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Wal-Mart

…you need to read Megan McArdle’s column (via David Henderson). And Ira Stoll points out that some workers you see at Costco might be getting lower wages than you think.

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December 26 roundup

by Walter Olson on December 26, 2012

  • L.A. County assessor, though in jail, will keep drawing $197K salary plus raise [LAT]
  • IRS lowers the regulatory boom on tax preparers [Institute for Justice video, auto-plays]
  • On Wal-Mart Mexico bribery, NYT has a bit of a blind eye of its own [Stoll; earlier here, here, etc.]
  • Another painful CPSIA regulation: CPSC on testing “representative samples” [Nancy Nord]
  • “Popcorn lung” couple “won a $20 million judgment. Now, they’re broke.” [ABC]
  • From Todd Zywicki: Libertarianism, Law and Economics, and the Common Law [SSRN via Bainbridge]
  • If the courts disapprove of throttling internet speeds, what do they think of throttling class action claims redemption rates? [Ted Frank]

Disabled rights roundup

by Walter Olson on August 8, 2012

  • Lawprof’s classic argument: you thought I was capable of going on a workplace rampage with a gun, and though that isn’t true, it means you perceived me as mentally disabled so when you fired me you broke the ADA [Above the Law, ABA Journal, NLJ]
  • “Fragrance-induced disabilities”: “The most frequent MCS [Multiple Chemical Sensitivity] accommodation involves implementing a fragrance-free workplace [or workzone] policy” [Katie Carder McCoy, Washington Workplace Law, earlier here, etc.]
  • Netflix seeks permission to appeal order in captioning accommodation case [NLJ, Social Media Law via Disabilities Law, earlier here, here and here]
  • EEOC presses harder on ADA coverage for obesity [PoL, earlier here, here, here, etc.]
  • Disability groups seek class action: “ADA Suit Claims Wal-Mart Checkout Terminals Are Too High for Wheelchair Users” [ABA Journal, Recorder]
  • Crunch postponed until after election: “Despite delays, chair lifts coming to public pools” [NPR Morning Edition, earlier here, here, here, etc.] Punished for advocacy: disabled groups organize boycotts of “hotels whose leaders, they say, have participated in efforts to delay regulations.” [USA Today]
  • Disabled student sues St. Louis U. med school over failure to provide more time on tests [St. L. P-D]

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At a Wal-Mart store in Turnersville, N.J. in 2010, a 16-year-old visitor got hold of the store’s public address system momentarily and announced to shoppers, “Attention Walmart customers: All black people must leave the store.” “A manager quickly made his own announcement, apologizing for the message. … The teenager was charged with harassment and bias intimidation, but now Donnell Battie, who is black, is suing Walmart claiming the store was negligent and reckless and showed deliberate indifference by not keeping the P.A. system safe from abuse.” [Gloucester County Times]

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  • Notwithstanding the tone of much coverage, companies are not legally required to disclose past FCPA violations to the government when they emerge: “It’s my understanding from in-house counsel that those who [voluntarily] disclose are in the distinct minority,” says one observer. Also, Prof. Koehler notes that even if Wal-Mart successfully defends the Mexican outlays as lawful “facilitating payments,” the company could still be accused of violating FCPA’s “books and records” and internal control provisions as well as Sarbanes-Oxley. [Sue Reisinger, Corporate Counsel]
  • Coyote recalls the eyes-averted maneuvers with which his former employer put itself in a posture of formal FCPA compliance when operating in corrupt countries;
  • Must-read Scott Greenfield post: “The Foreign Corrupt Practices Act is the corporate version of blue laws, a reflection of American idealism born of our Puritanical origins, our Pollyanna-ish denial of how the sausage of business is made, our jingoistic belief that we are so integral to the economic functioning of the world that we can dictate a cultural and moral code for everyone, and they can either comply with our great American will or suck eggs. It’s a fantasy of self-righteousness, and even Wal-Mart got caught in the reality that the business of business is business, and not puffy-chested Americans can bully Mexicans into succumbing to our moralistic ways.” Also suggests what Wal-Mart might say in response (at least if Wal-Mart were a character in an Ayn Rand novel) and notes “efforts to take this mutt of a law and attempt to reform it, at least to the extent that it not make American multinational corporations chose between being criminals or uncompetitive.”
  • Speaking of which, some reforms sought by business: “Bringing Transparency to the Foreign Corrupt Practices Act” [Michael Mukasey and James Dunlop, Federalist Society "Engage"]
  • Jeffrey Miron: prosecute Wal-Mart but repeal FCPA [CNN/Cato]
  • While agreeing that the FCPA we have at present is pretty bad, Prof. Bainbridge thinks a case can be made for such a law in principle;
  • Something to get Capitol Hill Democrats on board for reform? FCPA might menace Hollywood on China dealings [WSJ "Corruption Currents"]

