New York state – Overlawyered

The downfall of #ExxonKnew

Walter Olson — Tue, 17 Dec 2019 05:05:35 +0000

It was a hashtag prosecution, a social media campaign posing as a legal case: #ExxonKnew. And like yesterday’s media balloon become today’s litter, its deflated remains floated back down to earth last week in a New York courtroom.

National Review asked me to write a longer piece on last week’s Exxon acquittal (earlier, and previously):

In a 2003 case called Nike v. Kasky, no less a liberal authority than Supreme Court Justice Stephen Breyer warned that it was dangerous to freedom of speech to arm ideological adversaries with legal power to bring fraud charges against businesses based on those businesses’ public statements about contentious issues….

In his full, scathing opinion, Judge Ostrager rejected each of the state’s themes. “ExxonMobil’s public disclosures were not misleading.”…

New York’s prosecution of Exxon — a legal vendetta against a target chosen for essentially political reasons — deserves to be studied in law schools for years to come. But not for the reasons its authors once hoped.

Whole thing here.

Tags: climate deniers to the wall, Eric Schneiderman, Exxon, New York state, WO writings

The downfall of #ExxonKnew is a post from Overlawyered - Chronicling the high cost of our legal system

Climate change roundup

Walter Olson — Fri, 15 Nov 2019 11:04:25 +0000

I was part of an informative panel discussion of “Climate Change Litigation and Public Nuisance Lawsuits” organized by the Rule of Law Defense Fund [watch here] Podcast and transcript of an October update on state and municipal climate litigation with Boyden Gray [Federalist Society] And because it’s still relevant, my 2007 WSJ piece (paywalled) on how contingency fees for representing public-sector plaintiffs are an ethical travesty;
New York securities case against ExxonMobil goes to trial [Daniel Fisher, Legal Newsline; earlier] At last minute, NY Attorney General Letitia James, successor to Eric Schneiderman, drops the two counts requiring proof of intent, which the state had earlier deployed to accuse Exxon of deliberate misrepresentation. Still in play is the state’s unique Martin Act, which allows finding fraud without proof of intent [Nicholas Kusnetz, Inside Climate News]
Ninth Circuit panel hears “children’s” climate case, Juliana v. U.S. [Federalist Society podcast with James May, Damien Schiff, and Jonathan Adler; related commentary, James Coleman]
Bernie Sanders doesn’t really need legal arguments for retroactive criminal prosecutions if he’s got Jacobin on his side, right?
“Lawyers are unleashing a flurry of lawsuits to step up the fight against climate change” [Darlene Ricker, ABA Journal]
Who’s backing Extinction Rebellion, the lawbreaking group that blocked intersections in Washington, D.C. and elsewhere this fall? “The answer, in part, is the scions of some of America’s most famous families, including the Kennedys and the Gettys.” [John Schwartz, New York Times]

Tags: Bernie Sanders, climate change, Exxon, New York state, on TV and radio, public nuisance

Climate change roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Great moments in public employee tenure

Walter Olson — Sun, 13 Oct 2019 15:58:37 +0000

New York State has agreed to pay $6 million to settle claims that disabled residents of a Bronx group home for developmentally disabled adults were physically abused and neglected by staff, and the state has also spent a further $5.7 million thus far defending the staff members in court [Benjamin Weiser, New York Times] However, don’t assume that any public employees lost their jobs:

A state investigation later substantiated allegations of misconduct by 13 workers.

But the state failed to fire any of the employees, The New York Times reported in June.

A state arbitration process shielded the workers who had been cited for abuse and neglect. They were typically sent to other jobs in the system.

As part of the settlement, lawyers representing families insisted that the group home be removed from the control of the New York state government. [cross-posted at Cato at Liberty with some additional comments on privatization and accountability]

Tags: mental disability, New York state, public employment

Great moments in public employee tenure is a post from Overlawyered - Chronicling the high cost of our legal system

