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------------------------------------------------------------------------- Randy Cassingham's True Stella Awards #82 19 December 2007 ---------------------= http://www.StellaAwards.com =--------------------- HOT MEAL, COLD HEART by Dan Fingerman Meal-delivery agencies provide a valuable service. They provide hot, nutritious meals and daily human contact to those who have trouble getting out of the house, shopping, and cooking for themselves. Most of their employees and volunteers are caring people who understand the value of what they provide. Anne Keipper lives in Brookfield, Wisc. At 81 years old, she depends on delivered meals. And surely her delivery agency knew -- as one of its clients -- that she probably couldn't shovel snow from her driveway each winter. She does go out of her way to have someone else plow it out so that others can reach her door, however. On February 2, 2004, Keipper recalls, "There was a little bit of ice, not much at all," left on her driveway after it was plowed. When Dolores Tanel arrived to deliver her meal that day, Tanel slipped on what little ice was left. She was hurt badly enough that another member of the delivery team called an ambulance. Keipper heard nothing else about the incident for a long time -- until Sentry Insurance Company sued her. Stereotypically, the legal system is abused by opportunists trying to cash in against "deep pocket" companies. This time, the "deep pocket" is the plaintiff's. Even Tanel -- the woman who was injured -- didn't want to sue, but Sentry dragged her into the lawsuit as an "involuntary plaintiff." Sentry, not Tanel, is the driving force in this case. According to the complaint, Tanel received worker compensation benefits after her injury. As Tanel's employer's insurance company, Sentry wants Keipper, the homeowner, to reimburse it for the benefits it had to pay to Tanel. Insurance companies perform risk analysis before issuing a new policy. Their premiums are calculated based on their assessment of the potential injuries they might have to pay for and the likelihood that various kinds of injury will occur. When Sentry chose to insure the meal-delivery agency, Sentry knew it was doing business in Wisconsin and that its clients were people who wouldn't be able to shovel snow and scrape ice. Despite knowing these risks and collecting profitable premiums, Sentry wants to shift its costs to Anne Keipper, even though there's no outrageous negligence on her part. Keipper is understandably upset. "It makes me mad because it wasn't my fault." On the day of the accident, she noticed that Tanel hadn't taken the simple precaution of wearing boots. "What I remember seeing," she told a reporter, "is that she had red shoes on, not boots." Fortunately for Keipper, it appears she had her own insurance policy, with Acuity of Sheboygan. Normally, a homeowner's insurer will pay the cost of defending such a lawsuit and pay for a settlement or judgment against the homeowner (up to the policy limit). However, Acuity is apparently named as a separate defendant in the lawsuit. So it's unclear if Acuity is providing a defense for Keipper and if it would pay a judgment against her. And Keipper, the 81-year-old who relies on meal delivery, just might be left with nothing. SOURCE: "81-Year-Old Sued in Meal Deliverer's Fall", Milwaukee Journal Sentinel, 1 February 2007 http://StellaAwards.com/cgi-bin/redirect5.pl?82a ABOUT THE AUTHOR Dan Fingerman is an attorney with Mount & Stoelker in San Jose, California. He practices in the areas of intellectual property and business litigation. Dan earned degrees from Yale University in 2000 and the Boston University School of Law in 2003. In his spare time, he coaches a local high school's Mock Trial team and writes a blog about science, technology, and the law, at http://www.DanFingerman.com/dtm -v- CASE UPDATES by Dan Fingerman TSA rails against the injustice of frivolous lawsuits, so it is especially satisfying to give updates on two previous Stella Award winners where the defendants had good outcomes. The general rule in American law that each party must pay its own costs and attorney fees can lead to unfortunate results in frivolous cases. Sometimes, however, a court can repair the damage. In federal court, Rule 11 of the Federal Rules of Civil Procedure authorizes sanctions against any party or attorney who makes false statements or asserts frivolous arguments. The judge has broad discretion to determine what sanction is appropriate, within this guideline: "A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated." Usually, when Rule 11 is invoked, the court orders the offending party to reimburse the costs (including attorney fees) that it caused others to incur. Many states have similar provisions. Some non-procedural laws also have built-in safety nets. The federal Patent