Posts tagged as:

arbitration

Medical roundup

by Walter Olson on November 27, 2013

  • “In a nationally representative sample, higher patient satisfaction was associated with…increased mortality.” [White Coat/BirdStrike]
  • Low premiums! Few glitches! Larger states “working faithfully to implement the law with as few glitches as possible”! New Yorker’s Oct. 7 “Talk of the Town” on ACA’s smooth launch is a retrospective hoot;
  • Massachusetts Nurses Association goes all Venezuelan on hospital governance [Ira Stoll]
  • “Can a healthcare provider make an arbitration agreement with patients for resolving future malpractice disputes?” [Alex Stein]
  • “FDA Proposal To Curb Painkiller Overdose Deaths Would Add Burdens For Pain Patients” [Radley Balko]
  • Georgia DUI expert in hot water [PennLive] “Deconstructing the mechanical engineer” [Manhattan; Eric Turkewitz]
  • “FDA Suspension of Ponatinib: Serious Problem, Wrong Solution” [Richard Epstein, leukemia drug]
  • “Missouri Lawmakers Override Veto to Enact Good Samaritan Law” [Michael Cannon, Cato]

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Having been at times lacking in enthusiasm for the work of journalist Stephanie Mencimer, it’s only fair we credit her again with considerable courage for returning to the failed Jamie Leigh Jones case in a new article in Washington Monthly. (Jones alleged a brutal rape in Iraq for which her lawyers said employer Halliburton/Kellogg Brown & Root (KBR) should have been held responsible; the case served as a springboard for numerous misleading attacks on pre-dispute arbitration). Following the evidence wherever it leads against the likely inclinations of many Washington Monthly readers, Mencimer leaves Jones’ credibility in tatters and the various liberal and trial-lawyer sources that ballyhooed her case — including Sen. Al Franken (D-Minn.) and TV talker Rachel Maddow — looking highly gullible, to go with the kindest interpretation.

Most damning of all, as readers of posts in this space (especially those by Ted Frank) will recall, Jones was given center stage in Susan Saladoff’s film “Hot Coffee,” which periodically airs on HBO and on college campuses and has established itself as one of the litigation industry’s most durable and successful propaganda vehicles. All future discussion of “Hot Coffee” — and certainly any cable/broadcast airings or public screenings whose sponsors care about accuracy and fairness — will need to warn audiences that the Jones case can now be seen in retrospect as almost unrecognizably different from the picture of it presented in that trial-lawyer-produced “documentary.” If this is what becomes of one of Saladoff’s central cases, how reliable ought we to consider the rest of her film?

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September 3 roundup

by Walter Olson on September 3, 2013

  • The bureaucracy in India brings Gilbert & Sullivan to life: “He has been corresponding with himself for the last 26 days as an officer wearing different hats.” [Deccan Chronicle via @tylercowen]
  • “Certificate of Need” laws: “You Shouldn’t Have to Ask Your Competitors for Permission to Start a Business” [Ilya Shapiro]
  • No massive shift to arbitration clauses in franchise world since SCOTUS rulings [Peter Rutledge and Christopher Drahozal via Alison Frankel; Andrew Trask]
  • Evergreen headline in slightly varying forms: “Anti-abuse group’s director quits after arrest in assault” [Sacramento Bee; related here, here, etc.]
  • Economic liberalization increases growth [Alex Tabarrok]
  • “With Auto Amber Alerts, We’re Opted In By Default To A ‘Little Brother’ Surveillance Society” [Kashmir Hill]
  • How Florida trial lawyers plan to crack the tobacco-verdict vault [Daniel Fisher]

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August 2 roundup

by Walter Olson on August 2, 2013

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Left-leaning lawprofs like Erwin Chemerinsky and Arthur Miller regularly flog the idea that decisions they disagree with — such as Twombly and Iqbal on pleading, AT&T v. Concepcion and AmEx v. Italian Colors on arbitration, and Vance v. Ball State and Ledbetter v. Goodyear Tire on workplace liability — show the Supreme Court to be biased in favor of business defendants. Richard Epstein rebuts.

