- Trying to buy gift cards in bulk as an employee bonus, Coyote discovers anew that the government hates cash;
- Initial public offerings are drooping again, regulation one reason [Thaya Knight, Cato]
- A dissent from the lamentations, here and elsewhere, on the decline of small community banks [Ira Stoll] “Fed’s Tarullo says looking into smaller banks’ concerns” [Business Insider]
- Berned out? Financial transactions tax “one of the more overrated ideas in American Progressive political discourse” [Tyler Cowen, Wikipedia on Sweden’s experience via @aClassicLiberal on Twitter] And Sen. Sanders continues to express incredulity on Twitter about college loans’ carrying higher interest than home mortgages do, despite attempts to enlighten him on the whole topic of secured lending and collateral [@tedfrank]
- Video of Federalist Society convention panel on constitutionality of administrative law judges at SEC and elsewhere with John S. Baker, Jr., Stephen Crimmins, Todd Pettys, Tuan Samahon, moderated by F. Scott Kieff;
- Consumer Financial Protection Bureau ban on contractual arbitration will help class action lawyers, few others [Todd Zywicki, Mercatus]
- “How US policies to stop terrorist financing end up hurting innocent families abroad” [Dylan Matthews, Vox] Money laundering regs, “de-risking” result in many bank closures in U.S.-Mexico border areas, hassles result for local residents and businesses [Kevin Funnell]
- Supreme Court agrees to review CRST Vans Expedited v. EEOC (Eighth Circuit) on standard for prevailing-party fee awards in EEOC cases, could mean help for defendants against overzealous government lawyering (and thanks for quote) [Sean Higgins, Washington Examiner, earlier here and here]
- 6-3 win for arbitration and freedom of contract in DirecTV case [Deborah LaFetra/PLF, Daniel Fisher, ABA Journal] WSJ editorial: Bravo to Justice Breyer for upholding as precedent what he’d earlier dissented from on substance [Texans for Lawsuit Reform reprint]
- OK to choke off legal defense by freezing all assets before trial, even if not criminally obtained? [Radley Balko]
- South Carolina $124 million penalty against Risperdal maker should be recognized as violating Excessive Fines clause [Ilya Shapiro and Randal John Meyer, Cato]
- “Supreme Court will review state laws making it a crime to refuse blood-alcohol tests” [ABA Journal, Reason]
- Helpless against the administrative state: revisiting SCOTUS’s awful 1944 Yakus case [James Conde and Michael Greve, SSRN via Michael Greve, Law and Liberty]
- New Akron Law Review symposium on class action jurisprudence of Roberts Court [Paul Karlsgodt]
- “Definition of Insanity – Expecting Certification of a Personal Injury Class Action” [James Beck on oral contraceptive defective packaging litigation]
- “Noticed something strange. In jury selection, attorneys for two other defendants conferred with attorneys for the plaintiff.” [Madison County Record, more]
- Changes in federal discovery rules effective December 1 [Mathea Bulander and Jason Moore (Redgrave LLP), Washington Legal Foundation] More: Jeff Bennion, Above the Law.
- Eric Turkewitz takes issue with my reference to New York’s Scaffold Law in writing on Sheldon Silver’s downfall [New York Personal Injury Attorney Blog]
- Changes ahead for Rule 23, which governs class actions? [Andrew Trask]
- Behind the attacks on arbitration: plaintiff’s bar, key political player, is “fighting back hard” against threat to its interests [Daniel Fisher, earlier here, here, etc.]
- Not every hot-coffee-spill case is like Liebeck v. McDonald’s. Sometimes defendants actually are negligent [Nick Farr/Abnormal Use, earlier here and many others]
- Judge Kozinski ate a sandwich paid for by the ACLU and the National Law Journal and American Bar Association are totally on it;
- Update: “Ohio court says city can’t use ‘quick-take’ to seize property” [Watchdog, earlier on town of Perrysburg’s effort to seize property in adjoining Middleton Township]
- Regarding the wildly one-sided attacks on arbitration of late, I’ve noticed that the people who call contractually agreed-to arbitration “forced” are usually the same people who don’t call taxation “forced”;
- “‘Underground Regulations’ Violate the Constitution as Much as Headline-Grabbing Executive Actions” [Ilya Shapiro, earlier on subregulatory guidance]
- Reminder: if you’re interested in Maryland policy you should be keeping abreast of my blog Free State Notes;
- Business litigants battle it out, sugar v. corn syrup [L.A. Times]
- Obama just backed ENDA-on-steroids Equality Act [Washington Post, earlier, Scott Shackford/Reason (bill would cover not only employment but “housing, lending, jury duty, and public accommodations” while “massively expand[ing] what the federal government counts as a public accommodation,” thus turning into federal cases what are currently local disputes like the Arlene’s Flowers case)]
Notwithstanding its critics, religious arbitration has a role to play in a liberal legal order — in fact especially there, suggest John Corvino and Katherine Kim. “An important feature of liberal (i.e. free) states is to protect citizens’ moral agency, allowing them to align their actions with their moral convictions. Many citizens base their moral convictions on their religious beliefs. For these citizens, religious arbitration may provide an important opportunity to resolve disputes in accordance with shared values.” [University of Colorado philosophy blog What’s Wrong?, more on recent attacks on arbitration]
- “Is Arbitration Awful? The New York Times Thinks So.” [New Jersey Civil Justice Institute, earlier here and here] And speaking of that paper, I’m going to miss Joe Nocera’s incisive coverage of the litigation business in his column, often linked here; he’s off to other duties at the Times [Politico/New York]
- Yet more from the Times, longread on litigation investing and champerty: “Should You Be Allowed To Invest In a Lawsuit?”
