California “climate science truth” bill would revive lapsed statutes of limitation

An extraordinary bill in the California legislature, promoted as making it easier to sue fossil fuel companies over their involvements in public debate, would lift the four-year statute of limitations of the state’s already extremely liberal Unfair Competition Law, otherwise known as s. 17200 — and retrospectively, so as to revive decades’ worth of time-lapsed claims “with respect to scientific evidence regarding the existence, extent, or current or future impacts of anthropogenic induced anthropogenic-induced climate change.” Despite a 2004 round of voter-sponsored reform which curbed some of its worst applications, s. 17200 still enables what a California court called “legal shakedown” operations in which “ridiculously minor” violations serve as the predicate for automatic entitlement to damages, attorneys’ fees, and other relief.

Combined with the plans laid by California Attorney General Kamala Harris — part of the alliance of AGs that has sought to investigate not only oil, gas, and coal companies, but private advocacy groups and university scientists who have played a role in what is characterized as “climate denial” — the bill would begin laying the legal groundwork for an astonishingly broad campaign of inquisition and, potentially, expropriation. The bill was approved by a subcommittee and was further amended May 10 to provide that climate science-related claims of any age would begin a four-year reviver period as of next January. [Northern California Record; the left-leaning Union of Concerned Scientists has a piece supporting the bill]

Section 2(b) of the bill declares it the California legislature’s policy to promote “redress for unfair competition practices committed by entities that have deceived, confused, or misled the public on the risks of climate change or financially supported activities that have deceived, confused, or misled the public on those risks” [emphasis added] — a very clear signal that the target is public issue advocacy, and not merely (say) advertising that is directed at consumers in their capacity as buyers of gasoline at the pump. Last month, a federal court slapped down, as an unconstitutional burden on First Amendment rights, California Attorney General Kamala Harris’s demand for the donor lists of nonprofits that carry on operations in California.

Nanny state roundup

  • No flavored milk for 5-year-olds: feds prescribe what day care centers may serve to 3 million kids [final rule via Elizabeth Harrington, Free Beacon]
  • Andrew Jackson and alcohol access: “…whereas Whigs insisted that regulating morality was a proper function of government, Democrats warned that government intrusion into areas of private choice would violate republican liberties.” [John M. Murrin et al, Liberty, Equality, Power on Massachusetts “Fifteen-Gallon Law” of 1838, via historian Richard Samuelson on Twitter, and more]
  • Eric Schneiderman takes his toll of fun: “Daily Fantasy Sports Stop Operations in New York” [Scott Shackford]
  • Wyoming happy with results of food freedom legislation [Baylen Linnekin]
  • Priors didn’t help, but yes, New Jersey’s gun control laws are such that the state will prosecute an actor over a prop gun used in filming a movie [AP/San Jose Mercury News; Carlo Goias]
  • Hadn’t remembered the Great Boston Molasses Flood of 1919, one of America’s strangest industrial disasters, had a Prohibition angle [Dylan Thuras, Atlas Obscura]

“Cities Rushing To Restrict Airbnb Are About To Discover They’re Violating Key Internet Law”

Some localities intent on regulating room sharing don’t seem fully aware that “federal law — specifically CDA 230 — prevents any laws that look to hold internet platforms liable for the actions of their users.” While that law does not prevent cities from aiming regulations at their own residents, it means they might not have the authority to assign liability to platforms such as AirBnB for residents’ failure to comply. [Mike Masnick, TechDirt; G.S. Hans, CDT]

Yet more on champerty, maintenance, and media liability

Davey Alba and Jennifer Chaussee at Wired quote me on Peter Thiel’s financing of the Hulk Hogan lawsuit as part of a campaign to take down Gawker Media (earlier here, here). The episode, which follows Frank VanderSloot’s announcement that he wishes to devote $1 million to endowing a fund for lawsuits against the “liberal press,” is likely not to be the last such, and I speculate on a nightmare scenario in which multiple clearinghouses claiming the public interest banner (and presumably based on tax-deductible donations) get up and running with the objective of taking down various sectors of the press disliked by one group or another.

Related: I’m a bit surprised that the successful legal takedown of the tawdry 1950s-era Confidential magazine, told in Henry Scott’s book Shocking True Story, hasn’t figured in more Gawker coverage. Megan McArdle at Bloomberg View weighs in on various aspects of the Thiel/Hogan story, and as usual is worth reading. Max Kennerly has a detailed analysis of legal issues in the coming Hogan v. Gawker appeal [earlier on verdict] And a flashback: how the late Lehman Brothers got in a ton of trouble by dabbling in champerty.

Quaker Oats sends cease/desist to actual Quakers

Making the rounds, on Mental Floss and elsewhere, a story of how an overzealous lawyer for the Quaker Oats company sent a cease/desist letter to the Quaker Oaks (that’s “Oaks”) Christmas Tree Farm in Visalia, California, led by actual members of the Society of Friends and named after the tree under which religious services had been held for a time. The letter provoked this amusing and not un-peaceful response from William Lovett (“Our business is 100% owned and operated by Quakers. I suspect that your firm employs considerably fewer, if any, Quakers.”)

