California: “Lawyer, wife convicted in extortion plot against businesses”

“A California attorney and his wife were convicted of engaging in a scheme to extort minority, immigrant-owned businesses.” [Associated Press] “[Rogelio] Morales and [Mireya] Arias engaged in a scheme in 2016 to file ‘meritless gender discrimination lawsuits to pressure minority business owners into giving them thousands of dollars in alleged “settlements,”‘ a prosecution trial brief said. Prosecutors said Morales and Arias would obtain services from the small businesses they targeted — salons or dry cleaners — and if they were charged differently for the same service, they would file a lawsuit claiming a violation of a California anti-discrimination law, prosecutors said.” [Richard K. De Atley, Press-Enterprise (Riverside, Calif.)]

Free speech roundup

  • Fourth Circuit rejects gag order on parties and potential witnesses in North Carolina hog farm litigation [Eugene Volokh]
  • Eighth Circuit, interpreting Missouri law’s obligation to register as “lobbyist,” leaves open possibility that requirement extends to unpaid lobbyists, also known as concerned citizens [Jason Hancock, Kansas City Star; Institute for Free Speech on Calzone v. Missouri Ethics Commission]
  • “9 Months in Prison for Forging Court Orders Aimed at Vanishing Online Material” [Volokh] Per one account at least 75 fake court documents have been sent to Google as part of takedown efforts, including an order purporting to come from the UK Supreme Court [same]
  • The accused pipe bomber had made online death threats against Ilya Somin, libertarian lawprof and friend of this site. Lessons to draw? [Cato Daily Podcast, more]
  • Entanglement of press and state leads nowhere good: Canadian government to allocate C$600 million in subsidies to newspapers and legacy media [Stuart Thomson, National Post; earlier on press subsidies here, here; some Canadian background from 1983]
  • Court: First Amendment doesn’t protect Comcast from bias charge over its decision not to carry block of black-owned TV channels [Jon Brodkin, ArsTechnica]

Social activism, the law, and the 501(c)(4) route

Many groups on the left, following the example of the right, have been de-emphasizing or even abandoning the old 501(c)(3) format of tax-deductible charitable endeavor in favor of the 501(c)(4) format, which has fewer tax advantages but allows a wider range of frankly political activity.

For some on the progressive side, writes David Pozen, who teaches law at Columbia, this is in part a matter of giving up on the Supreme Court as an engine of far-reaching social change. “The 501(c)(3) form fit snugly into the postwar theory of legal liberalism, in which the federal courts were seen as the key agents of social reform and professionally managed nonprofits as their partners in that effort.” [The Atlantic]

I would add one observation, which is that this shift of focus from strategic litigation to electoral politics and organizing is exactly what many legal conservatives have been urging the left to do for two generations: if you want the law to change, don’t take your case to an unelected caste of elite judges, take it to the people.

Liability roundup

  • Big win for scientific rigor in the courts as New Jersey joins 40 other states in adopting Daubert standards for expert testimony, in In re Accutane Litigation [Washington Legal Foundation: Evan Tager and Surya Kundu, Joe Hollingsworth and Robert Johnston] With the long domination of the Florida Supreme Court by its liberal bloc soon to end, is it too much to hope that Florida joins the national trend too? [Evan Tager and Matthew Waring, WLF]
  • California lawyers sue electric scooter companies and manufacturers after users run into pedestrians on street, park improperly in handicapped spaces, and leave them in places where they can be tripped over [Cyrus Farivar, ArsTechnica]
  • Defendants obtain fees and costs in suit against siren maker over firefighter hearing loss [Stephen McConnell, Drug and Device Law]
  • Some safety advocates’ flip-flops on autonomous vehicle legislation in Congress might relate to trial lawyers’ agenda of the moment [Marc Scribner, CEI, more]
  • “Labaton Sucharow agrees to return $4.8M in attorney fees after attorney finder fee is revealed” [ABA Journal, earlier on State Street/Arkansas Teacher Retirement System case here, etc.]
  • MGM, Fox settle class action claiming that box set of “all” James Bond films lacked two made outside the franchise [Eriq Gardner/Hollywood Reporter, earlier]

“For obvious reasons, few will talk openly about the issue.”

