Posts Tagged ‘class actions’

New York Times blasts arbitration. What’s missing?

The New York Times, which can scarcely mention firearms policy without invoking the Gun Lobby, runs a big feature endorsing the claims of arbitration opponents that is curiously evasive about the role of the Litigation Lobby. Daniel Fisher, Forbes:

The writers who penned today’s New York Times Page One expose of arbitration clauses say they examined thousands of court documents and interviewed hundreds of lawyers, yet they fell for a rookie mistake: They confused class-action plaintiffs for the real thing….

The “article splayed across four pages of the Sunday Times” profiles the owner of the Italian Colors restaurant, the named plaintiff in a class action against American Express that went to the Supreme Court, as if he were typical of “plaintiffs [who] sprang up spontaneously and went out and hired lawyers to vindicate their rights?

Who were his lawyers? The Times doesn’t think you need to know. But here’s the main one: Gary B. Friedman, an attorney who specializes in suing credit-card companies. He recently suffered a bit of bad press when a federal judge in New York threw out a proposed settlement of another class action against Amex because Friedman had displayed “improper and disappointing conduct” by communicating sensitive information to a lawyer for the other side. The judge criticized Friedman for “blatant collusion” by negotiating a settlement with the defense that was “contrary to the wishes of the putative class.”

Now why couldn’t the enterprising Times reporters find room in such a large story for a mention of Friedman? Perhaps because he represents the real face of consumer class actions. These aren’t lawsuits by little guys like Carson trying to vindicate their rights against big corporations. Most are lawsuits by wealthy attorneys trying to get wealthier, by using the mechanism of the class action — originally developed to allow courts to declare classes of plaintiffs in civil-rights cases — to present companies with an offer they can’t refuse: Settle and pay us a rich fee, or risk a devastating loss in court.

Fisher summarizes: the Times “reports without skepticism the plaintiff-lawyer version of the story.” That’s a shame on a topic where even such a liberal figure as California Gov. Jerry Brown, who recently vetoed an anti-arbitration bill, acknowledges there are genuine concerns on both sides.

Our coverage of contractually agreed pre-dispute arbitration — including both the practical and the freedom-of-contract arguments for it — goes back to the early days of this site, including Coyote (“Here is how you should think about this proposed law: Attorneys are the taxi cartels, and arbitration is Uber. And the incumbents want their competitor banned.”), James Taranto on the Times as “two papers in one,” Andrew Pincus on arbitration as still pretty much the Litigation Lobby’s number one target. Much coverage also at Point of Law, including Ted Frank on a familiar-sounding law firm’s use of pre-dispute arbitration clauses.

P.S. I’ll bet he has: “Having worked extensively with Silver-Greenberg on this series over the past several months…” [Deepak Gupta, Public Citizen]

And: more thoughts at Cato at Liberty, including links to Cato work and discussion of why consumers so seldom switch from one provider to another in search of more favorable fine print on class action availability.

Supreme Court roundup

Liability roundup

  • Preview of testimony from Dr. Robert Taub, formerly of Columbia U., in upcoming asbestos-referral corruption trial of former New York assembly speaker Sheldon Silver [NY Post]
  • Class action procedure: “Big Changes to Rule 23 in 2018? Be Sure to Weigh In Now” [Paul Karlsgodt, Andrew Trask]
  • In case it wasn’t clear already — but Overlawyered readers knew, didn’t they? — the aunt who sued her nephew wasn’t really upset with her young relative, she was trying to get at insurance money [New Jersey Civil Justice Institute]
  • “Judge’s Solution To Lead-Paint Problem May Be A Public Nuisance Itself” [Daniel Fisher]
  • “Randy Maniloff: Lawyers want to force teams to use ‘foul pole to foul pole’ netting to protect fans from injury” [W$J, earlier]
  • House passes bill to re-toughen Rule 11 sanctions, prospects for getting past White House uncertain [Rep. Lamar Smith press release, Texans for Lawsuit Reform on Lawsuit Abuse Reduction Act]
  • Denver: “a case that lawyers say is the first product liability claim in the nation involving the legal marijuana industry” [Greenfield Reporter]

Supreme Court roundup

The Court begins its new term each year on the first Monday in October:

Claim: Twitter’s use of URL shorteners in direct messages is privacy violation

A would-be class action from Edelson PC “aims to represent two classes — every American on Twitter who has ever received a direct message and every American on Twitter who has ever sent a direct message.” The claim is that Twitter’s use of URL shorteners for links sent within direct messages (DMs) violates the Electronic Communications Privacy Act and California privacy law because the service “reads” (if only by algorithm) communications that it promised were confidential. “The claimed damages are as high as $100 per day for each Twitter user whose privacy was violated.” [Hollywood Reporter] Overlawyered readers have met the Chicago-based Edelson class-action firm on previous occasions.

