Theodore Kaczynski tried to advance an equitable case for the return of various stuff seized by feds from his cabin, but, Kevin points out at Lowering the Bar, he had “unclean hands”. [U.S. v. Kaczynski, FindLaw, PDF]
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From the monthly archives:
January 2009
Susan Taylor Martin writes in the St. Petersburg Times on problems with class-action settlements, including a recent one in Florida that seems basically to have pitted Florida drivers against Florida taxpayers (she quotes me on how this can empower lawyers to move money from our left pockets to our right pockets at a high overhead cost). She also reports on the national cosmetics giveaway that recently took place following a class-action antitrust suit (see Jan. 29, etc.) A highlight:
I also asked Saveri [San Francisco class-action attorney Guido Saveri, one of the lead counsel] if he thought the giveaway program had been rather loosely administered. Customers didn’t have to prove they were part of the class, and there was nothing to stop them from getting as many cosmetics as they could. The result: Stores quickly ran out and a lot of people who were members of the class didn’t get anything.
“I think it was very well administered,” Saveri said, a bit huffily. “Each person had to file a piece of paper that they were entitled to one product — whether you want to lie about it I can’t control that.”
Before we hung up I asked Saveri if any of his female relatives got free cosmetics. Turns out the giveaway was off limits to attorneys’ families.
But with $24 million, they can afford to shop at Neiman-Marcus. As for me, I’ll wait until L’Oreal goes on sale at my local CVS.
Back in November 2006, we called it a “no-blush, high-gloss, invisible-foundation antitrust class action”.
Yesterday’s extraordinary one-year stay of enforcement on testing/certification by the CPSC was, if nothing else, a tribute to the energy of an extraordinary grass-roots movement that emerged over the past two months and made its voice heard around the country and above all in Congress. It will rightfully be cause for celebration by thousands of businesses whose inventories of books, toys, garments and other childrens’ goods have now suddenly not been rendered valueless and which can continue making selling their wares after Feb. 10, not indeed without legal worries, but at least without being in blatant defiance of the responsible federal agency, the Consumer Product Safety Commission.
After the hugs and confetti-throwing have subsided, there will be time to examine the many ways this relief falls short of solving the CPSIA problem, while leaving product makers and retailers exposed in serious legal ways over the next twelve months as well as afterward.
In the mean time, let us note that while some sectors of the media flopped utterly in covering CPSIA in recent weeks, others distinguished themselves, with much good coverage appearing in local newspapers and also local television (the latter often belittled as a source of original reporting). Above all, this was a triumph of social media: blogs both big and small (including the 350+ who participated in CPSIA Blogging Day on Wednesday), forums (at places like Fashion Incubator and Etsy), and Twitter (which proved its worth as a means of putting concerned people in touch with each other, spreading word about useful articles, documents and resources, and serving as an early alert system on news developments).
(Public domain illustration: Grandma’s Graphics).
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[Headline updated to reflect full commission approval.]
In a major development this afternoon, the staff of the Consumer Product Safety Commission has proposed (PDF), and the commission itself has agreed by a 2-0 vote to, a one-year stay of enforcement of CPSIA’s testing and certification requirements (but not its introduction of new lead and phthalate standards; products will still need to conform to those standards).
This is, in general, very good news, but two problems need to be pointed out. One is that the action may be vulnerable to legal challenge as violating the CPSC’s legal obligations to regulate, and in particular to enforce CPSIA’s terms faithfully. As if to confirm that danger, prominent “consumer” groups — that is, the same groups that pushed CPSIA through to enactment and have vocally defended the law ever since — issued a letter this afternoon digging into their position that there’s nothing wrong with the law and that Congress should not revisit it. (Consumers Union, Public Citizen — the latter, it will be recalled, being the group whose David Arkush wrote last month “I haven’t heard a single legitimate concern yet” about the law.)
All these pro-CPSIA groups have lawyers; some are governed of, by, and for lawyers. If and when they sue the CPSC, a court could agree with them and disallow the one-year enforcement stay of certification requirements.
