Cory Groshek of Green Bay, Wisconsin appears to scour online job offerings to see whether the employers have correctly followed the requirements of the Fair Credit Reporting Act on where and how to disclose that they intend to seek an applicant’s consumer credit reports. “Within a recent 18-month stretch, Groshek applied to 562 jobs, including one at Time Warner Cable. But it doesn’t appear he had any intention of keeping a job long-term. Instead, his aim seems to be to catch companies violating the law during the hiring process, so he can threaten a class-action lawsuit and demand a settlement….So far, Groshek has threatened to sue at least 46 companies that performed a background check on him” and has gotten settlements from about 20. Because Congress made liability for violations more or less automatic whether or not any actual consumers or workers were harmed, judges seldom throw out FCRA class actions, and “several companies across the country have paid out seven-figure settlements” in cases with other plaintiffs. [Milwaukee Journal-Sentinel]
Hello, AP? The relevant “wanting” here is done by lawyers, not consumers. (“When consumers want to create or join a class-action lawsuit…”) And that’s kind of emblematic of how you miss the point on the Consumer Finance Protection Board’s big announcement of a rule yesterday rescuing many class action lawyers from the arbitration clauses to which their putative clients would otherwise have given legal consent.
The industry reaction was swift, with Wall Street and its advocates warning of unintended consequences of the rule within hours of the CFPB proposing it on Thursday.
The change likely will result in higher litigation costs for banks, which they will offset either by raising the costs of consumer-loan products or reducing services, said Nessa Feddis, senior vice president for consumer protection and payments at the American Bankers Association, an industry group.
House Financial Services Committee Chairman Jeb Hensarling (R., Texas) called the proposed rule “a big, wet kiss to trial attorneys.”
And: Omri Ben-Shahar, Forbes:
While the overall effect on consumers depends on the balance between meritorious and frivolous class actions, one prediction can be made with confidence. Firms will now take greater care in drafting even longer fine print agreements, where everything is fully “disclosed.” Since many class actions allege violations that can often be corrected through more comprehensive legal disclosures and warnings, firms will lawyer up and write longer and even less readable boilerplate. The “asterisk” will be the winner — the routine disclaimers that accompany advertisements, as in: “Footlong is an average; reasonable variations may apply.” In the end, the CFPB’s proposed regulation will not improve the value of financial services to consumers. It will instead lavish upon people even longer and more excruciating small print.
“A consumer class claims Starbucks’ cold drinks are almost half ice and the coffee chain misrepresents the fluid ounces of its popular, and profitable, iced coffee and tea beverages….Further, Starbucks charges more for cold drinks than for comparable hot drinks, despite giving cold-drink customers less of the product than hot-drink customers; in this way, Starbucks makes higher profits off its cold beverages, Pincus claims.” [Jack Bouboushian, Courthouse News Service] “The customer is seeking $5 million in damages. ‘Our customers understand and expect that ice is an essential component of any “iced” beverage,’ Starbucks said in a response. It added that the company will happily remake any beverage until the customer is satisfied.” [Lindsay Putnam, New York Post] Another class action a few weeks ago claimed that the coffee chain does not fill hot drinks up close enough to the top of the cup.
Most major retailing chains have been sued under one or another of two California laws providing that workers who otherwise would spend most of the day on their feet must be given suitable seating when “the nature of the work” permits it. The scope of the law’s application had been ambiguous, but now the California high court has ruled and trial lawyers are apparently pleased with its answers. [Lisa Nagele-Piazza, BNA Daily Labor Report] More: Coyote.
Coffee giant Starbucks is said to use too low a “fill-to” line in latte cups and a class action filed in federal court in California wants money over that [Nation’s Restaurant News via Ira Stoll, Future of Capitalism]
More, Nick Farr/Abnormal Use:
Regardless of the merits of the short-pouring allegations, one particular allegation in the suit gave us pause. The plaintiffs allege that “Starbucks refuses to fill any hot beverage to the brim of the cup. Thus, under no circumstances will Starbucks ever serve a Grande Latte that actually meets the fluid ounces represented on the menu.” If we read that correctly, it sounds like the plaintiffs are actually suggesting that hot coffee should be filled to the brim of the cup to ensure that they are getting the full bang for their buck. We are guessing that had Starbucks done so, there would be a whole other class of plaintiffs clamoring for some massive hot coffee burn litigation. Maybe the plaintiffs should demand Starbucks use bigger cups and let the not filling to the brim policy stand for those who value safety.
