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legal
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Joined: 18 Aug 2004
Posts: 510
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 Posted: Wed Sep 08, 2004 12:53 pm Post subject: |
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What can you tell me about the distribution of settlement monies in a mass tort claim?
To answer to this question, we turn once again to The Rule of Lawyers (see above) and the chapter entitled, Serial Litigation, at p. 93:
| Quote: | | The common practice of settling mass tort claims in batches ("inventory" settlements) tests attorneys' loyalties in at least two ways. Often a defendant is willing to settle the strongest cases in the lawyers' inventory, such as the clients who are sickest or whose illnesses are most likely to be related to its product. But the lawyer may refuse to settle those cases unless the opponent pays a larger sum to settle the whole inventory. Is this a simple reflection of the truism that in unity there is strength, and that claimants will do better overall if they maintain solidarity with each other? Or does it sacrifice the best interests of the clients with the strongest cases for the sake of the overall client roster and the health of the practice? Equally troubling, many defendants are willing to accept a batch settlement that takes the form of having them write one overall check to settle the inventory, after which it's up to the plaintiffs' lawyers to dvivy up the kitty among the varous clients. The judge in such cases, notes one commentator, does not usually review "the manner in which plaintiffs' counsel allocates the settlement among the claimants." The result is to leave attorneys a great deal of unsupervised discretion to steer money to some clients at the expense of others. (Footnote: Prepared statement concerning H.R. 1283, The Fairness in Asbestos Compensation Act, by Professor Christopher Edley Jr., Harvard Law School, at House Judiciary Committee hearing July 1, 1999). |
See also the excellent Overview of California's Unfair Competition Law from February, 2003 by the Los Angeles firm, Stroock & Stroock & Lavan.
We'll continue our review of settlement allocation rules and procedures in California. Please check back for updates.
Last edited by legal on Thu Jan 06, 2005 11:55 am; edited 4 times in total |
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| Posted: Sat Sep 11, 2004 12:01 pm Post subject: |
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California's governor supports Propostion 64
Here's the latest news alert from stopshakedownlawsuits.com we received after we requested automatic updates (see Coalition on Prop 64 above).
From: <info@stopshakedownlawsuits.com>
To: <legal@pokerpulse.com>
Sent: Friday, September 10, 2004 3:48 PM
Subject: Governor Schwarzenegger Endorses Proposition 64
Governor Arnold Schwarzenegger announced today his support of Proposition 64. Please find attached the releases from Californians to Stop Shakedown Lawsuits and Governor Schwarzenegger's California Recovery Team. (View attachments by visiting here.
FYI: Proposition 72 concerns still another health care initiative. Though unrelated to the Cisneros action, click here for some valuable insights into American politics and Third World health policy. Here's a sample:
| Quote: | Proposition 72
JOB KILLING HEALTH CARE TAX
Reasons to Vote NO on Proposition 72
PROPOSITION 72 WILL NOT CONTROL HEALTH COSTS
Creates a huge government-run health care system funded by an estimated $7 billion in new taxes by 2007 on employers and workers.
Under Proposition 72’s state plan, you could lose access to your doctors and hospitals and have to be treated by governmentapproved providers.
Allows bureaucrats to determine what medical services and providers are covered by the state-run health system and how much you’ll pay to support the government-run plan. There are no caps on the administrative fees they can charge. The Orange County Register called it health care with “the bedside manner of the DMV.” Up to 500,000 workers’ jobs will be at risk if Proposition 72 becomes law. These people could end up unemployed AND uninsured.
The ssociation of California School Administrators says Proposition 72 will cost school districts hundreds of millions annually.
Governor Schwarzenegger’s Analysis
Proposition 72 creates a huge government health care bureaucracy costing workers and employers an estimated $7 billion annually, with costs rising every year. It could force people out of their existing private health plans and into the government plan created by Prop 72, where bureaucrats determine what is covered, how much workers pay out of their own pockets in premiums and deductibles, and what providers are authorized to treat patients.
Achieving improved health care access and affordability for all working Californians is a positive goal, but Prop 72 is the wrong solution. Prop. 72 will put employers out of business and cost thousands of workers their jobs, derailing California’s economic recovery.
Vote NO on Proposition 72, the job killing health care tax. |
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| Posted: Mon Sep 20, 2004 4:41 pm Post subject: |
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Orange County supports Prop 64
From: info@stopshakedownlawsuits.com
To: legal@pokerpulse.com
Sent: Friday, September 17, 2004 10:52 AM
Subject: Prop. 64 - In the News
The Orange County Register provided a ringing endorsement of Proposition 64. It called Prop. 64 "a stellar example of why the initiative process is so important." And concluded, "Prop. 64 is a sensible measure. It deserves a Yes vote."
Read and share the Orange County Register's editorial in support of the common sense reforms of Proposition 64 below or on our web site, http://www.yeson64.org/.
