[StBernard] True Stella Awards #81: We'll Beat the Pants Off You

Westley Annis Westley at da-parish.com
Fri Nov 2 20:46:24 EDT 2007


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True Stella Awards #81: 31 October 2007 www.StellaAwards.com
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WE'LL BEAT THE PANTS OFF YOU
by Jeffrey Anbinder

Imagine that someone has LOST YOUR PANTS.

That's the horrific, unending nightmare that Roy L. Pearson Jr., 57,
suffered for two and a half years. When his hard work as a longtime legal
aid lawyer in Washington, DC paid off with a probationary two-year
appointment as an Administrative Law Judge in 2005, he brought all five
of his suits to Custom Dry Cleaners in for alterations. But when he
returned to pick them up, one pair of pants was missing.

MISSING!!

To add insult to injury, when Pearson returned later, the proprietors
-- Jin and Soo Chung -- tried, he claims, to pass off a cheaper pair of
pants as his. He demanded $1,150 for a replacement suit; Pearson wants to
look his best, so he is very particular about his suits despite a limited
budget, and always buys the same style of suit from Hickey Freeman. The
Chungs did not respond.

Luckily, Washington, D.C., has the Consumer Protection Procedures Act
(CPPA), a law designed to protect consumers from being cheated by local
businesses' broken promises. This law goes beyond simply reporting
someone to the Better Business Bureau, and grants a private right of
action to sue for damages to be made whole again. After all, Custom Dry
Cleaners brazenly displays signs claiming "Same Day Service" and
"Satisfaction Guaranteed" in their store, despite Pearson's catastrophic
experience to the contrary. So he decided to avail himself of these
rights. He did what any one of us would do: he sued the Chungs -- for
$65,462,500. That's right, more than $65 million.

OK, now it's not so funny anymore.

Judge Pearson represented himself, casting himself as the victim of an
enormous, malicious fraud, and telling the court with a straight face,
"You will search the D.C. archives in vain for a case of more egregious
or willful conduct." He even began to cry while testifying about the day
he says the Chungs tried to substitute a cheaper pair of pants for his,
then he asked for a break and dabbed away tears as he left the courtroom.

But if it's sympathy he wants, perhaps Pearson should not have
included the cost of renting a car every weekend for ten years in the
amount of damages he's seeking. Why a car? Oh, that's for driving to
another cleaner, since he doesn't have a car of his own. But that
accounts for only $15,000 of the absurd total; the rest is to compensate
him and the rest of the Chungs' customers for $1,500 per "violation" per
day, times twelve violations, times 1,200 days, times three defendants,
plus the over one thousand hours he claims to have devoted to prosecuting
this case. If it makes you feel better, though, Pearson also indicated
that $51 million of these theoretical damages would be used to help
similarly aggrieved consumers sue other business in the District.

By the time the case went to trial, the Chungs had offered to settle
it for $3,000 -- then for $4,000 -- and finally for $12,000? Pearson
could have bought ten new suits for that, but he rejected the offer.
Cloaked in the CPPA, he styled himself a "private attorney general"
fighting for the rights of the over 26,000 customers the Chungs had
bamboozled over the years with their "false promises" of "satisfaction
guaranteed".

"This case shocks me on a daily basis," said the Chungs' attorney,
Chris Manning, before the trial. "Pearson has a lot of time on his hands,
and the Chungs have been abused in a ghastly way. It's going to cost them
tens of thousands to defend this case."

As to trying to bring in all of the Chungs 26,000 customers into the
case, D.C. Superior Court Judge Neal Kravitz said that "the court has
significant concerns that the plaintiff is acting in bad faith" due to
"the breathtaking magnitude of the expansion he seeks." Among the
questions Pearson demanded the Chungs answer: "Please identify by name,
full address and telephone number, all cleaners known to you on May 1,
2005 in the District of Columbia, the United States and the world that
advertise 'SATISFACTION GUARANTEED.'" Got that? All the dry cleaners in
the world. Since they didn't have personal knowledge of any, the Chungs
were able to answer "None." before they went on to answer the rest of the
interrogatories....

The trial ended as you might expect (or at least hope) it would:
Superior Court Judge Judith Barnoff ruled in favor of the Chungs, even
awarding them court costs on the grounds that Pearson had "engaged in bad
faith and vexatious litigation." But naturally, that wasn't the end of
it: Pearson filed a motion for reconsideration, which claimed that Judge
Barnoff had "committed a fundamental legal error" and failed to address
his claims. He argued that the court had substituted its own
interpretation of "satisfaction guaranteed" rather than accepting his
argument that the signs were unconditional. The court disagreed and
denied the motion.

The Chungs later withdrew their motion for court costs, attorneys'
fees, and sanctions, as supporters -- including the American Tort Reform
Association, the Institute for Legal Reform of the United States Chamber
of Commerce, and Washington Post newspaper readers -- had raised nearly
$100,000 to help cover their defense. They said they also hoped that
withdrawing the motion would persuade Pearson to stop litigating.

