Friday, July 30, 2010

This Just Gets Better

Champerty was prohibited at common law:
Champerty, campi-partitio, is a species of maintenance, and punished in the same manner being a bargain with a plaintiff or defendant campum partire, to divide the land or other matter sued for between them, if they prevail at law ; whereupon the champertor is to carry on the party's suit at his own expencea. Thus champart, in the French law, signifies a similar division of profits, being a part of the crop annually due to the landlord by bargain or custom. In our sense of the word, it signifies the purchasing of a suit, or right of suing: a practice so much abhorred by our law, that it is one main reason why a chose in action, thing of which one hath the right but not the possession, is not assignable at common law ; because no man should purchase any pretence to sue in another's right. These pests of civil society, that are perpetually endeavouring to disturb the repose of their neighbours, and officiously interfering in other men's quarrels, even at the hazard of their own fortunes, were severely animadverted on by the Roman law... [Blackstone's Commentaries on the Laws of England (1795), 4:135 ]
Federal courts seem to follow the laws of the state in which they are located with respect to champerty questions:
To prove champerty, it must be shown that the "foundational intent to sue on the claim must at least have been the primary purpose for, if not the sole motivation behind, entering into the transaction." Id., 94 N.Y.2d at 736, 709 N.Y.S.2d 865, 731 N.E.2d 581. [In re Lynn, 285 BR 858, 863, 864 - Bankruptcy Court, SD New York 2002]
Nevada Supreme Court decisions as late as 1997 are still treating questions of champerty as serious matters, such as in Schwartz v. Eliades, 939 P. 2d 1034 (Nev. 1997), and this one:
At common law, an assignment of the right to a personal injury action was prohibited. See Karp v. Speizer, 132 Ariz. 599, 600-01, 647 P.2d 1197, 1198-99 (App.1982). Many jurisdictions continue to adhere to the common law view. See 6 Am.Jur.2D Assignments § 37 (1963). However, in most states an attorney is allowed by statute to receive an assignment of a portion of the proceeds of a tort action through a contingency fee agreement with a client. SCR 155; Cal.Bus. & Prof.Code § 6146 (West 1990); N.Y.Jud. Law § 474 (McKinney 1983). ...

We conclude that the district court was correct in ruling that a meaningful legal distinction exists between assigning the rights to a tort action and assigning the proceeds from such an action. See In re Musser, 24 B.R. at 920-21. When the proceeds of a settlement are assigned, the injured party retains control of their lawsuit and the assignee cannot pursue the action independently. See Charlotte Hosp. Auth., 455 S.E.2d at 657. Also, the ability to assign portions of the proceeds of the suit allows an injured plaintiff to obtain an attorney through a contingency fee arrangement and allows the plaintiff to pursue the action without being burdened by medical bills associated with the accident.

In this case, Shawn and Marcia retained control of their lawsuit against the school district without any interference from Expressway. Thus, we conclude that the public policy against assigning tort actions was not present in this case. Accordingly, we affirm the district court's ruling that Expressway's assignment was not void as against public policy. [Achrem v. Expressway Plaza Ltd., 917 P. 2d 447, 448, 449 (Nev. 1996)]
Righthaven clearly purchased the copyrights for the purpose of suing. They aren't representing the R-J. This is an assignment of a tort action, not of the proceeds. I see why one of the Motions wanted to know the details of the relationship.

1 comment:

  1. "I see why one of the Motions wanted to know the details of the relationship."

    Is that one you note here, per chance, Mostofi?