Proposition 64: sensible tort reform
Orange County Register
September 16, 2004
http://www.ocregister.com/ocr/2004/09/16/sections/commentary/article_241281.php
| Quote: | As the November election approaches, we can count on some politicians and political observers to complain about the large number of complicated initiatives on the statewide ballot. California voters are asked to decide on 15 different matters at the state level this year, ranging from mandated health care to revisions in open records law.
Yet one initiative in particular, Proposition 64, is a stellar example of why the initiative process is so important. Critics of hands-on government like to say that complex legislative decisions should be decided in the state Legislature. But what if that Legislature is so controlled by special interests that vital reforms are impossible?
Don't be lulled by the dull, state-issued title given to Prop. 64: "Limits on Private Enforcement of Unfair Business Competition Laws." Supporters call it, more accurately, the "Stop Shakedown Lawsuits Initiative."
Enterprising trial lawyers have discovered a loophole in the state's unfair-competition law, known as Section 17200. The law allows private attorneys to enforce violations of the law, and it wasn't long before attorneys realized there was money to be made in threatening legal action against small businesses that might have violated some jot or tittle of the state code.
The nefarious process works this way: An attorney sends scores, sometimes hundreds, of letters threatening lawsuits to small businesses, such as nail salons, auto-repair shops or mortgage brokers. The attorneys allege - and it's often true - that the business violated some aspect of the law. For instance, the auto shops might have forgotten in an instance or two to write the date on an estimate of repairs. The mortgage brokers might have failed to print their license number in an advertisement.
The attorneys aren't trying to get the businesses to fix such minor problems. Instead, they are trying to exact financial settlements from the businesses that are accused of committing a violation. The attorneys typically ask for a $5,000 to $10,000 settlement to drop the case. Even businesses that have done nothing wrong have incentive to pay the money because it would cost more to pay a lawyer and go to court ($20,000 or more) than to pay what are called extortion settlements.
Assemblyman Lou Correa, D-Anaheim, held hearings about the problem after he heard from many small businesses in his district that were targets of the threatened lawsuits.
He introduced sensible legislation to rein in the abuses of the law, but by the time the powerful trial-lawyer lobby was done with it, the "reform" would have made it easier for attorneys to secure larger settlements from victims.
Given the refusal of the Legislature to buck the tort bar, small business interests put together Prop. 64, which would not gut the 17200 protections, but would stop the abuses. It would allow these lawsuits only if damages to an actual victim could be argued. It would shift responsibility for representing the public from private lawyers to district attorneys and the attorney general.
The trial lawyers are claiming that the revisions would harm the state's ability to pursue environmental protection actions against businesses. But the proposition doesn't affect environmental laws or enforcement mechanisms, it only tweaks one small aspect of unfair-competition laws.
Prop. 64 is a sensible measure. It deserves a Yes vote. |
PAID FOR BY YES ON 64 -- CALIFORNIANS TO STOP SHAKEDOWN LAWSUITS, A COALITION OF TAXPAYERS, AUTOMOBILE DEALERS, BUSINESS GROUPS AND CIVIL JUSTICE REFORM SUPPORTERS INCLUDING CALIFORNIA MOTOR CAR DEALERS ASSOCIATION FUND TO STOP SHAKEDOWN LAWSUITS COMMITTEE AND ALLIANCE OF AUTOMOBILE MANUFACTURERS, INC. |
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| Posted: Thu Oct 07, 2004 4:32 pm Post subject: |
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San Diego Union-Tribune gives Prop 64 a nod
From: info@stopshakedownlawsuits.com
To: legal@pokerpulse.com
Sent: Wednesday, October 06, 2004 5:48 PM
Subject: San Diego Union-Tribune: "Yes on 64"
Proposition 64: In the News
The "Yes on 64" message resounded today in the San Diego Union-Tribune's editorial on the proposition.
Tribune Editors sided with Justice David Sills of the 4th District Court of Appeals when he described California's Unfair Competition Law as flawed. Sills said, "It has degenerated into nothing but a feeding frenzy for attorneys who use the law to shake down California businesses and chase jobs out of California."
The editorial went on to say, "California's unfair competition law was intended to protect consumers from unscrupulous businesses. But the reality is that the law needs to be rewritten to protect California businesses from unscrupulous law firms. That's why Proposition 64 merits a Yes vote."
Read and share the San Diego Union-Tribune's editorial in support of the common sense reforms of Proposition 64 below or on our web site, www.yeson64.org.
Yes on 64: Measure would curb shakedown lawsuits
San Diego Union-Tribune
October 6, 2004
http://www.signonsandiego.com/uniontrib/20041006/news_lz1ed6top.html
| Quote: | Kwikset Corporation, the world's largest residential lockset manufacturer, faces a $3 million judgment for selling locks advertised as "Made in the U.S.A.," simply because the locks included six screws made in Taiwan.
