In Arizona, where ADA filing mills have been running wild suing small businesses, Attorney General Mark Brnovich led an effort to bring one operation to account. He explains how in this Federalist Society podcast. I have a question near the end.
They capitalize on widespread public anger and frustration at the addiction epidemic, but face formidable legal hurdles — among them the fact that the marketing practices and language the suits assail as unlawful were often specifically approved by the federal Food and Drug Administration. Much impetus for the suits comes from private law firms that pitch the actions to governments as free, while setting themselves up for gigantic contingency fees after the eventual settlement. [Nate Raymond, Reuters]
- “Court: Lawyer Who Gave Himself Award Can’t Sue People Who Reported He Did That” [Lowering the Bar]
- ADA reform moves closer to governor’s desk in Texas [Texans Against Lawsuit Abuse, HB 1463, Texas Restaurant Association; recent Arizona reform]
- Of many effects of rising tide of state attorney general activism, count wider standing for states as one [Paul Nolette, Law and Liberty]
- If towns like Palmdale didn’t realize that California law now puts them under pressure to adopt districted rather than at-large council elections, entrepreneurial Malibu lawyer is there to present $4.6 million reminder [Robin Abcarian, L.A. Times]
- Choice of law school commencement speakers tracks familiar notions of which ideas are respectable and which not [John McGinnis, Law and Liberty]
- “Treating [dogs] as products for product liability purposes creates some significant problems.” [Nick Farr, Abnormal Use]
State attorneys general aggressively use, and frequently misuse, the legal authority often vested in them to sum up in language for voters what a ballot measure would do or mean. One chronic area of frustration: AG summaries of measures intended to bring California public pensions under better fiscal control [Judy Lin, L.A. Times via Steve Greenhut, California Policy Center]
- “Spanish woman given jail term for tweeting jokes about Franco-era assassination” [The Guardian]
- If California Attorney General Xavier Becerra’s 15-felony complaint and arrest warrant against activist filmmakers David Daleiden and Sandra Merritt is a vendetta, it’s one motivated by speech. That’s serious [Jacob Sullum]
- “A.B. 1104 — a censorship bill so obviously unconstitutional, we had to double check that it was real.” [EFF on stalled California bill to ban “fake news,” introduced by Assemblymember Ed Chau (D-Monterey Park)] “Germany approves bill curbing online hate crime, fake news” [AP/Yahoo, earlier]
- “Another Free Speech Win In Libel Lawsuit Disguised As A Trademark Complaint” [Tim Cushing, TechDirt; criticism of doctor’s experimental treatment methods]
- Punching a hole out of Section 230: new “sex trafficking” bill could have far-reaching consequences for web content and platforms [Elizabeth Nolan Brown, Reason]
- One section of a Maine bill would bar state’s attorney general from investigations or prosecutions based on political speech [HP 0551; Kevin at Lowering the Bar is critical of bill]
My piece at the New York Post begins:
Having muscled their way to the front line in the nation’s political battles, state attorneys general are now in for getting roughed up along with the other partisan combatants.
The Republican Attorneys General Association, representing just over half the 50 state AGs, has voted to end a “rare bit of bipartisanship in the polarized environment of US politics,” to quote Reuters, which reported the news. It’s going to ditch an unspoken hands-off agreement with its rival Democratic Attorneys General Association under which each party targeted open seats only and held back from bankrolling challenges against the others’ incumbents.
Democrats are expected to respond in kind and start going after incumbent Republicans. If there were still any hope that the chief legal officers of the states could stay above the fray in some genteel way, it’s pretty much gone. Truth to tell, it’s been gone for years.
I run through some of the politicized doings of state AGs — from funneling lawsuit settlements to community-group chums, to organizing in packs to roam the national political scene fighting Presidents of both parties, to taking out after wrongful advocacy in such forms as “climate denial,” to the new prosecution over hidden filming of Planned Parenthood executives. Like or dislike this activity, there’s no doubt it’s political and that attorneys general need to make themselves accountable for it at election time.
- Per more than 30 state attorneys general, the less information lenders can draw on in credit reports, the better the credit system will work [Annamaria Andriotis, WSJ; exclusion of many tax liens and civil judgments under pressure from authorities]
- Federalist Society podcasts: Ted Frank on Walgreen shareholder litigation, Thaya Brook Knight on “predatory lending” cases before Supreme Court [Bank of America Corp. v. City of Miami and Wells Fargo v. City of Miami; can cities sue under Fair Housing Act as indirectly injured?];
- The eternal recycling of bad old ideas: efforts to bring back public ownership of banks persist [East Bay Express, Oakland; earlier]
- Statutes of limitations protect us from spending life anxious about distant past coming back to haunt us over half-forgotten slights [Ilya Shapiro, Thaya Brook Knight, and David McDonald on Kokesh v. SEC “equitable disgorgement” end-run around 5-year statute]
- Obligatory employee vacation-taking as an anti-fraud measure [Dan Lewis, Now I Know]
- Obama’s hosing of secured creditors in Chrysler bankruptcy raised borrowing costs of other unionized firms [Bradley Blaylock, Alexander Edwards, and Jared Stanfield, SSRN]
Especially given the role of the Constitution’s Commerce Clause, federalism provides no good reason why successive holders of the office of New York attorney general, through the state’s ultra-broad Martin Act, should regulate national business practices in ways at odds with federal regulation and the wishes of the other 49 states:
national financial markets have been overseen since the Depression by the SEC under federal law. In 1996 Congress enacted the National Securities Improvement Act to exempt nationally traded securities from state registration and review requirements. Congress should go further and pre-empt state securities laws that seek to require disclosures exceeding federal standards or that have looser proof requirements on questions like intent.
- “Big Bucks and Local Lawyers: The Increasing Use of Contingency Fee Lawyers by Local Governments” [Michael Maddigan, U.S. Chamber Institute for Legal Reform]
- Class actions: “The New Rule 23 Is Available for Public Comment,” comment period ends Feb. 15 [Andrew Trask]
- Aircraft Owners and Pilots Association urges Supreme Court to review Third Circuit case approving liability for FAA-approved part design [AOPA, Sikkelee v. Precision Airmotive Corp.]
- “An FCC ban on arbitration of privacy claims would be the anti-consumer-protection approach” [Geoffrey Manne & Kristian Stout, Truth on the Market]
- Montana case could bypass Daimler limits on state-court jurisdiction in cases under the Federal Employers’ Liability Act, Washington Legal Foundation urges certiorari [BNSF v. Tyrrell]
- Insurers brace for new tilt of adverse doctrine as American Law Institute mulls Restatement of the Law of Liability Insurance [Nicholas Malfitano, Legal Newsline/Forbes]