Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2016

The Economist on ADA litigation

“The hundreds of pages of technical requirements [relating to Title III of the Americans with Disabilities Act, or ADA] have become so ‘frankly overwhelming’ that a good 95% of Arizona businesses haven’t fully complied, says Peter Strojnik, a lawyer in Phoenix. He has sued more than 500 since starting in February, and says he will hit thousands more in the state and hire staff to begin out-of-state suits. … Violators must pay all legal fees” and courts ordinarily find violations. [The Economist]

Overlawyered has been covering the phenomenon of ADA filing mills since the start of this website and the issue of web accessibility for very nearly as long. Here’s some of The Economist’s reporting on the latter topic:

“[Texas attorney Omar Weaver] Rosales says extending ADA rules to websites will allow him to begin suing companies that use color combinations problematic for the color-blind and layouts that are confusing for people with a limited field of vision.

The DOJ is supporting a National Association of the Deaf lawsuit against Harvard for not subtitling or transcribing videos and audio files posted online. As such cases multiply, content may be taken offline. Paying an accessibility consultant to spot the bits of website coding and metadata that might trip up a blind user’s screen-reading software can cost $50,000 for a website with 100 pages.”

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North Carolina high court strikes down cyberbullying law

The North Carolina Supreme Court has struck down as unconstitutional the state’s recently enacted so-called cyberbullying ban [Scott Greenfield] The court noted that the “statute criminalizes posting online ‘private, personal, or sexual information pertaining to a minor'” even though “these terms are not defined by the statute.” And the definition urged by the state would restrict a potentially wide range of discussion of “personal… information pertaining to a minor,” at least when proceeding from prohibited “intent to intimidate or torment.”

Earlier, New York’s highest court said the similar law in that state could not pass First Amendment muster. And a Eugene Volokh amicus brief challenges Maryland’s cyberbullying law, which I criticized at the time of its passage three years ago.

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After lawsuit, ChristianMingle.com agrees to do gay online matchmaking

The Church of Anti-Discrimination, most confident of sects, will settle for nothing short of full establishment: under a California court settlement, ChristianMingle.com, which bills itself as the largest online Christian dating site, has agreed to establish search options for men seeking men and women seeking women. Two California men had sued under the state’s expansive Unruh Civil Rights Act. Owner Spark Networks, which admitted no wrongdoing, “agreed to pay each plaintiff $9,000 each and $450,000 in attorneys’ fees to the two men’s lawyers.” [Jacob Gershman and Sara Randazzo, WSJ Law Blog] At Patheos, David Smalley, who describes himself as a pro-gay atheist activist, says the episode is based on too broad a definition of public accommodation; declining to offer a particular service is not the same as offering it to the public but turning down some customers. “Since when can the government tell us what products or services we must offer to future customers? Every atheist, every liberal, and every business owner needs to fight for Christian Mingle’s rights to offer the products or services they choose, even if we disagree with their practices or philosophy behind it all.”

Related: Ontario won’t license grads of conservative Christian law school [Charles Lewis/National Post, earlier]

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Arizona governor cuts off many public sector lobbyists

“Arizona Gov. Doug Ducey issued an executive order [last month] that effectively ended all government contracts with lobbyists in Arizona. The order terminated contracts with professional lobbyists at all state agencies, boards and commissions.” In future, state agencies other than the judiciary and independently elected officials will need permission from the governor to hire lobbyists, and Ducey’s office said requests would be “heavily scrutinized” and require documentation that the hiring would be important for the “public health, safety and welfare of the state and the taxpayers.” [Miranda Leo, KTAR; Gov. Doug Ducey order; Yvonne Wingett Sanchez, Arizona Republic] A gubernatorial spokesman says outside lobbyists hired by professional licensing and other boards have often “pushed for burdensome regulations, and that these agencies lack sufficient reporting practices.” The move “comes nearly a decade after the Goldwater Institute — a conservative think-tank — recommended it.” [Stina Sieg, KJZZ]

