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Campaigns Are Over, and So Are the Ads By Tresa Baldas Negative campaign ads triggered several defamation lawsuits nationwide, with candidates crying foul and some lawyers saying enough is enough. In North Carolina, Democrat Kay Hagan has filed a defamation lawsuit against her Republican opponent, Senator Elizabeth Dole, over a television ad that accused her of having ties to an atheist, political action committee. The ad linked Hagan to a group called the Godless Americans, stating "A leader of the Godless Americans PAC recently held a secret fundraiser in Kay Hagan's honor." It ended with a female voice saying, "There is no God." Hagan ended up beating Dole. In Minnesota, Republican Senator Norm Coleman is suing Democratic challenger Al Franken over TV and radio ads that allegedly contained lies about him. The ads included statements that Coleman was named "the fourth most corrupt senator in Washington" and lives in a Washington apartment "almost rent free." A recount has been ordered in the Coleman-Franken race. Coleman led Franken by 727 votes out of about 2.9 million cast. In Florida, John Dicks, a congressional candidate who lost in the Democratic primary is suing the winner of that face-off, claiming his opponent falsely portrayed him as being responsible for an investor losing thousands of dollars in a bad investment. The case is currently pending. Dicks v. Mitchell, No. 08-19244 (Hillsboro Co., Fla., Cir. Ct.).The defendant, Bill Mitchell, lost in the general election to Republican Gus Bilirakis. Lawyers, meanwhile, are calling for defamed candidates to strike back against lying ads — with lawsuits. "If people don't strike back, it's going to have a real deterrent effect on people running for office. They need to call them out on these things," said attorney Thomas C. Chase, a solo practitioner in Fort Myers, Fla. who is representing Dicks in his defamation suit. "It's people focusing on trash talk instead of qualifications." In the Dicks case, Chase claims that his client's opponent either knowingly published false information, or showed a reckless disregard for the truth. "John — I've known him for years. I think he was taken aback. I don't think that he expected a fellow Democrat to do that," Chase said. Mitchell's lawyer, William Frye of Tampa's Trenam, Kemker, denied allegations that his client defamed Dicks. He declined further comment. Oddly enough, in Michigan — where judicial elections were paricularly negative, no suits have been filed as of yet. The race for Michigan Supreme Court, in particular, gained notoriety as the nation's nastiest judicial campaign, according to Justice at Stake, a nonpartisan organization that monitors judicial races. The group cited one ad that portrayed the Republican candidate, Michigan Chief Justice Cliff Taylor, as the "sleeping judge," and showed a dramatization of a judge literally sleeping on the job. The Democratic candidate, Diane Marie Hathaway, was portrayed as being soft on sexual predators and terrorists, with one image showing an Arab-American holding an assault rifle. Hathaway ended up beating Taylor. "Negative campaigning is really a problem, and I would like to see something done about it," said Matthew Lund, a partner in the Detroit office of Pepper Hamilton, who worked on a successful voters' rights lawsuit in Michigan. "As a Michigan voter, I've seen an abundance of negative ads." But unless the line of truth is clearly crossed, First Amendment advocates note, negative campaign ads will continue to roll. "Democracies are messy," said Kary Moss, executive director of the American Civil Liberties Union of Michigan. "And the reality is that the First Amendment does provide wide latitude for candidates to make their case to the people." Is Being
a Guy a Disability?: By Tresa Baldas So claims Louis Solomon, a partner and co-head of the Global Litigation Department at Proskauer Rose, who believes "maleness" is on its way to becoming a new category for disability claims. Men, he argues, have a greater susceptibility to certain diseases, a shorter life expectancy and a testosterone level that predisposes them to more aggressive behavior — all factors that could be classified as a disability. "A good-faith argument could be made — and I predict it eventually will be made — that being male would meet the broadest definition of disability," said Solomon. That's quite a stretch, said management-side attorney Michael Ossip, of Philadelphia's Morgan Lewis, who believes that a new breed of disability claims is on the horizon, just not male-specific. Ossip noted that employers are bracing for more disability claims in light of a new federal law that broadens the definition of disability, thereby allowing more workers to file Americans with Disabilities Act (ADA)-based discrimination claims. The Americans With Disability Amendments Act, which passed last month and goes into effect on Jan. 1, lessens the burden on employees to prove they're disabled, therefore making it easier for them to bring claims. Under the new law, workplace accommodations will be required for any employee with "an impairment that substantially limits one major life activity" regardless of whether medication or medical equipment substantially mitigates that disability. In addition, workers with episodic disabilities will still come under the protection of the ADA based on what their impairment is like when it is active. Management-side lawyers say that the new law essentially wipes out several employer defenses to ADA claims, which had largely been won by employers in the past because it was so tough for employees to prove a disability. "There's no question that this bill is going to greatly expand the class of people who are covered by the law," Ossip said. "I think it's going to increase litigation. It's going to make it much more difficult for employers to make day-to-day decisions on whether an employee is disabled and whether they are in fact entitled to accommodations." He added: "I think we just have to play it out." The Integrity of Lawsuits Dennis AuBuchon Today there seems to be an
endless amount of lawsuits generated each year and lawyers have a
part in this activity. Lawyers like any profession must make a
decision on accepting lawsuits which do not warrant action. While
advertising is a normal activity for an organization or individual
the type of advertising by some lawyers indirectly promote lawsuits.
