Posts Tagged ‘arbitration’

Medical roundup

  • “Judge Says He’s Had Enough Of Weeding Through Baseless Lawsuits, Threatens Sanctions” [Daniel Fisher; M. D. Georgia judge on vaginal mesh cases]
  • More on pricey regulated generics [Scott Gottlieb/WSJ, earlier on EpiPen, more on latter from Joel Zinberg/City Journal]
  • Feds ban pre-dispute arbitration agreements in nursing home care [McKnights]
  • How Ronald Reagan’s FDA responded to the AIDS crisis — and it’s probably not the story you’ve heard [Peter Huber, City Journal]
  • FDA regs likely to winnow smaller, distinctive makers from the cigar business, recalling a Somerset Maugham story [James M. Patterson] Debunking the “Helena miracle,” once more: no link between local smoking bans and short-term drops in heart attacks [Jacob Sullum, earlier here and here]
  • “Ethicists make the case for bone marrow transplantation markets” [Ilya Somin]

“When consumers want to create or join a class-action lawsuit…”

Hello, AP? The relevant “wanting” here is done by lawyers, not consumers. (“When consumers want to create or join a class-action lawsuit…”) And that’s kind of emblematic of how you miss the point on the Consumer Finance Protection Board’s big announcement of a rule yesterday rescuing many class action lawyers from the arbitration clauses to which their putative clients would otherwise have given legal consent.

More: BNA, James Copland, WSJ:

The industry reaction was swift, with Wall Street and its advocates warning of unintended consequences of the rule within hours of the CFPB proposing it on Thursday.

The change likely will result in higher litigation costs for banks, which they will offset either by raising the costs of consumer-loan products or reducing services, said Nessa Feddis, senior vice president for consumer protection and payments at the American Bankers Association, an industry group.

House Financial Services Committee Chairman Jeb Hensarling (R., Texas) called the proposed rule “a big, wet kiss to trial attorneys.”

And: Omri Ben-Shahar, Forbes:

While the overall effect on consumers depends on the balance between meritorious and frivolous class actions, one prediction can be made with confidence. Firms will now take greater care in drafting even longer fine print agreements, where everything is fully “disclosed.” Since many class actions allege violations that can often be corrected through more comprehensive legal disclosures and warnings, firms will lawyer up and write longer and even less readable boilerplate. The “asterisk” will be the winner — the routine disclaimers that accompany advertisements, as in: “Footlong is an average; reasonable variations may apply.” In the end, the CFPB’s proposed regulation will not improve the value of financial services to consumers. It will instead lavish upon people even longer and more excruciating small print.

Will the Supreme Court now turn against employment arbitration?

In a case involving Murphy Oil, the National Labor Relations Board contends that “a mandatory arbitration provision violates the National Labor Relations Act. That has been the position of the NLRB for some time now, notwithstanding almost universal rejection by the courts.” The Fifth Circuit, unsurprisingly, joined other precedent and upheld the employer. Until just a short time ago, given a Supreme Court on which Justice Antonin Scalia had penned strong opinions in favor of freedom to contract in favor of arbitration as a choice, “employers would not have been terribly concerned if the NLRB had appealed.” But now? [Michael Fox, Jottings By an Employer’s Lawyer]

Behind the Times: arbitration and its critics

In its long-running campaign against arbitration as a contractually chosen alternative to its own services, the Litigation Lobby recently scored a coup in the form of a New York Times series intensely negative on the practice. I joined radio host Bob Zadek recently for a discussion of the issue.

More on arbitration recently from Jim Copland in the Wall Street Journal, from Daniel Fisher (“New York Times Cites The Wrong Case To Support Class Actions”) and Greg Herbers, Washington Legal Foundation (“Rebuffed Twice in Texas, the NLRB Takes its Crusade Against [Class-Action] Arbitration [Agreements] to California”).