But it didn't: a day before the deadline, Pearson filed a notice of
appeal in the pants lawsuit -- so the Chungs are not yet completely off
the hook.

The loss wasn't the only blow to Pearson. In August, the Commission on
Selection and Tenure of Administrative Law Judges was charged with
deciding whether he should receive a full, 10-year term to continue his
work as a judge. Reports from inside indicate that even after Chief
Administrative Law Judge Tyrone Butler had submitted a letter
recommending Pearson's reappointment, Pearson sent a number of e-mails
within the ALJ staff calling Butler "evil" and "mean-spirited." Butler
changed his recommendation. Based on that, and on questions about
Pearson's judicial temperament and ethics arising from the lawsuit, the
commission came back with a unanimous decision not to recommend his
reappointment. After two months of foot dragging (it's unclear whether by
Pearson or by the Commission -- but we can guess), this week the
Commission hand-delivered a letter ordering Pearson to clean out his
office and get out within 90 minutes. He was paid about $100,000 year as
a judge.

The Chungs sold the Custom Dry Cleaners shop in question in September,
citing emotional strain and a loss of revenue. They still own one other
dry cleaning shop, and have said they will be focusing on that one for
the future. The infamous pants, meanwhile, have hung in their attorney's
closet for well over a year -- turned over to him because Pearson
wouldn't accept them. "We believe the pants are his," Manning said. "The
tag matches his receipt."

The True Stella Awards has often said that judges should work harder
to keep frivolous, and especially vexatious, suits out of the courts. How
shocking, then, to find a judge who not only brings such an action to
court himself, but keeps it going even in the face of unanimous
condemnation. The unanimous action by the Commission on Selection and
Tenure of Administrative Law Judges is heartening, but now it's time for
Judge Pearson to lose his license to practice law.


SOURCES:

1) "Lawyer's Price for Missing Pants: $65 Million", Washington Post, 26
April 2007
http://StellaAwards.com/cgi-bin/redirect5.pl?81a

2) "Kick in the Pants", Washington Post, 3 May 2007
http://StellaAwards.com/cgi-bin/redirect5.pl?81b

3) "Judge Tries Suing Pangs Off Dry Cleaners", New York Times, 13 June
2007
http://StellaAwards.com/cgi-bin/redirect5.pl?81c

4) "Judge Who Filed Suit Plans to Appeal Defeat", Washington Post, 15
August 2007
http://StellaAwards.com/cgi-bin/redirect5.pl?81d

5) "Judge Who Lost Pant Suit Loses Job", Washington Post, 31 October 2007
http://StellaAwards.com/cgi-bin/redirect5.pl?81d

and various court filings.


ABOUT THE AUTHOR

Jeffrey Anbinder is an attorney and freelance writer in New York City.
He is a regular contributor to the True Stella Awards, and is hard at
work on his first novel. On November 17, 2007, he plans to ride his
bicycle 109 miles in "El Tour de Tucson" to raise money for the Leukemia
& Lymphoma Society. His blog about his training, his fundraising, and the
work the Society does, is at http://TucsonOrBust.Livejournal.com


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COMMENTS AND LETTERS

It's about time you heard from us! I have a ridiculous backlog of
cases that I'd like to get caught up with; at least I can be pretty
choosy about what gets written up. The "Judge Pants" case is one you've
been clamoring for -- it may be the most-requested case since we started
in 2002. I'm glad to finally oblige. It's not really that it's an old
case, either, considering there are updates from this week I was able to
squeeze in! (Fired and get out NOW? Gee... what a shock.)

Of course, as we approach the end of the year, I'm seeing copies of
"The Stella Awards: 2007's Most Frivolous Lawsuits" being posted on blogs
with increasing frequency. Yep: they're the SAME OLD URBAN LEGENDS that
have been going around for more than 15 years now -- the very ones
debunked at http://www.thisistrue.com/bogus.html (and other sites). It's
not just stupid that no one checks things out before they post "these
really true!" cases, it's stupid to think that the "awards" for the "most
frivolous cases of 2007" could possibly be published MONTHS before the
end of the year, as if it's impossible that we might turn up something
crazy in October, or November, or December. But we know common sense
isn't common.

If you run across the bogus cases on a blog, please add a comment that
they're fake. Point them to http://www.StellaAwards.com/bogus.html and/or
to http://www.StellaAwards.com/2007.html in hopes that they -- and their
readers -- might get a clue. Thanks.

-v-

TSA #80 (see http://www.StellaAwards.com/previousissue.html if you
can't remember it anymore) had two cases. In the first, a drunk off-duty
soldier who survived Iraq, but didn't survive when he climbed into a
commercial air conditioning unit; his family is suing for wrongful death.
The second was an amazing case: the lawsuit was actually righteous, and
the plaintiff won. What made it worthy of comment was that first, the
defendants admitted they were in the wrong and, second, the plaintiff
refused punitive damages because "This was never about the money." The
plaintiff, McNeil "Mac" Brown, was declared the first-ever recipient of
an Anti-Stella Award.

