Archive for the ‘Editorials’ Category
Governor Walker announced he would take applications to fill the vacancy on the court, and that applications would be due October 2. Prior to Justice Crooks’ passing, three judges had jumped into the race to fill his spot in 2016: District I Court of Appeals Judge Rebecca Bradley, Milwaukee County Judge Joe Donald, and District IV Court of Appeals Judge JoAnne Kloppenburg.
Governor Walker announced on October 9 he will appoint District I Court of Appeals Judge Rebecca Bradley.
Judge Rebecca Bradley was appointed to serve on the Wisconsin Court of Appeals by Governor Scott Walker in May 2015. She previously served as a Milwaukee County Circuit Court Judge since 2012, winning her first election in 2013. Judge Bradley would be the first to bring judicial experience on both the trial court and intermediate appellate court benches to the Wisconsin Supreme Court. Before answering a calling to public service, she practiced law for over 16 years.
Born and raised in the City of Milwaukee, Judge Bradley graduated from Divine Savior Holy Angels High School and then attended Marquette University where she earned an Honors Bachelor of Science in Business Administration and Business Economics in 1993. She earned her Juris Doctor from the University of Wisconsin Law School in 1996.
Judge Bradley began her legal career as an attorney with the law firm of Hinshaw & Culbertson, where she represented physicians in malpractice lawsuits and defended individuals and businesses in product liability and personal injury litigation and appeals. She moved to the firm of Whyte Hirschboeck Dudek, where she concentrated her practice in commercial, information technology and intellectual property litigation and transactions, co-chaired the firm’s Technology Law Group, and worked as an American Arbitration Association Arbitrator. Judge Bradley also served as Vice President of Legal Operations for an international software company.
In 2012, Judge Bradley was recognized as one of Milwaukee’s Leading Lawyers in Litigation, Business Law, and Internet Law by M Magazine. In 2010 she received the Women in Law Award from the Wisconsin Law Journal and was named a “Rising Star” Attorney on the 2010 and 2008 Wisconsin Super Lawyers list.
A leader in the legal community, Judge Bradley served as Chairman of the State Bar’s Business Law Section and co-authored the Wisconsin Business Advisor Series chapter on Internet law. She continues to serve on the Wisconsin State Advisory Committee to the U.S. Commission on Civil Rights and on the Board of Governors of the St. Thomas More Lawyers Society.
Judge Bradley also served as President of the Milwaukee Lawyers Chapter of the Federalist Society, an organization founded on the principle that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.
Devoted to her community, Judge Bradley volunteered her services as an attorney to families of developmentally disabled youth in guardianship proceedings. She continues to serve on the Board of the Milwaukee Tennis & Education Foundation, which provides opportunities for central-city children to play tennis, improve academic performance and develop life skills and values. In 2012, Judge Bradley completed a six-year term with the Milwaukee Forum, a diverse group of leaders whose dialogue and involvement is designed to enhance greater racial understanding and improve the well-being of the Milwaukee community. Judge Bradley serves as a member of the Comprehensive Approaches to Youth who have been Sexually Exploited or CAYSE Committee, and continues to speak out in the community on the evil of human trafficking.
State Supreme Court Justice N. Patrick Crooks died of natural causes in his court chambers. Justice Crooks had announced just a few days prior to his death that he would not seek reelection in 2016.
Justice Crooks was first elected to the Wisconsin Supreme Court in 1996, and was reelected in 2006. Growing up, he attended Premontre High School in Green Bay, received his bachelor’s degree from St. Norbert College, and graduated third in his class at the University of Notre Dame Law School. Justice Crooks served as a U.S. Army officer at the Pentagon, in the Office of the Judge Advocate General where he attained the rank of Captain. He enjoyed private practice from 1966 to 1977, while he taught business law at the University of Wisconsin-Green Bay. He served as a Judge in Brown County for 19 years and was American Board of Trial Advocates (ABOTA) Trial Judge of the year in 1994. Justice Crooks was the father of six, and grandfather to twenty-one.
Senator Frank Lasee (R-De Pere) introduced Senate Bill 286 on October 2. This bill proposes to change Wisconsin’s long standing, and flawed, “dog bite” statute. Under current law, Wis. Stat. § 174.02(1)(b) mandates double damages for dogs that cause injury to people, domestic animals, or property if they have previously done so. Current law does not take into account the severity or type of the damage done. For instance, a dog could cause minor property damage, which would count as the first bite, and then cause physical damage to an individual on the second bite. The owner would be liable for double damages the same as an owner whose dog caused disfiguring personal injuries on both occasions despite the fact that the first owner had no notice their dog was capable of causing such damage. SB 286 is an attempt to remedy this unfairness.
