In the January 2007 issue of TRIAL magazine, Associate Editor Allison Torres Burtka reports on the Illinois Supreme Court’s decision in Kinkel v. Cingular Wireless, 2006 WL 2828664 (Ill. Oct. 5, 2006).  Allow me to quote her quoting me:

"The Kinkel court’s analysis is pretty close to the First Circuit’s in Kristian v. Comcast,” noted Barry Barnett of Dallas, who represents the Kristian plaintiffs. In that case, the First Circuit struck down a class action ban, holding that it frustrated the enforcement of federal statutory rights. (446 F.3d 25 (1st Cir. 2006)); see Allison Torres Burtka, Courts Weigh in on Class Action Bans in Arbitration, TRIAL 16 (Sept. 2006).)

Barnett said that Kinkel “signals a definite trend in federal and state courts toward striking down class action bans in arbitration agreements,” especially considering that “Illinois is a state not known for extreme pro-consumer decisions.”

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© 2007 Barry Barnett.  All rights reserved.

Blawgletter loves sports analogies.  Politics, like law, seems to produce plenty of them. 

Take the one that Iowa Governor (and presidential hopeful) Tom Vilsack used in early December 2006.  "Currently the president has a strategy to run out the clock and shift responsibility to make the tough decisions to the next administration, which is an unfortunate thing for America and unfortunate thing for Iraq," he said in a Reuters interview.

Running out the clock works in a lot of sports — football, basketball, even hockey.  When your team has the lead, slowing the game down can prevent your opponent from scoring before time runs out.

Our president played baseball in college, and later he ran the Texas Rangers nine.  He might therefore answer to Governor Vilsack that you can’t run out the clock in America’s game.  With innings yet to play, he might add, we won’t try it in Iraq either.

What do analogies have to do with business trial law?  Only that comparisons have their limits.  A smart opponent can turn your brilliant analogy into a weapon against you.  What seemed a certain line-drive double for you becomes a double play for him. 

As baseball legend Yogi Berra said, "if you don’t know where you are going, you will wind up somewhere else."  Dare to compare, my friend, but do it with care.

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© 2007 Barry Barnett.  All rights reserved.

The Scarlet Pimpernel posed as Frenchy fop Sir Percy Blakeney to avoid detection by the Committee of Public Safety.  Did Enron’s Jeffrey Skilling fool Malcom Gladwell as well as investors?

In 1992, Barry Scheck and Peter Neufeld co-founded the Innocence Project, a non-profit legal clinic that aims to "exonerate the wrongfully convicted through postconviction DNA testing."  Readers may recall that Messrs. Scheck and Neufeld applied their forensic expertise with deoxyribonucleic acid to head off a double murder conviction of O.J. Simpson in 1995.

But I digress.  In this week’s issue of The New Yorker, ace provocateur Malcolm Gladwell (he of Blink and The Tipping Point) presents his own brand of postconviction DNA testing.  He mounts a "semi-defense" of ex-Enron muckety-muck Jeffrey Skilling, who now dwells in the federal prison at Waseca, Minnesota.  The DNA in this instance consists not of double helixes but of Enron’s public disclosures about its financial condition. 

In "Open Secrets", Gladwell argues, um, that Skilling and other high Enronians pulled a Scarlet Pimpernel.  He claims that Pimpernel-like, Skilling, et al., hid their bandidtry in plain sight.  Investors have only themselves to blame, he suggests, for not seeing through Enron’s Pimpernelian disguise.

Gladwell harps on the difference that he conceives between "puzzles" and "mysteries".  Puzzles simply require accurate information to solve, but mysteries call for speculative judgments and guesses.  More data doesn’t help one decipher a mystery.  Additional knowledge may in fact only deepen it. 

Another super smart guy, Joseph Nocera, writes today in The New York Times about his gentle, ahem, disagreement with Gladwell’s innocence hypothesis.  Nocera, the contrarian, sets out to show that fellow contrarian Gladwell got his contrariness wrong in Skilling’s case.  What Gladwell calls "my semi-defense of Enron", Nocera concludes, "isn’t remotely true."

I love this stuff.  One brilliant fellow tries to convince us that we don’t know what we believe we know — that Skilling did wrong — and then another brainiac strives to persuade us that actually we do know what we believe.  You can almost taste the irony.

Nocera seems in the right here.  Gladwell’s earnest cleverness understimates, in my view, the rapacious ingenuity of fraudsters. 

But the innocence project goes ever on.  Thank goodness, because it keeps us trial lawyer types in groceries.

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© 2007 Barry Barnett.  All rights reserved.

As all the world knows, the Supreme Court of these United States has so far this term reached out its business-friendly arm to grasp the nettle of four antitrust cases — an extraordinary number.  The cases themselves present portentous issues for the future of antitrust litigation.  As all the world knows.

For the hardy souls still reading, congratulations!  You doubtless already know the cases, the extraordinariness of their number, the issues they involve, and their portentousness.  But, just in case a non-antitrust maven has gotten this far, here goes a quick summary:

• Bell Atlantic Corp. v. Twombly — The standard for pleading a price-fixing conspiracy.  Must you give who-what-when-where particulars?
• Leegin Creative Leather Products, Inc. v. PSKS, Inc. — Does a manufacturer/distributor’s requiring resellers to charge minimum prices violate the Sherman Act per se?
• Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co. — Requirements for a "predatory buying" antitrust claim.  Does the buyer have to lose money on the item that it bought too much of?  Must it also stand a good chance of recouping the loss?
• Credit Suisse First Boston v. Billing — Do federal laws that regulate the buying and selling of securities (stocks, bonds, and the like) provide immunity for conduct that would otherwise violate federal antitrust law?