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Today’s Supreme Court decision in American Express Co. v. Italian Colors Restaurant is a victory for freedom of contract, a boost for arbitration as an alternative to litigation, and a step forward in the Court’s ongoing recognition that the class action is just one legal vehicle among many, not some priority express train to be favored over other traffic. The restaurant had agreed with American Express to settle disputes by way of arbitration, and to waive any rights to have future disputes handled through class actions. When a potential antitrust claim arose, it nonetheless sought to slip out of its contractual agreement and invalidate the waiver. Split along familiar ideological lines with Justice Sotomayor not participating, the court ruled 5-3 that the Second Circuit erred in striking down the waiver as inconsistent with the Federal Arbitration Act. While the Court has previously held that arbitration agreements must be construed to provide “effective vindication” of statutory claims, the class action format — which did not even exist for these purposes until decades after the Sherman Act’s passage — was not so crucial to the restaurant’s legal rights as to be unwaivable.

A dissent by Justice Kagan — both longer and more spirited than Justice Scalia’s majority opinion — seeks to extend the Court’s earlier rulings that arbitration clauses cannot thwart “effective vindication” of statutory rights by such devices as requiring overly high fees for entry into arbitration. Interestingly, the dissent outdoes the majority in claiming to favor the true spirit of arbitration as an alternative to litigation; in that respect, at least, it departs from the tone of much commentary from the Legal Left which treats arbitration as an evil corporate plot to deprive the world of the benefits of zealous litigation. It also proposes two paths of argument that the majority declines to pursue: 1) that skepticism toward contractual waivers might be especially appropriate in antitrust contexts because the alleged monopolist under scrutiny may use its putative market power to put across unfair contract terms; 2) that confidentiality clauses in Amex’s contract (not addressed by the majority) might fail the “effective vindication” test by preventing Amex customers from joining forces to collaborate on expert reports to use on their behalf in individualized assertion of their disputes.

For years, organized trial lawyers have been publicly campaigning against arbitration — which keeps money out of their pockets by diverting disputes from knock-down litigation — claiming that it is unfair and one-sided. But many studies support the view that disputants’ overall satisfaction in arbitration compares very favorably to that in litigation, in part because it is a speedier and less acrimonious process. And consumers and small businesses by millions sign away their class action rights not because they are all hoodwinked or coerced, but because at some level they have rational grounds to recognize that those class-action rights are very unlikely to pay off for them in durable future benefits (as opposed to benefits for participants in the litigation industry). Congress will be asked to overturn Supreme Court decisions like Amex v. Italian Colors and the earlier, related AT&T Mobility v. Concepcion. It should resist. (expanded from an earlier post at Cato at Liberty; and welcome SCOTUSblog readers.)

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Class action roundup

by Walter Olson on March 29, 2013

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Class action roundup

by Walter Olson on January 28, 2013

  • Pursuing well-worn script following exposure of fib-laden memoirs, class action lawyers sue demanding reader refunds for Lance Armstrong autobiography [ABA Journal]
  • Adventures of Ted Frank’s CCAF: Easy Saver coupon settlement; Southwest Airlines drink voucher; Asus Computer dongle giveaway. Plus: “Citigroup Plaintiff Lawyers Fire Back At Fee Objectors” [Daniel Fisher, Forbes]
  • Wrongful termination complaint contains its share of juicy allegations regarding well-known plaintiff’s firm Hausfeld LLP [Andrew Trask]
  • Calif.: “Judges Accuse Class Lawyers of Misconduct” [The Recorder; The Complex Litigator (Clarke v. First Transit, PDF)]
  • Aiming to undermine Concepcion ruling, plaintiff lawyers seek to overwhelm system with arbitration demands [Reuters, earlier]
  • How to get your class action settlement disapproved by the judge [Andrew Trask]
  • “Papa John’s Facing $250 Million Text Message Spam Lawsuit” [PC Mag]