This statement is not meant to condemn advertising by lawyers but
lawyers are directly involved with lawsuits brought by individuals
or organizations. Some advertisements make statements if you have
had problems with certain products, call us. I have previously
written about the integrity of lawyers and therefore will not
discuss this aspect of lawsuits further in this article. The focus
of this article involves the decisions made by individuals or
organization to initiate lawsuits for a variety of reasons. While I
feel that lawsuits are warranted in a number of cases based on the
circumstances, not all lawsuits have the integrity or quality of
purpose in the content. Law Firm Accused of Shaking Down Shoppers By John Pacenti MIAMI - Veronica Kelly got one of those calls every parent dreads. Her 16-year-old daughter and a teenage friend were detained at JCPenney for allegedly stealing a pair of sunglasses last March. When Kelly arrived at the store, the security guard told her that her daughter's friend was the one with the sticky fingers. Charges were later dropped. Then the letters and phone calls started. Palmer Reifler & Associates, a civil recovery firm in Orlando, Fla., said a payment of $202 by Kelly could avoid a potential lawsuit by JCPenney. When she balked at the first letter, the amount increased to $477. Kelly didn't know what to do. The single mother from Allentown, Pa., feared law enforcement would come to her home and further embarrass her family if she didn't pay the law firm. Instead, she turned to Miami-area attorneys who are seasoned in consumer rights lawsuits. She is now the plaintiff in a potential class-action lawsuit assigned to U.S. District Judge Federico Moreno in Miami. The complaint accuses the law firm of mail and wire fraud in a scheme to shake down millions of people across the nation. The firm says it's working well within the law and has defended litigation elsewhere claiming consumer fraud. On its Web site, it tells retailers: "Don't absorb your losses, recover them." Kelly said she felt she was being strong-armed when her daughter had done nothing wrong. "When these letters first started coming, my daughter and I both lived in a constant state of anxiety and fear," Kelly said. "I felt as if they were trying to take advantage of me and extort money from me without any justification. I knew I had to fight back." The lawsuit is muscular and aims high, seeking treble damages under the civil Racketeer Influenced and Corrupt Organizations Act, better known as RICO. The lawsuit filed by attorneys Lance Harke and Adam M. Moskowitz also asks for an injunction to put a halt to the Palmer firm's collection business. "This scheme has been challenged by consumers across the country but has not been stopped, either because the wrong legal theory was used and/or the case was settled," the 18-page lawsuit reads. "This lawsuit seeks to stop this practice, once and for all." The suit filed June 26 seeks damages under RICO and compensatory damages for money collected from the letters. It alleges unjust enrichment and violation of Florida's Deceptive and Unfair Trade Practices Act. Harke said the genesis of the proposed class action is a case taken by his wife, attorney Alison Harke. A client had been accused of shoplifting from Home Depot. He brought screws from home to make sure he bought the right kind but was accused of stealing them. "These retailers, some or many of them by policy, encourage people to be stopped wrongfully," said Lance Harke of Miami's Harke & Clasby. "Some employees are given incentives to detain as many people as possible." Moskowitz said his firm, Kozyak Tropin & Throckmorton in Coral Gables, Fla., is selective about taking class action cases. But after investigating the allegations for more than a month, he said it became an easier decision "when we learned about how millions of customers were treated in the same manner by this firm and that there is an actual industry out there that makes millions of dollars by basically these one-page letters without any personal review by a lawyer." Palmer Reifler & Associates remains unbowed. Natt Reifler, partner in the firm, said his employees work under state civil recovery statutes that allow retailers to seek civil damages and penalties from people who have committed retail theft. In many states, no arrest is needed for stores to seek civil restitution. "Depending on the dollar