Unused and Probably Unusable

Coturnix informs me that the latest Skeptics' Circle is up, and this week's conceit is that the collected posts are the latest scientific literature. Blog names are transformed into a listing of the contributing authors, e.g. ("Left, Brain, Right and Brain, 2006a, b"), to amusing effect.

Coturnix has been a prolific carnival host, and has been involved with meta-carnivals - carnivals of carnivals. Also known as Bora Zizkovic, Coturnix is also the blogger behind The Magic School Bus (edublogging) and Circadiana (clocks, sleeping, jet-lag, fruitflies; science-blogging at some of its narrow best).

On the one hand... on the other:

EU's anti-terror chief: no proof of CIA prisons; and yet, C.I.A. employee fired for alleged leak.

I'm not at all surprised that the firing was announced on a Friday afternoon. The hope, eternally springing, is that the news cycle will have chewed through the announcement a few times during the weekend, when nobody is paying attention, and that perhaps a bigger or newer story will break before Monday, pushing the embarassing disclosure into old news, and therefore oblivion.

When the administration is proud of something it's done, there's a speech, a live press conference carried on the radio and CNN, lots of press releases. When they're nominating, covering up, or whitewashing something they'd rather no attention be paid to, naturally it's kicked out the door as quietly as possible.

As to the merits of the firing of the anonymous employee: it is, of course, often grounds for losing one's job to disclose information of importance to national security. Or at least losing security clearances, etc. In fact, if done to harm national security interests, or at least with reckless disregard therefor, it's arguably treasonous. Contrariwise, disclosure of important information whose secrecy harms national security interests presents a strong defense. It's not treasonous not to disclose that the U.S. is doing something illegal, immoral, and/or contrary to our own stated position. But there is a much better argument for the disclosure. See, e.g., the Pentagon Papers. Whether the fired agent might have a valid claim based in the First Amendment is beyond my expertise, but doubtful. The courts often refuse to hear such cases, even with secrecy and filings under seal. See Tenet v. Doe, 3/2/2005.

And in other amusing news, art imitates life: Property Tax Dispute Threatens Band of Polygamists. In Big Love, aired on HBO, Bill Paxton's character Bill Henrickson, a closeted polygynist (okay, a polygamist-in-this-case-meaning-a-man-with-three-wives) in a feud over tribute/tithing/a loan/shakedowns with his father-in-law, the Prophet Roman Grant (Harry Dean Stanton), contacts Utah's Attorney General's Polygamy Czar and warns Roman that he'll tip off the Czar regarding an investigation of shady real estate deals involving unsuspecting senior citizens.

Query whether the NYT would be so quick to cover the investigation - or at least run it so prominently - if "Big Love" had not roused so much interest in polygamy in recent weeks. Maybe the media refers back to art, imitating life....

Class action tolling is a doctrine applicable when a complaint is filed by an individual plaintiff alleging class action status (that is, the complaint should apply to me, and to others similarly situated, in a manner I define thusly), but the court either denies certification of the class or grants it but later decertifies. At that point, individual absent class members might be out of luck as far as filing their own individual complaints, because deciding class certification often takes a court a while.

Worse, if they knew about this problem, the rational response would be for them to flood the court with individual lawsuits, despite the pendency of a proposed class action to which they would belong if it were certified.

It looks messy. Wasteful. Better to give them a shot to wait it out, and file only if it turns out to be necessary.

Thus, class action tolling.

The Effect of Tolling

A medical malpractice article misleadingly suggests (The Class Stops the Clock) that the effect of tolling is to "suspend" the running of the clock. Perhaps it is to be forgiven (and it's a really good article, most ways, detailing the origin of the doctrine in the 1973 Supreme Court case American Pipe v. Utah; see especially its nice discussion of the trap for the unwary in the majority rule that an absent class member who files her complaint before the class certification is decided does not benefit from tolling).

But the rule is not at all that time stops for purpose of the statute of limitations when the complaint is filed, and starts running again when certification is denied or the class is decertified.

