- “Now the Personal Injury Lawyers Have Scooters in Their Sights” [Anousha Sakoui and Edvard Pettersson, Bloomberg]
- Jury orders Rams to pay $12.5 million for Reggie Bush injury [AP/Valley Morning News; St. Louis Post-Dispatch]
- “Lawsuit Against Snapchat Encouraging Speeding Can Proceed” [Eugene Volokh]
- “Art Imitates Life: ‘Billions’ Describes Six-Figure, Part-Time Jobs On Asbestos Trusts” [Daniel Fisher, Legal Newsline/Forbes]
- Lawsuit by insurer State Farm accuses prominent Michigan attorney of maintaining covert ties to medical imaging provider [JC Reindl, Detroit Free Press]
- “California Court Rejects Warranty Claims Where Rats Allegedly Chewed Through Soy-Coated Auto Wiring” [Neal Walters and Casey G. Watkins, Ballard Spahr]
In Friday’s Carpenter v. United States the Supreme Court by 5-4, with Chief Justice John Roberts writing and joined by the four liberals, held that police collection of cellphone location records covering a period of a week is a search covered by the Fourth Amendment and generally requires a warrant. Orin Kerr has first thoughts. Ilya Shapiro at Cato writes that the Court reaches “the right result for the wrong reason,” in an “artificial muddle” of a decision that carves an exception into the third-party doctrine without the more searching rethinking of search and seizure law that is needed.
More promising, Shapiro says, is Justice Neil Gorsuch’s opinion — which he styles as a dissent, but is a concurrence in all but name — which points the way to rethinking and strengthening Fourth Amendment search and seizure law along first principles of “the people’s right to be secure in their ‘persons, houses, papers, and effects’ based not on privacy expectations but on property rights, contract law, and statutory protections (all of which can certainly be applied in the modern digital age).” The alternative, says Shapiro, will be for the Court to fall back on “reinventing the Fourth Amendment with each technological revolution,” amid new ad hoc exceptions and elaborations. More background at Cato at earlier stages of the case: Matthew Feeney on oral argument, merits brief, certiorari brief.
A mini-roundup: “How State Pension Funds — and 401k Managers — Prioritize Politics over Returns” [Ike Brannon, Cato/Forbes.com, more; related, Eric V. Schlecht, Economics 21] “The California state teacher retirement system open letter to Apple about ‘smartphone addiction’ provides another point in favor of giving these workers individual accounts with a private provider.” [Caleb Brown on Twitter] “Those shares belong to the college savers, not him”: Illinois treasurer uses 529 funds to push Facebook, other firms on political issues [Cole Lauterbach, Illinois News Network]
“More than 25 years after its passage, a federal telemarketing law hasn’t just created a cottage industry for lawyers – it has spawned a group of professional plaintiffs like [Melody] Stoops who are armed with several cell phones for the purpose of receiving debt collection calls often intended for other individuals.” [John O’Brien, Legal NewsLine]
Forethought goes into the question of how to be legally injured by unlawful calls in the manner most lucrative under the Telephone Consumer Protection Act (TCPA):
Individuals receiving calls they believe to be in violation have two options to try to maximize recovery.
-Answer the phone, tell the company to stop calling and hope the calls keep coming. Those calls could be construed as “willful” violations of the TCPA and lead to triple damages; or
-Don’t answer the phone, never tell the company to stop calling but chronicle how many times it does. This would lead to only $500 claims but keeps the company calling.
The “wait and build damages” strategy can sometimes pay off nicely:
“Mr. Spencer is seeking to exploit the TCPA to recover a $2.7 million jackpot in statutory penalties because he inadvertently received – on a five-dollar disposable cell phone that he seldom used – emergency text alerts that the previous user of his cell phone number had requested,” AT&T’s attorneys wrote in November while asking for summary judgment.
“(Spencer) waited for the text alerts to accumulate, and then filed this lawsuit seeking millions of dollars unrelated to any alleged harm that he experienced.”
