- The Department of Justice cuts a settlement deal with Bank of America under which the bank agrees to give millions to liberal groups [Sean Higgins/Washington Examiner, Federalist Society blog rounding up criticisms]
- Seizures under bank structuring law have hit small business owners who deposited cash in under-$10,000 amounts because their insurance policies wouldn’t cover cash-on-hand holdings above that amount [Ali Meyer/Free Beacon, earlier and generally]
- “It is hereby enacted that Smith wins his lawsuit” statutes and the Bank Markazi (Iran funds) case [Michael Greve, Liberty and Law]
- Second Circuit panel throws out $1.2 billion verdict against B of A over Countrywide mortgage lending, saying government didn’t prove fraud [Daniel Fisher, more]
- “The crowdfunding catch: government regulations” [Thaya Brook Knight, Newsweek/Cato]
- Too left-wing to get tenure at Harvard Law in era of the Crits. Now, to banks, “he’s judge and jury and everything else.” [Wall Street Journal profile of Fed governor Daniel Tarullo]
Archive for June, 2016
Let me stay in your apartment, or be prepared to show a good reason
Lawyers and law profs are ginning up theories to sue for discrimination when individuals turn down AirBnB renters [Washington Post; related on AirBnB yielding to pressure to toughen anti-discrimination rules]
Blue-ribbon excuses: beer batter fish fry to blame for DUI
“A Wisconsin man who blamed his beer-battered fish fry after he was pulled over the 10th time for drunken driving is going to prison.” A judge didn’t buy his excuse that the smell of alcohol on his breath noted during the Dell Prairie traffic stop was from the savory ingredient. [Chicago Tribune]
Gawker Media files for bankruptcy
Faced with a $140 million verdict from a Florida jury over its publication of a sex tape including wrestler Hulk Hogan, Gawker Media has filed for Chapter 11 bankruptcy [CNN Money] Forbes profiles a boutique law firm that with Thiel’s help has made suing Gawker its “bread and butter.” Nick Lemann notes that the “uniquely legally privileged position of the American press” dates back to the period of New York Times v. Sullivan and some other pro-press decisions, and may be up for rethinking in public opinion “at a moment when the press is far more vulnerable, economically and culturally, than it used to be.” [New Yorker] My recent posts on Gawker, Peter Thiel, and paying others to sue are here, here, and here.
Pronoun prescription and co-workers’ rights
We earlier this year noted the New York City Human Rights Commission guidance directing that businesses may be fined if they do not use customers’ desired pronouns in relation to questions of gender, including preferred usages such as “ze” and “hir.” Now Eugene Volokh, who wrote about the earlier story, points out a recent Oregon settlement in which pronoun issues (the employee prefers to be called “they”) appeared to play an important part:
The school district agreed to settle the claim for $60,000 “as compensation for actual damages, emotional distress and attorney fees,” and with the district promising to “develop official guidance documents for administrators/staff that address working with transgender staff”; the documents, to be developed together with “TransActive and the District equity team,” will address, among other things, “pronoun usage.” “[V]iolations of the guidance will be grounds for discipline.”
But it is not at all clear, as Volokh notes, that it is respectful of co-workers’ rights to require them on pain of official discipline to employ “highly conspicuous, nonstandard usage.” Should instances of not doing so be defined as “harassment” or “discrimination,” they can bring with them serious legal consequences. Public employers such as school districts do have some legitimate managerial interests which can call for, e.g., standardizing forms of address in their workplace. On the other hand, novel pronoun coinages relating to gender are often praised as a way “to convey an idea about language and how language should be” — put more sharply, to convey particular ideological stances about issues of gender identity. We already know that under current interpretations of First Amendment law, government cannot require ordinary non-political employees on pain of dismissal to affirm propositions such as “Live Free Or Die” or the Pledge of Allegiance. A similar principle might extend — or? — to rules exacting affirmative ideological avowals of other sorts. More: Hans Bader, CEI.