value of the merchandise, some retailers have certain types of criteria on whether or not they are going to call the police," he said. "When an individual takes possession of the merchandise with the intention to deprive the retailer of the benefit of use or full retail value of the property, they have crossed a property rights line." Reifler noted there are costs associated with shoplifting -- such as employing loss prevention personnel -- that have nothing to do with the value of stolen products. Civil restitution laws are aimed at recovering some of that money, he said. Richard Hollinger, a criminology professor at the University of Florida in Gainesville, is considered an expert on retail theft. On the university's Web site, he is quoted as saying shoplifting alone costs $10 billion a year. "None of the property crimes people worry about -- such as convenience store theft, bank robberies and household burglary -- even come close to these numbers," he said. "Compounding the problem is that we all pay for this loss in terms of higher prices." The Miami lawsuit contends Reifler's firm is abusing the civil recovery statutes, alleging, "These generic form letters are meant to harass, intimidate and coerce consumers into paying a large fine by threatening civil action." Palmer's firm generates 80,000 to 120,000 demand letters each month for more than 50 clients including Wal-Mart, JCPenney, Kmart and Walgreens, according to the lawsuit. The letters are signed by attorneys in states where the recipients reside, and the lawyers are paid a small monthly fee to allow Palmer's firm to use their electronic signatures, which add gravitas to the demand. "It's pretty serious when you get a threatening letter from a law firm," Moskowitz said. Reifler said the out-of-state attorneys are not just a rubber stamp. They review their state statutes and the demand letter format and review and prepare pleadings and customized response letters, perform conflict checks and follow up on claims with opposing parties. "The amount that they charge varies and can be based on hourly rates and monthly retainers, depending on how much time and work is done in any given month," he said. Palmer's firm avoids the federal Fair Debt Collection Practices Act because it is not collecting a "debt" but instead seeking a settlement of a tort offense, according to the lawsuit. The firm each month receives a report from its clients with names, ages and addresses of consumers detained. It then uses computer software to automatically generate form letters, calculate the amount and affix a local attorney's name. The firm receives up to one-third of the money it recoups. It has set up a Web site where recipients of the civil demand letters can pay by credit card. "Defendant and its co-conspirators, on its own and as part of a common fraudulent scheme and conspiracy, extorted millions of dollars from consumers," Harke and Moskowitz write in the civil RICO suit. The Orlando firm is accused of engaging in a conspiracy with attorneys across the country. Harke and Moskowitz say the letters are sent without any intent of actually filing a lawsuit. Reifler said his firm filed about 80 court complaints this year, which would calculate to be about 0.1 of a percent of all the letters sent at most. "There is no requirement under the law for tort claims that demand letters be followed by lawsuits," Reifler said. "Courts generally favor out-of-court settlements and sometimes retailers choose not to proceed with suits if these matters are not amicably resolved through the demand process." Reifler said the RICO claim is frivolous. He said his firm is helping save businesses from going under and keeping the price of consumer products down. "What we are doing is proper, and we are protecting the rights of retailers," he said. "In a tough economy, retailers need to watch their bottom line. And while they are trying to stay afloat, the last thing they need is people taking merchandise."
ADA Lawsuits Costly Over the past half decade,
a Cudjoe Key resident has filed more than 50 lawsuits against
business owners, many of whom operate up and down the Keys, in an
effort to push them to comply with the Americans with Disabilities
Act of 1990. Ruiz now lives in Alabama
and has stopped filing complaints in South Florida. But Wisniewski,
a Vietnam veteran, is wheelchair-bound with acute respiratory
failure and continues to file suits.