Beyond that, the CPSC is not the law’s only enforcer. Today’s letter from the commission states the following:
The Commission trusts that State Attorneys General will respect the Commission’s judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.
In other words, the commission has at most the power to stay its own enforcement, and cannot stay the 50 state attorneys general from going after makers of children’s goods, small or large, who fail to obtain testing certifications between now and next February. But it expresses a wan hope that they will be reasonable and not do so. You know how reasonable those state attorneys general always are.
In another development today, Sen. Jim DeMint (R-S.C.) has announced that he will introduce a bill that would broadly reform CPSIA’s terms.
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Just posted at Musings from a Catholic Bookstore:
We currently have received certification from one vendor (about 10 products) which means that we have been forced to discontinue 1ooo products that we currently don’t have in stock to avoid breaking the law after February 10th. We currently have about 600 different kid’s items in stock that are discounted and won’t be available after February 10th unless we get more certificates from vendors.
The upshot of this? The First Communion season (February – May) is usually the second busiest season of the year for Catholic retailers. This year, unless our vendors get their acts together, it will be the worst season ever because there won’t be any First Communion dresses, kid’s missals, kid’s rosaries, etc. available for purchase.
I wonder how many Catholic retailers that are currently on the edge this will put over into failure? Knowing our industry it is quite likely that many, in spite of our contacting them, will continue operating as if the law doesn’t exist. At least until they get fined out of existence.
Anyway, stock up on First Communion and other kid’s items now because they may not be available next month.
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The Massachusetts attorney general’s office says Tod Schaffer of Brookline filed twenty-one injury reports over the same broken tooth and got payments from at least ten restaurants.
Which helps explain that dumb, self-defeating company policy on computer passwords.
Yet another casualty of this destructive law: Honda has sent a letter to dealers announcing that it will withdraw youth motorcycles and ATVs from the U.S. market. It says lead figures as an intrinsic part of the alloys used in building the vehicles.
The irony, of course, is that of all the imaginable safety hazards posed by the existence of youth motorcycles and ATVs, the danger that kids will eat the darn things must rank at the very bottom.
Some other likely casualties here (Flickr group).
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Your job is just to get in, we’ll provide the free lawyers once you do: “A decision to give legal aid to a failed asylum seeker and fraudster has been described as ‘barmy’. Zimbabwean Quentin Chapingidza was granted legal aid after he was charged with falsely claiming £23,500 in student loans from Harrow Council in north west London for a three-year computer course. His loan application included a fake Home Office letter claiming he had indefinite leave to remain in the UK.” [Independent]
But it is personal (cross-posted from Point of Law).
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“I’m a capital ‘D’ Dumbass,” Houston lawyer Richard T. Howell Jr. said about the incident. His law firm is however suing on the grounds that the bank should have better explained the check-clearing process. The scam artist posed as a businessman in Japan who wanted to become a client of Howell’s firm. [Texas Lawyer, TechDirt]
Update March 2010: lawsuit still pending [KHOU h/t reader VMS]
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- Irvine, California class-action lawyer Sandeep Baweja: sorry, I bet the class’s $2.7M wage/hour settlement on the stock market and lost it [ABA Journal, WageLaw]
- Litigant alleges his iPod playlist is worth $1 trillion; also, another kicked-by-exotic-dancer lawsuit [Lowering the Bar]
- Lawyers representing victims of Long Island’s “Agape” Ponzi scheme would do well to be modest [Scott Greenfield]
- More on that litigation filed by Dallas developer H. Walker Royall against author Carla Main, who wrote a book critical of eminent domain abuse; her publisher, Encounter Books (which is also publishing a book of mine); a reviewer, and his newspaper; and even eminent scholar Richard Epstein, for giving a blurb [Real Clear Politics, Somin @ Volokh, Sullum/Reason "Hit and Run", earlier]
- “OMG, there’s mercury in the high-fructose corn syrup!” scare doesn’t sound very scare-worthy [Coyote]
- Another reason we (sometimes) go too far in search of safety: “Availability Bias and Water Landings” [Cernovich]
- Supreme Court mulls whether to grant certiorari on Bilski (business methods patent) case [SCOTUS Blog]
- Trial judge lops $32 million off that $55 million verdict against San Diego Gas & Electric for helicopter crash into unlit utility tower [CalBizLit]
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CPSIA might at last succeed in wiping out the comic book trade (Evan Dorkin; via) Our posts about CPSIA are here. More: TCJ Journalista (”Read it and weep.”)