While the Deseret News sets the tale in 2012, it seems to have been in circulation longer than that, as seen in this 2006 posting. But since names in the story, including that of a lawyer for the food company, do check out as names of real persons, my guess is that the story is genuine.

Donald Trump inveighs against federal judge hearing Trump U. case

Last night, before a convention center filled with his followers in San Diego, presidential candidate Donald Trump chose to launch a lengthy diatribe against the local federal judge hearing the case against his Trump University. Trump said Judge Gonzalo Curiel, of the Southern District of California, should recuse himself, but cited no reasons for why other than that he had been appointed by Obama and had repeatedly ruled against Trump’s lawyers.

In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.

Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live. [More: David Post]

Law professor Josh Blackman, active in the Federalist Society, writes as follows:

His jaw-dropping comments reflect an utter ignorance about what judges do, and amounts to a dangerous attacks on the fairness of our court system. Whatever negligible good will he built up by nominating a list of solid potential nominees to the Supreme Court was squandered with this scurrilous attack. Those who defended his selection process should immediately rebuke him for these baseless insults….

I am speechless. Absolutely, and totally speechless. I was highly critical of President Obama’s attacks on the Court. I cringe to think what will happen when the Supreme Court rules against [Trump].

This might be a good time to catch up, if you haven’t, on the legal saga of Trump University, which I’ve been following for more than a year (when I first looked into it as part of my research into the work of New York Attorney General Eric Schneiderman). Some coverage: Jillian Kay Melchior/NRO last July, Emma Brown/Washington Post last September, Ian Tuttle/NRO in February, Roger Parloff/Fortune, Joe Mullin and Jonathan Kaminsky/ArsTechnica. In the San Diego proceedings, one law firm ranged against Trump is Robbins Geller, descendant of convicted class-actioneer Bill Lerach’s Lerach Coughlin, and the subject of some less than flattering coverage in these columns over the years.

Peter Thiel, public interest law philanthropist?

There has been much coverage of the revelation that Peter Thiel has funded Hulk Hogan’s lawsuit against Gawker behind the scenes, especially following the Silicon Valley figure’s acknowledgment that he views taking down the notoriously scurrilous publisher as a public service (“one of my greater philanthropic things that I’ve done”) and has sought out and funded other litigants besides Hogan in order to make that happen. As I said in my explainer the other day, the decay of age-old rules against outsider funding of litigation (“champerty and maintenance”) is a broader trend that has left many sectors of society more exposed to the dangers of litigation, with the press just the latest.

I’m quoted by Alison Frankel in her Reuters column on this (“Our ancestors were not complete fools,” I say) and by Timothy Lee at Vox (“‘Some people following the Thiel story appear to be surprised that these weapons can be used by rich and powerful people in order to get their way,’ Olson tells me.”; also see Ezra Klein’s piece). And Lee recounts a recent episode that passed with little notice at the time:

Last year, the liberal magazine Mother Jones defeated a defamation lawsuit filed by Republican donor Frank VanderSloot. Winning the lawsuit cost Mother Jones, a relatively small nonprofit organization, and its insurance company $2.5 million in legal fees.

If VanderSloot’s goal was to punish Mother Jones for writing an accurate but unflattering story about him, a loss was almost as good as a victory. His lawsuit sought $74,999 (staying just under the $75,000 threshold that would have allowed Mother Jones to move the case to federal court and away from an Idaho jury that might have favored the hometown plaintiff). So “winning” the lawsuit cost Mother Jones 30 times as much as the amount it would have had to pay if it had lost.

What was really ominous was what happened after VanderSloot’s loss. He “announced that he was setting up a $1 million fund to pay the legal expenses of people wanting to sue Mother Jones or other members of the ‘liberal press.'”

Of journalists raising the alarm about the Thiel episode, Josh Marshall notes that unlike the usual pattern of litigation by wealthy persons against the press, in which the plaintiff must undertake some risk of reciprocal damage through discovery and bad headlines, the Thiel model allows the one in the background with the grudge to inflict hurt at little risk except financial to himself. “If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization,” argues Felix Salmon.

Meanwhile, some other writers echo the point I made about how, once funding other people’s lawsuits for ideological reasons came to be applauded as public interest law, it was unlikely that the weapon would not be used against the full range of targets including the press. Tyler Cowen tries putting the shoe on the environmentalist foot, while Eugene Kontorovich at the Volokh Conspiracy observes that “Thiel’s conduct fits into the ‘public interest’ or ‘ideological’ litigation paradigm” and claims that “By current standards, Thiel’s funding should raise no eyebrows — unless one also wants to revisit public interest litigation, class actions and contingent fees.”

You know what? Maybe it’s time we did revisit those things, including the ideological litigation paradigm. And Andrew Grossman has a tweetstorm and exchange with Kontorovich that comes closer to capturing my own mix of feelings on the subject.