Stepped-up litigation and reputational risks from charges of sexual misbehavior are changing employer policies in predictable ways:

Privately, though, many of the men interviewed acknowledged they’re channeling Pence, saying how uneasy they are about being alone with female colleagues, particularly youthful or attractive ones, fearful of the rumor mill or of, as one put it, the potential liability.

A manager in infrastructure investing said he won’t meet with female employees in rooms without windows anymore; he also keeps his distance in elevators. A late-40-something in private equity said he has a new rule, established on the advice of his wife, an attorney: no business dinner with a woman 35 or younger.

“If men avoid working or traveling with women alone, or stop mentoring women for fear of being accused of sexual harassment,” he said, “those men are going to back out of a sexual harassment complaint and right into a sex discrimination complaint.”

[Gillian Tan and Katia Porzecanski, Bloomberg quoting Stephen Zweig, an employment attorney with FordHarrison.] For an earlier round of these issues, see this 2015 post.

Ohio bans distracted driving, cops to fill in details

A number of states have banned driver use of handheld cellphones, but the Ohio legislature has now gone further by enacting a ban on distracted driving that

retains [such a ban] while also expanding distracted to include “Engaging in activity that is not necessary for the vehicle’s operation and that impairs, or reasonably would be expected to impair, the driver’s ability to drive safely.”

The new law provides no further explanation of the new definition, leaving it to the discretion of officers and the courts. It is thought that this definition could be applied to any kind of distraction that is related to an accident, including consuming food and beverages or adjusting car systems like climate and radio.

The problem here with vagueness and enforcement discretion go beyond the scope of the penalty, which for now is only $100. [Tim Zubizarreta, Jurist; Scott Greenfield; Tim Cushing on Twitter (“a blank check for pretextual stops”); earlier]

December 5 roundup

  • “An important win for property owners”: Supreme Court rules 8-0 that protected species habitat doesn’t include tracts containing no actual dusty gopher frogs and not inhabitable by them absent modification [Roger Pilon, George Will, earlier on Weyerhaeuser v. U.S. Fish & Wildlife Service, Cato Daily Podcast with Holly Fretwell and Caleb Brown (“The Frog Never Had a Chance”)]
  • Proposed revision of federal Violence Against Women Act (VAWA) would expand definition of domestic violence to include nonviolent “verbal, emotional, economic, or technological” abuse. Vagueness only the start of the problems here [Wendy McElroy, The Hill]
  • Bad ideas endorsed by the American Bar Association, part 3,972: laws requiring landlords to take Section 8 tenants [ABA Journal; earlier on “source of income discrimination” laws]
  • Minneapolis “Healthy Foods Ordinance” drives up costs for convenience stores, worsens food waste, pressures ethnic grocers into Anglo formats [Christian Britschgi]
  • New York Attorney General-elect Letitia (Tish) James has been zealous about suit-filing in recent years, quality another matter [Scott Greenfield]
  • “Plaintiff wins $1,000 in statutory damages for technical violation of Fair Debt Collection Practices Act. (Debt collector illegally used the words ‘credit bureau’ in its business name.) After plaintiff’s lawyers seek $130k in fees, district court awards them the princely sum of $0. Fifth Circuit: Just so. While fees are ordinarily mandatory, ‘special circumstances’ obtain here: The record suggests that the plaintiff colluded with her lawyers to generate this ‘outrageous’ fee-heavy lawsuit in Texas instead of in her home state of Louisiana.” [John Kenneth Ross, IJ “Short Circuit” on Davis v. Credit Bureau of the South]

“Should Governments Restrict Cash?”

“Central bankers and mainstream monetary economists have become intrigued with the idea of reducing, or even entirely eliminating, hand-to-hand currency. Advocates of these proposals rely on two primary arguments. First, because cash is widely used in underground economic activities, they believe the elimination of large-denomination notes would help to significantly diminish criminal activities such as tax evasion, the illicit drug trade, illegal immigration, money laundering, human trafficking, bribery of government officials, and even possibly terrorism. They also often contend that suppressing such activities would have the additional advantage of increasing government tax revenue. [A second argument relates to monetary policy.]…

Yet the arguments for phasing out cash or confining it to small denomination bills are, when not entirely mistaken, extremely weak.” [Jeffrey Rogers Hummel, Cato Policy Analysis No. 855]