Earlier here, here, here, and (at Cato) here.

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I’ve got a new opinion piece up at the Daily Caller on some relevant angles of the unfolding Wal-Mart FCPA story, including the feds’ growing crackdown on low-level “facilitating payments” that had previously been considered lawful, the potentially confiscatory effects of something called the Alternative Fines Act, and the question of why FCPA fines and settlements should be going to the U.S. Treasury, “which was surely not the victim of the Mexican bribe-paying, if victims there were.” Earlier here, here and (at Cato) here; and link thanks to Scott Greenfield (a must-read), Point of Law, Chris Fountain, Steve Bainbridge, and Coyote.

Plus: Scoop! Must credit Washington Post! Wal-Mart (like much of the rest of American business) has backed FCPA reform! In above-the-fold coverage with no fewer than three reporters’ bylines — though it does little more than recycle a meme that bounced around left-wing websites all day Tuesday — the Washington Post darkly warns that the giant retailer has been a member of broad business coalitions pressing various FCPA reforms “that, some advocacy groups argue, would eviscerate the Watergate-era anti-corruption statute.”  ”There is no evidence,” the paper is constrained to concede to the disappointment of Some Advocacy Groups, “that suggests Wal-Mart participated in the Chamber’s efforts because of its problems in Mexico.”

The Post notes that the campaign is led by what it bizarrely describes as the U.S. Chamber’s “little-known” Institute for Legal Reform. Yet the Post’s own index indicates that the “little-known” Institute has gotten seven mentions in the paper within the past 12 months, mostly for its advocacy on FCPA reform. Indeed, the Post itself has covered the FCPA debate in some depth over the past year, and its editorialists have ardently defended the law (perhaps “Watergate-era” should serve as some kind of tipoff phrasing.)

It would be one thing if Wal-Mart’s Washington reps had shown some sort of special dislike of FCPA not shared by other American firms that do business in developing countries. But the real story here is how broad and pervasive the discontent with the law is among American businesses with international operations. They consider it unrealistic, incapable of reliable compliance, punitive and constantly changing in its interpretations. Wouldn’t the Post do better to begin listening to them, rather than demonize their efforts to petition Washington for redress?

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I’ll be writing at more length about the New York Times’s story on Wal-Mart de Mexico’s payments to local officials, and the apparent sense of some in Bentonville that the issue would rest quietly if only they didn’t investigate it too hard. In the mean time, I’ve got a new post up at Cato at Liberty pointing to some reactions to the case from observers like Mike Koehler, Peter Henning, Stephen Bainbridge and Paul MacAvoy (interviewed by Dan Fisher at Forbes).

P.S.: Discussions of Mexico’s lamentable national institution of la mordida — literally, “the bite” — here, here, and here.

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Wal-Mart and FCPA

by Walter Olson on April 23, 2012

Wal-Mart’s expansion into Mexico, one of the great American business success stories of recent years, may also have led the giant retailer into extensive violations of the Foreign Corrupt Practices Act — in particular, if a New York Times investigation is to be believed, through efforts by U.S. management to sweep under the rug strong evidence that rogue management in Mexico had paid millions of dollars in bribes to facilitate the chain’s expansion. [NYT, AW, Business Insider] Last fall I described the law as “a feel-good piece of overcriminalization” that Congress should never have passed; more on FCPA here.

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January 9 roundup

by Walter Olson on January 9, 2012

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The Washington Post offers an editorial caution to lawmakers in Montgomery County, the famously liberal slice of Maryland suburbia:

A bill before the Montgomery County Council would force big-box retailers such as Wal-Mart, Home Depot and Target to negotiate with neighborhood groups as a condition for getting their new stores approved. This is such a spectacularly bad idea, on so many levels, that it’s hard to imagine how it came to be taken seriously in the first place.

