ThePopTort

Occupy Wall Street vs. Erin Burnett and the NYPD

I’m glad someone else caught CNN’s new celeb “anchor du jour” Erin Burnett offering a “condescending and reductionist” analysis yesterday while covering the Occupy Wall Street movement.  Of course, it isn’t the first time this ex-Goldman Sachs/Citigroup employee used her TV perch to serve as a mouthpiece and apologist for Wall St. abuses, but at least people are noticing. 

Speaking of Occupy Wall Street, which is marching today along with at least 15 major unions not too far from ThePopTort’s offices in Lower Manhattan, a group of them have now filed suit against New York City and the NYPD for tactics used in arresting 700 peaceful protesters on the Brooklyn Bridge last weekend.   

A lot of people have been taking note of how the NYPD has been handling this protest, which is mostly taking place in an area that has been a virtual police state since 9/11 - just between the World Trade Center and the New York Stock Exchange.  We know.  We used to work a couple blocks away.  (Just forget trying to cross a street without navigating block-long barricade.)  While the NYPD has been getting lots of media attention for their anti-terrorism work, they’re also getting tons of attention for their abuses.  And it’s not just the Occupy Wall Street protestors or the city’s Muslim community that has grounds to complain.  

As we wrote in June,

[New York City] paid out $135 million to settle claims made against the NYPD last year - a soaring 71% jump in settlements against the department from a decade ago.

The surge - part of a half-billion dollars paid out by the city - included $56.4 million for alleged police misconduct, including excessive force and false arrest, an analysis by City Comptroller John Liu found.

Advocates said the number marks a disturbing trend: in 2003, Mayor Bloomberg’s first fiscal year in office, the city paid out $68 million in NYPD tort claims.

“This number and the increase over past decade cry out for close monitoring of the police,” said Donna Lieberman, head of the New York Civil Liberties Union.

“The NYPD’s hyper-aggressive tactics create a situation that is ripe for litigation,” she said.

And as we also noted, the solutions to this “pay out” problem lie not with taking away people’s rights but with reducing the misconduct that leads to claims in the first place.  Lets hope it doesn’t escalate now.

 

9/11 and Elusive Justice

It seems no matter how hard we try, 9/11 keeps moving to the #1 position of this country’s collective Netflix que.  On Wednesday, friends of mine were in a plane that was forced to land when someone wrote the word “bomb” on bathroom tissue paper. There is intense discussion about the contribution to the debt crisis of two wars that we started in the aftermath of that tragedy. 

And yesterday, reports the Associated Press, Sheila Birnbaum, the corporate lawyer in charge of administering the $2.8 billion compensation fund for sick and injured 9/11 clean up workers (see our early sense of Ms. Birnbaum here), “got an earful” from “about 50 first responders and others at a town hall meeting in City Hall two days after a federal review found insufficient evidence linking cancer to Sept. 11 to warrant adding cancer to the list of conditions covered.... Birnbaum, the fund's special master, said she was ‘representing the victims’ at the town hall meeting in Jersey City, across the Hudson River from ground zero. ‘If you have a problem, you can take it up with Congress,’ she said. ‘That's what we have to deal with it.’” 

What at fighter. Moreover,

[T]hose who say toxic dust from the destroyed twin towers traveled from ground zero over the Hudson River to Jersey City and other communities will not be eligible.  Birnbaum said there simply wasn't the scientific evidence to prove injuries sustained outside New York City were caused by the attacks. 

That may disqualify Joann Sullivan, a 40-year-old who was working at a Jersey City bar in September 2001 and said she aided survivors as they returned from the World Trade Center to New Jersey, picking up contamination as she doled out water and food to those in crisis.

"I felt that it was my job as an American to do what we had to do," she said. 

Sullivan said she later developed an inflammatory lung condition called pulmonary sarcoidosis, rashes and a fever — all of which she attributes to 9/11. She said she lost two jobs because of the dozens of legions that visibly marked her body. ...

On Wednesday, Birnbaum addressed participants in New York, who expressed similar frustration over the exclusion of cancer from the list of covered illnesses. A third town hall will be held Tuesday in Melville, N.Y.

But while justice may be elusive for these selfless folks, one of the families suing United Airlines over horrendously poor security measures, which allowed the 9/11 hijackers to carry weapons onto Flight 175 (the second plane that crashed into the World Trade Center) and murder 56 passengers plus crew, may get just what until now had seemed completely elusive.

On Wednesday, the judge, Alvin K. Hellerstein of Federal District Court, said that he would probably allow [Mark] Bavis’s mother, Mary, the plaintiff, to seek such damages, despite strenuous objections by United, which had argued that she was not entitled to such a recovery under the law of Massachusetts, where Mr. Bavis lived.