No, Chardon v Fumero Soto (1983) establishes that a court must consult the substantive law's tolling provision, if there is one, and that under certain circumstances an entirely new statutory period may run. It depends if, as in American Pipe or Crown Cork & Seal v. Parker (1983) the statute indicates "suspend" (see section 5 of the Clayton Act for antitrust, for example) or if the statute, like the Puerto Rican savings provision in Chardon grants a new statutory period for the re-filing.

(A savings provision will allow a plaintiff, kicked out of court for a non-merits based reason [like jurisdiction, or the class action which included them failing on the basis of numerosity, typicality, or adequacy of representation] to refile within a certain length of time, despite the running of the statute of limitations between the time of filing and the dismissal of the claim.)

That is, one could be gravely incorrect if one assumed that the only possible result of application of tolling to an absent class member's individual claim would be that they would have the time they had remaining left in the statute of limitations when the complaint is filed "tacked on" to the moment of denial or decert.

Other reading

Evan previously blogged about Class Action Tolling at the Illinois Trial Practice Weblog.

Prof. Rhonda Wasserman of University of Pittsburgh School of Law has written about tolling in successive class actions, or what I believe is called the "anti-stacking" rule.

Norm (not McDonald; I like this one a lot better) Pattis complains in Class Action Reform about fee awards, which in his view are run amok.

Norm complains about unfettered greed, notes that the freedom of lawyers to contract is not supposed to be unlimited (they must be reasonable, goes the touchstone), and otherwise knocks class actioneers. Some of us, anyway.

"The savvy lawyer seeks a case involving small harm to a large number of people." Actually, a really savvy lawyer seeks a case with a LARGE harm to a large number of people, ideally with treble damages as well as attorney's fees provided by statute. If by savvy one means greedy, anyway. Assuming there's no competition for that same juicy prize.

In fact, some class action plaintiffs' lawyers probably are greedy. Unlike, say, some criminal defense or civil defense lawyers, I'm sure.

Norm complains about an 800k fee result in a $2.5 million class action involving prisoner strip searches. That works out to a roughly 33% fee, within the bounds of typical contingent fees in individual cases. Now, I would be willing to stipulate that on a $4.5 billion recovery, the correct measure of fees might well be lower than a third - that the pool (usually it's not only not just one lawyer, nor even one firm, but many firms) share from a slightly smaller portion of that gigantic whole. Say, a quarter, or even 20% - it depends.

But the fact that Norm has kept his fees low in 1988 actions doesn't prove that all contingent fees are outrageous. Plaintiffs lawyers working on contingency are taking a risk - the horrible, horrible risk that there won't be a recovery, despite the lawyer time, energy, work, expert fees, and blood, sweat, and tears invested. It's not just disappointing - the way a defense firm feels disappointed when its client, or often its client's insurance carrier winds up having to pay as part of a settlement or for a judgent - it means that the plaintiffs lawyers may lose. Lose big. It's a gamble, it's a risk, it means that you can't take frivolous cases, can't waste time on claims where there's no chance of a sufficient recovery to make it worth it.

There's a reason why class actions are allowed. If they weren't, or if a rule like Norm's proposed rule maxing out the lawyer's fee at "some reasonable muliple of the harm caused to a representative plaintiff," which would make it uneconomical to bring a claim on behalf of 10,000 people who all lost $500, then the Defendants of the world would have an incentive. A bad incentive.

Bad actors would be incentivized to calculate the likely recovery yield (what percentage of injured parties actually sue, what percentage of cases result in some recovery), the likely damage from other related factors (harm to reputation or stock price from being a bad actor), and then deliberately harm thousands of people at a low level. It would be an economically efficient transaction - and thus, practically required. Why, it might justify a shareholder lawsuit if you failed to screw the victims.

To sum up: I'm outraged, but Norm may be right about some outlying fees, but that doesn't mean his rule is sane, but some limitations are a good idea, but we have some in the form of judicial review and approval before accepting attorney's fees, but that doesn't stop Reformers (read: pro-defense lobbyists, all too often) from urging more "Improvement" of the law.

