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Wednesday, September 20, 2017

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Hotels and NOAA Sued, Lawyer Jokes Justified


I am an avid student of the law.  I read every law-related article; I read new judicial decisions; I take keen interest in the law and how it’s applied.  Last week, I was torn as the Congress moved closer to reining in class action lawsuits by prohibiting state court "forum shopping" and forcing these suits into the Federal courts (where awards are lower, and the courts are more friendly to class-action defendants).  Part of me saw this law, along with the string of decisions forcing people, even consumers, to abide by arbitration agreements that foreclose class actions altogether, as an erosion of consumer rights.  Now, after today’s latest court filing, I think that over-agressive trial lawyers have cooked everyone’s gooses.

A group of Austrian and German vacationers is suing the National Oceanographic and Atmospheric Administration (NOAA) and the French hotel chain Accor, for failing to give advance warning of the December 2004 tsunami to these people.  NOAA has a Tsunami warning system, but only in the Pacific Ocean.  Nonetheless, NOAA is being sued for failing to warn people at Indian Ocean resorts, all of whom were in Thailand and Sri Lanka!  Apparently, the plaintiffs’ attorney, Mr. Ed Fagan, is arguing that the NOAA owed a duty to issue a Tsunami warning to foreign countries, and was negligent, allowing these victims to try to claim a payday (40% of which goes to Mr. Fagan) from the United States Treasury.


"It takes a bowling-ball sized set of concrete cajones to sue the United States for failing to notify Austrians and Germans of a natural disaster that may or may not strike a foreign country."


I salute Mr. Fagan’s chutzpah.  It takes a bowling-ball sized set of concrete cajones to sue the United States for failing to notify Austrians and Germans of a natural disaster that may or may not strike a foreign country.  What was the NOAA supposed to do?  Hack into the television networks of Thailand and Sri Lanka and broadcast warnings?  The best they could do was inform the governments of those countries.

I also see no way that the hotel could be held liable for a natural disaster.  They are being sued for constructing a resort hotel on a fault line, but it was not destroyed by an earthquake.  So, in essence, the hotel is supposed to be held liable for damages for constructing a seaside resort at the seaside?  What was the hotel supposed to do?  Build the hotel on 1,000 foot tall stilts that a tsunami could wash by without doing damage?  Then the hotel would be sued by older tourists complaining about excessive stairs or the air quality of elevators or some slip-and-fall case where the person fell over 1,000 feet to his or her death.

This kind of case is the reason that there are so many off-color lawyer jokes.  This case, thank God, is likely to be thrown out of court.  The reason is Rule 12(b) of the Federal Rules of Civil Procedure.  The French hotel cannot be held by Germans and Austrians to answer in a United States court in New York.  The NOAA is entitled to sovereign immunity, which holds that any government cannot be sued except by its own consent.  Even if sovereign immunity can be evaded, there is no negligence, since the NOAA owes no duty except to the citizens of the United States.

However, some unlucky judge in the United States District Court for the Southern District of New York will have to waste his or her time to hear the complaint, and then read the complex motions to dismiss, and then rule.  Then the Second Circuit Court of Appeals will have to review the case when inevitably the dismissal is appealed, and when the district court is affirmed, the Supreme Court will have to waste time deciding whether or not to hear the case.  This case is a colossal waste of time, and is nothing more than an attorney searching for a lotto-ticket payday, or even if the case is tossed, publicity.

I want to take this time to reiterate my support for a civil litigation reform with real teeth.  If a court tosses a case under Rule 12(b), the plaintiff pays all of the defendants’ attorney fees and costs, unless the court holds on its own, with all reasonable inferences drawn against the plaintiff, that the case presented for the first time: (1) a legitimate test of an existing law or (2) a legitimate, reasonable argument to extend the law.  You would see lawsuits like the McDonalds-makes-you-fat cases evaporate.  The quality of cases in the Federal system would skyrocket, but the docket sizes would decrease.  This benefits us all.