Frontiers of forfeiture: emptying pre-paid bank cards
The Oklahoma Highway Patrol has become the latest law enforcement body to begin using “ERAD readers,” devices that allow police to freeze and seize any funds on pre-paid debit and credit cards, now used by many poorer and younger persons as a favored financial vehicle. The devices also allow police to obtain some data about conventional credit and ATM cards, but not, it appears from coverage, to freeze and seize funds in those accounts on the spot. “If you can prove can prove that you have a legitimate reason to have that money it will be given back to you,” said a police spokesman. Oklahoma “is paying ERAD Group Inc., $5,000 for the software and scanners, then 7.7 percent of all the cash the highway patrol seizes.” [Aaron Brilbeck/News 9 Oklahoma, Clifton Adcock/Oklahoma Watchdog, Scott Greenfield (highway patrol’s views of what is and is not suspicious confer a great deal of arbitrary power), Justin Gardner/Free Thought Project last October on Arizona use]
Plus: “New Mexico Ended Civil Asset Forfeiture. Why Then Is It Still Happening?” [NPR] A car is stopped for “swerving,” and soon police have confiscated the $18,000 its owner was carrying for payroll and other expenses of her southern California janitorial business [ACLU of San Diego, p. 7, “It happened to me: Janitorial business”]
Liability roundup
- Free-riding in MDLs, steering committees as old boy networks, and other things observed when a defense lawyer attends a plaintiff’s-side conference [Stephen McConnell, Drug and Device Law] Not entirely unrelated: Monopolies and gatekeepers in multidistrict litigation [Elizabeth Chamblee Burch/Mass Tort Prof first, second]
- 9th Circuit: consumers weren’t deceived by a dispenser whose design left some lip balm in the tube [Paul Hastings, California Appellate blog]
- “Lawsuit Alleges Firm Used Smartphone App to Secretly Troll for TCPA Cases” [Chamber Institute for Legal Reform, Bob Dorigo Jones]
- Laffitte v. Robert Half International: “California Supreme Court to decide how class action lawyers should be paid” [Alison Frankel back in December, and recent coverage: Perry Cooper, BNA/Class Action Litigation Report, Lawrence Schonbrun/Investor’s Business Daily, David Levine and Scott Dodson/SCOCABlog]
- “New commercial highlights ‘rampant venue shopping’ in Louisiana” [Chamber-backed Louisiana Record]
- Because stepping up incentives for bounty-hunting litigation is a big priority for today’s Congress: “False Claims Act Penalties Poised to Double” [Darby Allen and B. Scott McBride, Baker Hostetler]
The harm one prolific litigant can do
Just one of many parties unhappily entangled by a “prolific, abusive” litigant: Massachusetts man who sold a $40 printer on Craigslist spends more than six years defending Indiana litigation [Indianapolis Star]
Closing costs and cartel capture
Pulling up stakes and moving is tough enough. Regulations that drive up closing costs make things worse [Naomi Schaefer Riley/New York Post, thanks for quotes]
Cato Institute Senior Fellow Walter Olson says that it’s not just the taxes that make some states more expensive than others. “States regulate real-estate transfers so as to require additional stages and the involvement of certain professionals’ services, like lawyers’, at more stages.” He says New York is “particularly bad.”
Olson notes: “The title-insurance industry is also regulated in ways that make consumers pay much more in some states, independent of any difference in underwriting risk.”
And the “high-cost methods required in some states are stoutly defended by lobbies of professionals who make a living from the expensive way of doing things.”
June 9 roundup
- New FDA guidelines on sodium “unnaturally low” and propose “consumption levels unheard of in any country in the world,” according to the salt guys;
- Engineering the language: campaign under way to stop referring to car crashes with the word “accident” [Jacob Sullum]
- Gawker mocked claim of man who has maintained he invented email as a teenager in the 1970s so he’s suing [NJ Advance Media]
- I’ve often joined morning host Ray Dunaway on Connecticut’s WTIC and you can listen to my Monday segment here, discussing the California bill to encourage lawsuits over climate denial as well as the Wheaton, Ill. fired cop case;
- “Dallas Pet-Sitting Firm Raises the Ante, Seeks Up to a Million Dollars in Damages for Yelp Review” [Paul Alan Levy, David Kravets/ArsTechnica]
- In the mail: “Uber-Positive: Why Americans Love the Sharing Economy” [Jared Meyer, Encounter Books] Meyer is also in the new issue of Reason with an article on “progressive” opposition to the gig economy that includes the line (h/t Steve Horwitz): “Waging a war on lower transaction costs is the definition of fighting progress.”