CalBizLit is quite overwhelmed right now with the holidays, a whole ton of work, and our elder son's New Years Eve nuptials (yay!). So we're throwing in the towel and going on hiatus, probably until right after New Years. We've got a bunch of really exciting changes and improvements coming very soon, so stay tuned.
Everybody have a wonderful holiday.
Meanwhile, if you haven't seen it already, I highly recommend the following quite wonderful and way off topic video. A lovely holiday gift from Playing for Change.
Years ago, during the first George Bush years, I was sitting on an airplane next to a very
talkative fellow who turned out to be a consultant on disability rights. I think I had a very vague notion about the Americans With Disabilities Act which had either just passed or was about to pass. He started talking to me about the ADA, and how there was going to be an explosion in litigation over everything from accessibility in public accommodations to employment, and how it was all going to be absolutely huge for lawyers. I remember his thinking this was a good thing.
And being the terrific businessman that I was, and am, I ignored him and ignored the area and went right ahead with the areas of practice I was already pursuing. Meanwhile, over the ensuing fifteen years, the ADA, combined with a really aggressive litigation effort by a whole lot of people completely changed the landscape when it came to accessibility.
That's a good thing. Not all my clients agree, but I really do believe that if you want to be in business, you need to be prepared to make your business available to all. Still, here's a case that makes me wonder whether there wasn't a more efficient way to get the job done. The case, from the 9th Circuit, is United States v. AMC Entertainment, Inc., (December 5, 2008) ___Fed.3d. ___No. 06-55390. More after the jump.
On Monday, CalBizLit posted here about Conte v. Weyeth, where the Court of Appeal last week held that Wyeth could be held liable for alleged misrepresentations in its labeling even when the plaintiff took only the generic version of the drug, not Wyeth's. I took issue with Beck and Hermann's argument that the decision "stands product liability on its head."
Well, here's a longer, more thoroughly and forcefully argued case at their Drug and Device Law, and they're starting to convince me.
But I think this all goes away at the California Supreme Court. And remember, if that Court grants a hearing, the Court of Appeal decision immediately becomes permanently unciteable.
And now, because it's Friday . . . . .
Look Out -- Off-Topic Musical Post:
With a hat tip to Andrew Sullivan, here's a mental health break with Marvin Gaye.
Ever since California's courts adopted their "fast track" programs some twenty years ago, state court cases here have generally moved along at a pretty good clip. Even somewhat complex cases can be set for trial, and go to trial, within a year of filing. (I recall one defense lawyer complaining near the beginning of "fast track" that he was being "denied my God-given right to conduct a leisurely defense.)
A big exception for some time has been the Superior Court in the inland empire's burgeoning Riverside County . That Southern California court has experienced extreme population growth, a shortage of judges and a district attorney who reportedly never met a potential criminal filing he didn't think meritted a jury trial. These factors have combined to cause a multi-year backlog of cases, and frequent suspension of civil trials altogether. As reported in Legal Pad, the problem has most recently been attacked with a group of visiting judges from other counties, but they apparently have their doubts whether they have provided any long term relief.
But Riverside also has a Federal Court outpost, and that's where they've
been trying the Mattel v. MGA Entertainment plastic doll smack-down, with Mattel claiming the defendant stole its intellectual property to develop and sell the Bratz doll. The case has been a boon to the Riverside hotel and lodging industries, as swarms of lawyers have descended for the lengthy trial. As previously reported here, and just about everywhere else, the jury found liability in the first phase of this bifurcated trial, and the presentation of evidence on damages has just concluded. The LA Times reports that Mattel's lawyer John Quinn asked the jury for $1.8 billion. "I'm well aware that the numbers we're talking about here are very substantial," Quinn told jurors.
Ya' think?
Off Topic Double-Barreled Musical Interlude
It's been awhile since we had a music post. Some of you may be familiar with What About Clients, Dan Hull and Holden Oliver's excellent and unique law blog dealing with client service issues. Happily, it also includes periodic musical posts, and recently included this one, featuring the late and great Paul Butterfield, Son House and my boyhood blues guitar hero, Mike Bloomfield. He really did sound as good as I remembered (Language warning -- may not be entirely safe for work):
I commented on WAC that I thought they and I had the only lawblogs that featured jazz, blues and r & b interludes, but boy was I wrong. Hull turned me on to Raymond Ward's Minor Wisdom. He's a lawyer from New Orleans, and, as is only proper, his blog has tons of outstanding musical posts.
For example, there is this one with Dr. John and Johnny Winter:
But it's 80 degrees in San Francisco and summer (which usually arrives in the bay area in late September) is here . So to heck with it. Showing my age, here's the late Mike Bloomfield and the great Al Kooper for your Friday afternoon.
For those of you who are late arrivals to the party, back in the old days we used to have large amounts of litigation under California's UCL (Business and Professions Code sections 17200 and following). Plaintiffs' lawyers would find an industry they could challenge based on hyper-technical, meaningless violations of obscure laws and regulations, and have one client sue everyone in the industry "acting in the public interest." It mattered not whether the plaintiff had ever done business with, had any connection with, or even heard of any of the defendant businesses.
Then those killjoys the California voters came along and enacted Proposition 64, prohibiting private enforcement actions unless the plaintiff had "suffered injury in fact and lost money or property as a result" of the defendant's acts. And that amendment to the law -- with its revolutionary premise that people who are wronged are the ones who get a remedy -- seems to have shut down most of the UCL litigation.
And the Court of Appeal further found there was nothing wrong with the trial court entering judgment five weeks later, before the plaintiff had a chance to confer with the court about amending his complaint to add a new plaintiff that actually had seen the representation. Thus, Mr. O'Brien was deprived of the right to lead the charge protecting consumers against fraudulent misrepresentations by these defendants.
And what was the false representation? Mr. O'Brien bought an Audi license
plate frame. Stamped on the back of the package were the words "Made in USA." O'Brien alleged that it was not, in fact, made in the USA. He admitted he had no complaints about the quality of the license plate frame, which "looked good," "was nice," "appeared to be new" and fit the expectations he had when he placed the order.
Quelle horror! I just can't understand why the California voters would want to put a stop to this kind of nonsense.
Friday off-topic post:
RIP Israel "Cachao" Lopez, bassist and the inventor of Mambo, passed away last Saturday at age 89 in Florida.
I blogged a couple of times (here and here) and in a white paper about the Court of Appeals' decision in Lockheed Litigation Cases, where, despite the fact that Daubert has never been adopted in this state, the Court suggested that the courts might have a meaningful gate-keeper role when it came to the admissibility of expert testimony. The Cal Supremes granted review (which takes the decision off the books, making it unciteable) then dismissed the review because there were too many justices disqualifying themselves from the case.
The defendants, Exxonmobile and Union Oil (now part of Chevron), asked the Supreme Court to at least reinstate the published opinion. "Nope" said the Court yesterday. So for the defendants, it's still a win. For all other defendants facing junk scientists, the case has no precedential value. More at Legal Pad here.
Off-Topic Post
It seems like almost all my off-topic posts are about music, and sometimes I think I should change the "About" section of the blog to indicate the subjects are California litigation, jazz and blues.
Anyway, Ike Turner passed this week. By most accounts -- particularly his ex-wife Tina's -- a genuinely bad guy for much of his life, he still played an awfully important role in the birth of Rock 'n Roll. I saw the Ike & Tina Review once, in 1970, and there was nothing like it for raw energy, sex and soul music. Ike may have been the Svengali, but as a reminder of who the talent was, here's a TNT clip from the mid-1960's:
