Banking and finance roundup

Dial O for opportunism

“More than 25 years after its passage, a federal telemarketing law hasn’t just created a cottage industry for lawyers – it has spawned a group of professional plaintiffs like [Melody] Stoops who are armed with several cell phones for the purpose of receiving debt collection calls often intended for other individuals.” [John O’Brien, Legal NewsLine]

Forethought goes into the question of how to be legally injured by unlawful calls in the manner most lucrative under the Telephone Consumer Protection Act (TCPA):

Individuals receiving calls they believe to be in violation have two options to try to maximize recovery.

-Answer the phone, tell the company to stop calling and hope the calls keep coming. Those calls could be construed as “willful” violations of the TCPA and lead to triple damages; or

-Don’t answer the phone, never tell the company to stop calling but chronicle how many times it does. This would lead to only $500 claims but keeps the company calling.

The “wait and build damages” strategy can sometimes pay off nicely:

“Mr. Spencer is seeking to exploit the TCPA to recover a $2.7 million jackpot in statutory penalties because he inadvertently received – on a five-dollar disposable cell phone that he seldom used – emergency text alerts that the previous user of his cell phone number had requested,” AT&T’s attorneys wrote in November while asking for summary judgment.

“(Spencer) waited for the text alerts to accumulate, and then filed this lawsuit seeking millions of dollars unrelated to any alleged harm that he experienced.”

Later entries in the three-part series include part two, “the story of a Polish immigrant who has allegedly made more than $800,000 with a phone number belonging to his ex-wife,” and part three, on a defendant firm that struck back with racketeering suit against a prolific California attorney who has filed many TCPA claims. (earlier)

P.S. And related, just out today: junk-fax suits, covered here extensively in the past, “are active in industries that still rely on faxes for conducting business, such as hospitality and health care, a review of court filings shows. Recent lawsuits complain of unwanted faxes hawking medical supplies, pet medications, air conditioners and mortgage refinancing.” TCPA is nicknamed Total Cash for Plaintiffs’ Attorneys [Sara Randazzo, Wall Street Journal]

“The Oxford Comma Case Proves We Need New Employment Laws, Not Better Grammar”

Suzanne Lucas (Evil HR Lady), in her column at Inc., uses the Oxford comma trucking-hours case as a jumping-off point for a wider discussion of how the current workplace regulatory regime needs overhaul, starting (but not ending) with the Fair Labor Standards Act (FLSA) of 1938, a long-obsolete, coercively paternalistic, hard-to-understand mess:

Do I have a solution for all employment law? No. But where would I start? Well, with the assumption that employees over the age of 18 are adults and should be able to make their own contracts with employers. The key of my proposal would be that all job offers must be in writing (electronic or on paper) and that those terms could not be changed without advance notice. Let each person decide if a job offer makes him or her better or worse off.

She quotes my recent essay in the Cato Handbook for Policymakers (earlier on which).

“It’s Irrational to Require 1,000 Hours of Training to Be Able to Braid Hair”

Ilya Shapiro and David McDonald describe the background of the Eighth Circuit case of Niang v. Carroll, in which Cato has filed an amicus brief:

…the Missouri Board of Cosmetology and Barber Examiners (an administrative board made up primarily of practicing barbers and cosmetologists, as well as the owners of in-state cosmetology/barbering schools) has declared that anyone wanting to braid hair professionally must be a licensed cosmetologist or barber—despite the fact that neither licensing program offers any training whatsoever in the [African hair-braiding] services [Ndioba “Joba”] Niang and [Tameka] Stigers intend to offer. Defended as necessary to protect Missouri’s consumers from the health, safety, and fraud risks caused by untrained hair braiders, this licensing regime is actually a thinly disguised cartel in which insiders have built up arbitrary and expensive licensing requirements in an effort to limit competition.

