- Poster case for cy pres abuse: Cato files amicus brief in Google referral header privacy class action settlement [Ilya Shapiro, earlier]
- “California Court Decision Offers Hope for Procedural Brake on Lawyer-Driven Class Actions” [Glenn Lammi, WLF on Noel v. Thrifty Payless]
- New book details Tampa attorney Brian Donovan’s frustrations with multi-district litigation (MDL) in Transocean spill case [Amanda Robert, Legal NewsLine]
- West Virginia: “House moves to limit Attorney General’s use of settlement funds” [Brad McElhinny, WV Metro News]
- “2017 Civil Justice Update” [Mark Behrens and Sarah Goggans, Federalist Society white paper]
- “Here’s why you’ll be paying more for car insurance if you live in Baton Rouge, New Orleans” [Dan Fagan, The Advocate]
- “The dominant narrative about pain treatment being a major pathway to addiction is wrong, [and] an agenda heavily weighted toward pill control is not enough.” [Sally Satel on origins of opioid crisis]
- The press gets it wrong: “A Young Mother Died Because Her Flu Meds Were Too Expensive – Or Did She?” [Josh Bloom, ACSH]
- New research brief: tort reform could have effects in both directions on innovation [Alberto Galasso and Hong Luo, Cato]
- Appalling: editor of The Lancet extols Marx as a guide to understanding medical science [Theodore Dalrymple, Law and Liberty]
- “We harbor a suspicion that half the drug/device tort cases we encounter are really medical malpractice cases in search of a deeper pocket” [Stephen McConnell, Drug & Device Law Blog]
- Should the Food and Drug Administration concern itself with the effect of its decisions on drug prices? [David Hyman and William Kovacic, Regulation mag]
THEY ARE NOT MESSING AROUND WITH THE NEW SUGAR TAX IN SEATTLE pic.twitter.com/xqmj7940y2
— hayden ? (@HaydenBedsole) January 5, 2018
The city of Seattle has now put its stiff new 1.75 cents per ounce tax on sugary beverages (text of bill) into effect, and Costco managers in the tech city, much to their credit, have not hesitated to post signs informing shoppers of its impact. According to a reporter’s photo, the sign atop a Gatorade Frost Variety Pack lists the regular Costco price of $15.99 along with $10.34 in newly added Seattle tax for a total of $26.33. Helpfully, an adjacent sign advises shoppers that the same item “is also available at our Tukwila and Shoreline locations without City of Seattle Sweetened Beverage Tax.”
- “First they interview people at the Costco who are rightfully shocked at how high prices on soda and sports drinks are now (they are almost doubled).”
- “Then they interview a public health advocate who says ‘that’s right! We want these prices to change people’s behavior and slow sales!’”
- “Then they talk to the consumer, ‘think you’ll change your behavior, maybe even shop somewhere else?’ And she’s like, ‘ya the Tukwila store is close enough.’ Then they ask a city council member if this will hurt local biz, who says ‘there is no data’ suggesting that.”
- “Then the SAME public health advocate says that people won’t respond to price increases, shopping elsewhere because it isn’t ‘worth their while.’”
- “You can’t have it both ways people! The tax is either big enough to elicit behavior change, which would slow sales and hurt local biz and potentially reduce calories, or it isn’t. Get your stories straight!”
In 2016 I wrote about Philadelphia’s soda tax that “while all taxes are evaded to some extent, excise taxes are especially subject to evasion based on local geography”, and followed up on the Philly measure’s possible openings for unlawful evasion and eventual public corruption. Seattle authorities intend to use the hoped-for $15 million revenue stream to fund various causes and organizations including an effort to bring fresh fruits and vegetables to urban neighborhoods, even though the once-voguish “food deserts” theory blaming dietary choices on the retail environment has sufferedone debunking after another in recent years. [cross-posted and expanded from Cato at Liberty]
P.S. I used to see this constantly from trial lawyers and their advocates on the question of whether it was a good thing for liability insurance rates to rise reflecting the big liberalization of tort recovery that was going on when I wrote The Litigation Explosion. Higher rates were socially desirable, they would say, because they would expose and discourage dangerous actors, such as incompetent doctors and drivers. There followed a big public reaction when it turned out it was not so easy to pick out bad apples ahead of time and that entire specialties like obstetricians and neurosurgeons were having to pay massive premiums. They then switched to the position that there was no connection between expected future payouts and liability premiums, that the problem was insurance companies being greedy, and that liability insurance rates should be frozen by law.