Torts roundup

by Walter Olson on July 19, 2012

  • Dixon v. Ford Motor Company: “The Best Causation Opinion of 2012″ [David Oliver] “Any exposure” causation: “Pennsylvania Supreme Court delivers significant asbestos ruling” [Point of Law]
  • Maryland high court may consider pro-plaintiff shift from contributory negligence to comparative fault [Sean Wajert]
  • In last-minute ploy, Albany lawmakers extend time limits for suing local governments [Torch via PoL, Times-Union]
  • Mental diagnoses: what to do when courtroom experts armed with DSM-5 shoot from the hip [Jim Dedman, Abnormal Use]
  • California appeals court, legislature decline to go along with trial lawyers’ crusade against Concepcion and class arbitration waivers [WLF, CL&P]
  • Critics challenge legality of Louisiana AG’s use of contingency lawyers [Melissa Landry, Hayride]
  • To curb client solicitation, NJ mulls withholding crash reports from noninterested parties for 90 days [NJLRA]

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May 29 roundup

by Walter Olson on May 29, 2012

  • Congress again debates bad idea of race-based government for native Hawaiians [Ramesh Ponnuru, Ilya Shapiro/Cato; earlier here, etc.]
  • “I could have been killed for blogging.” [Patterico, Scott Greenfield] Latest blogger “swatting” (bogus police call) hits RedState’s Erick Erickson [same] Incivility is a hazard for bloggers, but fear for families’ physical safety shouldn’t be [Jonathan Adler, Amy Alkon] Dear authorities in Montgomery County, Md. and elsewhere: you should know it’s not every day Radley Balko calls for tougher law enforcement. Earlier here and here.
  • More dying from guns than from car crashes? Eugene Volokh skewers some misleading arguments from the Detroit Free Press;
  • Mississippi: Judge dismisses Dickie Scruggs’s motion to vacate bribery conviction [AP; Tom Freeland and more]
  • Washington Times kindly cites coverage in this space on Maryland “structuring” prosecutions [editorial]. Maryland delayed foreclosures and is now paying the price in slower housing recovery [Hayley Peterson, Examiner]
  • Andrew Pincus defends arbitration and SCOTUS decision in Concepcion [NYTimes "DealBook"; NLJ] Effort in Florida to ease use of arbitration in med-mal disputes [Miami Herald]
  • Michigan Supreme Court judge Diane Hathaway, elected via 2008′s most unfair attack ad, is now in a spot of ethical bother [Ted Frank]

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Many trial lawyers yearn to get rid of arbitration clauses in credit card and other consumer finance contracts, which (among their other effects) block them from rolling many small claims into large class actions. Will the new Consumer Protection Finance Bureau (CPFB) go along with their wishes? [Daniel Fisher, Forbes] Related: Alison Frankel, Reuters.

March 23 roundup

by Walter Olson on March 23, 2012

  • Tips for those facing vexatious-litigant proceedings [Lowering the Bar; U.K.]
  • Credit card arbitration: “Plaintiffs’ lawyers protect their cartel by bringing antitrust suit” [Ted Frank, PoL]
  • Just what European business needs: gender quotas for corporate boards [Bader, CEI]
  • “Food sovereignty” movement: next, rediscovering freedom of contract? [Alex Beam, Ira Stoll]
  • Much-assailed group for state legislators: “ALEC Enjoys A New Wave of Influence and Criticism” [Alan Greenblatt, Governing]
  • Symposium on David Bernstein’s Rehabilitating Lochner [Law and Liberty, earlier here and here]
  • Because rent control is all about fairness [Damon Root]

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According to what seems to be the sense of many in the Florida legal profession, doctors and their patients should not have the right to enter enforceable arbitration agreements before the fact to resolve disputes, but lawyers and their clients should have the right to enter enforceable agreements before the fact to limit liability for excessive charging of legal fees. Thanks for clarifying! [White Coat, scroll; earlier]

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February 8 roundup

by Walter Olson on February 8, 2012

  • Popular proposal to curb Congressional insider trading (“STOCK Act”) could have disturbing unintended consequences [John Berlau, CEI "Open Market"] A contrary view: Bainbridge.
  • Here’s Joe’s number, he’ll do a good job of suing us: “Some Maryland hospitals recommend lawyers to patients” [Baltimore Sun, Ron Miller]
  • Bribing the states to spend: follies of our fiscal federalism, and other themes from Michael Greve’s new book The Upside-Down Constitution [LLL, more, yet more] “Atlas Croaks, Supreme Court Shrugs” [Greve, Charleston Law Review; related, Ted Frank]
  • “… Daubert Relevancy is the Sentry That Guards Against the Tyranny of Experts” [David Oliver on new First Circuit opinion or scroll to Jan. 23]
  • Goodbye old political tweets, Eric Turkewitz is off to trial;
  • State laws squelch election speech, and political class shrugs (or secretly smiles) [George Will]
  • Too bad Carlyle Group got scared off promising experiment to revamp corporate governance to curb role of litigation [Ted Frank, Gordon Smith] AAJ should try harder to use people’s quotes in context [Bainbridge]