Most knowledgeable people lean towards thinking, I think, that the Court’s decisions will curtail the reach of antitrust law.  The American Antitrust Institute, which favors broad application of antitrust principles, worries that the Court will leave antitrust laws "in a severely shrunken condition".  Lookie here.

The Twombly case could have the widest impact, especially with respect to price-fixing class actions.  Plaintiffs’ lawyers regard this variety of case the most attractive, especially if the Antitrust Division of the U.S. Department of Justice or, to a lesser extent, the Federal Trade Commission has brought a government enforcement action and won guilty pleas, indictments, or consent decrees from malefactors.  Unlike their private counterparts, government lawyers can compel potential bad guys to produce documents and furnish other information before filing a case.

The gloomy prognisticators of the outcome in Twombly fear that it will make previous government action practically essential for private antitrust litigation, such that only "follow-on" civil cases can survive a motion to dismiss.  I don’t share their despair.

I’ve long suspected that lax antitrust enforcement by federal agencies encourages dozens, if not thousands, of conspiracies to bloom.  The hands-off approach during the 1980s and early 1990s — when the Antitrust Division mainly pursued small-time contractors who rigged bids on road projects — led inevitably, in my view, to an abundance of conspiracies to discover and prosecute when a more assertive administration came in.

Will the same thing happen again?  Only time — not Twombly — will tell.

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Mass Torts Shmorts — Eat My Shorts.

Bart Simpson receiving the spark of life.  The image parodies Michelangelo’s Creation of Adam on the ceiling of the Sistine Chapel in Florence, Italy.

I don’t know from Yiddish.  I do realize that I just used a Yiddish idiom.  And Yiddish supplied the "shm" prefix to disparage "torts" in the title of this item.

What do I have against torts?  You have to ask?

I actually adore torts.  Fraud, trespass, tortious interference, prima facie tort, statutory tort, torts with shrimp, tort gumbo — you name it.  But I care bubkes for mass torts.  At least most of them.

My kvetching results from dreck I received in the guise of an email .  The spam spiels its purpose in the subject line:  "Drug Coated Stents — A New Mass Tort Opportunity".  Oy!  But wait.  It also says that  "a giant pool of potential litigants" exists and goes on to offer a "turnkey solution for mass tort advertising".  Services include ad placement and provision of "24 x 7 call center intake specialists".  You can even get help with financing your campaign and in "referring clients" to a "vast network of law firms if you have too many cases to handle."  Oy vey!  Nerrishkeit!

Macher author John Grisham potches mass tort lawyers in The King of Torts (2003).  Grisham ridicules them for their chutzpah  in revving up mass tort litigation for gelt — lots and lots of gelt.  But Grisham’s contempt for accuracy makes him a nebbish — possibly even a schmendrik — of legal writing.  He equates mass tort litigation with class actions, an error so meshuga that it turns the entire book into little more than schlock.  What a schmuck.

Still, Grisham captures the venality that characterizes some players of the mass tort game.  A real mitzvah by the author.

Which brings us to Bart Simpson.  The zaftig boychik of Homer and Marge, Bart says "eat my shorts" in defiance of conventionality.  I boldly say ongapatchka ("a little too much") about mass torts.  At least most of them.  L’chaim!

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Imagine, if you will, that you belong to a crackpot religion.  Your faith centers on a Chicago housewife’s prophecy of a Genesis-style flood.  The inundation will destroy the Earth at the stroke of midnight on a date certain.

Your excitement rises as the date approaches.  The faithful prepare for the end — mainly by making ready to board the flying saucers that will whisk you in the nick of time to the planet Clarion.  Unbelievers, of course, will drown.

The moment arrives.  Then it passes.  Tension grows.  Doubts start.  Some repudiate the leader, but many cling to their beliefs.  The prophetess announces that the very piety of the group prompted the Almighty to cancel the deluge.

What accounts for this stubbornness?  Pioneering psychologist Leon Festinger called it "cognitive dissonance".

Dr. Festinger’s work in 1956 tells us that contradictory evidence creates mental discomfort.  The conflict (dissonance) between opposing ideas (cognitions) hurts our punkin heads.  We try, unconsciously, to relieve the brain pain.  So we accept evidence that fits with our beliefs and reject evidence that doesn’t.

The same phenomenon happens with juries.  Take the O.J. Simpson trials.  A criminal jury acquitted O.J. of murdering Nicole Brown Simpson and Ronald Goldman.  Sixteen months later, a civil jury held O.J. liable for $33.5 million.  How could two different juries reach opposite results?

Most observers point to the racial composition of the criminal jury (mostly African-American) and the civil one (majority white) and the higher standard of proof in a criminal case (beyond a reasonable doubt versus preponderance of the evidence).  But the criminal jurors also had an explanation that civil jurors heard little of.  The hapless criminal judge allowed the defense to parade a marching band of conspiratorial speculations before the jury.  The theme of racist conspiracy struck a chord and allowed the jurors to disregard what many consider overwhelming proof of O.J.’s guilt.

Much the same thing happened with the followers of the flood prognosticator.  Against irrefutable evidence of false prophecy, the believers grew even more zealous in their faith.  They wanted to believe.  They needed to believe.  The set-backs simply impelled them into a frenzy of publicity-seeking and prosyletization.

Believe me now and think about it later.

Check out Barnett’s Notes

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