P.P.S. “Philadelphia implemented a 1.5-cent tax on soda in January of last year. …By August, the marketing firm Catalania found a 55 percent decline in the sale of carbonated soft drinks within the city limits — and a 38 percent jump in stores just outside of Philadelphia. Revenue from Philadelphia’s soda tax has also proven disappointing, coming in at $7 million below projections for fiscal year 2017.” [Christian Britschgi, Reason]
The U.S. Chamber’s annual listing of ten lawsuits it thinks the world could have done without has only three cases that overlap with our coverage here at Overlawyered, including the man who sued his date for texting during a movie, the man who sued Uber for revealing his mistress (in France — the awards have gone international), and the woman who sued over being “deceived” by Jelly Belly beans, which it pronounces the winner.
Its other seven cases include a “time clock” wage/hour suit filed against Starbucks in California; a New Jersey man’s suit after tripping over a Christmas tree (more); one Florida lawyer sues another over “negligent handshake“; also in Florida, woman sues after falling off restaurant’s popular donkey statue; class action plaintiff had asked for “butter” at a Dunkin’ Donuts, got less expensive spread; 15-year-old sues mom for confiscating phone, judge sides with mom (Spain); and woman sues after spill of hot nacho cheese at Texas air force base.
Arbitration was on several senators’ minds, although it isn’t among the topics of the four bills considered. [John O’Brien, Legal NewsLine] This from Sen. Al Franken (D-Minn.) was passing strange, though:
“Now I know that there are bad actors out there – those who file frivolous lawsuits against hard-working and honest businesspeople – but these bills aren’t the solution,” Franken said.
“They don’t help weed out frivolous claims early on. They seek to deter meritorious claims by making class action suits so expensive, lengthy and onerous that people won’t bother to bring them in the first place.
Among the four bills before the committee was the Lawsuit Abuse Reduction Act, intended to reinvigorate federal Rule 11 sanctions, and described as follows:
It would make sanctions mandatory against attorneys who file frivolous lawsuits. Currently, judges have discretion on whether to impose sanctions.
Plaintiffs also have a 21-day safe harbor in which they can withdraw their claims after a motion for sanctions has been filed.
It is hard to know how to describe LARA’s intent as anything other than to deter the filing and pursuit of meritless claims, thus “weed[ing them] out… early on.”
- Multi-district litigation still a Wild West realm: “Lawyers for Civil Justice Urges Reform of MDL Procedures” [request for rulemaking via TortsProf] “Multidistrict Litigation Reform: The Case for Earlier Application of Federal Pleading Standards” [James Beck, WLF]
- Lawyer vs. lawyer: “Philadelphia Injury Firm Sues Morgan & Morgan for False Advertising” [P. J. D’Annunzio, The Legal Intelligencer]
- Trespasser injured climbing electrical tower loses suit against Metro-North railroad and utility [Robert Storace, Connecticut Law Tribune; Daniel Fisher, Legal NewsLine, earlier] “Ohl was walking along the train tracks with earbuds in on March 2”; family now suing CSX [Amanda C. Coyne, Atlanta Journal-Constitution]
- “The U.S. Supreme Court Reins in Discovery Sanctions” [Phil Goldberg and Kathryn Constance, IADC]
- Annual state lawsuit climate survey from U.S. Chamber is out; could be a “wake-up call” for Delaware, assumed to have pro-business courts [Zoe Read, Newsworks]
- Boom in third-party litigation finance continues apace [Longford Capital]
- Ted Frank, crusader against class action abuse and formerly a contributor to this blog, profiled [Caleb Hannan, Bloomberg]
- Judge: “Milberg attorneys engaged in an elaborate scheme of deceptive conduct” in qui tam relator case [Bailey McGowan/WLF, opinion in Leysock v. Forest Labs]
- “One way to help save the subways: Repeal the Scaffold Law” [Mike Elmendorf, New York Post]
- Not for the first (or eighth) time, U.S. Senate looking like a graveyard for liability reform bills [Bruce Kaufman, Bloomberg]
- Illinois: “it has not been unusual over the years to learn that insurers don’t want to write policies in Madison County because of the litigation factor.” [Madison County Record]
