Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for March, 2016

“How collective bargaining undermines cybersecurity”

After the Immigration and Customs Enforcement Agency (ICE) noticed a rash of malware infections, it told employees to stop accessing personal webmail accounts from their government computers. Oh, no, said the American Federation of Government Employees (AFGE), which grieved the change as having been made without prior bargaining with the union. An arbitrator agreed, ruling that “federal law did not give federal agencies ‘sole and exclusive discretion’ to manage its information technology systems.” ICE appealed, but the Federal Labor Relations Authority (FLRA) “also sided with the union.” [Washington Times]

P.S. Reports of problems at the U.S. Embassy in London suggests that controls on employee use of at-work computers to send and receive private email might need some tightening up at the State Department too.

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Affirmative action hiring for the disabled

Notice of Proposed Rulemaking from the Equal Employment Opportunity Commission [EEOC]: “The proposed rule…would require federal agencies to adopt the goal of achieving a 12% representation rate for individuals with disabilities, and a 2% representation rate for individuals with targeted/severe disabilities.” [Workplace Prof] Comments are open through April 25.

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Garlock asbestos bankruptcy settlement

The case famous for helping crack open some of the secrets of the asbestos litigation business has reached a settlement, which will apparently include a settlement (probably without admission of wrongdoing) of civil RICO claims against several law firms. The revelations in the Garlock bankruptcy helped to bolster evidence that “some victims and their lawyers tell one story in one venue and another someplace else to ‘double dip’ the system” in cases against separate defendants. [Sara Warner, National Courts Monitor/Huffington Post; earlier]

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March 23 roundup

  • Never know who’ll benefit: supersedeas appeal bond limits, sought by tort reformers, may now save Gawker from ruin [WLF, earlier] Plus a Florida appellate court ruling on newsworthiness, and other reasons the scurrilous media outlet is hoping for better luck on appeal if it can get past the bond hurdle [Politico New York]
  • Governance in Indian country: Native American lawyer Gabe Galanda disbarred by Nooksack tribe while fighting disenrollment of some of its members [Seattle Times, followup (tribal judge rules due process was lacking, but in so doing, as employee serving at tribe’s pleasure, “potentially left herself open to being fired”)]
  • Revenge of the broken-winged pterodactyl: Maryland Democrats accuse each other of complicity in gerrymander in fight for Van Hollen’s House seat [me at Free State Notes]
  • Oh, DoJ: “enforced donation to ‘public service’ organizations that just happen to support the ruling party’s goals” [Jeb Kinnison citing this post of ours on mortgage settlements]
  • “Trump’s long trail of litigation” [Brody Mullins and Jim Oberman, WSJ; our earlier here, here, here, etc.]
  • Lansing prosecutor, an “outspoken advocate for ending human trafficking and prostitution,” now facing charges of go ahead and guess [WILX; our Eliot Spitzer coverage]

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Denver cops abused crime database for personal look-ups

If not for government, who would defend our privacy? “Denver police officers performed searches on state and federal criminal justice databases that were not work-related and instead were made to help officers in the romance department and to assist friends, according to an independent department monitor.” Punishment was usually limited to a written reprimand. [ArsTechnica]

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Debra Saunders on California vehicle ticketing

The closer to sheer revenue maximization, the farther from justice: “California is filled with people who are one traffic ticket away from losing their means of independent transportation. They get a ticket for a busted tail light or a small-change moving violation. On paper, the fine is $100, but with surcharges, it’s more like $490. …In 2013, more people — 510,811 — had their licenses suspended for not paying fines than the 150,366 who lost their licenses for drunken driving.” [San Francisco Chronicle]