The largest change in this bill is to the double damages provisions. Now an owner may only be liable for double damages for injuries caused by their dog only if a dog bites a person with “sufficient force to break the skin and cause permanent physical scarring, or disfigurement” if the owner knew the dog had previously done so. This change ensures that dog owners will not unfairly have double damages triggered by minor damage to personal property.
The bill also increases the monetary forfeiture a court can level against owners for damage caused by a dog. Under current law for first time damage to “a person, domestic property, deer, game birds or the nests of eggs of game birds” the maximum forfeiture is $500. Under the bill it is raised to $2,500. Under current law the maximum penalty for subsequent acts is $1,000. Under the bill it is raised to $5,000.
SB 286 also changes who can request a court to order that a dog be killed. Under current law only the state or a municipality may ask a court to order a dog be killed if the dog caused serious injury to a person nor domestic amical on at least two separate occasions. Under this bill in addition to the state and municipality being able to make this request, a person injured by the dog or whose child was injured by the dog, or whose domestic animal was injured by the dog may also make this request.
SB 286 received a public hearing in the Committee on Insurance, Housing, and Trade on October 6.
WCJC is in support of SB 286.
Rankings Drop Driven in Part by Judicial Behavior
The U.S. Chamber Institute for Legal Reform (ILR) routinely conducts a survey of in-house general counsels, senior litigators, and other senior executives at companies with at least $100 million in annual revenues with recent litigation experience in each state (within the last four years). 75% of survey respondents reported that a state’s litigation environment is likely to impact important business decisions at their companies such as whether to locate or do business in the state.
Down from 15th in 2012, Wisconsin now ranks 20th overall. This drop was very disappointing given the significant reforms recently enacted in Wisconsin. As stated in the ILR Report, the Wisconsin ranking drop was driven by a poor ranking of our judiciary. Survey participants ranked Wisconsin substantially lower this year in several key areas related to judges, including on enforcement of venue requirements (nine spot drop), treatment of class actions (20 spot drop), impartiality (eight spot drop) and on competence (10 spot drop).
- Overall treatment of tort and contract litigation – Wisconsin is ranked 21st.
- Having and enforcing meaningful venue requirements – Wisconsin is ranked 22nd.
- Treatment of class action suits and mass consolidation suits – Wisconsin is ranked 28th.
- Damages – Wisconsin is ranked 17th.
- Timeliness of summary judgement or dismissal – Wisconsin is ranked 16th.
- Discovery – Wisconsin is ranked 17th.
- Scientific and technical evidence – Wisconsin is ranked 19th.
- Judges’ impartiality – Wisconsin is ranked 20th.
- Judges’ competence – Wisconsin is ranked 24th.
- Juries’ fairness – Wisconsin is ranked 21st.
Full survey results can be found here.
Senator Chuck Grassley (R-IA), Senate Judiciary Committee Chairman, and Sen. John Cornyn (R-TX), Senate Majority Whip, are calling for more transparency in the litigation finance industry. Litigation finance firms fund plaintiffs to pursue lawsuits, taking a cut of the recovery if plaintiffs win or settle with the defendants. Critics of the industry say that firms fund frivolous lawsuits, drive up costs for all litigation, and exercise undue influence in the strategy and decision making for those they fund. Advocates for litigation financing say it helps plaintiffs, who would not otherwise be able to pursue lawsuits, have their day in court.
As a part of their push for transparency, Senators Grassley and Cornyn sent letters to three major industry firms, Burford Capital, Bentham IMF, and Juridica Investments Ltd., requesting a complete list of cases each company has funded in the last five years, how much money they made, and whether other parties in the litigation were informed of the funding arrangements. The firms have yet to respond to the requests.
Last week US District Judge Edward Chen, of the Northern District of California, certified a class of up to 160,000 California Uber drivers who could seek mileage and tip reimbursement from Uber. Attorneys for Uber unsuccessfully argued that its relationships with individual drivers were too unique to be represented by a single class of plaintiffs.
Shannon Liss-Riordan, a prolific plaintiffs’ class-action lawyer, has filed lawsuits against Uber, Lyft, Homejoy, Postmates, and Caviar – five of the largest “on-demand” start-ups in the world. She argues Uber gives its drivers employee-like duties while treating them as independent contractors in order to skirt its obligations as an employer. Uber argues it is simply a software platform that connects drivers with people looking for rides.
If Uber drivers are found to be employees, Uber would be required to pay overtime, unemployment insurance, workers compensation, and potentially expenses such as gas and vehicle wear and tear. Start-up advocates fear that this could put many “on-demand” start-ups out of business or prevent new ones from being created due to labor costs.
Warner Music Group (Warner) claims the rights to “Happy Birthday to You” – the most recognized English language song in the world. Warner has aggressively asserted rights to anyone who performs a public rendition of the song, from celebrities to parents audacious enough to post videos of their children’s birthday parties online, demanding licensing fees and threatening to sue if not paid. However, according to a University of Pittsburgh Law Librarian, Warner may not have a valid patent for the song.