Banking and finance roundup

  • Trying to buy gift cards in bulk as an employee bonus, Coyote discovers anew that the government hates cash;
  • Initial public offerings are drooping again, regulation one reason [Thaya Knight, Cato]
  • A dissent from the lamentations, here and elsewhere, on the decline of small community banks [Ira Stoll] “Fed’s Tarullo says looking into smaller banks’ concerns” [Business Insider]
  • Berned out? Financial transactions tax “one of the more overrated ideas in American Progressive political discourse” [Tyler Cowen, Wikipedia on Sweden’s experience via @aClassicLiberal on Twitter] And Sen. Sanders continues to express incredulity on Twitter about college loans’ carrying higher interest than home mortgages do, despite attempts to enlighten him on the whole topic of secured lending and collateral [@tedfrank]
  • Video of Federalist Society convention panel on constitutionality of administrative law judges at SEC and elsewhere with John S. Baker, Jr., Stephen Crimmins, Todd Pettys, Tuan Samahon, moderated by F. Scott Kieff;
  • Consumer Financial Protection Bureau ban on contractual arbitration will help class action lawyers, few others [Todd Zywicki, Mercatus]
  • “How US policies to stop terrorist financing end up hurting innocent families abroad” [Dylan Matthews, Vox] Money laundering regs, “de-risking” result in many bank closures in U.S.-Mexico border areas, hassles result for local residents and businesses [Kevin Funnell]

Supreme Court and constitutional law roundup

Liability roundup

November 18 roundup

  • Judge Kozinski ate a sandwich paid for by the ACLU and the National Law Journal and American Bar Association are totally on it;
  • Update: “Ohio court says city can’t use ‘quick-take’ to seize property” [Watchdog, earlier on town of Perrysburg’s effort to seize property in adjoining Middleton Township]
  • Regarding the wildly one-sided attacks on arbitration of late, I’ve noticed that the people who call contractually agreed-to arbitration “forced” are usually the same people who don’t call taxation “forced”;
  • “‘Underground Regulations’ Violate the Constitution as Much as Headline-Grabbing Executive Actions” [Ilya Shapiro, earlier on subregulatory guidance]
  • Reminder: if you’re interested in Maryland policy you should be keeping abreast of my blog Free State Notes;
  • Business litigants battle it out, sugar v. corn syrup [L.A. Times]
  • Obama just backed ENDA-on-steroids Equality Act [Washington Post, earlier, Scott Shackford/Reason (bill would cover not only employment but “housing, lending, jury duty, and public accommodations” while “massively expand[ing] what the federal government counts as a public accommodation,” thus turning into federal cases what are currently local disputes like the Arlene’s Flowers case)]

In defense of religious arbitration

Notwithstanding its critics, religious arbitration has a role to play in a liberal legal order — in fact especially there, suggest John Corvino and Katherine Kim. “An important feature of liberal (i.e. free) states is to protect citizens’ moral agency, allowing them to align their actions with their moral convictions. Many citizens base their moral convictions on their religious beliefs. For these citizens, religious arbitration may provide an important opportunity to resolve disputes in accordance with shared values.” [University of Colorado philosophy blog What’s Wrong?, more on recent attacks on arbitration]

Liability roundup

  • “Is Arbitration Awful? The New York Times Thinks So.” [New Jersey Civil Justice Institute, earlier here and here] And speaking of that paper, I’m going to miss Joe Nocera’s incisive coverage of the litigation business in his column, often linked here; he’s off to other duties at the Times [Politico/New York]
  • Yet more from the Times, longread on litigation investing and champerty: “Should You Be Allowed To Invest In a Lawsuit?”
  • Mikal Watts through the years: “It was part of my strategy to affect the stock price, which I was very successful at.” [Madison County Record, more]
  • “No negligence liability for injuries by fellow players in contact sport” [Eugene Volokh, martial arts, Colorado Court of Appeals]
  • Defense lawyer claims adversary had advance word about jury deliberations, grabbed $25 million settlement [Chicago Law Bulletin]
  • Is data privacy the next source of mass lawsuits? [Chamber Institute for Legal Reform]
  • Funds needlessly drained: “Asbestos reforms needed to protect first responders and veterans” [Rep. Blake Farenthold, The Hill]