Pacific Legal Foundation and Goldwater Institute have also taken an interest in the Niang. case. Relatedly, Scalia/George Mason law professor recently published an article in the Yale Law Journal Forum, “The Due Process Right To Pursue a Lawful Occupation: A Brighter Future Ahead?” For decades courts reviewed occupational licensure laws under a very relaxed rational basis test under which challengers were unlikely to succeed unless they could point to, say, a violation of the Bill of Rights. “Recent precedent, however, suggests that courts are becoming more protective of what has traditionally been considered a subset of liberty of contract: the right to pursue an occupation.” Prof. Bernstein (via his Volokh blogging) also has an interview with Reason on the ideas in the piece.

Murr v. Wisconsin: is taking a sub-parcel of land compensable?

On Monday the Supreme Court heard oral argument in the case of Murr v. Wisconsin, a case over whether Wisconsin should have to pay for a partial taking of land:

Joseph Murr and his siblings own two side-by-side lakeside lots, one with a recreational cabin and the other left vacant as an investment. Due to land-use restrictions, they allege that Wisconsin has “taken” the vacant lot, which would require the state to pay just compensation under the Fifth Amendment’s Takings Clause. Wisconsin courts rejected this claim by considering the economic use of the two lots combined. The Murr case thus asks how courts should define the “relevant parcel” of land when evaluating regulatory takings. Cato filed a brief in this case, arguing that current regulatory-takings jurisprudence is unclear and puts a thumb on the scale for the government. Another amicus brief, filed by Nevada and eight other states and co-authored by Ilya Somin, argues that the Wisconsin court’s rule “creates significant perverse incentives for both landowners and regulators.”

Last Friday Cato held a panel discussion on the case, introduced by Todd Gaziano of Pacific Legal Foundation, with Roger Pilon of Cato, Michael Pappas of the University of Maryland, and Ilya Somin, Scalia/George Mason Law School, with Cato’s Ilya Shapiro moderating. On Monday the Wall Street Journal published Roger Pilon’s opinion piece on the case. More: Ilya Somin, Rick Hills.

March 22 roundup

  • Gorsuch hearing “unlikely to change a single vote on anything” [Ilya Shapiro] “No, there is no way to force Supreme Court nominees to give revealing answers” [Orin Kerr] Members of Supreme Court bar are keen on the nominee [letter courtesy SCOTUSblog] And many law professors, even [letter via Will Baude]
  • “Nice Try! Judge Nixes Attempt To Turn $4 Million Worth Of Stickers Into $10 Million Bonus” [Daniel Fisher]
  • Problems here would seem to go beyond lack of court interpreter: “Interpreter no-show stalls Chigwedere witchcraft case” [The Herald, Zimbabwe]
  • “The Strange Case of Everet vs. Williams: When Two Highwaymen Took Each Other To Court” [Paul Anthony Jones, Mental Floss]
  • Important Phil Hamburger op-ed: Chevron entrenches a judicial bias in favor of state, Gorsuch is right to oppose it [New York Times]
  • It’s cute when legislators try to legalize dachshund racing [Lowering the Bar, Idaho, earlier]

Advocates seek tighter state reins on homeschooling

Pointing out that it sometimes turns out badly for the kids involved, an emerging group of advocates critical of homeschooling “want stronger oversight, methods to monitor the quality of the education and ways to protect children from the dangers that can unfold behind a family’s closed doors.” One lesson of the American past — which has included long periods in which most states either banned homeschooling outright or subjected it to onerous legal restrictions — is that there’s an inherent conflict of interest when the state is allowed to regulate a substitute (home-based schooling) that competes directly with the state’s own educational enterprise. [Washington Post] More: Charlotte Allen, Weekly Standard.

Making Clean Water Act legal fees two-way

The Clean Water Act, like many federal statutes, currently contains a nominally neutral attorneys’-fee award provision which is commonly read to call for an award of attorneys’ fees to plaintiffs who prevail, but not to defendants who prevail. H.R. 1179, introduced by Rep. Tom Rice (R-S.C.) with 59 co-sponsors, would move to full two-way loser-pays by prescribing that fees ordinarily be paid. One possible impact would be to help clear infrastructure legal logjams [Charmaine Little, Legal Newsline, thanks for quote]