Act, for example, authorizes the court to award attorney fees to the prevailing party at the end of patent-infringement suits in "exceptional cases". It's hard to imagine what's more exceptional than filing a patent-infringement suit when the plaintiff has no patent. We'll see the relevance of both rules in the updates on KinderStart's suit against Google (the runner-up for the 2006 True Stella Award), and Chris Roller's assault on "ten percent of the country" -- the winner of the True Stella Award in 2005. KinderStart v. Google You may remember from the 2006 awards that KinderStart.com claims to be the "largest (and most popular) indexed directory and search engine focused on children zero to seven on the 'net." But Internet users generally find KinderStart.com through other search engines, such as Google. When KinderStart's "PageRank" in the Google search engine dropped, it experienced a 70 percent drop in traffic and an 80 percent drop in revenue. KinderStart.com sued Google, alleging that Google artificially manipulated its Page Rank system to hurt it. KinderStart accused Google of violating its free-speech rights, interfering with its business relationships, anti-competitive conduct, predatory pricing, unfair competition, and defamation. Google moved to dismiss the case. The court ruled that, even assuming that KinderStart's allegations were true, it would not be entitled to any recovery against Google. At the same time, Google moved for sanctions against KinderStart and its attorneys, David Kramer and Gregory Yu, under Rule 11. Google identified three sets of allegations in KinderStart's complaint as "specious" and lacking "any factual foundation and were made without a reasonable and competent inquiry." The allegations were: (1) "that Google skews its search results and reserves top placement for entities that compensate Google," (2) "that Google represents that it will always display a notice when it removes a listing from its search results, but does not do so," and (3) "that Google removes certain websites from its search engine results and lowers PageRanks for political and religious reasons." Opposing Google's motion, attorney Yu submitted a declaration (written testimony) in which he swore under oath that two individuals had told him that Google manipulates its PageRank system in favor of companies that pay money to Google. To support its allegations of political and religious censorship, Yu identified "ten websites that allegedly experienced negative treatment at the hands of Google." The PageRanks of those sites had dropped, and their operators suspected it was due to their political or religious content. The court noted that this was largely hearsay and that it conveyed rumors and coincidences, but no personal knowledge of those facts. "The Court conclude[d] that the allegation that Google sells priority placement in its results should not have been made based upon the limited information identified by Yu." Also, even if KinderStart has identified discrimination against others, it does not allege that "KinderStart itself suffered any discrimination by Google for political or religious reasons." "The Court conclude[d] that the challenged allegations are factually baseless with respect to KinderStart" and that attorney "Yu failed to perform an adequate investigation before filing them." After dismissing the complaint, the court awarded money sanctions to Google. After hearing arguments about the hourly rates of Google's lawyers, the number of hours spent, and the amount of work done, the court awarded $7,500 -- about a third of Google's total expenses. KinderStart argued that any legal fee above $200 per hour was excessive. The court noted that hourly rates of $350 to $600 in patent litigation were "not excessively high." Google's "decision to employ highly- qualified lawyers to defend it in complex, high-stakes litigation is reasonable and in line with the prevailing practice of other corporations." The court did not award the full amount of Google's fees, however, "to reflect the equitable considerations and the purpose of Rule 11. There is no evidence that Yu acted with subjective bad faith in including the sanctionable allegations, and he does not appear to have extensive financial resources." The $7,500 judgment against KinderStart and attorney Yu is currently being appealed. -v- Christopher Roller In TSA #66, we introduced Christopher Roller, of Burnsville, Minnesota. Suspicious of the spectacular feats of magicians David Copperfield and David Blaine, Roller sued to find out how they were done. According to the complaint, Roller is God's representative on Earth, and Blaine and Copperfield were usurping his "divine powers" for financial gain. What was Roller's "evidence"? He couldn't figure out how the tricks were done. Roller asked to the court to order the magicians to reveal his secrets, or