A class action lawsuit was filed against Warner challenging their copyright to the song, from which Warner receives approximately $2 million in revenue a year. The case was cracked open after evidence of a book, the fourth edition of “The Everyday Song Book,” published in 1922, has an un-copyrighted version of “Happy Birthday to You” in it. This would predate Warner’s 1933 copyright. Evidence of this book was uncovered in Warner’s own files which were handed over during discovery. Attorneys representing the plaintiffs reached out to University of Pittsburgh Law Professor Michael Madison on a hunch that the University had a copy of the book. A law librarian found a copy in the university library’s storage facility. The librarian quickly sent copies of the relevant pages to the plaintiffs, who then motioned for summary judgment.
Kohl’s Corporation is being targeted by two class action lawsuits in California over its pricing practices. These suits were recently filed in the U.S. Southern District of California.
Both lawsuits argue that Kohl’s discounted pricings on its own brands violate California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act because the retailer gets to set the original price in the first place. One suit alleges that it is possible that hundreds of thousands of California consumers, “have been victims of [Kohl’s] deceptive, misleading, and unlawful pricing scheme.”
The lead plaintiffs essentially argue that if Kohl’s wants to sell a piece of clothing for $20, then they mark the original price at $40, place a 50-percent discount on the item, and the consumer buys the product at $20 thinking they are getting a deal even though the item was never worth $40. The plaintiffs argue these pricing schemes have led to Californians unknowingly purchasing merchandise of lesser value and quality than they expected.
Kohl’s is based in Menominee Falls and operates 1,164 department stores in the United States including 126 in California.
Three Wisconsin residents have filed a lawsuit against Delta, United, Southwest, and American airlines claiming they violated anti-trust laws. The plaintiffs are currently attempting to get their class certified.
In their complaint, the plaintiffs allege (in their only count) these airlines conspired to restrain trade and commerce in violation of the Sherman Act (15 U.S.C. §§ 1, 3) by artificially lowering the amount of airline flights thereby reducing competition within the industry. They explain that since 2008 the four major airlines have cut flights, raised fares, and have gained control of 80% of the market place. Fares have continuously increased despite a 34% drop in fuel prices, which are airlines single largest expense.
This lawsuit comes on the heels of the U.S. Department of Justice opening an investigation into “possible unlawful coordination” among major airlines’ plans to expand in a way to reduce competition and keep rates high. Several major airlines have announced they would limit growth in order to keep fares high to protect profit margins. However these statements were made in the context of preventing airline stock prices from declining further than they have in recent months.
Multiple similar lawsuits have been filed in major cities across the U.S. including New York, Chicago, San Francisco, Dallas, and Washington. The defendant airlines have released statements saying the lawsuits have no merit.
Read the complaint.
Repeal Expected to Improve Legal Climate and Return More Money to Medical Assistance Fund
WCJC has accomplished one of its major objectives for the 2015-2017 state budget with the repeal of Wis. Stat. §20.931, Wisconsin’s “False Claims for Medical Assistance Act”.
The act allows private individuals, unaffiliated with the government, to sue private businesses alleging fraud against the state’s medical assistance program. The act rewards private individuals for filing these actions by providing that the person who brings a private cause of action may be awarded up to 30 percent of amounts recovered in addition to expenses, costs, and reasonable attorney fees. While the original intent of the act, to root out fraud, is admirable this law was ineffective and unnecessary.
The act, originally created in the 2007-2009 state budget act, is ineffective because the Department of Justice (DOJ) proactively prosecutes these claims on its own. Furthermore, DOJ has stated the repeal of the act could increase recoveries for the Medical Assistance program because the state will not have to pay the 30 percent “bounty” to the whistleblowers who bring a private cause of action.
The repeal of this act will not discourage legitimate whistleblowers from bringing information about fraud forward. There are already other avenues in place for whistleblowers to contact state officials, anonymously if need be, such as the governor or attorney general and report fraud. Studies have also shown that whistleblowers with legitimate claims do not have a profit motive and thus the lack of a financial award is unlikely to result in less whistleblowers coming forward. Thus the act is unnecessary.
Repeal of the act was included in the Joint Finance Committee motion #495, the committee’s omnibus motion on Medical Assistance. The motion was adopted by the committee on Thursday, May 21, 2015.
WCJC is grateful for the support of the state legislature and Governor Walker in helping to better Wisconsin’s legal climate.
 Kesselheim et al., Whistleblowers’ Experiences in Fraud Litigation Against Pharmaceutical Companies, 362:19 New Engl. J. Med. 1832 (May 13, 2010).