Judge Hellerstein listened to arguments by lawyers for the family and United, and said his inclination was to allow the jury to come up with “a figure for pain and suffering” through the entire 21-minute period.

“My thinking is tending toward allowing terror damages,” Judge Hellerstein said.

[T]he case would be the only wrongful-death lawsuit stemming from Sept. 11, 2001, to go to trial.

In other words, this is the only family not willing to settle their case through either the compensation fund or lawsuits that were filed.

Brother Michael Bavis "added that he felt positive because Judge Hellerstein seemed to keep an open mind, and in his view, recognized the importance of having the story of Flight 175 told in the courtroom. 'This is my brother’s voice, this trial.'"

Let’s hope he gets to speak.

"Really!?! with Seth and Amy", Ground Zero Edition

"Really!?! with Seth and Amy" isn’t my favorite SNL Weekend Update sketch, but I have to say, it came to mind immediately when I heard that Sheila Birnbaum was appointed by the Justice Department today to  oversee distribution of the new $2.5 billion fund for sick and dying Ground Zero workers.

Really?  The only person in America who could do this job was a State Farm insurance company corporate lawyer who fought Katrina victims who were left destitute because State Farm and other insurers refused to pay their legitimate claims?  And then she discussed her successes at a Web Seminar for the extreme-right  Washington Legal Foundation?

Really? The only person in America who could do this job was a lawyer who has been so successful at crushing the claims of corporate negligence victims on behalf of her corporate clients that she has been dubbed the “Queen of Torts?”  Really?

I mean really, the Administration believes this individual will be better at helping sick and injured workers than any lawyer with actual experience helping the sick and injured?  And who generates media coverage like this from the Wall Street Journal?

Companies have often turned to Birnbaum, a former law professor and fourth-grade teacher, in times of distress. In 2004, she represented Chiron after the company received negative publicity for its flu vaccine. “Sheila was my quarterback,” said Nancy Koch, formerly a senior lawyer at Chiron who worked closely with Birnbaum during the crisis. Ultimately, the SEC formally closed its investigation without taking any action, a securities-fraud lawsuit was settled and the product-liability actions were dismissed.

Birnbaum has also helped State Farm in other big cases. In 2005, Birnbaum helped convince the Illinois Supreme Court to dismiss a class-action judgment of more than $1 billion against the insurer. She also represented State Farm before the Supremes in the big 2003 ruling that placed caps on punitive damage awards, a decision seen as a big win for corporate America.

“Sheila Birnbaum has been one of our most effective advocates in litigation for a number of years and has played a central and significant role in Hurricane Katrina litigation,” said Kim Brunner, State Farm’s general counsel.

Now, I don’t know Sheila Birnbaum and I realize that she has mediated some wrongful death and injury lawsuits on behalf of some 9/11 victims.  And Ground Zero worker spokesperson John Feal, who worked tirelessly to get Congress to pass the $2.5 billion fund, has hopes for Ms. Birnbaum even though this was not his choice, so we have to be hopeful too.   

But, really?

(You can learn more about State Farm’s despicable post-Katrina behavior by listening to testimony from former Mississippi Congressman Gene Taylor.)

Ken Feinberg in the ABA Journal

Interesting new article in the ABA Journal this month about Ken Feinberg, administrator of the Gulf Coast Claims Facility.   (By way of full disclosure, the ABA Journal has a special place in our little heart, having declared this humble blog one of the top 100 legal blogs for the last three years, so we kinda like them over there!)

We were glad that the article at least touched, albeit lightly, on some of the serious conflict of interest issues that the Center for Justice & Democracy raised about the BP/Feinberg deal, in a letter to all five state AG’s last week (copying the state bar associations).  The ABA Journal’s Terry Carter writes:

Now he’s handling the BP fund on basically a handshake, with Oil Pollution Act guidelines as a malleable template.

“It seems we’ve moved into a new universe of problematic dispute resolution where people really are unrepresented,” says Linda Mullenix, a professor at the University of Texas School of Law who knows and admires Feinberg. “All they have is Ken Feinberg saying, ‘This is good for you; come on in and it’s in your best interest.’

“As you move from each model to the next, there’s less oversight. Who’s guarding the guardian?”

Joe Rice, a founding member of Mount Pleasant, S.C.-based Motley Rice who represents clients in the MDL …says, “You have a guy out of work nine months in the Gulf who thinks his claim is worth much more than they might offer, but he looks at his wife and two kids and he’s doing what he can to put food on the table as Christmas approaches. He’s more likely to take the settlement money. We’ve seen this kind of thing before from defense lawyers.”

