You’ll see plenty of lawyers here.

The ABA Journal reports that, more than any other group, "legal and accounting workers" enjoy gathering at watering holes for off-hours gregariousness.  Within that milieu, 87 percent go to bond, 28 percent to network, and 19 percent to gossip. 

That compares to an average for all survey respondents of 82 percent for the bonding, 20 percent for the networking, and 15 percent for the gossiping, according to a press release by CareerBuilder.com, which commissioned the survey.  The study also found that only 21 percent of all respondents attend happy hours but 35 percent of legal and accounting workers do.

What can we infer about people who toil at law and accounting firms relative to those in other callings?

1. They are 67 percent more likely to engage in post-work camaraderie.
2. They are more likely to report multiple reasons for their carousing.

Plus they probably like to drink.

The state attorney general won the right to hire contingent fee counsel — but lost the case on the merits.

The Supreme Court of Rhode Island today held that the state attorney general acted properly and within his authority in hiring private counsel to help prosecute a public nuisance case on a contingent fee basis.  The court nonetheless imposed conditions:

In order to ensure that meaningful decision-making power remains in the hands of the Attorney General, if is our view that, at a bare minimum, the following limitations should be expressly set forth in any contingent fee agreement between that office and private counsel:  (1) that the Office of the Attorney General will retain complete control over the course and conduct of the case; (2) that, in a similar vein, the Office of the Attorney General retains a veto power over any decisions made by outside counsel; and (3) that a senior member of the Attorney General’s staff must be personally involved in all states of the litigation.

Moreover, not only must the Attorney General have absolute control over all stages of the litigation, but he or she must also appear to the citizenry of Rhode Island and to the world at large to be exercising such control.

State of Rhode Island v. Lead Industries Ass’n, Inc., Nos. 2004-63-M.P., 2006-158-Appeal & 2007-121-Appeal, slip op. at 74-75 (R.I. July 1, 2008) (footnote omitted).

(The ruling may influence other states’ courts.  The Supreme Court of California, for example, has recently granted review on the issue.  County of Santa Clara v. Atlantic Richfield Co., No. S163681 (Cal.).)

The court also concluded that the nuisance claim against lead paint manufacturers lacked merit, in part because the defendants lacked control over their product at the time it caused injury, and that the trial court erred in holding the attorney general in contempt for out-of-court statements.

See Drug and Device Law analysis here.

ITT gets to keep its loss in arbitration secret.

Last Friday, the Fifth Circuit upheld enforcement of a confidentiality provision in an arbitration clause.  The provision stated:

All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential.  The parties will have the right to seek relief in the appropriate court to prevent any actual or threatened breach of this provision.

The court concluded that it could separate the arbitration clause — including the part requiring confidentiality — from the rest of the contract under the severability doctrine of Prima Paint Corp. v. Flood & Conkling Mfg. Co., 388 U.S. 395 (1967).  The court also held that the district court properly entered a permanent injunction barring the winners of an arbitration proceeding from disclosing the award and record to another claimant that brought a separate arbitration against the same defendant.  ITT Educational Svcs. Inc. v. Arce , No. 07-20438 (5th Cir. June 27, 2008).

Blawgletter wonders how much good ITT will get out of this victory.  Won’t the new claimant ask it for the same stuff it produced in the earlier arbitration?  And can’t he obtain the record from ITT itself, which can hardly cite the earlier claimants’ expectation of confidentiality as an excuse after they’ve shown themselves willing to waive secrecy?

Our feed loves Mondays — and short weeks.

The ruling pleased FCC Chair Kevin Martin.

Have you ever wondered why your cable bill keeps going up?  Why your cable company gives such poor quality and worse service?  Or why you get dozens of channels you never watch?

A Sixth Circuit decision last Friday gives a partial answer.

The Case

In Alliance for Community Media v. FCC, No. 07-3391 (6th Cir. June 27, 2008), local governments and surrogates of incumbent cable companies challenged Federal Communications Commission rules that aimed to open local cable franchise areas to competition.  The 2007 rules:

• Require local franchising authorities to decide whether to accept or deny an application for a cable franchise within six months (or 90 days in the case of a telephone company that already operates within the franchise area).
• Bar LFAs from imposing unreasonable build-out requirements on new entrants (such as a mandate that the entering cable company wire the entire area within a year).
• Prohibit LFAs from charging franchise fees on non-cable (e.g., telephone and high-speed Internet) services.
• Limit the ability of LFAs to force competitive applicants to provide more access to public, educational, and governmental programming than the incumbent furnishes.
• Restrict LFAs’ regulatory authority to the aspiring entrant’s cable facilities (and not to the plant and operations that deliver non-cable services).