The suit against Kwikset, a subsidiary of Black & Decker, was brought by a California man, James Benson, under Section 17200 of the state's Business and Professions Code, the so-called unfair competition law. This often misused law allows any person to file a suit against a business claiming an unlawful or fraudulent act, even if the plaintiff has not been directly harmed by the purported wrongdoing.
The 4th District Court of Appeals upheld the multimillion-dollar judgment against Kwikset, even as the 2-to-1 majority acknowledged that "the award seems unnecessarily high." And, of course, the biggest beneficiaries of the unnecessarily high award were the lawyers who represented the plaintiff, including the San Diego firm then known as Milberg Weiss Bershad Hynes & Lerach. (Note. Does this name sound familiar? This is the firm bringing action against the search engines for running online gaming ads).
So outraged was Presiding Justice David Sills by the appeals court decision that he issued a particularly stinging dissent. "Today's majority decision only confirms the critics' worst caricature of California's unfair competition law," he wrote. "It has degenerated into nothing but a feeding frenzy for attorneys who use the law to shake down California businesses and chase jobs out of California."
A measure on the November ballot, Proposition 64, would do much to curb the shakedown lawsuits to which Justice Sills referred. Such suits afflict not only deep-pocket companies like Kwikset but also untold thousands of small businesses in California.
Proposition 64 would make two important, necessary changes in the current unfair competition law. It would allow individuals to sue under the law only if they actually have been injured or suffered a financial or property loss. And it would allow only the attorney general, district attorneys and other public officials to file lawsuits on behalf of the general public.
If such restrictions were already written into the law, then hundreds of California travel agents would not have been sued for merely neglecting to include their license numbers on their Web sites. If Proposition 64 had been the law, California home builders would not have been sued for using "APR" in their advertisements instead of spelling out "Annual Percentage Rate."
California's unfair competition law was intended to protect consumers from unscrupulous businesses. But the reality is that the law needs to be rewritten to protect California businesses from unscrupulous law firms. That's why Proposition 64 merits a Yes vote. |
If this email was forwarded to you, sign up yourself by visiting www.yeson64.org.
If you would like to be removed from the list, please email info@stopshakedownlawsuits.com.
PAID FOR BY YES ON 64 -- CALIFORNIANS TO STOP SHAKEDOWN LAWSUITS, A COALITION OF TAXPAYERS, AUTOMOBILE DEALERS, BUSINESS GROUPS AND CIVIL JUSTICE REFORM SUPPORTERS INCLUDING ALLIANCE OF AUTOMOBILE MANUFACTURERS, INC. AND CALIFORNIA MOTOR CAR DEALERS ASSOCIATION FUND TO STOP SHAKEDOWN LAWSUITS COMMITTEE. |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Thu Oct 14, 2004 10:50 am Post subject: |
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More media endorsements of Prop 64
From: info@stopshakedownlawsuits.com
To: legal@pokerpulse.com
Sent: Friday, October 08, 2004 3:15 PM
Subject: Prop 64: In the News
Proposition 64: In the News
The Desert Sun, The Vacaville Reporter, The Santa Barbara News Press and The Torrance Daily Breeze are the latest newspapers to reinforce the message that Proposition 64 is common-sense reform that will stop frivolous shakedown lawsuits against small businesses in California.
The following quotes highlight our growing support:
| Quote: | California needs to let the country -- and the world for that matter -- know that it wants jobs and businesses back in this state. Proposition 64 is one way to deliver the message.
It should go a long way toward helping California's business climate. Frivolous lawsuits clog the court system and cost California consumers, taxpayers and businesses millions of dollars each year. Since California is the only state that allows shakedown lawsuits, businesses are reluctant to locate here and they take their jobs to other states where this isn't allowed. Proposition 64 could encourage new companies and jobs to locate in California.
Opponents' arguments are misleading to say the least; they are the perennial scare tactics often associated with measures such as Proposition 64. The ballot measure does not change any of California's consumer orenvironmental laws.
Don't be misled. |
--The Desert Sun 10/7/04
| Quote: | Of course, the business that is least capable of defending itself, least capable of surviving a shakedown, is a small business. That is why Proposition 64 must be approved by voters.
This initiative will still protect consumers from unfair competition and deceptive advertising.
Call them shakedowns or call them extortion lawsuits. They need to be expunged from the legal system in California. And Proposition 64 will do that. |
--The Reporter 10/7/04
| Quote: | Proposition 64 addresses that inaction (by the Legislature to reform the law) by making it harder for trial lawyers without clients to sue businesses.
Opponents say sometimes lawyers shouldn't need actual clients to sue and that this measure goes too far by limiting the private enforcement of unfair business competition laws.
Yet the truth is the law needs an overhaul and there still will be plenty of ways under federal and state law to take action. A coalition that includes Gov. Arnold Schwarzenegger and the California Chamber of Commerce supports this measure.