Many or most plaintiffs’ lawyers involved are convinced Feinberg is doing BP’s bidding.

Says Stephen Herman of New Orleans’ Herman Herman Katz & Cotlar, a member of the MDL plaintiffs’ executive committee: “It’s extremely dangerous for someone who has the imprimatur of being an independent special master in the past to now be cloaked in this specter of independence, when in fact he’s nothing more than a defense lawyer trying to settle cases for BP.”

“He likes to say yes,” says Jeffrey Breit of Norfolk, Va.’s Breit Drescher Imprevento & Walker, who is a member of the plaintiffs’ steering committee in the MDL. “Then later you find out that it’s no. He says what the audience wants to hear.”

Another interesting thing in the piece is that, despite some false comparisons Feinberg has made between the BP situation and the 9/11 compensation fund that he administered, he isn’t re-writing history despite how much the Chamber of Commerce and tort reform groups would like him to.  Carter writes:

In October, he praised [plaintiffs lawyers] in his keynote speech at a summit hosted by the U.S. Chamber of Commerce’s Institute for Legal Reform. The institute’s website lists as its first aim: “Neutralize plaintiff trial lawyers’ excessive influence over the legal and political systems.”

Feinberg bearded the lion in its den after he was introduced by chamber president Thomas Donohue, who noted Feinberg’s deft handling of the 9/11 fund was done “without the involvement of massive numbers of lawsuits involving thousands of trial lawyers.”

Feinberg stepped to the dais and quipped: “I’m pleased to know that Tom’s going to shoot out of here and not listen to what I say. I don’t want to spoil his lunch.”

Feinberg proceeded by Rolfing his audience—rubbing them the wrong way to ease their tension. He explained, for example, that he believes the “legal system works pretty well,” that all claimants in the 9/11 fund were represented by lawyers, and that it “would never have succeeded as it did without the firm, committed support of the trial bar.”

He also pointed out that the 9/11 fund was tacked on as a compromise for legislation whose main purpose was statutorily “placing barriers to litigate against the airlines and the World Trade Center.”

(As, by the way, we noted earlier.) 

In fact, after 9/11, plaintiffs lawyers not only helped work out this congressional compromise to ensure that 9/11 victims received some kind of help after the airlines ran to Congress for immunity, they also formed a nonprofit organization called Trial Lawyers Care, “to provide free legal representation to all 9/11 families" to help them navigate Feinberg's fund.  This became "the largest single pro bono project in the history of American jurisprudence. Over 1,100 lawyers provided representation to over 1,700 victim families-over $200 million in legal services provided absolutely free of charge.” (See the bizarre description of this incredible trial lawyer effort by our friends at the right-wing Manhattan Institute. C’mon, guys, give up the hate.  It can't be good for your own personal health!!) 

Sen. Tom Coburn to 9/11 First Responders: Drop Dead

After all the progress made following last week’s powerfully embarrassing Daily Show coverage (clips here and here), culminating in outrage by media figures both left and right, and compromises by New York Sens. Kirsten Gillibrand and Chuck Schumer to satisfy the GOP,  Oklahoman Republican Senator Tom Coburn – a physician no less – still intends to keep the sick and dying Ground Zero workers from getting relief.  A few days before Christmas. Using blocking procedures. 

Either I'm having a nightmare, or we're living out a Dicken's novel.  Or both.

 

Bob Cratchit Mr. Scrooge?
Scrooge I'm busy.
Bob Cratchit: Well, it's about Mr. Marley, sir! He's dying!
Scrooge:Well, what do you want me to do about it? If he's dying, he's dying.

Some people were meant to live in the 1840s.

UPDATE: Coburn backs down.  Still forces outrageous changes, but at least it passed!

Senator Mike Enzi vs. the Heros of 9/11

Back in February, U.S. Senator and former shoe-man Michael Bradley "Mike" Enzi from Wyoming delivered a speech on the Senate floor about disgraced former Illinois Governor Rod Blagojevich. At least he tried.  He couldn’t pronounce “Blagojevich.”  Recall that by 2010, the name “Blagojevich” had been in the national news for roughly two years, aided by such television moments as the former Governor's appearance on Letterman and his wife Patti's stint on “I’m a Celebrity ... Get Me Out of Here.”  

In its article “Senator Mike Enzi Is Physically Incapable of Saying ‘Blagojevich’”, New York Magazine speculated that perhaps “He has not watched the news, listened to news radio, or had a conversation about politics in the past fourteen months, and does not know how the name is pronounced." 