Jim, a chemist in California: "Wow, that second case is truly amazing!
Not only that Mr. Brown did the right thing, but that the car wash did as
well! Too often I've seen defendants try to deny blame for an incident in
the hopes of minimizing any payout resulting from the case. Both the car
wash owners and Mr. Brown are, in my opinion, perfect examples of how the
system *should* work. They really do give me faith in our society."

Pete, a business analyst in Georgia: "Thanks, Randy, for including an
anti-Stella award story (perhaps it should be called the Stellar award?)
in the latest issue. Don't you wish such classy behavior were the norm? I
view the of True Stella Awards with mixed feelings. Some of the stories
are hard to take, making me almost glad you didn't publish them too
often." I'm glad you liked the Anti-Stella, but no, I won't be calling
them the Stellar Awards: we already get confused with the Stellar Gospel
Music Awards (yes, really!) as it is, and I don't want to encourage it
further.

Peter in the U.K. disagrees a bit with the Anti-Stella: "You write
that '.. the car wash admitted fault on the eve of trial.' Laudable as
that may be, it seems to me that the facts are so clear that the car wash
and their insurance company and lawyers could have got there much sooner.
It seems to me that many defendants delay admission of liability until
the eve of a trial simply to see establish that the plaintiff has the
determination and ability to prove what everyone knows: in the
vernacular, to make sure they've jumped through all the judicial hoops.
This attitude still results in unnecessary legal fees, wasted time and
stress for an injured plaintiff. We hear about sanctions against
frivolous lawsuits (on plaintiffs), but I think it would also be fair to
impose sanctions against defendants who persist in using 'process' to
defend the indefensible and delay justice unnecessarily."

Donna, a litigation manager in Nevada, writes to say that forced
settlement negotiations do more harm than good sometimes: "I deal with
ridiculous lawsuits every day. Because our largest client is a public
entity, probably 75% of our litigation is in federal court dealing with
alleged civil rights violations. I have to tell you I believe our court
system is largely to blame. It is difficult to get cases dismissed at
District Court level because there is a 'question of fact' or the Judge
is concerned about his/her record on appeal. There was an indication in
your issue #74 about how in the U.K. cases are being settled rather than
litigated. We all know this only encourages nuisance value claims (what
we are now calling 'cost to defend'). Our big client, which is a
self-insured public entity 'pool', has taken a hard line: we have made a
policy decision to invest in litigation in hopes of reversing the
litigation trend in our small part of the world. It seems that at every
turn the Courts attempt to get cases settled. In employment liability
cases in federal court, there is an 'early neutral evaluation', which is
a mandatory settlement conference that takes place early on the case. We
don't normally settle cases at that stage (unless we truly have a
problem). Then, prior to trial, there is another mandatory settlement
conference. We often find ourselves defending our decision to try the
case rather than settle it (this is after we've already made an
investment in the case and are fully aware of the risks). If we are
successful in a dispositive motion, plaintiffs often appeal to the 9th
Circuit, where there is a mandatory settlement conference program. So
even when we are successful, we are forced to participate in settlement
conferences, which cost money too! There are similar settlement
conferences in our State court system. There is a mandatory settlement
provision in all cases that are appealed to the Nevada Supreme Court. My
staff has even been reported to the court for not negotiating 'in good
faith'. We had no intention to negotiate in the first place but were
forced to participate. The plaintiffs are entitled to their day in court,
but what about the defendants?! We have managed to try five cases in the
last six months -- and we prevailed on all of them."

Last, Barry in California writes, "Are you a lawyer? I love your
insights, and wish there were more lawyers like you." No, I'm not, and
I've never even studied law (not counting "Legal Issues in Journalism" in
college, which I can hardly remember anymore). Rather, I'm a social
commentator who just doesn't like what he sees in our courts. My main gig
is a weird-but-true weekly news roundup called "This is True" (see
http://www.thisistrue.com for free subscriptions).

My readers there kept sending me the urban legend "Stella Awards"
saying I should write about them. I thought that if the premise was that
there's a problem with frivolous lawsuits in our courts, why are people
using FAKE cases to illustrate the problem? I knew from writing "TRUE"
(as I call my other column for short) that there were plenty of real
cases to write about -- and I proved it by filling a book with them,
along with my conclusions about what such cases say about our society and
what we as citizens, can DO about it besides reading newsletters and
muttering, "Ain't it awful?" See http://www.StellaAwards.com/book.html
for more info on the book; I just got a fresh stock of them, in case you
want to give an autographed copy during the upcoming holidays.

TRUE keeps me pretty busy, so I've signed up a couple of young, smart
attorneys to help write up the cases here, but I'm remaining on board as
publisher and commentator. I think Jeffrey took just the right tone with
today's write-up. My kind of lawyer. :-)

--Randy Cassingham

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