The FCC issued the rules, it said, because "the current operation of the franchising process can constitute an unreasonable barrier to entry for potential cable competitors, and thus justifies Commission act."  The agency also observed that, "absent Commission action, deployment of competitive video servies by new cable entrants will continue to be unreasonably delayed or, at worst, derailed."

The Sixth Circuit held that (1) the FCC acted within its statutory authority in issuing the rules; (2) the rules deserved judicial deference under Chevron USA v. Natural Resources Defense Council, 467 U.S. 837 (1984); and (3) the agency didn’t behave arbitrarily or capriciously, didn’t abuse its discretion, and didn’t otherwise violate applicable law.

FCC Chairman Kevin Martin said:

I am pleased that the Court recognized and unanimously supported the Commission’s authority and our rules.  Over the last ten years, cable rate have more than doubled.  Consumers need greater choice and more competition to help address the soaring price of cable television.  This ruling helps ensure that new competitors to cable are not subjected to unreasonable delays, build-out requirements and fees when trying to compete with the incumbent cable operators.

Wiring Around Competition

The franchising rules reflect the success of incumbent cable companies in suppressing competition.  They have used (among other things) their gigantic government and public relations departments, in-house and outside counsel, and political clout to keep new entrants off their turf.  As a result, less than one percent of cable subscribers nationally have a choice of cable providers.

The incumbents’ manipulation of LFAs compounds the anticompetitive effects of big cable’s "clustering" strategy.  Especially in the last decade, large incumbents (e.g., Comcast and Time Warner) have carved the United States into areas in which one of them dominates.  The allocation of territories entrenches the dominant firm and frees it from the pressures of having a strong rival nearby.

The new franchising rules aim to restore some competition to these fortress clusters.  Which explains why big cable fought them so hard.

Our feed enjoys almond clusters.

Lily Tomlin (1939-) snorted a lot as Ernestine.

The trouble with the rat race is that even if you win you’re still a rat.

Our feed also liked her Edith Ann.

Joy — the June 2008 issue of Barnett’s Notes on Commercial Litigation has taken wing.  If you go here, you’ll find:

Our feed reminds you of the short week next week — and the Fourth of July next Friday!

Don’t trust this guy.

A pair of brain brainiacs, Sam Wang and Sandra Aamodt, today trot out an op-ed on why people believe falsehoods — or, more specifically, why over time they start buying what they at initially rejected.  See "Your Brain Lies to You".

They tell us, for example, that we first store new facts in our hippocampus, a structure deep in our noggins (see photo above).  But when we call the information into conscious memory, our brain rewrites it and eventually somehow transfers it to our cerebral cortex.  The process divorces the facts from the context in which we learned them:

This phenomenon, known as source amnesia, can . . . lead people to forget whether a statement is true. Even when a lie is presented with a disclaimer, people often later remember it as true.

With time, this misremembering only gets worse. A false statement from a noncredible source that is at first not believed can gain credibility during the months it takes to reprocess memories from short-term hippocampal storage to longer-term cortical storage. As the source is forgotten, the message and its implications gain strength. This could explain why, during the 2004 presidential campaign, it took some weeks for the Swift Boat Veterans for Truth campaign against Senator John Kerry to have an effect on his standing in the polls.

Blawgletter notes that it could also explain why decision-makers (like judges) can go horribly wrong in their conclusions.  As source amnesia takes hold, an habitual liar’s repetition of lies turns the hippocampal falsehoods into cerebral cortexian truth.  And the judges don’t even realize it!

Mr. Wang and Ms. Aamodt stress the importance of countering misleading statements without repeating them.  Don’t simply deny the misinformation; that only re-emphasizes it.  And don’t just ask for objectivity.  The authors cite a Stanford study that shows the "please be fair" strategy doesn’t work.

What does?  The authors suggest asking people "to imagine their reaction if the evidence had pointed to the opposite conclusion".  That has the effect of making them "more open-minded to information that contradicted their beliefs.  Apparently, it pays for consumers of controversial news to take a moment and consider that the opposite interpretation may be true."

Happy Friday, y’all.