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Supreme Court roundup

  • “Cato Batted .500 at the Supreme Court, Still Besting the Government” [Ilya Shapiro] “Obama Has Lost In The Supreme Court More Than Any Modern President” [same, The Federalist]
  • Scalia’s absence left a void this year, but (Friedrichs aside) not mostly on case outcomes [Shapiro, Forbes] Scalia’s legacy on criminal defense [Kevin Ring, Cato Daily Podcast]
  • “Supreme Court Session Promised Much, Delivered Little To Business” [Daniel Fisher]
  • Relevant to Sotomayor and Kagan dissents in the exclusionary rule case, Utah v. Strieff: outstanding warrants are neither infrequent not randomly distributed [Alex Tabarrok, Orin Kerr, Tim Lynch/Cato, Scott Greenfield]
  • Can Congress pass a statute whose effect is to dictate a result in one pending case? Should it matter whether the plaintiffs are sympathetic terror victims? [Michael Greve, Jonathan Adler, Daniel Fisher first and second on Bank Markavi v. Peterson]
  • Government contracting: high court corrects First Circuit’s implausibly pro-plaintiff reading of False Claims Act [Richard Samp, Washington Legal Foundation on Universal Health Services, Inc. v. United States ex rel. Escobar]

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Take care where you reincarnate

On my trip to San Francisco last week I was delighted finally to meet Kevin Underhill, longtime writer of one of the most consistently funny and well-written of legal blogs, Lowering the Bar. If there were any justice in the world I would link a post of Kevin’s every day or two, but for the moment I’ll just note this one from last month: For years now, China has “forbidden anyone to reincarnate without [its] express written permission.”

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Black Lives Matter “shuts down” Toronto’s Pride parade

I’ve posted previously this year about the growing trend toward disrupting and shouting down political opponents’ rallies and events. It’s worth mentioning that much of the disruption, notably from activists claiming to speak in the name of the group Black Lives Matter, is actually more against political allies than against opponents. On Sunday BLM’s local chapter disrupted Toronto’s annual gay pride celebration — which trustingly had invited BLM to lead the celebration — with a list of demands including no longer allowing law enforcement to have floats in the parade. I’ve compiled a new Storify telling what happened next. More: Jamie Kirchick, L.A. Times.

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July 6 roundup

  • Lawyers try contortions to fit Sandy Hook gun suit into “negligent entrustment” mold [Daniel Fisher, more, earlier]
  • Judge Gonzalo Curiel, lately in news, tosses class action claiming MillerCoors misrepresented Blue Moon beer as “craft” [Reuters]
  • Orlando murderer’s father: The nightclub’s sort of at fault here too, you know [AllahPundit]
  • “The long, strange saga of Harry Reid and the exercise band” [Amber Phillips, Washington Post/San Luis Obispo Tribune]
  • “Prominent Toronto lawyer ordered to pay $114K for role in pursuing ‘unreasonable’ lawsuits” [National Post]
  • That fabled transparency: U.S. Dept. of Justice doesn’t seem to welcome outside scrutiny of its FCPA enforcement [Mike Koehler, FCPA Professor]

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More on the Philadelphia soda tax

When I wrote about the Philadelphia soda tax last week I didn’t expect it to stimulate much in the way of systematic lawbreaking, as distinct from lawful evasion by consumers’ heading out to buy in the suburbs. But Bob McManus, writing at City Journal, has probably seen farther than I:

…for retailers who deal in, say, 100-case lots ($720), or major-market wholesalers handling 10,000-case shipments ($72,000), the temptation to integrate untaxed product into their inventories and pocket the difference is obvious.

In other words, the primary mechanism of unlawful evasion will probably not be speakeasy-like underground depots, but rather ordinary merchants’ temptation to falsify their volume of soda business for tax purposes. And some branch of city law enforcement will then have the responsibility of policing all these corner store operations without succumbing to either corruption or oppression. Isn’t it great that the Philadelphia police department has such great relations with corner bodega owners?

P.S. Presumably unrelated touch of Philly roughness: Jillian Kay Melchior/Heat Street on the role in getting the bill passed of much-feared construction unionist John Dougherty, seen earlier in this space.

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“Professional” FCRA complainant has won $230K+ in settlements

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]

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