Join them and vote yes on Proposition 64. |
--Santa Barbara News-Press 10/7/04
| Quote: | | California's unfair competition law was intended to protect consumers from unscrupulous businesses. But the reality is that the law needs to be rewritten to protect California businesses from unscrupulous law firms. That's why Proposition 64 merits a Yes vote. |
Editors also cite Justice David Sills of the 4th District Court of Appeals who noted "It (Unfair Competition Law) has degenerated into nothing but a feeding frenzy for attorneys who use the law to shake down California businesses and chase jobs out of California."
--Torrance Daily Breeze 10/8/04.
Read and share these editorials in support of the common sense reforms of Proposition 64 on our web site, www.yeson64.org.
If you would like to be removed from the list, please email info@stopshakedownlawsuits.com.
PAID FOR BY YES ON 64 -- CALIFORNIANS TO STOP SHAKEDOWN LAWSUITS, ACOALITION OF TAXPAYERS, AUTOMOBILE DEALERS, BUSINESS GROUPS AND CIVILJUSTICE REFORM SUPPORTERS INCLUDING ALLIANCE OF AUTOMOBILE MANUFACTURERS,INC. AND CALIFORNIA MOTOR CAR DEALERS ASSOCIATION FUND TO STOP SHAKEDOWNLAWSUITS COMMITTEE.
3001 Douglas Blvd., Suite 225, Roseville, CA 95661.
We respect your online privacy. If you would like to be removed from this list, please click here. |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Tue Oct 19, 2004 8:03 pm Post subject: |
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23 Newspapers Strong and Growing
From: info@stopshakedownlawsuits.com
To: legal@pokerpulse.com
Sent: Tuesday, October 19, 2004 2:44 PM
Subject: Prop 64 In the News: 23 Newspapers Strong
Proposition 64: In the News
The Los Angeles Times and Contra Costa Times join an already impressive list of Proposition 64 supporters including:
Governor Arnold Schwarzenegger
Over 1,500 shakedown victims, local elected officials, chambers of commerce, community groups, individuals, and businesses
21 other statewide newspapers:
Orange County Register
The San Diego Union-Tribune
Bakersfield Californian
Stockton Record
Oakland Tribune
The Santa Barbara News Press
Napa Valley Register
The Desert Sun
The Vacaville Reporter
Santa Rosa Press Democrat
Long Beach Telegram
East Bay Business Times
Sacramento Business Journal
North County Times
Sonoma Index Tribune
Tri-Valley Herald
Fremont Argus
Alameda Times Star
Hayward Daily Review
Tri-Valley Herald |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Fri Nov 05, 2004 3:32 pm Post subject: |
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Prop 64 passes with 59% YES vote
From: info@stopshakedownlawsuits.com
To: legal@pokerpulse.com
Sent: Wednesday, November 03, 2004 10:53 AM
Subject: Prop 64 passes with 59% Yes Vote
Final tracking numbers are in: Among those who voted, "Yes on 64" has 59% of the vote!
It would appear that Prop 64 won in every county except the Bay Area and a couple of sparsely populated counties up north. In LA, we got 57% yes.
It's an overwhelming victory that would not have been possible without the strong leadership from Californians to Stop Shakedown Lawsuits co-chairs John H. Sullivan, Peter Welch, Allan Zaremberg and David Houston.
Congratulations and thanks to all!
PAID FOR BY YES ON 64 -- CALIFORNIANS TO STOP SHAKEDOWN LAWSUITS, A COALITION OF TAXPAYERS, AUTOMOBILE DEALERS, BUSINESS GROUPS AND CIVIL JUSTICE REFORM SUPPORTERS INCLUDING ALLIANCE OF AUTOMOBILE MANUFACTURERS, INC. AND CALIFORNIA MOTOR CAR DEALERS ASSOCIATION FUND TO STOP SHAKEDOWN LAWSUITS COMMITTEE |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Tue Dec 07, 2004 5:55 pm Post subject: |
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Worldwide implications for 17200?
Maybe. Check out The Recorder story dated July 2/04 in Law.com by Mike McKee, Businesses Quake Over California Case, Dispute over unfair competition raises questions for Web commerce and industries based in other states, concerning the reach of California's infamous consumer law. Here are a few highlights of the story:
| Quote: | The state Supreme Court has agreed to weigh in on a case that could determine whether 17200 suits become another California export.
The justices voted unanimously Wednesday to decide whether companies based outside California can be sued under the state's unfair competition laws if they advertise in-state via billboards, newspapers and the Internet.
Several Nevada casino hotels, including Harrah's, had petitioned the court for review after a Los Angeles appeal court ruled in March that they could be sued by a man seeking class action status on behalf of all California residents hit with a $3-per-night energy surcharge while staying in Las Vegas, Reno or other gambling towns.