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January 23 roundup

by Walter Olson on January 23, 2012

  • Copyright violations on PIPA sponsors’ websites? [VICE] “A SOPA Analogy” [David Henderson]
  • DEA agent who mistakenly shot self loses appeal [BLT, earlier]
  • “And people say libertarians lack empathy”: AP adopts pre-emptively disapproving tone toward advances in pain control [Coyote; related, Alkon on Primatene Mist]
  • Cordray, NLRB recess picks allow President to reward key Democratic interest groups [Copland, Examiner] Litigation Lobby gunning for ban on consumer finance arbitration as Cordray priority [CL&P] Mike Rappaport on the recess appointment clause [LLL, earlier here, etc.]
  • Keystone’s just the half of it: US environmental funders push shutdown of Canada energy production [Vivian Krause, Financial Post]
  • Hot potato, or just hot business sector? “Credit Suisse Parts with Litigation Finance Group” [WSJ Law Blog]
  • Speaking of shoplifters in elected office [Harrisburg Patriot-News on Perry County, Pa. case h/t commenter A.A.; earlier on California case]

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January 16 roundup

by Walter Olson on January 16, 2012

  • Per Chevron, Kerry Kennedy getting undisclosed percentage of the take, potentially in millions, to side with plaintiffs in Ecuador suit [NY Post] Long New Yorker take-out on case [Patrick Radden Keefe]
  • Freetail Brewing fields a nastygram: “How to Comply With a Cease-and-Desist Letter But Still Win” [Lowering the Bar]
  • I.e. boycotts illegal? Odd Minnesota law bans economic “reprisals” based on “political activity.” [Volokh]
  • “Chris McGrath v. Vaughan Jones: An Unpleasant Peek Into U.K. Libel Law” [Popehat; suit over science-and-theology book review] Related: “You Can’t Read This Book: why libel tourists love London” [Nick Cohen, Guardian, on his new book]
  • Business experience isn’t be-all or end-all for presidential qualifications, but might avert some policy howlers [Kling]
  • “Arbitration Is Here to Stay and One Lawyer Says That Is Good for Consumers” [Alan Kaplinsky interview, Mickey Meese/Forbes, PoL]
  • Off-topic random thought: “Iranian nuclear scientist who moonlights in Broadway Spider-Man cast” must be world’s most uninsurable job description;
  • “D.C. Lawmakers Propose Requiring Students to Apply to College” [Fox]

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  • NLRB rules employment contracts that specify arbitration for group grievances violate federal labor law even in nonunion workplaces [D. R. Horton, Inc. and Michael Cuda; Ross Runkel, Corporate Counsel]
  • Richard Epstein on “living wage” legislation [Defining Ideas]
  • In Greece, law providing early retirement for “hazardous” jobs was extended to some that are not so hazardous, like hairdressing, pastry making and radio announcing [Mark Steyn via Instapundit, IBTimes, Reuters]
  • “Prosecutor’s double-dippers draw millions from New Jersey pension funds” [Mark Lagerkvist, DC Examiner] Even if convicted on felony charges of misappropriation of public funds, Beverly Hills school superintendent unlikely to forfeit pension [LA Times]
  • “Against Forced Unionization of Independent Workers” [Ilya Shapiro on Cato amicus brief in Harris v. Quinn]
  • Whoops: UAW officials appeal extortion sentence, 6th Circuit sends it back as too lenient [AutoBlog via Kaus]
  • New York appeals court makes it harder to get weak NYC job-bias cases dismissed on summary judgment [Judy Greenwald, Business Insurance] Connecticut’s job-bias commission doesn’t seem to consider any cases frivolous any more [Daniel Schwartz]

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