Maybe this explains a lot more than we think, such as why the Senator is so horribly misinformed about the James Zadroga 9/11 Health and Compensation Act.   This bill, which already passed the House, is up for a Senate vote today and still seems one vote short to prevent a fillibuster.  The bill would provide $7.4 billion over 10 years to provide health care and payments to sick and dying 9/11 first responders (supplementing the recent legal settlement by covering care for far more victims).  And it would be paid for!  (“It calls for closing tax loopholes on foreign corporations to raise the money - a move opposed by Republicans. New York's senators have offered a menu of other funding options.”) 

But you’d never know it listening to Sen. Enzi.  The NY Daily News reports,

Enzi is blamed for circulating a document filled with distortions about the bill. Dozens of responders hoped to tell him not to block the $7.4 billion measure.

They had to settle for staffers .

"Your boss and others are playing God with human life, when we are trying to ease the pain of these people," John Feal, a construction worker and 9/11 advocate, told noncommittal Enzi aides.

The opposition document endorsed by Enzi raises numerous objections, and offers dubious facts to Republicans who want ammunition to shoot down the bill.

Now there’s a real act of courage – a U.S.  Senator who hides from 9/11 heroes. Take note, Senator, of the life and death of retired NYPD detective Kevin Czartoryski, 46-years-old, who died this week from pulmonary fibrosis and lung cancer due to his work at Ground Zero transporting remains to the morgue.

The NYPD Detective's Union said, "Detective Czartoryski's condition is a glaring indication that we truly need the U.S. Senate's support on the Zadroga Bill. This would provide for monitoring, evaluation and treatment for heroes like Kevin."

But alas, in the Senate, we have Sen. Enzi instead.

The 9/11 Political Football Makes a Field Goal

But no touchdown yet.  Yesterday, the U.S. House of Representatives finally passed a bill to aid sick 9/11 clean up workers who selflessly devoted days, weeks and months on the pile at Ground Zero – and are dying for it.

Formerly heroes to the entire nation, many in Congress no longer want to help them, like Representative Joe L. “You Lie” Barton (R-TX), who objects to this new “entitlement program.”  So it passed 268 to 160, with 157 Republicans and three Democrats still opposing it.

The bill is called the James Zadroga 9/11 Health and Compensation Act, named for a New York City detective who died after working on the pit.  The New York Times described the bill this way:

The bill calls for providing $3.2 billion over the next eight years to monitor and treat injuries stemming from exposure to toxic dust and debris at ground zero. New York City would pay 10 percent of those health costs. The bill seeks to set aside $4.2 billion to reopen the September 11th Victim Compensation Fund to provide compensation for any job and economic losses.

In addition, the bill includes a provision that would have allowed money from the Victim Compensation Fund to be paid out to anyone who receives payment under the pending settlement stemming from lawsuits that 10,000 rescue and cleanup workers filed against the city. At the moment, anyone who receives a settlement from the city is limited in how much compensation they can receive from the fund, according to the bill’s sponsors.

You may recall that when this came up for a vote in July, it failed.  (See John Stewart’s take here.)  The House leadership was forced to use a rules maneuver requiring a two-thirds vote to pass, in order to keep conservatives from tacking on “poison pill” amendments to kill it.  But the conservatives never let up.  As the New York Daily News wrote earlier this month:

The issue is that Democrats still fear that Republicans will add a measure to exclude illegal immigrants from any 9/11 bill. Although some undocumented immigrants likely worked on The Pile, and are now sick, leaders worry that conservative Democrats could be forced to take an immigration vote before the elections, and could side with the GOP.

Then the whole thing could unravel, they worry, because Democratic immigrant advocates may oppose a bill that excludes the relatively small number of people who answered the call to help after 9/11, but were not here legally.

Of course. Republicans could clear it all up, and pledge not to add poison pills to the bill — a move Minority Leader John Boehner refused to make last week, even after Mayor Bloomberg and Rep. Pete King (R-L.I.) asked him.

Guess Boehner finally agreed to back off, allowing for the straight up and down vote.  Whatta hero!

As far as the Senate, however, its fate is considered “unclear.… Republicans have enough votes to filibuster the measure, and Senate Democrats have not shown great interest in bringing the measure to the floor.”

If it doesn’t pass, there is an important back-up in the works - a $713 million class action settlement covering workers, who must accept or reject the deal by November 8th. Although a much smaller amount than what Congress would like to give them, at least it’s something.

