulated temporarily by snitchers isn't going to help that process.  My existential take is that being bullied is like being depressed: It's a signal that something isn't working.  We fix what's broken and move on.

Three years ago I was bullied on mediabistro.com.  What wasn't working was my tone.  It was pre-digital: Top-down.  I never made that mistake again.  So completely did I think through and fix my online as well as offline persona that there was enough material for an e-book - which you can download free here Download savingsoulsonparkavenuekstreet.pdf.

OH AG Race - Crites's Commercial Mimics Geico Paid-Actor ad

Those in Ohio can see it on TV.  Outside the Buckeye State go to www.youtube.com.  It's GOP Attorney General Mike Crites's commercial which imitates Geico's real person/paid actor one.  The real person is Crites the prosecutor.  The paid actor is the professional politician.  James Nash covers this in yesterday's political section of THE COLUMBUS DISPATCH.

If this approach gets attention, Crites could be well positioned for leadership in the GOP party.  He attended a John McCain rally in Dayton versus participating in a debate with his Dem opponent Richard Cordray.