The ruling sent a shudder through the gaming and hotel industries, which envisioned thousands of lawsuits by residents of California, which, according to published reports, is Nevada's top market. But attorneys for the casino hotels said the decision also should worry businesses nationwide. |
See also California Supreme Court Agrees to Decide If Non-Residents Can Be Sued Under Section 17200 July 23/04 at BNA Resources and the following news brief at the United States Chamber of Commerce website:
| Quote: | Extraterritorial Reach of California 17200 Consumer Protection Law (Nevada)
Snowney, et al. v. Harrah's Entertainment, Inc., et al.
No. S124286
Supreme Court of the State of California
NCLC urged the California Supreme Court to overturn an intermediate appellate court's ruling that California can exercise specific personal jurisdiction over a Las Vegas hotel based on the hotel's advertising in California. The lower court's decision refused to connect the harm claimed by this class action - that Harrah's had illegally exacted a $3 nightly energy surcharge - with Harrah's limited advertising contacts with California. (emphasis ours). As a result, NCLC argued that minimal harm to California residents could illegally result in jurisdiction over a foreign defendant there, based on any number of business practices that are typical of firms that do business nationwide.
Application for leave to file brief and amicus brief here in support of defendants/petitioners filed 10/14/04. |
Here are a few samples of argument described in the brief:
| Quote: | The "harm" allegedly suffered in this case is de minimis, but the importance of the jurisdictional inquiry in this case is far greater plaintiff's alleged $3 overpayment. The contacts that Harrah's has with California are the types of contacts that any modern national or international business would have. Under the rule announced by the court of appeal below, nothing prevents California courts from exercising jurisdiction over companies located in Florida, Maine, or even overseas, if they advertise their existence and their products or services, and provide means for California residents to contact them to purchase products or make vacation reservations. This result is reached no matter where any harm occurs, or no matter how minimal its impact on California. Given the State's massive population, California risks becoming the courtroom to the world... (at p. 10)
The Internet - a "'unique and wholly new medium of worldwide human communication'"(Pavolovich, 29 Cal. 4th at 265, 58 P.3d at 5 (quoting Reno v. ACLU, 521 U.S. 844, 849-850 (1997)) -- presents special dangers of subordinating defendants' due process rights. It is particularly important that this Court be cognizant of the ubiquity of Internet communications when it considers whether Internet contacts may be used to satisfy the "purposeful availment" and "arising out of or related to" tests for specific jurisdiction in this case. Unlike contacts traditionally relied on for findings of jurisdictiion, companies and individuals cannot control from what forum their Internet sites are accessed...(p. 29)
If -- as can be expected -- California plaintiffs seize on the court of appeal's rule to ask courts to exercise personal jurisdiction over overseas corporations, whether a casino in Monte Carlo or a lodge in New Zealand, the harmful result may include the impairment of "the Federal interest in Government's foreign relations policies." Asahi Metal Indus. Co. v. Sup. Ct. of Cal., 480 U.S. 102, 115 (1987); cf. Helicopteros, 466 U.S. at 425 (Brennan, J. dissenting) (noting the Solicitor General's concern that broad interpretation of general jurisdiction would deter foreign companies from doing business with the United States). And it is reasonable to believe that other countries might reciprocate by imposing similarly expansive jurisdictional regimes on U.S. companies that market their services by Internet and advertisements to foreign travelers. (p. 31) (emphasis ours). |
What will happen now in the wake of Prop 64's success, we wonder? We decided to ask Alan E. Untereiner, one of the attorneys listed on the amicus brief.
Our e-mail to Alan Untereiner:
From: legal@pokerpulse.com
To: auntereiner@robbinsrussell.com
Cc: legal@pokerpulse.com
Sent: Wednesday, December 08, 2004 9:46 AM
Subject: Harrah's, 17200 and Proposition 64
Hello Alan Untereiner,
We've been following several U.S. court actions involving the gaming industry, including the Harrah's case, which we are covering along with another notable 17200 case launched not long ago against the big search engines. In addition to links to a number of articles and legal texts devoted to the Unfair Competition Law (UCL), we posted updates from the California Civil Justice Association's campaign to reform that law prior to the presidential election. What effect, if any, will the success of Proposition 64 have on the Harrah's case, we wonder? Our visitors from the international community would be very grateful for any comments you or your colleagues might offer in this regard. We were somewhat relieved to find such strong jurisdictional argument in your brief, although we note the shocking success rate of similar suits. We will happily post your reply at our forum, unedited, of course.
Thanks very much in advance.