September 2 roundup

  • “Lawyer Threatens Yelp Reviewer With Lawsuit, Is Wrong” [Popehat, related Ken White on cease and desist orders]
  • “Winghouse restaurants only serve chicken wing parts, not the full drummettes, flappers and wingtips combination that traditionally defines a chicken wing, a class action lawsuit claims.” [Courthouse News, links to paywalled document]
  • Claim: what really ails law schools is lack of aggressive PR push. Readers push back in comments [Caron/TaxProf, Joe Patrice]
  • I was hoping Sen. Rand Paul would take a harder line against wildcat public employee strikes [Dave Weigel on Kentucky clerk case]
  • California’s Central Valley hit by ADA mass filings: “Griffiths said the Moore Law Firm has filed [accessibility] complaints against about 200 businesses in Fresno.” [Hanford Sentinel]
  • If the “system is rigged,” it’s not in the way Sens. Elizabeth Warren and Bernie Sanders seem to think [Cass Sunstein, Bloomberg View]
  • Up jumps the swagman, files a claim in copyright: origins and ownership chain of “Waltzing Matilda” are murky [Sydney Morning Herald via @ContentLawyer]

Supreme Court and constitutional law roundup

  • New York Times suggests Justice Clarence Thomas’s opinions borrow too much language from briefs and lower courts. Orin Kerr on why that’s unfair;
  • Prosecutors have too much leeway to request freeze on defendant’s assets pending trial [Ilya Shapiro, Cato]
  • Certiorari petition arising from Newman/Chiasson prosecution: “Obama Administration Gambles On Supreme Court Review Of Insider-Trading Case” [Daniel Fisher]
  • “Another Chance To Clean Up ‘Trial by Formula’ Class Actions” [Andrew Grossman/Cato, SCOTUSBlog on Tyson Foods v. Bouaphakeo]
  • “Bench Memos” to the barricades: National Review builds case for “resistance” to Supreme Court decisions” [my two cents at Cato on rhetoric likening Obergefell to Dred Scott]
  • Media firms including Time, Meredith, Advance, NPR jump into Spokeo case before high court, warn of Fair Credit Reporting Act litigation “quagmire” [Media Post]
  • After a tainted-food episode, managers convicted without a showing of mens rea? Egg case deserves a closer look [Ilya Shapiro, Cato]

“Lawyers smelling blood in wake of Ashley Madison hack”

Anonymous hackers having exposed customer data from a much-hyped adultery website, “class-action attorneys are currently following the Ashley Madison blood trail in hopes of winning a monetary payday for themselves and the site’s millions of members. In the last week, the Rosen Law Firm of New York began an outright solicitation for Ashley Madison users to join a prospective privacy and consumer fraud suit against the Ashley Madison site.” [David Kravets, ArsTechnica]

Liability roundup

July 29 roundup

  • Former NYT Peking correspondent Richard Bernstein, who now co-owns two nail salons, challenges Times blockbuster on prevalence of labor exploitation at NYC salons [New York Review of Books, Elizabeth Nolan Brown and followup, Times rebuttal. More: Bernstein rejoinder]
  • More details on how studios used Mississippi attorney general’s office as cut-out against Google [Mike Masnick, TechDirt, earlier here and here, more on AG Jim Hood]
  • Of course licensing laws “are only there to protect consumers and are enforced in a totally neutral way that has nothing to do with viewpoints or political pull (lol).” [Coyote on Boston mayor’s “not welcome in our town” message to Donald Trump]
  • Speaking of Donald Trump, would his lawyer threaten litigation to intimidate reporter Tim Mak? Only in a totally classy way [Daily Beast, S.E. Cupp/New York Daily News (Cohen, 2011: “I’m going to come at you, grab you by the neck and I’m not going to let you go until I’m finished”), earlier from the vaults on Trump’s use of litigation]
  • Things class-action lawyers sue over: “Beggin’ Strips Don’t Have Enough Bacon” [Reuters, New York Post]
  • As Lois Lerner targeting scandal drags on, time for Congress to impeach IRS officials? [Mike Rappaport, Liberty and Law]
  • Welcome to AFFH-land: Bharara, on behalf of feds, says Westchester County should pay for not squeezing Chappaqua hard enough to approve housing project [Journal-News, earlier here and here]