A NYT article (Study Fuels Growing Debate About Lineups, April 19, 2006) has this lovely quote:

"There are people who'd say it's better to let 10 guilty persons free to protect against one innocent person being wrongfully convicted," said Roy S. Malpass, a professor at the University of Texas at El Paso

Those some people, of course, include William Blackstone, one of the closest things American law has to a patron saint.

Now, I know it's a rhetorical point, I know Prof. Malpass is not just inventing a strawman to demolish it. But his followup, "I'm fine with that when we're dealing with juvenile shoplifters," Dr. Malpass said. "I'm not fine with that for terrorists. We haven't figured out the risk there." rubs me the wrong way.

We aren't so much in the business of setting free the guilty, although we do that as necessary to prevent the state from convicting without evidence, or without respecting individual rights, or by otherwise cheating. What we also are not supposed to be in the business of, is convicting the innocent, which is the focus of the article.

Eyewitness identification, like much of human perception, cognition, and reporting, can be wildly flawed. Given how strongly most people still weigh eyewitness identification, despite its often unacceptably high levels of unreliability, we should be moving - swiftly! - to do something about it.

Eyewitnesses can break a case wide open. They can provide what no-one else can: firsthand reporting of what happened. They can identify, remember, pick out the guilty. We hope.

In fact, many cases could not be prosecuted at all without eyewitnesses, just as many cases can be proved beyond a reasonable doubt despite the lack of any such "direct" evidence (circumstantial will do just fine; DNA evidence is circumstantial, but when properly used, can nail a suspect's presence at the crime scene as almost nothing else will).

Nevertheless, I get deeply troubled when people make noises that sound like "It's not so bad if the innocent get caught up." Because that's what the terrorism reference, above, sounds like. The good Prof. doesn't want to let dangerous terrorists escape the net of justice. But is that really a serious problem? Is it a matter of hindering the government's ability to identify, track, detain, deport, or target for elimination dangerous terrorists? Or is it really about whether or not we make it a little less easy for the utterly innocent to be convicted based on a false-but-honest misidentification?

update: Norm posts his interesting comments on the same article.

As Marty Schwimmer notes, Stoller's got hisself a blog.

I hate to drive traffic towards folks who I don't want to encourage - sort of like I don't feed rabid raccoons, or cheer on drunk drivers - but there is one fun and valid reason to link to something you disagree with:

To mock, vilify, or google-bomb.

Trademark troll. Say it with me now! Everybody! With any luck, and a lot of help, he can become the top result for that google search.

[update: a special recognition to John Welch's post at the TTABlog, TTAB says: "It's time to tackle the 'Trademark Trolls", which foreshadowed this post, as well as providing a call to action, not to mention a devilishly cute pic of a presumed TM Troll. Or trademarked troll, perhaps. (For some reason I'm reminded of Posner on Beanie Babies - see Ty, Inc. v. Publications, Int'l (catalog), and Ty v. Softbelly's (knockoffs))]

C'mon, folks. I don't want this effort to be a miserable failure (q.v.).

I also would undercut this post's title by suggesting that having a blog does not, in fact, make one a part of the blogging community. For that, it's necessary to have a certain connection, a relationship if you will, other than predator/prey (or parasite/host) with other bloggers, readers, and the world in general.

Following on TTABlog's coverage of Leo Stoller's opposition to Google's trademark registration (hat tip to the Trademark Blog) (see the opposition papers filed with the USPTO, including some hilarious correspondence, see e.g. pages 19-25 of the PDF, and other background of interest to Google fans/ trademark buffs)...

I wonder (in no particular seriousness) whether Leo Stoller(tm) has become generic. Much as Google(tm) is also a verb (and an adjective - or at least, people know what we mean by "to google," "I googled," "The googlesearch" (compare to Google(tm) search), googlehits, googlebots, etc.) - and indeed a robust and highly productive root word useful for compounding and otherwise verbing....