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At least let us drown our sorrows in a bowl of pretzels. More: Amy Alkon.
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- Free class-action swag if you bought department store cosmetics between 1994 and 2003; not that they’re giving away the very best stuff or anything [Tompkins/Poynter, California Civil Justice, WSJ Law Blog, settlement site] We’ve been covering the story for quite some time;
- Law school “can be a financial disaster” for unwary students [Law and More] Law schools not immune from economic downturn [Above the Law]
- Bruce Bawer on Dutch prosecution of Islam-criticizer Geert Wilders [City Journal]
- More on possible passenger suits after the miracle Hudson-landing USAir Flight #1549 [USA Today, earlier] Update: NY Post, NY Mag.
- Bad news for patients and other living things: Sidney Wolfe of Public Citizen somehow got named to a key FDA panel during the late Bush administration [Point of Law, Postrel, Bernstein/Volokh, Hooper & Henderson/Forbes]
- “Friends weren’t really trying to reach me!” class action against Reunion.com encounters another setback [Spam Notes]
- Stand and deliver it back: “Minnesota: $2.6 Million in Red Light Camera Tickets Refunded” [The Newspaper]
- Gary, Indiana’s is the last standing of what were once thirty “gun sales = nuisance” suits filed by cities; now Indiana high court says it can go to trial [Point of Law]
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So Crystal Bear of Rice, Wash., who’d won $6 million from her sister in a crash lawsuit, settled for the $200,000 insurance policy limits instead. Co-defendant Ford Motor Company had also been targeted in the case, which arose from a Bronco rollover, but it got off with a defense verdict. (Matthew Heller, On Point News).
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Apparently jurors are keen to construe the story before them as a search for fault, even if that’s not quite how patent law actually works (IP Law and Business)
Links and angles that didn’t fit anywhere else:
- Just in time to be too late? Per activist Kathleen Fasanella, NPR “Marketplace” is said to be planning a show on CPSIA for Feb. 6, by which time shelves will be emptying;
- Community of independent artists squabble amid anguish of “discovering piece by piece they can’t comply” [Electric Boogaloo, strong language]
- Obama’s decorator better hurry and furnish girls’ rooms before Feb. 10 [Vicki Piippo, Calico Closet]
- Consumer Reports sticks to its profoundly benighted view that there’s nothing wrong with the law, and gets an earful from visiting readers. Relatedly, the once-independent blog Consumerist was recently bought by CR’s parent Consumers’ Union, and likewise parrots the organization’s misleading line on thrift shops and other applications of the law;
- My call for past bloggers to revisit CPSIA today was even more successful than I hoped. Posts from Amy Alkon at Advice Goddess, Patrick at Popehat, John Schwenkler, Mark Thompson at the wonderfully named League of Ordinary Gentlemen, and Eve Tushnet at Ladyblog.
Also, I contributed two posts at my other site, Point of Law, on the law’s testing costs and its impact on the amusement park/attractions business. And excellent business/econ blogger Marc Hodak (Hodak Value) posted today as well.
- Darn. This place had some cute stuff, too.
- In today’s New York Post, Jeff Stier (American Council on Science and Health) points out that the law will deal a blow to NYC’s garment trade. Help, Mayor Bloomberg!
- Canadian web-based book seller: we’ll have to decide whether to go on shipping kids’ books to U.S. customers;
- Resources: A great big assemblage of videos on the cause; nice collection of resources on the law from Karen Clark; info and action kit from Etsy (PDF), print it out for reference.
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