Cultivated Compendium

An excerpt of a piece I wrote for the Connecticut Law Tribune: 

A libel lawsuit being prosecuted by a Connecticut law firm against a California-based legal practice is showing some of the perils of using legal blogs.

Karl D. Shehu, whose Shehu LLC law firm is based in Waterbury, filed a lawsuit alleging defamation by San Diego-based attorney William Adams, of Norton Moore & Adams.

One key ruling so far in the case has been that the Connecticut attorney having a blog and the California lawyer having a blog is not enough to maintain a cause of action under the Connecticut Unfair Trade Practices Act (CUTPA). Another key ruling is that it is insufficient to maintain a CUTPA cause of action if the attorneys are in competition to have their websites appear at the top of search engine results.

According to court papers, Adams sent two emails to Shehu LLC and two officials at the Connecticut Bar Association, Alice Bruno and Bill Chapman, alleging that Shehu spammed his blog, commented on an article with mass-produced, irrelevant remarks, and otherwise "'used a dishonest ruse.'" The subject line allegedly read: "'Your Spam is a professional ethics violation.'" Adams further alleged, according to court papers, that the conduct was unethical and violated American Bar Association professional responsibility rules.

In Shehu's lawsuit, the Connecticut attorney alleges Adams made the comments knowing they were false and with the intention of causing harm to Shehu's reputation and career as an attorney.

In a third email, Adams allegedly contacted the bar association officials again and stated he had no evidence that anyone at the Shehu law firm had personal knowledge of the comments, and he concluded that the comments were "'part of an internet marketing campaign by Shehu LLC.'"

I'm blogging several times a day about products liability for Law.com. Each day I cross-post an excerpt of the day's blog I find most interesting.

Mass torts cases must not be aggregated, and plaintiffs must provide facts to support their claims through expert reports, in order to avoid having nonmeritorious cases clogging the court process, says the federal judge presiding over the federal Asbestos Multidistrict Litigation for 5.5 years.

Asbestos MDL-875 has been the largest MDL in terms of claims and cases, wrote U.S. District Judge Eduardo C. Robreno in an article published in the Widener Law Journal.

The consolidation of large number of cases not only raises due process issues by forcing parties to litigate or settle cases in groups, but incentivizes “the number of cases that can be filed, not the relative merit of the individual case,” Robreno said.

Asbestos litigation has grown to over 186,000 cases and more than 10 million claims. Only 2,979 cases are still in the MDL.During his tenure presiding over the MDL, Robreno reported he decided 528 summary judgment motions, 59 issues of substantive state law, 16 issues of federal substantive law and 16 issues of federal procedural law.

Consolidating cases also did not work to resolve the MDL, Robreno said, adding it was an open question whether a national MDL was necessary to resolve the claims.

One of the reasons aggregations of cases did not work to resolve the cases was that class certification was rejected by the Third Circuit and then the U.S. Supreme Court, Robreno said. The first asbestos MDL judge, Judge Charles R. Weiner, tried to settle the claims of 250,000 to 2 million individuals who had been exposed to asbestos. The settlement was rejected on appeal because of the “Supreme Court's concerns over the manageability of such a mixed and large class, as well as the inability of the class mechanisms to deal with the issue of future claimants,” Robreno said. Federal legislative fixes also failed.And when aggregation failed, the court and the parties did not return to the task of handling the cases on an individual basis, Robreno said. “This stage of litigation led some litigants to refer to MDL875 as a 'black hole,' where cases disappeared forever from the active dockets of the court,” he wrote.

While, “as a matter of judicial culture, remanding cases is viewed as an acknowledgment that the MDL judge has failed to resolve the case, by adjudication or settlement, during the MDL process,” Robreno said he turned away from that mindset and set a “rigorous schedule” for hearing summary judgment motions and issuing decisions.

Due to bankruptcies by the companies that made asbestos, litigation has shifted to bankruptcy courts and to the makers and suppliers of components that contained asbestos, including manufacturers or suppliers of brakes, turbines and packing. “In sum, the time between the filing of motions for summary judgment and the panel's issuing a remand order was 74 days,” he said.

More than 600 cases have been remanded to 59 districts. Most of those cases resolved without the need for a trial on the merits.

There also is an issue of fraud in asbestos fraud, Robreno said, with doctors acting as litigation consultants and making positive findings “often upwards of 50% and in some studies as high as 90%, suggesting that the readings may not be neutral or legitimate.”

The latest development in the controversy over changing how poor Philadelphians get their lawyers was City Council’s passage Thursday of a legislative package to establish financial and quality-control auditing requirements for some contracts.

The next question is whether Philadelphia Mayor Michael Nutter will veto the legislation.

If Nutter signs the legislation, then one piece of legislation involves a ballot question to be put to Philadelphia voters on whether City Council should have to approve contracts for indigent representation of more than $100,000.

Nutter’s administration wants to change from a model in which individual attorneys get court appointments in criminal and family-court cases in which the Defender Association of Philadelphia, the Support Center for Child Advocates or Community Legal Services have a conflict of interest. Instead, Nutter wants to contract with a new for-profit law firm to handle the work.

Councilman Denny O’Brien, the main opponent to the mayoral plan, said in his official remarks “I do not believe that every contract should require City Council approval. However, I do strongly believe that any contract dealing with an individual’s constitutional rights is important enough to require Council approval."

The plan to award the contract for a new Office of Conflict Counsel to Philadelphia attorney Daniel-Paul Alva was scuttled because Alva not have the same name in place at the start of the process as at the end of the process. So the contract couldn't be issued legally.

By making the legislative threshold $100,000, O’Brien’s legislative package would not involve review of the contracts with individual private attorneys. The Defender Association, the Support Center and CLS also were carved out because they have been contracting with the city for many years, O’Brien said.

The Legal Intelligencer’s P.J. D’Annunzio and the Philadelphia Inquirer also reported on the development.