- “Data-Breach Plaintiffs’ Lawyers Concoct New ‘Overpayment’ Harm Theory, with Mixed Results” [Greg Herbers, WLF]
- Protecting Access to Care Act: “House passes medical malpractice bill” [Kimberly Leonard/Washington Examiner, GovTrack, Todd Shryock/Medical Economics, my earlier]
- “FDA’s Gottlieb Hints at a Huge Overhaul of Health Tech Regulations” [Mike Riggs, Reason]
- “Law Review Article on Off-label is On Target” [Stephen McConnell, Drug & Device Law on Conners, “Illuminating the Off-label Fable: How Off-label Promotion May Actually Help Patients”]
- There’s a British website called Stop Suing the NHS, here is a sample post, and here is more about the writer, Susanne Cameron-Blackie;
- Another survey ranks New York worst state for doctors, trial lawyer supremacy in legislature a major reason [Thomas Stebbins, Gotham Gazette]
- Iowa law requires Certificate of Need for freestanding surgical centers. Sweet deal for exempt hospital competitors [Eric Boehm/Reason, Mike Rappaport/Law and Liberty]
- “Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Technologies” [U.S. Chamber Institute for Legal Reform]
- “After paying out millions, Detroit pushes new law protecting cities from claims over bad sidewalks” [WXYZ]
- Fire doors at U.N. cut and repurposed to make cabinets, court rules original manufacturers not liable for failure to warn of asbestos dust risk should doors be cut up [Lynn Lehnert, Asbestos Case Tracker]
- Woman sues bar that served her over her later drunk driving accident and injuries allegedly suffered in police custody [Penn Record]
- Can members of a class action be identified? Supreme Court should resolve circuit split on the important class-action-certification issue of “ascertainability” [David E. Sellinger and Aaron Van Nostrand, WLF]
- Federal court in the Eastern District of New York gets lots of food marketing lawsuits [Emily Saul and Danika Fears, New York Post, Elizabeth Nolan Brown]
With both Congress and White House now in Republican hands, the U.S. House of Representatives is moving with dispatch to consider a series of litigation reform measures, some stalled for years by Democratic opposition and others of relatively recent vintage. Bruce Kaufman at BNA Bloomberg has a three-part series (first, second, third) followed by an update today on the looming battle over the six main bills:
- The Lawsuit Abuse Reduction Act (H.R. 720) “requires judges to impose mandatory sanctions on attorneys who file ‘meritless’ civil cases in federal courts.”
- The Fairness in Class Action Litigation Act (H.R. 985) which “affects nearly all facets of class action practice” and in particular “class certification requirements, capping or delaying distribution of fees to class counsel, requiring the disclosure of litigation financing, and tying the reporting of settlement data to plaintiffs’ lawyers’ fees.” [More: various academic opponents weigh in here, Andrew Trask defends provisions of the bill here and here, and see earlier]
- The Innocent Party Protection Act (H.R. 725) “targets what is known as fraudulent joinder—the improper addition of [local] defendants to suits in a bid to keep cases in more plaintiff-friendly state courts.”
- The Furthering Asbestos Claims Transparency Act (H.R. 906) “mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies,” in hopes of preventing undisclosed duplicative collection of damages over the same injury.
- The Stop Settlement Slush Funds Act (H.R. 732) which “seeks to bar the Department of Justice from entering into settlements that steer funds to favored third-party groups.”
- The Sunshine for Regulatory Decrees and Settlements Act (H.R. 469) Goes after what have been called “sue-and-settle” processes at EPA in which the agency reaches concessionary terms with ostensibly adverse litigants who seek to expand its authority.
Trial lawyers and allies in the Litigation Lobby aren’t standing idly by: “opponents hope to gum up the works.” Even if many bills clear House passage, getting to 60 votes in the Senate in the face of filibuster threats could prove difficult, despite the departure of perennial trial lawyer ally Harry Reid (D-Nev.), and the views of President Trump are not entirely clear. More: Washington Examiner editorial on class action measures.