Environmental Bounty Hunters, Adam Liptak In the great traditions of the Old West, California deputizes bounty hunters to help enforce its environmental laws. But these deputies, who get to keep a quarter of any penalties they reover for the state, carry briefcases rather than pistols, and their critics say their tactics amount to legalized extortion. All it takes to win a settlement from a private company is a little research - to identify even a trace amount of a toxin in, say, office supplies or a parking lot - and some threatening legal boilerplate. Extracting settlements in these cases, an appeals court judge wrote last year, is "absurdly easy." Jerry Brown, the state's former governor and now its attorney general, intends to bring some order to the situation. he started by picking a fight last month with the state's leading bounty hunter, Clifford A. Chanler. He takes advantage of small companies," Edward G. Weil a lawyer in Mr. Brown's office said of of Mr. Chanler. "He pummels small,. basically defenseless compan for small amounts of money individually for cases that should not have been brought in the first place." In the past seven years Mr. Chanler has sent over 600 notices and filed more than 200 lawsuits on behalf of a few clients, none of whom even claimed to have been injured, and collected $15 million in settlements in return. Over coffee the other day, Mr. Chanler said he did not much care for the term bounty hunter. "I prefer to use the phrase of 'citizen enforcer,' " he said. "But I don't shy away from the fact that there is a civil bounty incentive structure built into the statute." Mr. Chanler made a persuasive case that he is doing persuasive case that he is doing precisely what the law means for him to do, working relatively efficiently on authentic public health issues, notably that of lead in and on glasses, mugs and hot bottles. But [hat leaves the question of why California has chosen to outsource the regulation of public safety. In 1986, California voters passed the Safe Drinking Water and Toxic Enforcement Act, usually referred to as Proposition 65. Its goal could hardly be less objectionable: the law requires manufacturers, retailers and others to tell people when they are exposed to certain carcinogens. A state agency publishes the list, which now contains over 600 substances, many quite common. Failure to warn consumers about the presence of those substances can result in penalties of $2,500 a day. The law encourages private lawyers to jump into the enforcement game by offering their clients a quarter of any penalty, plus their legal fees. Some lawyers have responded by blanketing small businesses with notices of violations and extracting quick settlements. It is a good business. The law generates 10P to 150 settlements for a total of about $10 million every year, Mr. Weil said. "There is a group of about a dozen law firms out there who do nearly all of the private litigation," he said. The lawyers visit stores and do research on the Internet, matching products to substances on the list. "Even a few molecules will do," the frustrated appeals court judge, Presiding Justice David G. Sills of the California Court of Appeal in Santa Ana, wrote last year in rejecting a proposed settlement, one not involving Mr. Chanler. The products need not be exotic. "Dried paint," Justice Sills wrote. "Furniture. Par king lots. Wiring. Really." The public often gains almost nothiing from such litigations. The businesses that settle are required to post notices, as the quotable Justice. Sills put it, "telling people that thing: like dried paint may be slowly emitting lead molecules or that parking lots are places where there might be auto exhaust." Mr. Weil said the suits sometimes resulted in silly warnings. "Spray paint has 10 warnings on it," he said "Is an 11th warning going to make a difference?" "If you're talking about food and personal care items," he added, "it might make a difference." Mr. Chanler said his efforts had led to the ref or mulation of products and meaningful warnings. "Civil en. forcement should not be left to publi officials," he said, "because of the influence of money on politics and jus the resource level available to the government." Just last week, a state court judge in Oakland approved the settlement of a case Mr. Chanler had brought against the restaurant chain Fuddruckers, which agreed to pay $160,000 in penalties and to stop usir glass soda bottles with artwork or designs containing lead. The state will get $120,000 of that. Fuddruckers, which denied wrongdoing, will also pay $890,000 for Mr. Chanler's firm's fees and expenses. In a critical letter to Mr. Chanler last month, the attorney general conceded that lead on the outside of glassware could represent a real hazard and crowed about his own similar suits. But he criticized Mr. Chanler's approach, saying it "does not appear to be in the public interest." Mr. Brown said Mr. Chanler's clients "have collected significant sums of money from businesses tha have little or no liability for past violations, and an amount of attorney fees that appears to exceed a reasonable amount." But the fault does not seem to lie with the entrepreneurial Mr. Chanler. If you depiitize bounty hunters,l you should not be surprised when they go out and hunt.
