Approaching storm…
a black coat in the meadow
snorts against the wind
Scent of the dead horse–
descending vortex
of vultures
Coolness…wind-stirred pines
mirrored in the stream
silhouettes of rising geese
“LIllyShadwell” Rebecca Lilly, from Shadwell Hills
(Birch Prees Press, 2002)
potluck
“tinyredcheck” My amiable colleague Walter Olson is often very careful with his facts, nuances and analogies,
but I think his “Litigation slush funds: California propagandizes for antitrust” (Mar. 3, 2005), at Point
of Law, rather carelessly misses the point. As we reported on Feb. 10, in antitrust: the video
an award of $496,000 was granted to the American Antitrust Institute to educate California
consumers and businesses about the benefits of the antitrust laws. The award came from the
Vitamin Cases Consumer Settlement Fund (Judicial Council Coordination Proceeding No. 4076
Master File No. 301803, San Francisco County; approved September 8, 2004). The case was
brought by the State of California and private plaintiffs under antitrust law, alleging that consumers
were harmed by a price-fixing scheme of the vitamin manufacturers.
Walter wants us to believe that an award in an antitrust case, under a cy pres fund, which will
be used to educate the public about the benefits of a little-understood existing law relevant to
the case, is equivalent to the use of tax-payer funds in a publicity campaign orchestrated by a
Governor wanting to change current laws drastically. Walter says:
“There’s currently a hue and cry over revelations that Calif. Gov. Schwarzenegger’s
administration used taxpayer funds to prepare materials promoting its view of reforming
wage-and-hour laws; one presumes the same critics deplore the idea of using publicly
driven funds to sway public views in favor of more expansive antitrust enforcement.”
(emphases added)
I guess Walter (careful not to assume) presumes that Schwarznegger’s opposition can’t tell the
difference between tax-payer-funded and “publicly driven.” (I would agree that chauffered
governors are publicly driven.)
Just what does “publicly driven” mean? Do funds become “publicly driven” because they derive
from a court case brought by private plaintiffs? Because the state is suing on behalf of its citizen-
consumers? Are such funds really analogous to money straight from the State treasury and taxpayer
pockets? Seems like a stretch that might be made by the sort of slippery lawyers Walter so often
decries.
The Consumers Fund was open to applications from non-profit organizations for projects related
to food delivery to the needy, nutritional and health outreach, professional education, nutrition
education, research, as well as antitrust enforcement and policy. [See the Declaration of the Cy Pres
Fund Administrator, Harry M. Snyder, and summaries of the grant applications; other grants went
to a project to deliver food to the homebound, a scholarship fund for health professionals who serve
underserved areas, the improvement of school district nutitrion services, and for a forum on
Helping the public understand how antitrust policy and enforcement works to assure competition in
the marketplace — and why that is important to consumers and businesses — seems like a good use
of this cy pres fund. It’s fairly innocuous — except to the fringe who want all antitrust laws revoked.
I’d be surprised if Walter were among those radicals. I’ve known the AAI’s Bert Foer for almost two
decades, and I trust him when he says “Our film and materials will be objectively presented, colorful
and provocative” (AAI press release, Feb. 10, 2005). A public that understands the issues better may
choose to expand antitrust enforcement — or to rein it in. Making those choices while informed about
the issues seems like something Walter would applaud — unless he just has an axe to grind or an ox
he’s trying to protect.
It’s no secret that I am a former antitrust lawyer and an advocate for
consumer protection through more competition.
Walter, maybe you should borrow Rebecca’s haiku above in your battles with ATLA.
I’ve complained about Michael Boxley before. I’m pleased to notethat a judge has rejected the claim of the confessed sex offender, and
former chief counsel to NYS Assembly Leader Sheldon Silver, that
the State pay his legal fees in a suit by a former Assembly staffer,
who claims Boxley raped her. According to an AP/Newsday report
(March 4, 2005):
Supreme Court Justice James Canfield ruled against Boxley,
saying “there is no question but that the criminal activity
that petitioner has either already admitted or is accused of
constitutes a substantial departure from the duties of
public employment.”
So far, no comment from the usually chatty counsel for Boxley.
A final point: The one-year suspension of Boxley’s law
license seems rather lenient to me. I wonder what
Carolyn thinks?
original of The Gates in full color 