Legal@pokerpulse.com
PokerPulse.com
Tracking Internet poker worldwide. |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Thu Jan 06, 2005 12:46 pm Post subject: |
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Prop 64 is now being applied by trial courts
Here is the latest news release from the Civil Justice Association of California (CJAC) dated Jan. 3/05:
| Quote: | Statement from Civil Justice Association of California President, John H. Sullivan, regarding recent trial court rulings on the application of Proposition 64 to pending cases:
“As the year ended, information collected by the Civil Justice Association of California shows that so far 9 of 12 trial courts issuing rulings have applied Proposition 64 to cases before them. The initiative, which was passed overwhelmingly by voters on the November ballot, took effect on November 3 as required by the state Constitution.
"The lawsuits being dismissed are precisely the cases that voters voted to eliminate – lawsuits brought by private attorneys without clients claiming any harm caused by the businesses being sued. These lawsuits produce only fees for the lawyers and not a cent for any truly harmed consumer. In the meantime, people harmed by a business practice continue to have their day in court, unaffected by the initiative.
"While appellate courts have still to rule on these dismissals, it is encouraging to see at this early point that the system is working.” |
What happens now to the suit against the search engines?
Good question. Here's what CJAC's Balance Newsletter had to say about existing lawsuits at p. 3 of 4:
| Quote: | The question of effect on existing cases is not simple. Among practitioners, the consensus is that Proposition 64 does (emphasis ours) apply to lawsuits filed before the Nov. 3 effective date.
Fred Hiestand, CJAC's General Counsel, is monitoring developments on this front and working with attorneys whose cases are in trial courts or at the appellate level. |
We'll try to reach Mr. Hiestand for more information on the search engines case and new international implications of Prop 64 ASAP. Please check back soon for updates.
Our e-mail to Will Stern:
In the meantime, here is the e-mail we sent to Will Stern, a member of Severson & Werson, who provided the excellent pdf materials on the effect of Prop 64 for CJAC (see above):
From: legal@pokerpulse.com
To: wls@severson.com
Cc: legal@pokerpulse.com
Sent: Thursday, January 06, 2005 12:01 PM
Subject: Prop 64"s effect on search engines (Cisneros) case and foreign defendants
Hello Will Stern,
We have just posted a link to the excellent CJAC materials you provided on Prop 64 as part of our coverage of the Cisneros action against the search engines. We are especially fond of the chart. We were wondering about the effect of Prop 64 on the Cisneros suit and also what changes, if any, the initiative poses to potential foreign defendants? Many of our visitors are concerned about their exposure under this unusually expansive law. Any comments or articles you might recommend would be greatly appreciated.
Regards,
Legal@pokerpulse.com
PokerPulse.com
Tracking internet poker worldwide. |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Fri Feb 18, 2005 5:11 pm Post subject: |
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Prop 64 update:
The excellent Civil Justice Association of California has kindly alerted to three new stories regarding 17200 super-sized lawsuits, the most recent of which is dated Feb. 17/05:
| Quote: | Class Action Legislation Passes House of Representatives
Civil Justice Association of California commends strong bipartisan support
SACRAMENTO—The Civil Justice Association of California (CJAC) commends the U.S. House of Representatives for joining the Senate in quickly passing the bipartisan Class Action Fairness Act of 2005,...an enormous victory for legal reform supporters around the country,” stated John H. Sullivan, president of CJAC..
The Class Action Fairness Act passed the House today with a solid 279-149 vote and passed the Senate with an overwhelming 72-26 vote on February 10th. The president is expected to sign the bill soon. “President Bush vowed to curb junk lawsuits in his State of the Union address, and Congress has followed his lead,” Sullivan added. “We are nearing the day when the civil justice system will once again serve the people and not the litigation industry.”
The Class Action Fairness Act is the latest in a growing national movement to take back our legal system from personal injury lawyers who file self-enriching lawsuits that do nothing for the general public they purport to represent. It follows on the heels of the tremendous success of Proposition 64, which California voters approved on November 2, 2004, with a 59% “yes” vote.
The Class Action Fairness Act would move into federal courts larger class action lawsuits with parties in various states and prevent “forum shopping” plaintiffs from bringing nationwide class actions in selected state trial courts where judges and rules are slanted toward plaintiffs.
Proposition 64 stops private attorneys from filing lawsuits without clients or any evidence of harm. Consumers who have been harmed retain their right to sue, and the attorney general and district attorneys may continue to file lawsuits on behalf of the general public for unfair business practices. |
See also this press release of Feb. 9/05:
| Quote: | Proposition 64 Implemented in Another Appellate Pending Case
Initiative approved overwhelmingly by voters begins to stop shakedown lawsuits
SACRAMENTO – The Civil Justice Association of California issued the following statement regarding today’s 4th District Court of Appeal ruling on Proposition 64’s application to cases filed before the initiative’s November 2, 2004, effective date.
“For the second time in as many days, a California Court of Appeal has ruled that Proposition 64 goes to work immediately on pending cases. This time the justices were looking at the infamous “six screws” case, where plaintiffs lawyer Bill Lerach’s firm (Note: Also the firm leading the Cisneros action.) is trying to walk away with $3 million in attorney fees for its crusade against Black & Decker for selling a “made in USA” lock that contained six screws from Taiwan.”
