Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for September, 2015

Donald Trump sends nastygram to Club for Growth

Public figure Donald Trump, target of a Club for Growth attack ad, has responded in characteristic manner by firing off a cease and desist letter to the club [Business Insider, Chris Cilizza/Washington Post] Trump lawyer Alan Garten calls the ad:

“…replete with outright lies, false, defamatory attacks and destructive statements and downright fabrications which you fully know to be untrue, thereby exposing you and your so-called ‘club’ to liability for damages and other tortious harm,” Garten wrote.

Garten said he was only willing to offer the Club for Growth a “one-time opportunity to rectify this matter” and avoid “what will certainly be a costly litigation process.”

“In the event, however, that we do not receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements,” he concluded. “Please be guided accordingly.”‘

Four years ago I wrote about Trump’s long record of using litigation and its threat as a weapon against critics and journalists whose account of his business dealings he found displeasing, and questioned whether this pattern harmonized well with general Republican/conservative disapproval of the unnecessary use of litigation. Earlier on Trump. More: Jonathan Adler (“suit has no legal basis” and “is what is commonly known as a SLAPP suit — a suit that’s designed to shut people up.”)

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Claim: Twitter’s use of URL shorteners in direct messages is privacy violation

A would-be class action from Edelson PC “aims to represent two classes — every American on Twitter who has ever received a direct message and every American on Twitter who has ever sent a direct message.” The claim is that Twitter’s use of URL shorteners for links sent within direct messages (DMs) violates the Electronic Communications Privacy Act and California privacy law because the service “reads” (if only by algorithm) communications that it promised were confidential. “The claimed damages are as high as $100 per day for each Twitter user whose privacy was violated.” [Hollywood Reporter] Overlawyered readers have met the Chicago-based Edelson class-action firm on previous occasions.

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Police and prosecution roundup

  • mr-district-attorneySheriff’s group wants Facebook to ax “hate speech against police,” “anti-police rhetoric”: what could go wrong? [WDIV, Daily Caller]
  • The “Mr. District Attorney” comic book cover at right is from Jim Dedman at Abnormal Use, who as part of his Friday links roundup for years now has featured great law-related comic book covers related to law, crime, and justice. Check out his archive;
  • “Under the Microscope: The FBI Hair Cases,” on a major forensic fiasco [Al-Jazeera America documentary, auto-plays, via Scott Greenfield]
  • Knock and announce: in case from Eastern Shore of Maryland, Fourth Amendment got SWATted by militarized police [Ilya Shapiro and Randal John Meyer, Newsweek and Cato]
  • Of course the intersection of civil asset forfeiture with sex panic is one big disaster area for liberty [Elizabeth Nolan Brown] “Should Prostitution Be Legalized?” [David Boaz, Cato; Reason panel on “sex trafficking” goes on despite threatened activist disruptions]
  • Doctrine of qualified immunity shields police officers (and other public employees) from most civil liability. How does it work? [Nathan Burney at Radley Balko]
  • The U.S. Department of Justice regularly settles complaints against local police departments by extracting a promise to abide by future negotiated constraints. Federalism and constitutional concerns aside, how well do these consent decrees actually work in reforming conduct? [Marshall Project]

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Because only Truth has rights

Scientists’ “Letter To President Obama: Investigate Deniers Under RICO” is exactly what it sounds like [Greg Laden, ScienceBlogs] We earlier noted, as a step toward attaching legal consequences to unwanted advocacy, Sen. Sheldon Whitehouse’s (D-R.I.) op-ed “urg[ing] the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of ‘conservative policy’ groups an apparent target of the investigation as well,” as well as Gawker’s call to “arrest climate change deniers.”

P.S. For more on the widely publicized book Merchants of Doubt by Naomi Oreskes and Erik Conway, which condemns various scientists said to be too skeptical of the factual basis for regulation, see links gathered by Judith Curry, including this Reiner Grundmann review. Yet more: “I have no idea how it affects the First Amendment” says Vermont scientist who backs probe of wrongful advocacy [Bruce Parker/Watchdog, quotes me]

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NLRB’s “impractical, dangerous” Browning-Ferris ruling

Courts will eventually strike down the National Labor Relations Board’s awful Browning-Ferris ruling (earlier) extending labor-law liability across many franchising and subcontracting relationships, predicts lawyer and former NLRB member Marshall Babson at the New York Times’s “Room for Debate.” More: Sean Hackbarth, U.S. Chamber. And my Cato piece on the ruling has been reprinted at the Foundation for Economic Education.

P.S. Republicans introduce bill to overturn ruling, prospects uncertain so long as Democrats in position to sustain presidential veto.

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Food roundup

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“BMW settles EEOC criminal background check suit for $1.6 million”

Automaker BMW in Spartanburg, S.C. began conducting criminal background checks on logistics workers and dismissed about 100 existing employees under guidelines that “excluded from employment all persons with convictions in certain categories of crime” not distinguishing misdemeanor from felony or recent from long-ago convictions. About 80 percent of the dismissed employees were black, and the EEOC sued, saying that because the application of the check program had a disparate impact, BMW was obliged to, but had not, properly validated its policy in detail for “business necessity.” A federal judge declined to dismiss the case and BMW has now agreed to pay $1.6 million and offer jobs to 56 discharged employees as well as up to 90 who had applied but not been hired under the policy. [Judy Greenwald, Business Insurance via Jon Hyman] The EEOC in recent years has led a crackdown on employer use of criminal background checks.

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Tucson’s two-tiered shaming

“Tucson PD releases names of people possibly connected to prostitutes — after removing those who happen to be cops.” That’s the headline atop a Radley Balko post about a decision by authorities in the Arizona city to do a splashy public release of the names and numbers of persons found on cellphones confiscated from massage parlors, despite the police chief’s own confirmation that the “inclusion of information in this list is in no way indicative of involvement in criminal activity”:

…before releasing the names of hundreds of people who appeared in the phones, the city police checked the names against the city’s roster of police officers. They then redacted those names, and released all the others. The police officers’ information won’t be released until they’ve had a chance to clear their names through an internal investigation. As for everyone else, well, good luck explaining…

P.S. But note that according to an anonymous commenter below, the general release of names wasn’t something up to city authorities’ discretion:

the names weren’t “released”, the Arizona Daily Star requested the names from police records (under a public records transparency law.) The police redacted the officer names because under the law they were under active investigation, which is a legal exception carved out due to unions.

If this account is accurate, while the episode had the effect of splashily shaming various Tucsonians who did not benefit from the special privacy protection available to cops, it’s misleading to suggest that that was the city’s intent.

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“Union leaders are livid”

Scott Walker has announced a far-reaching package of labor reforms going far beyond the cautious Republican norm, including abolishing the NLRB and transferring its power to other agencies, eliminating federal unions, making right-to-work the default federal labor law regime unless states opt out, repealing Davis-Bacon, and more. [Reason, Associated Press, Hot Air interview] Union leaders, quite understandably from their perspective, lost no time in speaking out loudly against Walker’s ideas. Why, one wonders, don’t more business people speak out as loudly against the ideas of Bernie Sanders?

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