By contrast, the nearby District of Columbia, often seen as a challenging place to do business, seems to be making its peace with Wal-Mart, which has announced plans to open six new stores there.

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October 28 roundup

by Walter Olson on October 28, 2011

  • Self-parody watch: Rep. Rosa DeLauro (D-Ct.) wants federal program to dispense free diapers [Fox News]
  • Trial-lawyer-friendly Florida Supreme Court could strike down state’s 2003 malpractice limits [Orlando Business Journal]
  • Don’t forget to thank Wal-Mart lobbyists for that debit fee charge [Mark Perry]
  • “Should insurers [be compelled by law to] pay for eating disorders?” [NYT "Room for Debate"]
  • Texas man drops suit against former fiancee [Above the Law]
  • “$75,000 Settlement for Muslim Teacher Denied 19 Days’ Unpaid Leave for Hajj (Pilgrimage to Mecca)” [Volokh]
  • Epidemiology for hire: “The Texas Sharpshooter Goes Free Range” [David Oliver]

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At Paid Content, Jeff Roberts reports that Wal-Mart may have found a clever way to pitch its services at Netflix’s streaming subscribers, namely by settling a class action lawsuit to which they are party:

A federal court in California late last week approved a class-action settlement that requires Wal-Mart to pay out $27.5 million. But here’s the key element of the ruling: Wal-Mart will be allowed to pay the 40 million Netflix subscribers in the form of gift cards for Wal-Mart.com—where there is prominent advertising for Vudu, which rents and sells movies a la carte.

The court ruling is a blow to Netflix, which had earlier blasted the settlement as “the equivalent of a marketing campaign that costs Walmart only 68 cents per potential customer.”

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I’ve got an instant analysis up at Cato at Liberty of the retailer’s big Supreme Court win today in Wal-Mart v. Dukes, the class action certification case. The Court ruled unanimously that the Ninth Circuit had jumped the gun in certifying the case as a class action, and 5-to-4 (Scalia writing) that plaintiffs had failed to assemble the evidence needed for certification. (& welcome Real Clear Politics “Best of the Blogs”, Atlantic Wire, Nicole Neily/Daily Caller, Jon Hyman, SCOTUSBlog)

More: Josh Blackman (with a comment on the Court’s recognition of the work of the late Richard Nagareda), Hans Bader, Jim Copland, John Steele Gordon. Spot-the-errors dept.: Dahlia Lithwick. Briefs and other resources on the case at SCOTUSBlog.

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June 8 roundup

by Walter Olson on June 8, 2011

  • Law firm settles with employee who said required high heels led to back injury [ABA Journal]
  • Stock listings fleeing U.S. for overseas, legal environment a factor [Ribstein, TotM]
  • Partial solution to above? Ted Frank places a stock bet on the Wal-Mart case [PoL, more]
  • Wider press coverage of hospital drug shortage [AP, Reuters, my March post]
  • Trial judge up north supports certifying as class action unusual suit blaming Newfoundland for moose collisions [Canadian Press via Karlsgodt, earlier here and here]
  • Academic revolt against copyright overreach [Chron of Higher Ed]
  • Sues deceased grandmother over trampoline injury [Madison County Record]

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“D.C. Mayor Vincent D. Gray delivered an ultimatum in a face-to-face meeting with Wal-Mart officials at a real estate convention Monday: If the chain wants to enter the District at all, it had better commit to opening at Skyland Shopping Center, the long-delayed redevelopment project in Gray’s home ward…. Gray indicated he would be willing to go so far as to nix the company’s requests for building permits on privately owned sites, even for neighborhoods where residents favored Wal-Mart’s opening.” [Washington Post, earlier]

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Washington Business Journal brings word of the list of demands by a “community group” to drop its opposition to the opening of Wal-Mart stores in Washington, D.C. Given such a welcoming attitude, isn’t it strange that so many major retailers have opened stores in suburban Maryland and Virginia, but not in the District?

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Don’t know whether to laugh or weep: why one local activist thinks Washington, D.C. would be better off without Wal-Mart [Mark Perry]

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February 24 roundup

by Walter Olson on February 24, 2011

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