Schools and childhood roundup

Walter Olson — Fri, 27 Sep 2019 09:58:18 +0000

Britain’s Labour Party conference pledges to take over private schools, confiscating endowments as well as land and property [Benjamin Kentish, Independent]
New York Department of Education readies moves to place private and religious schools under much tighter government control [Peter Murphy, City Journal]
Chicago teachers’ union sends delegation on “solidarity trip” to Venezuela [Mark Glennon, Wirepoints; Hannah Leone, Chicago Tribune]
So-called Blaine Amendments bar religious schools in participating in voucher programs to which they would be admitted were they nonsectarian. A case of religious discrimination, and if so, violative of the First Amendment? [Ilya Shapiro and Dennis Garcia on Cato merits brief in Supreme Court case of Espinosa v. Montana, Trevor Burrus and Patrick Moran on certiorari stage brief]
“The [California] draft curriculum says that ethnic studies courses created by districts from the proposed curriculum will… ‘critique empire and its relationship to white supremacy, …capitalism, and other forms of power and oppression'” [Valerie Strauss, Washington Post/Lowell Sun; Elizabeth Castillo, Cal Matters; Joanne Jacobs]
“Kamala Harris expresses ‘regret’ over California truancy law” [Katie Galioto, Politico; background; “Souvarine”, Daily Kos (“criminal penalties for parents of truant children” are among “the earliest and most enduring progressive victories”; also tracing publicity on the issue to a certain scribbler of “libertarian claptrap,” though I made clear I was building on the earlier work of, e.g., the Marshall Project)]
Despite strenuous efforts in Seattle and D.C. suburbs to impose “equity lens” on school systems and train all sides about implicit bias and systemic racism, no sign that actual outcome gaps are likely to budge [Rebecca Tan, Washington Post]

Tags: California, Chicago, New York state, religious liberty, schools, Seattle, United Kingdom, Washington D.C.

Schools and childhood roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Liability roundup

Walter Olson — Fri, 13 Sep 2019 09:58:32 +0000

As one who wrote at length about the silicone-implant litigation at the time — founded as it was on junk science theories hyped to panic potential plaintiffs — I agree that Elizabeth Warren has nothing to apologize for about her bankruptcy work for Dow Corning. Move on to better criticisms, please [Darren McKinney, WSJ] Related: Federalist Society teleforum on mass tort bankruptcies with Steven Todd Brown, Ralph Brubaker, and Dan Prieto;
“What should be the duty of public retailers whose customers have bizarre or offensive clothing, appearance, demeanor or behavior but do not actually engage in or threaten violence on the retailers’ premises? To avoid risk, should the retailers exclude them from their stores?” [Eugene Volokh quoting federal court opinion in Budreau v. Shaw’s Supermarkets, Inc. (D. Maine)]
New York residents should brace for higher taxes as trial-lawyer-backed bill in Albany exposes public authorities to more road claims [John Whittaker, Jamestown Post-Journal]
“Kansas Supreme Court Throws Out Personal Injury Damages Cap” [Associated Press]
Whose proposal for joint trial counts as triggering removal of mass action under the Class Action Fairness Act? The court’s? Choice between federal and state courts implicates fundamental questions of fairness [Eric Alexander, Drug and Device Law on Supreme Court certiorari petition in Pfizer v. Adamyan]
Glyphosate, talc verdicts suggest juries may be paying more attention to purported smoking-gun documents than to scientific evidence on causation [Daniel D. Fisher, Northern California Record; Corbin Barthold, WLF] “Inconsistent Gatekeeping Undercuts the Continuing Promise of Daubert” [Joe G. Hollingsworth and Mark A. Miller, WLF]

Tags: bankruptcy, Class Action Fairness Act, Elizabeth Warren, junk science, Kansas, New York state, roads and streets, silicone breast implants, third party liability for crime

Liability roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Disabled rights roundup

Walter Olson — Fri, 23 Aug 2019 09:58:46 +0000

Housing authority in Meeker, Colorado, population 2,250, will pay nearly $1 million to settle suit over limits on emotional support animals [Niki Turner, Rio Blanco Herald-Times, Kathleen Foody, Associated Press/Colorado Sun, Stina Sieg, Colorado Public Radio]
Volume of web-accessibility suits continues to climb [Seyfarth Shaw; John Breslin, Florida Record] More on growth of this litigation [podcast with Karen Harned, NFIB, for Federalist Society Regulatory Transparency Project (earlier on pool lifts)] “DOJ Says Failure to Comply With Web Accessibility Guidelines is Not Necessarily a Violation of the ADA” [Minh Vu, Seyfarth Shaw, from last October] Second Circuit dismissal of web-access complaint in Diaz v. Apple, Inc. could be helpful to defendants [Joshua Stein and Shira Blank, National Law Review]
Report on ADA filing mills in Rochester and vicinity [Berkeley Brean, WHEC: first, second, third (colleges), fourth, fifth]
And more on New York mass filing operations: Inveterate suer of restaurants reaches Staten Island [Pamela Silvestri, SI Live] Finger Lakes wineries targeted [Jane Flasch/WHAM in February; Michael J. Fitzgerald, Finger Lakes Times] “Finkelstein has gone on a lawsuit-filing spree since getting his law license back in New York state in 2016,” and among his 50 ADA suits are some the named plaintiff says he didn’t know about [Julia Marsh, New York Post]
In EEOC-land no one can hear you honk [press release on EEOC lawsuit against limo service that declined to hire deaf driver]
“Washington Supreme Court Says Obesity Is a Disability” [Ben McDonald, and thanks for quote; earlier]

Tags: Colorado, disabled rights, EEOC, New York, New York state, obesity, pools, restaurants, service animals, web accessibility

Disabled rights roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Pssst! Lobbying is speech. Pass it on.

