Posted on July 31, 2009 by Max Kennerly, Esq.

Third Circuit Dismisses Suit By Arbitrator Against Law Firm For “Scorched Earth” Tactics

All's fair in love, war and litigation: An arbitrator cannot sue a lawyer for wrongful use of civil proceedings, the 3rd U.S. Circuit Court of Appeals has ruled, even if the lawyer allegedly lodged false accusations in court papers to have the arbitrator disqualified, because lawyers enjoy an "absolute privilege" that immunizes them from liability over any communication made in the course of litigation. The five-page unpublished opinion is available here. It says: The underlying litigation in this case began in 1995 when Anthony Patterson, a member of the Church of the Lord Jesus Christ of the Apostolic Faith in ... Continue Reading

Posted on July 29, 2009 by Max Kennerly, Esq.

Should Pennsylvania Taxpayers Be Forced To Hire Lawyers On The Billable Hour?

In today's Wall Street Journal: Good news: The Pennsylvania Supreme Court has agreed to hear an unusual but important legal challenge in a case involving Governor Ed Rendell’s hiring of a contingency fee law firm to sue a drug manufacturer on behalf of the state. The lawsuit—which we first wrote about in April—concerns Bailey Perrin & Bailey, a Houston law firm tapped by the Rendell administration to prosecute Janssen Phamaceuticals over the marketing of its antipsychotic drug Risperdal. When states lack the resources or expertise to bring certain suits, it’s not uncommon for them to seek help from private lawyers. ... Continue Reading

Posted on July 27, 2009 by Max Kennerly, Esq.

Hospital Sues Health Insurance Company For Cheating Patients Out of Emergency Care

Although some physicians continue to claim medical malpractice liability is the biggest problem affecting access to health care (despite the total cost of medical malpractice premiums being $0.50 for every $100 spent on health care, and despite premiums being the lowest they've been in over forty years), the real problem, as alluded to by this American College of Surgeons report, is "declining reimbursement." That's a euphemism for one of the ugliest businesses in America. We got a glimpse into that ugly business last week, when Bayonne Hospital Center sued Horizon Blue Cross Blue Shield of New Jersey (hat tip: Movin' Meat), ... Continue Reading

Posted on July 24, 2009 by Max Kennerly, Esq.

VC Firm Pushes Zappos To Sell To Amazon: A Good Example Of Framing Contracts Around Likely Future Disputes

Amazon just paid a little under a billion dollars for Zappos, a shoe-company with legendary customer service. Of interest to those of us in the litigation business is this post at peHUB: One of the sources says Zappos was financially strong enough to wait for the IPO market to recover, if it chose to go that route. The source, a Zappos shareholder who has seen the company’s income statement reports, said that the company did over $1 billion in gross revenue in 2008, $625 million in net revenue and had an EBITA greater than $40 million. Zappos had raised $49.1 ... Continue Reading

Posted on July 22, 2009 by Max Kennerly, Esq.

Grider v. Keystone Health: Will The Third Circuit Let Defense Lawyers Walk All Over The District Courts?

[UPDATE: In its ruling, the Third Circuit set forth the appropriate standard for sanctions and concluded the conduct was likely sanctionable, but refused to remand the case back to the District Court for further proceedings, thereby vacating the order while still criticizing the attorneys involved. The opinion is at Grider v. Keystone Health Plan Central, Inc., 580 F.3d 119 (3d Cir. 2009).] How Appealing points to this Shannon Duffy article in The Legal Intelligencer: Shockwaves reverberated through the civil defense bar in September 2007 when a federal judge imposed sanctions on several lawyers and their clients for engaging in discovery tactics ... Continue Reading

Posted on July 19, 2009 by Max Kennerly, Esq.

Is The Philadelphia Police Department Liable For Racist Posts On Domelights.com?

As The Philadelphia Inquirer reported on Friday: An association of black police officers has sued the Philadelphia Police Department in federal court for allowing its officers to post "blatantly racist . . . and offensive" content on a popular Web site devoted to law enforcement topics. The suit, filed Wednesday, says Domelights.com, which bills itself as "the voice of the good guys," was founded by a Philadelphia police sergeant who uses the screen name "McQ" and "encourages the racially offensive conduct." ... Guardian Civic League attorney Brian Mildenberg said that black officers had long reviled the site and that complaints ... Continue Reading

Posted on July 17, 2009 by Max Kennerly, Esq.

Department of Justice Implicitly Rejects John Yoo’s Constitutional Arguments

The WSJ Law Blog spots an interesting development: In June, as we blogged here, a San Francisco federal judge ruled that convicted terrorist Jose Padilla can sue Yoo, the Bush administration lawyer who authored some of the now famous war-on-terror memos, including one that opined the military can use “any means necessary” to hold suspected terrorists. ... Yoo has now turned for help to Miguel Estrada, the powerhouse Gibson Dunn appellate litigator who was nominated by Bush to serve on the D.C. Circuit Court of Appeals. Estrada’s nomination was scuttled by Democrats, a point repeatedly harped on by Republican senators in ... Continue Reading

Posted on July 16, 2009 by Max Kennerly, Esq.

Time-Tested Advice For Young Lawyers About Contracts Which They Should Ignore

The Blog of The Legal Times talks about the Sotomayor confirmation hearings: Under questioning from Sen. Ted Kaufman (D-Del.), she spoke in greater detail than she has before about her career as a commercial litigator. She said she learned the importance of predictability in business law when partners would revise the drafts of settlement agreements she had written. The partners, she said, replaced her plain language with what she considered "gobbledygook," in order to conform the agreements to court precedent. "In business, the predictability of law may be the most necessary," she said, "in the sense that people organize their ... Continue Reading

Posted on July 9, 2009 by Max Kennerly, Esq.

How The Valley Swim Club Racial Discrimination Lawsuit Will Go Down

[Update II -- Anne Marie Green of CBS3 (KYW) News Philadelphia also spoke with me about case, particularly the relief available to the day camp members. Video available here. Update -- Jon Elliott on San Diego 1700AM interviewed me on the incident and the law. List of their podcasts here (I'm "7/10/09 2nd Hour, 07/10/09 4:00pm"), direct link to 36MB MP3 here. Best part is when a spaceship lands in the middle of my interview.] You've probably heard by now about the Valley Swim Club / Creative Steps Day Camp incident, in which a Huntingdon Valley "private" swim club apparently refused to let 65 ... Continue Reading

Posted on July 8, 2009 by Max Kennerly, Esq.

Philadelphia Swim Club Refuses Black Children Because Of Their “Complexion”

[You may wish to see my follow-up post, How The Valley Swim Club Racial Discrimination Lawsuit Will Go Down] NBC Philadelphia says: More than 60 campers from Northeast Philadelphia were turned away from a private swim club and left to wonder if their race was the reason. "I heard this lady, she was like, 'Uh, what are all these black kids doing here?' She's like, 'I'm scared they might do something to my child,'" said camper Dymire Baylor. The Creative Steps Day Camp paid more than $1900 to The Valley Swim Club. The Valley Swim Club is a private club that ... Continue Reading