- Mikal Watts through the years: “It was part of my strategy to affect the stock price, which I was very successful at.” [Madison County Record, more]
- “No negligence liability for injuries by fellow players in contact sport” [Eugene Volokh, martial arts, Colorado Court of Appeals]
- Defense lawyer claims adversary had advance word about jury deliberations, grabbed $25 million settlement [Chicago Law Bulletin]
- Is data privacy the next source of mass lawsuits? [Chamber Institute for Legal Reform]
- Funds needlessly drained: “Asbestos reforms needed to protect first responders and veterans” [Rep. Blake Farenthold, The Hill]
The New York Times, which can scarcely mention firearms policy without invoking the Gun Lobby, runs a big feature endorsing the claims of arbitration opponents that is curiously evasive about the role of the Litigation Lobby. Daniel Fisher, Forbes:
The writers who penned today’s New York Times Page One expose of arbitration clauses say they examined thousands of court documents and interviewed hundreds of lawyers, yet they fell for a rookie mistake: They confused class-action plaintiffs for the real thing….
The “article splayed across four pages of the Sunday Times” profiles the owner of the Italian Colors restaurant, the named plaintiff in a class action against American Express that went to the Supreme Court, as if he were typical of “plaintiffs [who] sprang up spontaneously and went out and hired lawyers to vindicate their rights?
Who were his lawyers? The Times doesn’t think you need to know. But here’s the main one: Gary B. Friedman, an attorney who specializes in suing credit-card companies. He recently suffered a bit of bad press when a federal judge in New York threw out a proposed settlement of another class action against Amex because Friedman had displayed “improper and disappointing conduct” by communicating sensitive information to a lawyer for the other side. The judge criticized Friedman for “blatant collusion” by negotiating a settlement with the defense that was “contrary to the wishes of the putative class.”
Now why couldn’t the enterprising Times reporters find room in such a large story for a mention of Friedman? Perhaps because he represents the real face of consumer class actions. These aren’t lawsuits by little guys like Carson trying to vindicate their rights against big corporations. Most are lawsuits by wealthy attorneys trying to get wealthier, by using the mechanism of the class action — originally developed to allow courts to declare classes of plaintiffs in civil-rights cases — to present companies with an offer they can’t refuse: Settle and pay us a rich fee, or risk a devastating loss in court.
Fisher summarizes: the Times “reports without skepticism the plaintiff-lawyer version of the story.” That’s a shame on a topic where even such a liberal figure as California Gov. Jerry Brown, who recently vetoed an anti-arbitration bill, acknowledges there are genuine concerns on both sides.
Our coverage of contractually agreed pre-dispute arbitration — including both the practical and the freedom-of-contract arguments for it — goes back to the early days of this site, including Coyote (“Here is how you should think about this proposed law: Attorneys are the taxi cartels, and arbitration is Uber. And the incumbents want their competitor banned.”), James Taranto on the Times as “two papers in one,” Andrew Pincus on arbitration as still pretty much the Litigation Lobby’s number one target. Much coverage also at Point of Law, including Ted Frank on a familiar-sounding law firm’s use of pre-dispute arbitration clauses.
P.S. I’ll bet he has: “Having worked extensively with Silver-Greenberg on this series over the past several months…” [Deepak Gupta, Public Citizen]
And: more thoughts at Cato at Liberty, including links to Cato work and discussion of why consumers so seldom switch from one provider to another in search of more favorable fine print on class action availability.
In a lawyer-stimulus move that incidentally trashed freedom of contract, the California legislature passed a bill that would have virtually banned arbitration of workplace disputes that has been agreed on in advance of a dispute. But California Governor Jerry Brown has now vetoed it, arguing that the research on the effects of arbitration is still inconclusive, that the state has means of regulating it short of a ban, and that the Supreme Court is currently considering in two cases whether California law already improperly restricts arbitration in violation of the Federal Arbitration Act, an objection that could be lodged against the new enactment as well. [Carl Larson, Saqui Law Group]
Unveiling a plan to ban the use of arbitration clauses that rule out class actions, the federal Consumer Financial Protection Bureau behaves as a Plaintiff’s Lawyer Protection Bureau [Andrew Pincus, Chamber’s Institute for Legal Reform] More: Boston Globe, Alison Frankel, Reuters. Earlier and related here, here, here (California) and generally. And regarding news reports that Chrysler offers a $200 discount to car buyers who accept pre-dispute arbitration, Ted Frank:
Chrysler willing to split savings of avoiding courts with buyers: $200 discount. Lawyers upset that it's disclosed what they cost consumers.
— tedfrank (@tedfrank) October 8, 2015