Walter Olson — Sat, 03 Aug 2019 15:59:30 +0000

My new Cato post tells of New York regulators’ threat to impose large fines and penalties on a woman who they claim spent more than $5,000 to advocate for legislation without registering as a lobbyist. In particular, she purchased billboards and hired a plane to drag a banner as part of a one-woman crusade to ease New York laws on filing claims of sexual abuse.

Tags: free speech, lobbyists, New York state

Pssst! Lobbying is speech. Pass it on. is a post from Overlawyered - Chronicling the high cost of our legal system

Discrimination law roundup

Walter Olson — Mon, 01 Jul 2019 09:56:22 +0000

Texas Gov. Greg Abbott signs into law two doubtfully constitutional bills applying to campuses an overbroad, subjective definition of sexual harassment, and requiring all college employees to report such conduct on pain of criminal penalty [Tyler Coward, FIRE]
New York adopts workplace harassment law that’s much more speech-hostile than federal, including a dropping of the requirement that prohibited expression be “severe or pervasive” [Hans Bader; Wiggin & Dana, NLR; Douglas Oldham, Barnes & Thornburg]
One to watch: SCOTUS will decide standard for proving s. 1981 discrimination claims, in case accusing Comcast of bias in not carrying programming of black network [ABA Journal]
A thumbs-down review: “The Kamala Harris Plan to Address the Gender Pay Gap,” Cato Daily Podcast with Ryan Bourne and Caleb Brown;
Even when there’s nothing unlawful about an eviction, city bars landlords from telling tenants they’re being evicted for discriminatory reasons. Laws banning truthful business speech about lawful conduct should trip First Amendment review [Ilya Shapiro on Cato amicus brief in Seeberger v. Davenport Civil Rights Commission]
Second Circuit withdraws decision that held landlords liable for tenant-on-tenant harassment under Fair Housing Act [Scott Greenfield, earlier]

Tags: discrimination law, harassment law, housing discrimination, Kamala Harris, New York state, Supreme Court, Texas

Discrimination law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Bloomberg investigation: “confessions of judgment” and NY debt collection

Walter Olson — Fri, 23 Nov 2018 10:56:16 +0000

In New York, unlike some other states, the law permits liberal use in business lending of a device called confession of judgment, in which borrowers “sign a statement giving up their right to defend themselves if the lender takes them to court.” Among the consequences: the lender may hold the wherewithal to seize the borrower’s assets unilaterally upon filing affidavits. Following the growth of lenders who advance cash to small businesses at extremely high interest rates, tens of thousands of business borrowers have experienced enforcement actions, often filed in upstate New York counties with little connection to either lender or borrower. Sharp practices? “In dozens of interviews and court pleadings, borrowers describe lenders who’ve forged documents, lied about how much they were owed, or fabricated defaults out of thin air.” [Zachary R. Mider and Zeke Faux, Bloomberg, in what is billed as the first of a series on the merchant cash advance industry] More: Scott Greenfield.

Tags: debtor-creditor law, New York state

Bloomberg investigation: “confessions of judgment” and NY debt collection is a post from Overlawyered - Chronicling the high cost of our legal system

Liability roundup

Walter Olson — Mon, 27 Aug 2018 09:59:34 +0000

A win for class action objector Ted Frank as Seventh Circuit allows him to challenge what he described as “objector blackmail” payments to other intervenors [Amanda Bronstad, National Law Journal, Pearson v. NBTY]
City of Seattle pays $13 million to settle suit alleging negligent probation supervision of drunk driver [Jessica Lee, Seattle Times, Brian Flores, KCPQ, my 2005 take on Washington’s unique rules on sovereign immunity and more]
“Family sues Dum Dum lollipop maker over son’s alleged choking incident” [Alexandria Hein, Fox News]
Thanks to New York’s Scaffold Law, co-op and condo boards “can be held liable for millions of dollars in damages – even if the injured worker was drunk or failed to use safety equipment.” [Habitat mag] “Coverage for East Side Access [infrastructure project] has surpassed half a billion dollars” [Will Bredderman, Crain’s New York]
As Brett Kavanaugh’s SeaWorld dissent shows, he’s a judge who takes assumption of risk seriously [ABA Journal, SeaWorld v. Perez]
Twiqbal pleading standards continue to do good, this time in New York state courts [Drug & Device Law]

Tags: assumption of risk, New York state, pleading, sovereign immunity, Ted Frank, Washington state

Liability roundup is a post from Overlawyered - Chronicling the high cost of our legal system