What is a Leo Stoller? He's an individual, the President of Central Manufacturing Company, and apparently the Trademark equivalent of a patent troll. Or possibly like a cybersquatter. Allegedly. As I've noted before, Mr. Stoller has in my opinion a bad habit of casting his net a bit wider than he perhaps ought. Some of his claims may be colorable, depending on whether he in fact has any rights to a trademark similar to the one at issue in any given situation (facts which I have no knowledge of). But his claims about the marks of others tend to the frivolous. Or even to the offensively ridiculous.

One allegation, as I hinted above, that's slightly less absurd is the argument that Google has become generic. Wrong, but not as astoundingly wrong as some of his other claims. It's not generic, as we see by the absence of numerous other googles functioning as search engines. There's only one Google for search. Or rather, a huge number (although probably not a googol of them), all emanating from the same source. That is, the world-'round, Google (.com, or .co.uk, or any of the other variations listed at the above link) indicates one company, and if you use it, people will certainly believe it's due to affiliation with them. Courts, particularly solicitous to famous marks, will probably bend over backwards to avoid a finding of genericness, which at a swoop robs a particularly successful and powerful mark of all its value, throwing the field wide open to any Tom, Dick, or Leo who might want to compete using that mark. The magic of a famous mark, of course, is that it can turn even a generic word or phrase into something protectible.

I think the converse ought to be true, too. If we can use the arbitrary (I just picked it out of a hat... a small hat...) string of letters l-e-o-s-t-o-l-l-e-r to designate trademark trolls, and use it in all kinds of contexts -

• that dude totally leostollered that company - filed an opposition, and then sent a shakedown letter, even though he had no rights in the word Frangible


• I like to think of myself as a moral person. I'm not a bank-robber, a leostoller, or a hijacker


• This Company has no major imminent litigation threats, just some probably-frivolous securities claims, a leostoller sending letters to legal, and the fact that our CEO was discovered to be an axe-murderer

- I think there's the possibility of an extremely fruitful addition to the English language.

LS shouldn't think of it as losing protection in his name. He should think of it as giving something back to the commons, by contributing to the public domain.

Two jargon words in a single phrase.

A beanball, as suggested by the facts in Avila v Citrus Community College District, Ca. Supreme Ct. (Apr. 6, 2006) (pdf) (thanks to Howard for the pointer), is an intentional throw by the pitcher at a batter's head.

Now, as baby law students we are indoctrinated to parrot "intentionally causing an unwanted harmful or offensive contact" or paraphrases of same when discussing a battery.

In Avila, the California Supreme Court determined that because being intentionally hit is an inherent risk of the sport of baseball, in context there was no breach of duty by the school towards the athlete so beaned.

I'm not utterly swayed by the discussion of the court. Being a part of the game means it's expected, even condoned? If the holding is limited to certain facts, I might reluctantly agree. My expectation (ignorant of baseball) would have been that violent or punishable acts were not okay.

There are levels of "not okay" in sports. Players and coaches in basketball can rack up a certain number of technical fouls before the progressive fines start being accompanied by mandatory bans from games. Minor jostling is often not a penalty in most contact sports. And, of course, playing rugby has been compared to consent to assault with intent to maim.

When that one hockey player was charged for using his hockey stick on another player's head - from behind - with a "baseball style swing" that seemed like a case where violence had exceeded the acceptable bounds of the sport. "Assault with a weapon" was the charge, and although McSorley claimed he didn't intend to hurt the guy, in replay (over and over and over) it seemed pretty egregious.

Could a beanball be egregious? I wouldn't like to be hit by a pitch on purpose. At least the plaintiff in this case was a batter, in the box. What result, do you suppose, if the vindictive attack is on someone standing in the dugout? Standing on base with his back to the pitcher's mound? An umpire? Still part of the game?

Brush-backs (where the pitcher brings a pitch close inside the strike zone to force back a batter crowding the plate), accidental hits with a pitch, and the expected collisions between base runners and those attempting to stop them are part of the game. Apparently, so are pitches "forbidden by the rules of baseball" (!). See opinion at p.19, and fn. 10 ("It's not a weapon. It's a tactic.") If you say so. I think I'll stay out of the batter's box for a while.

[update: further coverage collected by Howard]