pay 10 percent of their estimated earnings in damages. That amounted to "over $2,000,000" in the case of Blaine, and $50 million from Copperfield. Roller's spectacular reasoning won him the True Stella Award in 2005. It's unclear how a U.S. court could rule on the existence of godly powers, let alone whether one person is more entitled to them than another. The court dismissed the suit, so we won't find out (at least not this time). Unfortunately, Mr. Roller wasn't done brutalizing our legal system. In the next issue (TSA #67, 16 November 2005), we ran a letter to the editor from magician and skeptical debunker James "The Amazing" Randi, who had read the case write-up. Randi wrote, "Please ask Mr. Roller to sue me, too! I can't wait!" On December 1, 2006, Mr. Roller indeed sued the James Randi Educational Foundation (JREF). The foundation offers a $1 million prize to anyone who can demonstrate a paranormal ability under proper observing conditions. Mr. Roller claims to have demonstrated divine powers -- although he never applied for the prize or showed his powers to anyone at JREF. When he didn't receive a $1 million check, he sued JREF for "breach of contract". (Disclosure: my firm, Mount & Stoelker, represents JREF in an unrelated matter, but I did not represent JREF against Mr. Roller. The information in this update comes from publicly available court records.) Meanwhile, Mr. Roller filed a patent application in the U.S. Patent & Trademark Office. According to his application, "Christopher Anthony Roller is a godly entity," and he "wants exclusive right to the ethical use and financial gain in the use of godly powers on planet Earth." Although the PTO rejected Mr. Roller's application, it automatically publishes all applications. To the untrained eye, the format of a published application looks misleadingly like a real patent. Mr. Roller took his rejected, published application and sued JREF again -- for patent infringement. JREF moved to dismiss both suits and asked the court to impose sanctions on Mr. Roller. At the hearing on Randi's motion, "the Plaintiff stated that this patent litigation is the first in a series of patent litigations where he intends to sue ten percent of the country." The magistrate assigned to the case identified 11 other suits filed by Mr. Roller that were already pending in the same court. The magistrate recommended that Mr. Roller be sanctioned. Since Mr. Roller caused all this trouble as a "pro se" plaintiff (by himself, without a lawyer), the magistrate recommended barring him from filing any new lawsuits. The court adopted the magistrate's recommendation: The Clerk of Court shall not accept any further cases filed in this Court by plaintiff against defendant Randi, or regarding claims or allegations AGAINST ANY DEFENDANT similar to those alleged in the Complaint, without the signature of an attorney admitted to practice before this Court or prior leave of an appointed judicial officer of the federal court of Minnesota. [emphasis in the original] The other suits already filed by Mr. Roller are winding down, as the defendants are getting them dismissed. But this doesn't undo the damage -- it only prevents the damage from growing. The defendants already had to hire lawyers and pay them to appear in the Minnesota court, even though many of the defendants had never been to Minnesota. Even if the court orders Mr. Roller to reimburse those costs, it may not award the full amount of the costs incurred, and Mr. Roller may not have the money to pay. But at least there won't be more victims in the future. SOURCES: 1) "United States Patent Application Publication", Pub. No. US 2007/ 0035812 A1, 15 February 2007 (PDF file: 76K) http://www.StellaAwards.com/cases/roller-patent-application.pdf 2) Court filing, dismissal of Roller lawsuits, U.S. District Court, Minnesota, 5 June 2007 (PDF file: 106K) http://www.StellaAwards.com/cases/roller-dismissal.pdf 3) Court filing prohibiting further Roller lawsuits, U.S. District Court, Minnesota, 28 September 2007 (PDF file: 16K) http://www.StellaAwards.com/cases/roller-prohibition.pdf 4) Court filing, dismissal of KinderStart suit, U.S. District Court, Northern California, 16 March 2007 (PDF file: 228K) http://www.StellaAwards.com/cases/kinderstart-dismissal.pdf 5) Court filing ordering sanctions against KinderStart, U.S. District Court, Northern California, 16 March 2007 (PDF file: 91K) http://www.StellaAwards.com/cases/kinderstart-sanctions.pdf ----------==========**********O**********==========---------- "You're an idiot! Why so much?" my friend asked. He of course was talking about my car insurance premiums. And, he was right. I don't think you're an idiot, so paying less is right up your alley, right? Get a free quote and compare companies before choosing: http://LowerAutoRates.com/tsa ----------==========**********O**********==========---------- COMMENTS