Later entries in the three-part series include part two, “the story of a Polish immigrant who has allegedly made more than $800,000 with a phone number belonging to his ex-wife,” and part three, on a defendant firm that struck back with racketeering suit against a prolific California attorney who has filed many TCPA claims. (earlier)
P.S. And related, just out today: junk-fax suits, covered here extensively in the past, “are active in industries that still rely on faxes for conducting business, such as hospitality and health care, a review of court filings shows. Recent lawsuits complain of unwanted faxes hawking medical supplies, pet medications, air conditioners and mortgage refinancing.” TCPA is nicknamed Total Cash for Plaintiffs’ Attorneys [Sara Randazzo, Wall Street Journal]
“Melody Stoops admits she was in the ‘business’ of bringing lawsuits against companies over calls they made to her cell phones without her permission.” Storing the prepaid-service phones in a shoebox when not in use, she waited for robocalls from solvent companies, which are mostly banned under the Telephone Consumer Protection Act. “She has filed at least 11 TCPA cases in the U.S. District Court for the Western District of Pennsylvania and has sent at least 25 pre-litigation demand letters.” A judge has now disallowed her standing to sue on one of the cases, saying she cannot claim that the calls were a nuisance, invasion of privacy, or economic injury given that she obtained the phones with the goal of suffering legal injury. [Jessica Karmasek, Legal Newsline/Forbes]
“Attorneys representing a New Jersey personal injury lawyer have brought a class-action suit against the company they say is responsible for an ‘unlawful and wrongful’ invasion of the man’s property.” To quote from the complaint “filed against the game’s developer, San Francisco-based Niantic Inc.:”
In the days following the U.S. release of Pokémon Go, Plaintiff became aware that strangers were gathering outside of his home, holding up their mobile phones as if they were taking pictures. At least five individuals knocked on Plaintiff’s door, informed Plaintiff that there was a Pokémon in his backyard, and asked for access to Plaintiff’s backyard in order to “catch” the Pokémon.
- Sens. Elizabeth Warren (D-Mass.), Dianne Feinstein (D-Calif.), and Brian Schatz (D-Haw.) call for federal investigation into AirBnB effects on housing market [Kevin Boyd, Rare] “Santa Monica convicts its first Airbnb host under tough home-sharing laws” [Los Angeles Times]
- “Florida man claims he invented iPhone in 1992, sues Apple for $10 billion” [Don Reisinger, Fortune, auto-plays]
- More on why Philadelphia soda tax is a bad idea [Baylen Linnekin, earlier here and here] Reining in FDA, legal home distilling, school lunch waste: 9 food issues for the next President [same]
- Judge Alsup: once having launched infringement claim, mass copyright filer can’t escape counterclaim so easily by dropping it [opinion in Malibu Media v. John Doe (“motion seems more like a gimmick designed to allow it an easy exit if discovery reveals its claims are meritless”) via Techdirt]
- IKEA dresser recall shows CPSC acting aggressively. Did it act wisely? [Abby Wisse Schachter, Wall Street Journal]
- Don’t use “implied contract” to escape the implications of freedom of association re: cake-baking [David Henderson]
- Teacher killed in the crosswalk, with the light. NYPD: “The victim behaved recklessly by crossing the street.” [StreetsBlog]
- North Carolina not among the 13 states in which legal standards require prosecutors to turn over evidence of innocence that they learn of after a conviction [Radley Balko, AP]
- Fail to stop daughter’s 20 year old boyfriend from raiding beer in fridge, go to jail [Washington Post on Maryland lawmakers’ enactment of criminal penalties following car-crash injuries for parents who tolerated alcohol consumption]
- “First, only terrorists had to hand over their phones. Now it’s people involved in traffic accidents, too” [@reuvenim on the proposed New York law discussed here] “In a bid to get around the Fourth Amendment right to privacy, the textalyzer allegedly would… ” [ArsTechnica] But see Scott Greenfield (law “not a particularly effective one” in helping to fix blame, but “just not that big a deal.”)
- Inmates’ contact with family is revenue source for prison, sky-high phone rates just the start [Scott Greenfield]
- Federal oversight of local departments enables weak, reform-averse local pols: “Washington Can’t Fix Broken Policing” [Tim Lynch, Cato]