Justice David Sills, who filed an outraged dissent over this abuse of the unfair competition law when the case first came before him, re-published his original statement in today’s concurring opinion which he concluded with the following:
| Quote: | Epilogue
I had hoped, as indicated in the last paragraph of my dissent written in June 2004, that the excesses of the unfair competition law might be judicially curbed by action of our Supreme Court. Before that could take place, though, the electorate took matters into their own hands. As things now stand, even if the judgment in this case is ultimately upheld, this case represents what will hopefully be the last of a breed of lawsuits against businesses where lawyers make big bucks, and clients nothing, for finding some tiny arguable technicality and bringing an unfair competition suit. |
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We'll have a look at the new statute in the next week or so. Until then, for a good cursory review, we recommend Class Action: One Bill, Two Worldviews by T.R. Goldman of Legal Times, dated Feb. 7/05 and available online at Law.com. |
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legal
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Posts: 510
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| Posted: Fri Mar 04, 2005 5:37 pm Post subject: |
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Latest alert:
| Quote: | Update on Proposition 64's Application to Pending Cases
The growing consensus among California’s appellate courts is that Proposition 64 applies to pending cases filed before the initiative’s November 3 effective date. Information collected by the Civil Justice Association of California shows that to date four of five appellate decisions on the issue have applied Proposition 64 to cases before them. The matter is ripe for Supreme Court review.
Specifically, the following four courts have applied Proposition 64:
2nd District Court of Appeals, Division 5: Branick v. Downey Sav. & Loan Assn (Feb. 9, 2005)
4th District Court of Appeals, Division 3: Benson v. Kwikset Corp (Feb. 10, 2005)
4th District Court of Appeals, Division 1: Bivens v. Corel Corp. (Feb. 18, 2005)
4th District Court of Appeals, Division 1: Lytwyn v. Fry’s Electronics, Inc (Feb. 22, 2005)
The 1st District Court of Appeals is the only appellate court to rule against Proposition 64’s application to pending cases in Californians for Disability Rights v. Mervyn's, LLC (Feb. 1, 2005). It is interesting to note that this case was the first ruling by an appellate court and that the subsequent appellate courts disagreed with the ruling.
The lawsuits being dismissed are precisely the cases that voters voted to eliminate – lawsuits brought by private attorneys without clients claiming any harm caused by the businesses being sued. These lawsuits produce only fees for the lawyers and not a cent for any truly harmed consumer.
Perhaps most notable among these is the now infamous Benson v. Kwikset ‘six screws case’ where plaintiffs’ lawyer Bill Lerach’s firm is trying to walk away with $3 million in attorney fees for its crusade against Black & Decker for selling a ‘made in USA’ lock that contained six screws from Taiwan.
In his concurring opinion, Justice David Sills wrote, “cases like this one are, in my opinion, precisely the sort of abuse that Proposition 64 was crafted to halt.” He went on to add, “the passage of Proposition 64 by a large margin only confirms that the electorate was indeed fed up with the abuses of the unfair business practice laws, of which the plaintiff’s case here is a prime example.”
By passing Proposition 64 in November, voters intended to stop private lawyers from abusing the law to file self-enriching lawsuits that do little or nothing for clients or the general public. |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Wed Jul 27, 2005 1:12 pm Post subject: |
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What about Antigua?
...Cisneros action proceeds in San Francisco Superior Court in June 3/05:
We note with interest the following story in the June 22/05 weekly update of Interactive Gaming News:
| Quote: | Search Engine Advertisement Case In California Proceeds to Next Phase
June 10, 2005
by Bradley Vallerius
A court in San Francisco, California has denied Google, Yahoo! and 11 other search engines a motion to dismiss a class action suit that first surfaced in August 2004. The two plaintiffs in the case claim that they used illegal sponsored ads on the search engine websites to find illegal online casinos to which they then lost thousands of dollars. Ira Rothken, the lead attorney for the plaintiffs, says that the case will now proceed with the discovery process and eventually go to trial unless a settlement is reached. |
Indeed, see also Rothken Law Firm: California Court Gives Green Light to Lawsuit Against Yahoo!, Google, FindWhat and Other Search Engines for Alleged Illegal Involvement in Internet Gambling Advertising at Yahoo! Finance June 3/05. Here's an excerpt:
| Quote: | Plaintiffs allege that the defendants made enormous revenues actively supporting Internet gambling. For example, it was alleged that defendant Yahoo! (through its Overture subsidiary) recently made as much as $12.97 (or more) per "click-through" for directing its users to illegal Internet gambling websites. "The Court's ruling now clears the way for plaintiffs to investigate defendants' net gambling activities in the discovery process and learn the magnitude of their alleged wrongdoing," said Stan Mallison, an attorney for the plaintiffs. Plaintiffs are requesting in the complaint injunctive relief, a declaration from the court that such behavior is illegal, and the restoration to the general public of defendants' ill-gotten gains.
