Welcome to Law.com’s Midweek Recess, in which we round up some tasty tidbits from the week’s legal news cycle. We’ll be here every Wednesday, so grab a cup of coffee and take a little break. It’s all downhill to the weekend from here.
Posner Pulls No Punches: Let’s all engage in a little Wednesday afternoon schadenfreude, shall we? Because seriously, there are few things in the world as fun as watching Seventh Circuit Judge Richard Posner eviscerate people in prose (assuming you’re not on the receiving end of the evisceration, that is). The target of his ire? A proposed settlement in the class action Eubank v. Pella Corp, which Posner, writing for a three-judge panel, termed “inequitable – even scandalous.”
Scandalous! Them’s fightin’ words. Was it actually that bad? Well … yeah. For starters, the case involved a conflict of interest: Its lone named plaintiff, Leonard Saltzman, a dentist, was represented in the case by his son in law, Paul M. Weiss, of Commercial Litigation Group, a Chicago Firm. Posner wrote that Weiss appears to have manipulated the composition of his class to promote the likelihood of his receiving the maximum quantity the settlement in attorney’s fees, swapping clients in and out to ensure that he had pliable plaintiffs who would agree to his demands. The $90 million settlement was eventually structured such that Weiss would receive $11 million, with a $2 million immediate advance. As for the class (both named an unnamed members) there was no specification as to when its members would receive payment.
Was Weiss merely greedy? Perhaps, but he appears to have had other motives in this situation: He’s currently fighting a lawsuit from his old firm (they’ve accused him of misappropriation of funds, shockingly) and he’s also facing a 30-month suspension for harassing seven female employees. To put it simply, dude needed some cash. Unfortunately for him, Judge Posner was not having it. While the case has gone on, as the judge noted, for “eight largely wasted years,” it was reversed and remanded, and Paul M. Weiss has nothing but some (seemingly well-deserved) public humiliation to show for it.
Con Law Refresher Needed: The Eighth Circuit has struck down Missouri’s flag desecration statute as constitutionally overbroad, ruling in the case of a man who was arrested for attempting to burn an American flag, shredding it and then throwing it into the street. Frank Snider was charged under a state law that makes it a crime to “purposefully and publicly” desecrate the American flag or the Missouri state flag. The arresting officer said he wasn’t aware of the long line of U.S. Supreme Court cases establishing that expressive conduct involving the American flag is protected by the First Amendment, but the Eighth Circuit panel said that “a reasonably competent officer” would have known Snider’s conduct was constitutionally protected. Still, the officer shouldn’t feel too bad, since the county prosecutor in the case hadn’t heard of the seminal 1989 Texas v. Johnson ruling until a local reporter brought it to his attention. Come to think of it, the judge who issued the arrest warrant might consider brushing up on his constitutional law, as well. [The Volokh Conspiracy]
Trial by (Underdressed) Jury: Now here’s a creative appellate argument: Two mortgage fraud defendants say that they deserve a new trial because some prospective jurors were turned away by courthouse security for failing to meet the dress code at the federal courthouse. The guidelines specify a “coat and tie for men and similarly appropriate attire for women. No jeans, polo shirts or sneakers.” The defendants’ lawyers filed a motion claiming violations of their clients’ Sixth Amendment rights. They argued that potential jurors might not have been able to adhere to the dress code because of religious or economic reasons, because they might need to wear sneakers for medical reasons or because they dress in the “accepted fashion norms of a racial minority.” During trial, one of the defendant’s lawyers had complained in open court that the 12-member jury panel included no African-Americans. The judge pointed out that the three defendants are white. [ABA Journal, The Daytona Beach News Journal]
Fighting Over ‘Mormon’: The Electronic Frontier Foundation has filed an amicus brief in support of the founder of an Mormon dating website in his trademark spat with the Church of Jesus Christ of Latter-day Saints. Intellectual Reserve Inc., the holding company of the LDS church, is trying to block Jonathan Eller’s efforts to trademark the name of his site, “Mormon Match,” claiming that that its ownership of a “family of MORMON marks” precludes Eller’s use of the term in commercial activity. Those trademarks include, among others, “Mormon,” “Mormon Tabernacle Choir,” “Book of Mormon” and a line drawing of the Salt Lake temple. EFF says in its brief that Eller’s use of the term is “textbook fair use,” and argues that IRI can’t block it “any more than Burger King® could prevent In-n-Out Burger® from including the term ‘burger’ in its name.” [Ars Technica]
Love and Marriage (and Witness Protection): Want to avoid getting served with divorce papers? Try going to prison. It’s worked so far for disgraced ex-attorney Scott Rothstein, who is currently serving 50 years for his role in running a $1.4 billion Ponzi scheme. He’s doing his time under the U.S. Bureau of Prisons federal witness protection system (he gave the feds info on gang members and needs protection). As a result, when his wife Kim Rothstein (who is also in jail) tried to serve him with divorce papers, she couldn’t. Scott was so well hidden that Kim’s lawyer simply couldn’t figure out where the papers should be sent. It’s OK, though — the pair will be able to continue their uncoupling (conscious or otherwise) soon. The prison system has graciously agreed to forward the papers to Scott at the
at his super-secret incarceration location, as soon as it completes radiation testing on the materials for his protection. If this seems a ridiculous precaution, recall the fact that #SCOTUS issued a ruling on a case involving revenge exacted through mailbox poisoning this week. The Bureau of Prisons seems to have a point.