The New 9/11 Patriotism: Screw Over Rescue Workers

You may recall that for months after the 9/11 attacks, thousands upon thousands of people worked or volunteered on Ground Zero’s “pit”, generating both patriotic news bursts from the likes of Fox News, and tragedy for many of these workers who had already suffered quite enough, thank you.

I suspect that Fox News devotees are among the few members of Congress who showed their patriotic duty Thursday night by blocking aide ($7.4 billion for health care and compensation) for these same workers, now that it’s clear they’re sick and need help.

Failing to get these workers the help they need was not for lack of trying by a majority of the House, who were forced to use procedural rules to prevent a small number of bill opponents from trying to load the bill up with special interest amendments.

That meant two-thirds majority were needed to pass the bill.  They got a majority.  They didn’t get two thirds. 

To pay for this, the bill “would have prevented foreign multinational corporations incorporated in tax haven countries from avoiding tax on income earned in the U.S.”  No matter.  Critics decided to brand it anyway as “another big-government ‘massive new entitlement program’ that will raise taxes and kill jobs."   

So it’s back to the courts for these workers, who must decide by September 8 whether to accept a much smaller settlement.  Ninety-five percent of the 10,000 who sued must accept it for the settlement to take effect.  AP reports, “For weeks, a judge and teams of lawyers have been urging 10,000 former ground zero workers to sign on to a court-supervised settlement” totaling $713 million – far less than what a majority in Congress wanted.  That means, “Only the most seriously ill of the thousands of police officers, firefighters and construction workers suing New York City over their exposure to the dust would be eligible for a hefty payout.”

A lot of people from both parties were outraged by the House inaction, like New York City Mayor Michael Bloomberg, who said that “the nation owes more to ‘the people who worked down at 9/11 whose health has fallen apart because they did what America wanted them to do.’”

Ground zero demolition worker John Feal used considerable restraint when he noted, “Whatever member of Congress voted against this bill, whether Republican or Democrat, should go to jail for manslaughter.”

I have a feeling Congressman Anthony Weiner might agree.  Weiner, who championed the bill on behalf of many workers who live in his New York district, “spoke right before the vote when it was clear that Republican lawmakers would stake their opposition on grounds of procedural concerns. But for the grace of the C-SPAN cameras, he managed to stay physically behind his lectern.”   Check it out.

9/11 Lawsuits May Shine A Light on What Really Happened That Day

This week, there was an fascinating AP story illustrating one of the most important functions of the civil 
lawsuits—disclosing significant information about important public matters to the wider public.  This instance concerns two of the brave families of 9/11 victims who perished on the hijacked planes, who decided to forgo compensation from the September 11th Victim Compensation Fund in favor of suing airline security companies and others. 

According to the story, the families’ attorney Mary Shiavo, the well-known former DOT official and airline safety advocate, said the settlements “are likely to include language requiring evidence to be displayed at the National 9/11 Memorial & Museum,” and that  “public display of evidence collected for trial by lawyers in the case was important to the families, [calling] the museum a fitting place for it," adding, "the materials were likely to be put in the museum's reading room.”  This would be a major, publicly important achievement for these families.
 
Mike Low, one of these two family members who sued on behalf of his daughter, Sara, who was aboard American Airlines Flight 11, told CBS News in September, "If it was about money, I would have been gone a long time ago.  It's about ferreting out all the untold stories of the days leading up to 9/11 and 9/11.  It's accountability, it's exposure, it's shining a light on some of those areas that have been successfully hidden from the public….When the trial is complete, I will have done all that I can do….And when I see that old man in the mirror in the morning, I'll be comfortable."

U.S. House of Reps Joins the Growing Chorus of Those Who Say “Ick” to Iqbal!

Good news out of the U.S. House of Representatives. Reps John Conyers (D-MI), Jerrold Nadler (D-NY) and Henry Johnson (D-GA), have aligned their interests with Senator Arlen Specter (D-PA) in seeking to overturn the U.S. Supreme Court’s Iqbal decision, which is preventing all kinds of legitimate cases form getting into court. 

Congressman Nadler announced at a House Judiciary hearing yesterday that the three planned to introduce legislation that (like Specter’s), would effectively reverse the Supreme Court on Iqbal—which created an unprecedented increase of what ANYONE bringing ANY KIND of lawsuit must initially show in order to avoid having his/her case tossed.

"The bottom line is that the Supreme Court knows what the impact of [Iqbal] is," said Congressman Johnson.  "Even defense lawyers have called the Iqbal decision an unexpected gift for the business community."

“‘Already attorneys have cited [Iqbal] in 2,700 cases since [the May ruling],’ said John Vail, senior counsel at the Center for Constitutional Litigation,” which is up from the 500 citations reported by the New York Times last July.