- Washington Post “Fact Checker” Glenn Kessler awards Three Pinocchios to prominent Senate Democrats for claiming their body is constitutionally obligated to act on a Supreme Court nomination [earlier]
- George Will argues that even though the Constitution does not constrain them to do so, there are strong prudential reasons for Senate Republicans to give nominee Merrick Garland a vote [Washington Post/syndicated] A different view from colleague Ilya Shapiro [Forbes]
- Garland is known in his rulings for deference to the executive branch; maybe this president felt in special need of that? [Shapiro on Obama’s “abysmal record” heretofore at the Court; Tom Goldstein 2010 roundup on Garland’s jurisprudence, and John Heilemann, also 2010, on how nominee’s style of carefully measured liberal reasoning might peel away votes from the conservative side]
- Litigants’ interest in controlling their own rights form intellectual underpinnings of Antonin Scalia’s class action jurisprudence [Mark Moller, first and second posts] “With Scalia gone, defendants lose hope for class action reprieve” [Alison Frankel/Reuters]
- OK for private law firms hired to collect state debt to use attorney generals’ letterhead? Sheriff v. Gillie is FDCPA case on appeal from Sixth Circuit [earlier]
- Murr v. Wisconsin raises question of whether separate incursions on more than one parcel of commonly owned land must be considered together in determining whether there’s been a regulatory taking [Gideon Kanner]
- Immigration-related rules on the one hand, national-origin discrimination rules on the other: “Employers could get sued for following the law” [Sean Higgins, Washington Examiner]
- Should anyone doubt labor relations as an academic field tilts way left, here are numbers [Mitchell Langbert, Econ Journal Watch]
- Connecticut high court opens door to letting kids of dismissed workers sue employers for lost consortium, on top of suits filed by the parents themselves [Daniel Schwartz]
- Obama scheme to yank millions of workers off salaried status is a real economic menace [Trey Kovacs, CEI, earlier]
- Panel discussion marks 80th anniversary of National Labor Relations Act with lawprofs Richard Epstein and John Raudabaugh, Bill Samuel (AFL-CIO) and Mark Schneider (Machinists), moderated by Hon. Joan Larsen of Michigan Supreme Court [Federalist Society video, National Lawyers Conference]
- “Employment-related class action settlements hit high in 2015” [12th annual Seyfarth Shaw Workplace Class Action Litigation Report via Staffing Industry Analysts] EEOC Employee Charge trends, annual report [Hiscox, and note map on p. 4 of employee lawsuit hotspots including Illinois, California, Nevada, and New Mexico]
- Justice Scalia’s death will make big difference in class action cases [Samantha Thompson, McGuireWoods via Andrew Trask]
- Manhattan Institute publishes new report in its Trial Lawyers, Inc. series, this one focusing on class actions and mass torts [James Copland and colleagues]
- Prof. Jason Johnston says House-passed class action reform would have modest effect [Chamber-backed Legal NewsLine] More on H.R. 1927, which also includes asbestos-litigation provisions and passed the House 211-188 with no Democratic votes [Mark Hofmann, Business Insurance; Republican Policy Committee]
- “The Supreme Court’s next big class action controversy: ascertainability” [Alison Frankel, Reuters on Tyson Foods v. Bouaphakeo]
- Texarkana forum-shopping: “Attorney files motion to dismiss class action settlement between USAA and Goodson law firm” [Benjamin Hardy, Arkansas Times, Adams v. USAA h/t Arkansas Business]
- TCPA, law that launched a thousand telemarketing class actions, might stand for “Total Cash for Plaintiffs’ Attorneys” [Adonis Hoffman, The Hill]
Following up on a post from a year ago: “Caddies lost their class-action lawsuit against the PGA Tour when a federal judge in California ruled they signed a contract with the tour that requires them to wear bibs as part of their uniform and cannot claim that corporate sponsorship on the bibs makes them human billboards.” [AP/Fox]