AND LETTERS Welcome to the second guest writer I have producing True Stella Awards case write-ups. Dan, Jeffrey Anbinder (who wrote the case in TSA #81) and I will be writing the case reports, which I hope will mean that we can get things published more often. I have a ridiculous case backlog, but at least that means I'll be able to be more choosy as we go through them. So on to letters about TSA #81, which was probably the case that was suggested more than any other this year. It's about a judge(!) who filed a lawsuit over a missing pair of pants he took to the dry cleaners. When they lost the pants, he sued them -- for $65,462,500. For ONE pair of pants. He lost the lawsuit, as well as his appointment as administrative law judge. http://www.stellaawards.com/previousissue.html has a copy if you missed the amazingly fun write-up of the case. Cindy in California: "Thank you for keeping with this story. I wondered what became of the lawsuit! Hurray! This so called judge lost his job, serves him right. You're also correct in the fact he should lose his license to practice law!" I do love it when I can report "what happened" in a case. Sometimes it takes awhile, but I'll come back to it if I can get updated information, such as the updates in this issue. Joel, a Certified Paralegal in California: "A few points you overlooked: 1. The Plaintiff is not a 'real' judge. He was an Administrative Law Judge, which often bears much the same relationship to a real judge as a two-bit prostitute does to a chaste woman. 2. The Plaintiff achieved his 'judgeship' through racial discrimination. He was an affirmative action beneficiary, and was not considered in any way particularly smart or deserving. Other than through his skin color. 3. The Plaintiff was considered, by some people close to the matter, generally obnoxious and 'pushy.' 4. The Plaintiff may have been a bigot, according to some people close to the matter. He was quoted as making various bigoted remarks about 'yellows... slants... slopes.' The Plaintiff was, in my opinion, a dirtbag. But it is interesting to see that the media reports only his financial dirtbag actions, and overlooks his reputed bigotry." Well, 1. We clearly identified the exact nature of his position in the introduction; I prefer to leave it up to the readers as to the level of respect he should get. But then, actions are far more important than titles, and he's getting the respect he deserves based on that, not his title. 2. Your objective, verifiable source for this assertion is...? 3. Your objective, verifiable source for this assertion is...? 4. Your objective, verifiable source for this assertion is...? We don't report rumor, we report what we can objectively verify, and then express our opinion on what we find. I have no idea whether Judge Pearson was the beneficiary of affirmative action or not, and whether he was qualified or not (in an educational and experience sense); his actions, not his skin color, proved he was not. If true, bigotry could be relevant in this case since the defendants were Asian, but as far as us missing some points, yeah: we cannot very well cover every single bit of ANY case in a brief newsletter. I did do some expansive exploration of a couple of cases in my book (see http://www.StellaAwards.com/book.html for info), most notably the asbestos litigation mess, but here we necessarily have to stick to overviews. On that point, for instance, several readers thought the dry cleaners were at least somewhat to blame for their own predicament, including Yogin, an IT manager in India: "In this case, both were in the wrong -- the dry cleaners tried to take the judge for a ride, and he took the entire system for a ride. I guess this is what comes from people having too much time on their hands. The cleaners should have handled the situation better; it doesn't matter that they were awarded court fees and stuff, the anguish and subsequent closure of their business outlet meant that in some way, they've paid for their wrongs. In all this, they kept a whole other bunch of people occupied doing something quite worthless. The judge; well, what a legal system. How can such a person get elevated to the level of judge???" At least the system corrected itself: he's not a judge anymore. (And the defendants dropped their claim for "court fees and stuff" to try to get things behind them.) -v- I got an interesting 1200-word letter from John, a retired lawyer who practiced for 31 years in Philadelphia, Penn. Excerpts: "I applaud your work. A primary reason for this is the fact that you make your pitch while maintaining a rigorous fairness (such as advising people right off the bat about the phony Stella Awards, and the fact that you don't just support all tort reform efforts). I have differences about viewing frivolous cases. I don't like them; but consider that some are inevitable