60 Minutes on ADA Drive-By Lawsuits

On Sunday Anderson Cooper at CBS “60 Minutes” covered one of our favorite issues: the way lawyers and clients sue retail businesses by the dozens or hundreds over defects in ADA accessibility compliance and then cash in the complaints for quick settlements. Actually entering the business is not always necessary: it can be enough to drive around the parking lot spotting technical violations.

South Florida store owner Mike Zayed says “no disabled customer had ever complained about the ramp, the sign, or the parking space,” which failed to comply with ADA specs. Zayed “doesn’t think the person who sued him was a real customer because the man claimed he encountered barriers inside the store that didn’t exist.” And now we’re beginning to see “Google lawsuits” in which the complainant consults online aerial maps to discover, for example, which motel owners haven’t yet installed the pool lifts that federal law recently made obligatory. The same attorney using the same client sued more than 60 defendants in 60 days over lack of pool lifts. “At last count, that attorney has sued nearly 600 businesses in just the last two years, many for not having pool lifts.” [Dec. 4 segment and script; full show here (segment begins 32:47).

Free speech roundup

  • Tomorrow (Tues., Dec. 6) Cato Digital presents panel discussion “Free Speech in the Age of Trump” with Flemming Rose, Nick Gillespie, and Kat Murti [register or watch live online]
  • Eventually, Supreme Court will have to consider a First Amendment challenge to cyberbullying laws [ABA Journal]
  • Tactical use of libel suits cries out for remedy, but some remedies that are being proposed are hard to square with federalism [Sasha Moss, R Street]
  • Bill pending in Congress to protect consumer reviews (Yelp, etc.) would allow special restrictions on speech “inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” which could prove an ominous precedent [Eugene Volokh]
  • Is there a prospect for sanctions should Donald Trump sue the press for defamation? [Eric Turkewitz, pre-election if that matters]
  • Count the ways: “The government has double standards about freedom of speech” [Hans Bader]

Debating a constitutional convention this week

New York listeners: I’m scheduled to be a guest on Brian Lehrer’s popular WNYC radio show tomorrow (Monday) morning, probably 10:30 a.m. or so, debating famed Harvard Law professor Larry Lessig on the topic of a convention to propose amendments to the U.S. Constitution. (Lessig supports that idea, I’m skeptical). That’s a foretaste of the live Intelligence Squared debate that will follow on Wednesday, in which two other debaters will be joining us, Mark Meckler, president of Citizens for Self-Governance joining Lessig for the affirmative and Georgetown law professor David Super joining me for the negative.

“Justice Scalia’s Telecommunications Legacy”

Antonin Scalia’s work on telecommunications deregulation before he became a judge is not one of the more widely known parts of his career, but as director of a White House office on telecom policy in the 1970s he played a key role in promoting removal of old legal barriers to competition and innovation, which in turn laid the groundwork for the emergence of modern online data, voice, and entertainment delivery. This panel discussion at the Federalist Society Lawyers National Convention features Henry Goldberg, Richard Wiley, and Prof. Richard Epstein, with Texas Justice Don Willett moderating. At the very end of the Q&A period I ask a question from the audience, resulting in an exchange with Richard Epstein in which we reminisce about Scalia’s time as editor of Regulation magazine.

Labor and employment roundup

  • “Apprenticeships: Useful Alternative, Tough to Implement” [Gail Heriot, Cato Institute Policy Analysis]
  • “Hiring Without Headaches – A Possibility or Fantasy?” [Daniel Schwartz on President Obama/Stephen Colbert “job interview”]
  • Employee misclassification as ULP: Obama NLRB “is now basically creating unfair labor practices out of thin air” [Jon Hyman]
  • In the mail: Jeb Kinnison, “Death by HR: How Affirmative Action Cripples Organizations” [Amazon/author’s site]
  • Now, for a change of pace, a less critical view of the Obama NLRB and its legacy [Andrew Strom, On Labor, parts one and two]
  • How much flexibility is there in the special California constitutional law doctrine forbidding even prospective cuts (i.e., of not-yet-earned benefits) to public employee pensions? [Sasha Volokh, earlier]

Liability roundup

Trump’s business interests and the Emoluments Clause

Given the complex ongoing dealings between the Trump Organization and foreign governments, the Emoluments Clause of the Constitution will require Congress to “decide what it is willing to live with in the way of Trump conflicts” — and it should draw those lines before the fact, not after. That’s what I argue in a new Philadelphia Inquirer piece. Excerpt:

…Trump points out that the president is exempt from the conflict-of-interest laws that bind Congress and the judiciary, but that doesn’t mean he will escape scrutiny from public opinion or from the body of federal law as a whole, including the Emoluments Clause.

That clause reads in relevant part: “And no Person holding any Office of Profit or Trust under [the United States] , shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”…

The wording of the clause itself points one way to resolution: Congress can give consent, as it did in the early years of the Republic to presents received by Ben Franklin and John Jay. …

…it can’t be good for America to generate a series of possible impeachable offenses from a running stream of controversies about whether arm’s-length prices were charged in transactions petty or grand. …

There is no doubt that doing the right thing poses genuine difficulties for Trump not faced by other recent presidents. If he signals that he understands the nature of the problem, it would not be unreasonable to ask for extra time to solve it.

For more detail, Randall Eliason has a helpful explainer, e.g. on why Emoluments Clause issues do not map well onto the concept of “bribery.” (Bribery is subject to a separate ban, while both presents and some other payments can violate the Emoluments Clause even if given and received with the purest of motives.)

Update: With Trump’s announcement this morning that he intends to step back from management involvement with the Trump Organization, I’ve adapted this post into a longer piece at Cato at Liberty on what comes next. I quote Prof. Bainbridge, who’s got a second round of observations here.

Yet more: memos shed light on how the Department of Justice has construed the obligations of the Emoluments Clause over many decades. And the Washington Examiner, which recently welcomed Tim Carney as new opinion editor, suggests an “occluded trust.”

English Court of Appeal: litigation funders on hook for fee shift

Casting aside traditional prohibitions on champerty and maintenance, the United Kingdom has of late thrown open its doors to “litigation finance” enterprises that fund legal actions as an investment in exchange for a share of the proceeds. But now a very important constraint may be developing as a corollary: backers of legal action may find themselves on the hook for the fee shifts that are payable to successful opponents under the country’s loser-pays (“costs follow the event”) rules. “Litigation funders will be liable for indemnity costs where these are awarded against their funded client, even if the funder itself has been guilty of ‘no discreditable conduct’, the Court of Appeal ruled today in Excalibur Ventures v Texas Keystone and others [2016] EWCA Civ 1144.” [Law Gazette]

“The $20 Million Bucket of Chicken”

KFC’s menu states that its “Fill-Up” $20 deal includes eight pieces of chicken plus a variety of sides that it thinks will serve a party of four. A Hudson Valley, N.Y. woman says she was misled by advertising materials that showed an overflowing bucket. The company offered her a coupon in recompense for her disappointment, but she wants $20 million instead in individual (not class) damages. [Nick Farr, Abnormal Use; Fortune] More: Baylen Linnekin rounds up poultry-related litigation.