Our Dysfunctional Patent System

Nifty little piece in the WSJ today at page B1 about how our patent system has become dysfunctional and is now stifling innovation rather than promoting it. Exhibit 1 in the article was a recent patent granted to a bank for a "method" of delivering customer service including such incredible innovations as having someone greet you at the door and laying out the teller windows in a new and hip way.

According to the writer, both the Federal Trade Commission and the National Academy of Science agree that the patent system is out of control. Check out, for example, this site regarding a recent patent policy conference.

Massachusetts -- a hotbed of legal activity

There's a lot happening in Massachusetts lately. The most interesting bit to my eye is a topic that is not really on my watch, but deserves comment anyway. There is a crisis in the criminal defense bar here as the hourly rate for criminal defense appointments in Massachusetts is so paltry that lawyers can't afford to do the work. Until recently, it was as little as $30 per hour, far less than the average lawyer's overhead, and the legislature just raised it to a princely $37.50 per hour. Let's face it, there are lots of much easier ways to make a much better living than taking criminal appointments at that kind of an hourly rate. Anyway, the Massachusetts SJC has now ordered that lawyers take these cases, or face the Board of Bar Overseers. Check out the story on line here. Sounds like involuntary servitude to me.

More on track for the Dalai Lawyer's usual focus, the SJC recently ruled that a class action could go forward against Philip Morris under the Massachusetts Unfair Trade Practices Act (M.G.L. ch. 93A) for allegedly deceptive marketing of "light" cigarettes. Aspinall v. Philip Morris Co., Docket No. SJC-09143 (Mass. August 13, 2004).

The heart of the defendant's position was that the plaintiffs were obligated to connect the allegedly deceptive conduct to some actual harm, and that this resulted in an individualized inquiry that made a class action inappropriate. Clever, but the SJC didn't buy it, and instead held that the "purchase of an intentionally falsely represented product [could be] by itself, an ascertainable injury under the consumer protection statute." Bear in mind that this decision was made in the context of a motion to dismiss, so the falsehood part of the holding is assumed true for procedural purposes, i.e., this is not a decision that Philip Morris commited an intentional falsehood, only that if it did, that would qualify as an injury under the statute. The court held that the plaintiffs did not have to prove physicial injury or actual reliance on the alleged misrepresentation.

Term Sheet = Binding Contract

Fairly interesting recent decision by Judge Van Gestel of the Massachusetts Superior Court Business Session, One to One Interactive, LLC v. Landrith, 2004 Mass. Super LEXIS 259 (July 8, 2004, 02-4137 BLS). Judge Van Gestel held that a term sheet for the buyout of a member's interest in a limited liability company was a binding contract. He concluded that the term sheet included all material terms, and that the parties had actually performed under it for a period before the company tried to disclaim it. One to One Interactive is particularly interesting in light of another recent decision by Judge Van Gestel, PDC-El Paso Meriden, LLC v. Alstom Power, Inc., 2004 Mass Super. LEXIS 227 (June 14, 2004 99-6016 BLS), in which he held that an "agreement" was merely a starting place for hard negotiations in the context of a complex deal to build a power plant. Judge Van Gestel is quite consistent in his application of legal principles to varying circumstances, so the body of decisions that he is building should be quite useful to those of us who appear before him.

No "Compelled Self Defamation" in Massachusetts

A couple of months ago, the Massachusetts Supreme Judicial Court rejected the doctrine of "compelled self defamation." White v. Blue Cross Blue Shield of Massachusetts, Inc., 2004 Mass. LEXIS 305 (June 11, 2004). The decision has been in my blogging pile too long.

The gist of the purported claim was that an employee was wrongfully fired based upon a false accusation that he revealed confidential information. While searching for a new job, the employee felt compelled to reveal the circumstances of his discharge. Thus, he was "compelled" to defame himself to avoid being a liar.

The Court concluded that "[a]ny harm arising from the employee's discharge is more appropriately dealt with under principles of employment law, and not under the law of libel and slander."

In my view, an obviously correct decision. Imagine the ludicrous claims employers would face if the Court had gone the other way. It's already too hard to fire lousy employees, and fear of litigation keeps way too many incompetent slackers on the payroll well beyond the time when they otherwise would get the wake up call of a termination notice. Even when they get the termination notice, the automatic reaction is to shout "I've been wronged" and look for a reason to sue. So hear hear to the SJC on this one.

The Global Warming Complaint

Can be found on line here.

Liability for Global Warming?

Great little piece on the editorial page of the WSJ today about a new raft of lawsuits filed by the Attorney Generals of several states, seeking to hold power plants liable for producing CO2 and allegedly thereby causing Global Warming. This is even worse than the tobacco litigation. As the author of the editorial says (with apologies, I forgot his name and left my copy at the house), this is both junk science and junk law.

What really infuriates me about these lawsuits and others of their ilk is that the Government is complicit in the very activity they are now purporting to sue for. After all, the Government previously declared the production of power lawful business (and imagine our lives without it), licensed, regulated and taxed these power plants. Now they come around after the fact and sue them? It's an outrage.