with an independent bar and wonder if overall the lawyers and judges aren't doing a decent job. I would like to see fewer such cases, but considering the 17 million or so cases filed per year, I believe that the number of looney/frivolous cases may not be inordinate. You can rightly say that any such are inordinate, but the matter of maintaining access for legitimate claims is very important. I view the lawyer-induced delays and high lawyer costs as probably more detrimental, in terms of delaying justice, burdening the courts, and causing parties to settle just in order to get rid of the case and minimize exposure. But in any event, I submit that what you are doing in pointing out the lengths to which some lawyers and citizens will go in exploiting the courts for self-interest is healthy for the legal system. I am pleased that you are not a lawyer. That has advantages that I lack. Your approach [in your book] is good; I like the boxes on legal definitions and matters, and the comment and Conclusion(s) at the end. You present a good book that is readable to lay persons, and alerts them to some areas of the legal world that are in issue. I do believe that the bar will have to take the lead if we are ever to effect significant reform. But pressure from the public will be necessary to push the lawyers. I hope that efforts like yours can get people to take a look at both sides of the lawyer issue in order to get a better understanding of the facts, and to then take a constructively critical position. Good luck." Thanks, John. I especially appreciate it when lawyers enjoy my work. Anyone who reads carefully understands that I'm not anti-lawyer; as I said in my book (and here), I believe that most lawyers are good and idealistic people who are really trying to make the system work, and are as disgusted as I am when their colleagues abuse the system they're a part of. John suggests that a certain level of frivolous cases "are inevitable with an independent bar." That's probably true, but even if only 1 percent of cases are frivolous, that comes out to 170,000 frivolous cases -- such as little old ladies who depend on "Meals on Wheels" for an occasional hot meal getting sued even after they've cleared their driveways. Even if we managed to squeeze that rate down to just 0.1 percent, that's still 17,000 cases per year, or more than one case in every state every single work day. Is that "inordinate"? You bet! That's a lot of victims having to defend themselves against ridiculous accusations at great personal cost. The system will never be perfect, and I don't expect it to be. But it can be better, and that's what I'm working toward. Thanks for agreeing with me that pressure from the public is necessary; that's exactly what this newsletter is about: giving the public real information, not made-up bogus cases, to make the point. If they can be entertained at the same time, well that's just icing on the cake. And speaking of those bogus cases: HUNDREDS of web sites are posting them, with no change except that the year now says "2007". But 2007 isn't over yet, folks! We don't issue the awards until January. Please do point the misguided bloggers at http://www.StellaAwards.com/bogus.html when you see fake Stellas posted; there's no point in illustrating a real problem with fake evidence. -v- Last, any Twitterers out there? I've joined the Twitter bandwagon if you want to follow along: http://twitter.com/ThisIsTrue --Randy Cassingham TO SUBSCRIBE and receive the TRUE Stella Awards by e-mail for FREE, see http://www.StellaAwards.com TO UNSUBSCRIBE, see the last line of this message. YOUR COMMENTS are welcome -- http://www.StellaAwards.com/contact.html Please include your first name, location and profession. Due to volume we cannot reply to most mail, and NEVER provide legal advice. If you have legal questions, contact an attorney. TO SUBMIT A CASE *please* do NOT e-mail us. Instead, please use the form on our site at http://www.StellaAwards.com/submit.html SOURCE REFERENCES are kept up-to-date on our server as possible; the URLs given should work as long as the articles are available online. Some sites may require registration to view articles. STELLA AWARDS is a project of "This is True" -- http://www.thisistrue.com -- and is published by ThisisTrue.Inc, PO Box 666, Ridgway CO 81432 USA. Copyright 2007 by Randy Cassingham, All Rights Reserved. ALL broadcast, publication, retransmission to the WWW, e-mail lists, or paper, or copying or storage, in any medium, online or not, is PROHIBITED without PRIOR written permission. However, permission is granted to circulate this publication via MANUAL forwarding by e-mail to friends PROVIDING THAT the text is forwarded IN ITS ENTIRETY, from the title line on top through the end of this paragraph, and NO FEE is charged. 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Updated: May 2007