CONTACT INFORMATION: If you are California resident who has been adversely impacted by the search engine defendants' actions as alleged in this case or are otherwise interested in speaking to an attorney regarding this case, please contact any of the co-lead counsel below:
Reed Kathrein at Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, via email at netgambling@lerachlaw.com.
Ira P. Rothken at the Rothken Law Firm via email to feedback@techfirm.com -- a copy of the complaint can be found at www.techfirm.com.
Stan S. Mallison at the Law Offices of Stan S. Mallison via email to Stanm@mallisonlaw.com. |
Quaere whether and how this action can proceed in the face of Antigua's recent victory at the World Trade Organization, which seems to have muddied the already murky waters of U.S. gaming law. |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Mon Nov 28, 2005 9:45 pm Post subject: |
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Judge rules against Cisneros:
California public policy a bar to recovery of gambling losses
We were pleased to view the decision of Nov. 2/05 (see documents at the links above) by San Francisco Superior Court Judge Richard Kramer, who found that:
| Quote: | | As a matter of law and the fundamental public policy of the state of California, Plaintiff Voight and the putative class members' claims for restitution of losses incurred in gambling activities are barred. (footnotes omitted) California courts cannot be used to get restitution of gambling losses. Claims arising out of gambling losses are barred by California's broad, specific and unwavering public policy against using the courts of the State of California to recover losses incurred in gambling. Accordingly, all claims in this action brought by Voight and others for restitution of losses incurred in gambling activities are barred. |
So how come no one told Cryptologic about this policy in 2000 when the company is reported to have paid $225,000 in legal fees after another California Internet gambler, Cynthia Haines, sought to avoid paying her gambling debts by claiming that credit card associations and banks were somehow responsible for her gambling. (See Can Internet Gaming Survive Without Credit Cards? Debtors Sue MasterCard & Visa by Alan B. Koslow and Shawn D. Prestonin the Becker & Poliakoff Newsletter of Spring, 2000).
Last edited by legal on Wed Nov 30, 2005 3:39 pm; edited 1 time in total |
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legal
Site Admin
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Posts: 510
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| Posted: Wed Nov 30, 2005 3:32 pm Post subject: |
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So there was no mention of international trade obligations?
None that we could find.
Nevertheless, we were pleased to discover at the Dept. of Justice website this memo of Nov. 25/96 to Alan Kreczko, Special Assistant to the President and Legal Adviser to the National Security Council, prepared by Christopher Schroeder, Acitng Assistant Attorney General, Validity of Congressional-Executive Agreements that Substantially Modify the United States' Obligations Under an Existing Treaty, which may provide a clue:
| Quote: | | ...The distinction is often ignored between the rule of domestic law which is established by our legislative and judicial decisions and may be inconsistent with an existing Treaty, and the international obligation which a Treaty establishes. When this obligation is not performed a claim will inevitably be made to which the existence of merely domestic legislation does not constitute a defense and, if the claim seems to be well founded and other methods of settlement have not been availed of, the usual recourse is arbitration in which international rules of action and obligations would be the subject of consideration. (Quoting Secretary of State Charles Evans Hughes in al letter Feb. 19/23 to the Treasury). (Footnotes omitted) |
We also found this similarly illuminating memo of Nov. 22/94, again from this guy's watch, to Ambassador Michael Kantor, United States Trade Representative, prepared by Assistant Attorney General Walter Dellinger entitled, Whether Uruguay Round Agreements Required Ratification As a Treaty, a reply to criticisms that WTO agreements usurp state sovereignty contrary to the Constitution. Here is an excerpt:
| Quote: | | Moreover, it is misleading to suggest that the WTO procedures of the Uruguay Round Agreements place State law "at the mercy of the Executive Branch and the Trade Representative." As Professor (Laurence) Tribe himself explains, even if the Executive Branch decides to bring an action against a State for the purpose of having a State law declared invalid for inconsistency with the Uruguay Round Agreements, the implementing legislation explicitly precludes the WTO panel's (or Appellate Body's) report from being considered "binding or otherwise accorded deference" by the court that hears the case. (emphasis added) Thus, the State law cannot be declared invalid by the Executive Branch acting unilaterally, even if the Executive is armed with a WTO report that has found the State law GATT-illegal; rather, the independent action of another branch of the government - the courts - is required. (Footnotes omitted) |
See also Crosby v. National Foreign Trade Council 530 U.S. 363 (2000) and analysis by Peter Spiro at the American Society of International Law (ASIL) Insight, June, 2000.
We will try to explore these scenarios more fully in the next few weeks. Please visit our material on the Cross-Border Betting Dispute Between Antigua and the U.S. at our Caribbean forum for updates. |
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