Businesses: Attorneys Making Money Kelli Kennedy Coral Springs, Fla. - The bathrooms in the posh Southern country club were opulent: marble floors, antique furniture and an elegant powder room. But months after purchasing the club, the owners gutted them. The walls were about an inch too narrow, according to the Americans with Disabilities Act. And Robert Cohen said he felt discriminated against. He and his attorney filed a lawsuit in 2003 against the Carolina Club, the same business he sued in 1998 under different ownership, and for the same reasons. Cohen also filed similar lawsuits against Publix, McDonald's, Comfort Suites and Muvico Entertainment - more than 300 federal lawsuits in Florida's Southern and Middle Districts over the past several years. Members of the handicap community aren't supposed to receive monetary damages from the lawsuits, but their attorneys receive fees. Some suspect that a few of those who file numerous lawsuits are getting a cut under the table from their attorneys. "They're what's called drive-by lawsuits," said David Goldfarb, a Miami-based ADA consultant who testifies for business owners who are being sued. "One plaintiff's attorney and one plaintiff will file 10 lawsuits in the same day on the same street. You throw out 10 and hope eight of them stick." Cohen is 69 years old and gets around on a scooter because of arthritis. He bristles at the notion the lawsuits are unethical and said he has never made money off them. Passed in 1990, the ADA requires ramps, parking stalls and signs, and dictates the height of countertops, placement of toilet grab bars and width of doors. "I have never made five cents or anything. Yes, the lawyers get rich on this, but you know what, what is our choice?" the Coral Springs man said. "If the companies will not voluntarily comply, how are we supposed to get our civil rights?" Carolina Club owner and general manager Joe Pace said he spent $60,000 fixing the club to conform to the law, but Cohen's attorney refused to drop the suit. The attorney asked for a $20,000 settlement fee, Pace said, and finally backed off for $10,000. "This is extortion at its utmost. It's a payback scam," Pace said. Cohen admits to suing the Carolina Club twice, but can't discuss details of the case, according to the settlement. But he said he would never sue someone because the walls were too narrow by only inches. Cohen's attorney, Todd Shulby, said business owners sued under the ADA have had ample time - 14 years - to comply voluntarily. "Nowhere in the ADA does it limit the civil rights of disabled individuals, nor cap the number of times they may assert their rights, nor should it," Shulby said in an e-mail. A Miami man and his attorney filed about 200 ADA lawsuits in the past few years. Eight of Stephen Brother's complaints were filed the first week of April, each bearing the same wording and typos. Only the defendants' names were different, court records show. Brother, who is deaf and paralyzed in one leg after a 1989 car accident, often files on behalf of his group, Disability Advocates and Counseling Group, court records show. It's not clear how many members his group represents. Property records list Brother's and the group's address as the same. Repeated telephone calls seeking comment from Brother and his attorney William Charouhis were not returned. It's nearly impossible to find out how much money attorneys make on ADA cases. "Most of these lawyers refuse to settle unless the fee is kept confidential," Pace's attorney, William Salim, said. "It's a scam. We all suspect that the fees are being split with the plaintiffs, but of course we can't prove it." Former U.S. Rep. Mark Foley, R-Fla., unsuccessfully pushed for a law last year that would give businesses notified of ADA violations 90 days to comply before they could be sued. U.S. District Judge Gregory Presnell of Orlando noted in a 2004 ruling that Jorge Luis Rodriguez, a paraplegic, had filed some 200 ADA lawsuits in just a few years, most of them using the same attorney. "The current ADA lawsuit binge is, therefore, essentially driven by economics - that is the economics of attorney's fees," Presnell wrote. He said Rodriguez's testimony left the impression that he is a "professional pawn in a scheme to bilk attorney's fees" from those being sued. Some experts blame the way the law is drafted. "Sure someone is making money off of these lawsuits," said Ruth Colker, a professor of law at Ohio State University. "But the problem with this statue is that there is no effective enforcement mechanism if we don't have these kinds of lawsuits."
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A Feast
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