Blawgletter®

Cully, We Hardly Knew Ye

Charles D. "Cully" Stimson quit his job as deputy assistant secretary of defense for detainee affairs. 

The resignation follows the Bar Association of San Francisco's request Thursday that the State Bar of California investigate whether Mr. Stimson violated ethical rules by criticizing "major law firms" for representing Guantanamo Bay detainees pro bono.  Mr. Stimson belongs to the California bar.

Wanna know more?  Watch Keith Olbermann playing Mr. Stimson's remarks and interviewing constitutional scholar Jonathan Turley about them on YouTube.

Blawgletter somehow doubts that "major law firms" will fall all over themselves to hire Mr. Stimson.  We shall see, shan't we?

Barry Barnett

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Price-Fixing a Go-go Update

Julia Roberts in Conspiracy Theory (1997).
Do plaintiffs' lawyers care whether
conspiracy theories make sense?

Yesterday,  Blawgletter asked what keeps class action lawyers from filing suit in the wake of some criminal price-fixing investigations but not others.  Does the answer depend mainly -- as Antitrust Review suggests -- on the size of the potential recovery?

Blawgletter says nuh-uh.  Consider questions that flash through class counsel's mind upon hearing of a criminal antitrust investigation:

1. Has the investigation produced indictments?  Guilty pleas?  Does it seem likely to?
2. Did the Antitrust Division grant immunity to a conspirator under its corporate leniency program?
3. Does the structure of the industry -- such as small number of horizontal competitors that sell a fungible product -- make an effective conspiracy plausible?
4. Does the investigation involve repeat offenders -- companies that fixed prices in other markets?
5. Do the conspirators have the resources to pay a judgment?
6. Has a reputable firm already brought a case?

Each yes answer increases confidence in the merits and therefore the probability of filing.  Each no answer -- especially to question 3 or 5 -- cuts the likelihood of suit.

The sane members of the plaintiffs bar know, from hard experience, that the amount in controversy doesn't matter if you can't recover it.

Barry Barnett

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Psychokinesis

Everybody who believes in psychokinesis, raise my arm.

Barry Barnett

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Price-Fixing a Go-go

Antitrust Division has kept
subpoena servers busy.

Blawgletter understands that the French phrase "a go-go" originally meant, in the 1400s, "abundantly".  The term may fairly apply to price-fixers -- if Blawgletter judges aright from the subpoenas and search warrants flying lately out of the U.S. Justice Department's Antitrust Division.

Price-fixing -- a per se violation of federal and state antitrust law -- describes an agreement between competitors to set, maintain, or stabilize prices for goods or services.  The conspirators may monitor and police each other's pricing behavior to keep their fellow crooks honest.  They may also create fake shortages to force prices up in response to less supply.

The antitrust grapevine keeps up with reports about government investigations into possible price-fixing.  Sometimes the probes produce criminal charges, which always provoke a flurry of civil class actions.  But Blawgletter has noticed that the mere service of a subpoena or search warrant these days may unleash private litigation. 

Recent (and ongoing) examples include:

• Static random access memory chips.
• Video graphics processors and cards.
• Air freight fuel surcharges.
• Air passenger fuel surcharges.
• Liquid crystal display flat panels.

Other investigations that have apparently failed to generate civil litigation include:

• Offshore helicopter services in the Gulf of Mexico.
• Rock crushing and screening equipment.

Why do class action lawyers file suit in the wake of some criminal investigations but not in others?  Do the merits -- and potential damages recovery after trial -- make all the difference? 

Antitrustreview.com suggests that evaluation of the merits has little to do with the decision to file class actions and that the potential recovery makes all the difference.  Good for them!

But Blawgletter wonders whether antitrustreview.com spends its own money in pursuing antitrust cases.  That exercise tends to concentrate one's analytical skills, Blawgletter supposes.  May we hope for more nuance than the conclusion that plaintiffs' lawyers sue only in enormous money cases?

Barry Barnett

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Free Speech: Spotlight on Cussing

May a police officer arrest a citizen for cussing at a public meeting?  What if the citizen uses the Lord's name while cussing? 

He** no, per the Sixth Circuit today (opinion here).

Barry Barnett

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Scapegoat Defense

Scapegoat.  Gets blame for others' misdeeds.

Last week, Blawgletter questioned former White House official "Scooter" Libby's combination of an "I forgot the truth" defense to  perjury and obstruction charges with a "the White House framed me" defense (here).  Mr. Libby's lawyer explained it, sorta, today:

Theodore Wells, Jr., said Libby's actions were those of a person who had no fear of legal jeopardy and only wanted to be treated fairly.

"He was concerned about scapegoating," Wells said. "My argument will be only an innocent person would go to the Vice President of the United States and say what they're doing is unfair."

(Story here).  So, if Blawgletter understands, the scapegoating so upset Mr. Libby that he demanded and received official exoneration a few days before he forgot the truth in testifying to a grand jury.  U.S. District Judge Reggie Walton didn't buy it, pointing out:

"Why shouldn't this jury be allowed to see tapes showing Mr. McClellan and the White House was supporting his story -- that he had done nothing wrong?," Walton asked the defense.

By Jove, Blawgletter thinks Judge Walton's got it.

Barry Barnett

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Banishing Jury Trial

An English jury.  Can America dispense with this inheritance?