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Banking and finance roundup

  • Federal judge refuses to dismiss suit against prosecutor Preet Bharara, FBI agents by hedge funder David Ganek over treatment in now-dismissed Chiasson inside trading case [Peter Henning, New York Times “DealBook”; Business Insider] SEC agrees to return $21.5 million extracted from Ganek’s Level Global Investors [BNA via Ira Stoll]
  • CFPB follies: “Government-Directed Lending Comes to America” [Ike Brannon, Cato] Agency casts its eye on marketplace, otherwise known as peer-to-peer, lending [Thaya Brook Knight, Cato]
  • SEC inspector general sides with agency against allegations of undue sway over ALJs [Reuters, earlier here, here, etc.]
  • Third party liability for crime: “HSBC Sued Over Drug Cartel Murders After Laundering Probe” [Bloomberg]
  • Former Ally Bank CEO: administration extorted race-lending settlement by threatening to derail regulatory approvals [Paul Sperry/New York Post, more]
  • Bellevue, Wash.: $213,000 award to complainant Leticia Lucero “could mean other cases where homeowners argue lenders [cause] emotional distress during negotiations.” [AP/Yakima Herald]

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Minnesota bill would curb ADA frequent filer

Attorney Paul Hansmeier has sued more than 100 small businesses in Minnesota charging lack of handicap accessibility, sometimes “on behalf of the Disability Support Alliance, a nonprofit group that finds non-compliant businesses. A 5 Eyewitness News report from last summer found Hansmeier sought quick settlements from businesses for thousands of dollars and made little effort to ensure the buildings were brought into compliance.” Hansmeier has now denounced as “silly” a bill developed by the Minnesota Chamber of Commerce, working with the Minnesota State Council of Disability and Human Rights Department, aimed at curbing opportunistic accessibility complaints. “The legislation would give businesses at least 30 days to respond to lawsuits, shift the burden of proof in some cases to those filing the lawsuit and restrict attorneys from demanding immediate settlements.”

Attorney Hansmeier, according to the broadcast report, “is currently facing disbarment or suspension for running a copyright infringement scheme involving a pornographic video. A district judge in Hennepin County said last year that Hansmeier’s history reinforced concerns that the ADA lawsuits raised ‘the specter of litigation abuse.'” [KSTP] Last year I noted his adventures in copyright law and his more recent rolling out of multiple suits alleging that businesses had not adequately designed their online presence to accommodate disabled web users.

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Scott Alexander on The Art of the Deal

The Slate Star Codex blogger decided to read, and belatedly review, The Art of the Deal (1988) by real estate developer and now-GOP nomination frontrunner Donald Trump. Trump and his campaign aside, the book affords insights into the legal and regulatory side of the development business. Following a funny description of the role of the real estate developer in coordinating deals, Alexander writes:

…The developer’s other job is dealing with regulations. The way Trump tells it, there are so many regulations on development in New York City in particular and America in general that erecting anything larger than a folding chair requires the full resources of a multibillion dollar company and half the law firms in Manhattan. Once the government grants approval it’s likely to add on new conditions when you’re halfway done building the skyscraper, insist on bizarre provisions that gain it nothing but completely ruin your chance of making a profit, or just stonewall you for the heck of it if you didn’t donate to the right people’s campaigns last year. Reading about the system makes me both grateful and astonished that any structures have ever been erected in the United States at all, and somewhat worried that if anything ever happens to Donald Trump and a few of his close friends, the country will lose the ability to legally construct artificial shelter and we will all have to go back to living in caves.

But if you are waiting for new proposals from Trump about reforming regulation, you might need to go on waiting:

Here is a guy whose job is cutting through bureaucracy, and who is apparently quite good at it. Yet throughout the book – and for that matter, throughout his campaign for the nomination of a party that makes cutting bureaucracy a big part of their platform – he doesn’t devote a lot of energy to expressing discontent with the system. There is no libertarian streak to Trump – in the process of successfully navigating all of these terrible rules, he rarely takes a step back and wonders about a better world where these rules don’t exist. Despite having way more ability to change the system than most people, he seems to regard it as a given, not worth debating. … the rules are there; his job is to make the best deal he can within those rules.

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