A fascinating amicus brief (copy here) arrived on January 6, 2007, in the office of the Clerk, Supreme Court of Texas.  The author, a law professor at Baylor University, submitted it pro bono.  His purpose?  To lament what he sees as the Court's role in hastening the demise of trial by jury in civil cases. 

Writing as private citizen, Professor Gerald R. Powell regrets that the Court's recent 5-4 decision in an antitrust case "exemplifies another reason that trial by jury is endangered."  (See the majority opinion in The Coca-Cola Co. v. Harmar Bottling Co., No. 03-0737 (Tex. Oct. 20, 2006) here.)  Five justices, he points out, found no evidence of anticompetitive conduct despite two months of trial, a verdict finding that Coca-Cola monopolized the relevant market, and a unanimous affirmance by the court of appeals.  He continues:  "Every time a court takes away a jury verdict the bedrock beneath the right to trial by jury shudders ever so slightly.  The tremors are now felt with increasing frequency."

Skeptical of growing complaints about the vanishing jury trial, Blawgletter did a little research.  It found that, in 1996, according to the "Jury Activity" report by the Texas Office of Court Administration (available here), Texas district courts tried 2,971 civil cases to verdict and directed verdicts in 253.  Ten years later, the same courts put 1,335 civil cases to juries while instructing verdicts in 459 cases.

What accounts for the 55 percent drop in jury trials and the 81 percent increase in taking cases out of jurors' hands?  Has the Court's recent record of overturning verdicts, restricting expert evidence, curtailing class actions, and taking other steps that make cases harder to win for plaintiffs produced filing of fewer cases, more (and cheaper) settlements, and greater boldness by trial judges to kick cases out of court?  Blawgletter shudders to think that the subject deserves study.

Barry Barnett

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This Just In: Al Franken to Run

Senator Franken?

Blawgletter learned today that a comedian will run for U.S. Senate in his home state of Minnesota, hoping to challenge incumbent Norm Coleman in November 2008.  The news recalled a 1979 appearance by the candidate, Al Franken, on Saturday Night Live's Weekend Update: 

Jane Curtin: Well, the 1970's are in their final month, and with some thoughts on this decade and the one we're about to enter, here's Weekend Update's Social Sciences Editor Al Franken.

Al Franken: Thank you, Jane. Well, the "me" decade is almost over, and good riddance, and far as I'm concerned. The 70's were simply 10 years of people thinking of nothing but themselves. No wonder we were unable to get together and solve any of the many serious problems facing our nation. Oh sure, some people did do some positive things in the 70's - like jogging - but always for the wrong reasons, for their own selfish, personal benefit. Well, I believe the 80's are gonna have to be different. I think that people are going to stop thinking about themselves, and start thinking about me, Al Franken. That's right. I believe we're entering what I like to call the Al Franken Decade. Oh, for me, Al Franken, the 80's will be pretty much the same as the 70's. I'll still be thinking of me, Al Franken. But for you, you'll be thinking more about how things affect me, Al Franken. When you see a news report, you'll be thinking, "I wonder what Al Franken thinks about this thing?", "I wonder how this inflation thing is hurting Al Franken?" And you women will be thinking, "What can I wear that will please Al Franken?", or "What can I not wear?" You know, I know a lot of you out there are thinking, "Why Al Franken?" Well, because I thought of it, and I'm on TV, so I've already gotten the jump on you. So, I say let's leave behind the fragmented, selfish 70's, and go into the 80's with a unity and purpose. That's what I think. I'm Al Franken. Jane?

Now that he's launched his Senate campaign, Mr. Franken's decades-ago forecast of ubiquitous adoration may finally come true -- at least in the L'Etoile du nord state.  Sacre bleu!

Barry Barnett

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Total Silence

One kidnapper totally silenced the
other -- with an axe -- in Fargo (1996).

Blawgletter never tires of watching Fargo.  And you?  Remember the scene when one kidnapper (Steve Buscemi) complains that the second kidnapper (Peter Stormare) doesn't talk much?  Then he says: "Two can play at that game, smart guy. We'll just see how you like it. Total silence."  (Buscemi can't keep his mouth shut, though, and he famously ends up in a woodchipper (see picture above).)

Sort of the same thing happened in New York today.  Nobody clapped, and no one cheered, when the CEO of the U.S. government told corporate CEOs to take less pay when their performance falters.  He said (story here):

Government should not decide the compensation for America's corporate executives.  But the salaries and bonuses of CEOs should be based on their success at improving their companies and bringing value to their shareholders.

Blawgletter supposes that some in the audience, unkindly reflecting on the President's 30-and-below approval ratings (summary here), may have muttered "you first, sir" . . . into the otherwise total silence.

Barry Barnett

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Stonehenge, Meet Durrington Walls

If these stones could talk, would they
whisper "go to Durrington Walls, nitwit"?

Stonehenge never fascinated Blawgletter much.  Ancient druids?  Tree-worshipers?  Pish-paw.

But, according to the Los Angeles Times, Blawgletter should have shown more tolerance.  A story reports that archeologists found a nearby site (at Durrington Walls) that may have housed solstice-celebrating human party animals, casting new light on Stonehenge's purpose.

How does Durrington Walls relate to business trial law?  By underscoring the provisional nature of incomplete evidence.  We can guess all we want; but, as Steve Susman says, the proof of the pudding comes with the eating.  Why else would we love the alimentary thrill of trying cases?  Joy!

Barry Barnett

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