I’m quoted in Sandra Pedicini’s report on the settlement (with $9 appetizer vouchers) of a lawsuit charging the Olive Garden restaurant chain with “printing the last six digits of customers’ credit-card numbers on receipts. The limit under the Fair and Accurate Credit Transactions Act is five.” Under FACTA, lawyers need not show that class members suffered actual damages from the violation; instead, they can claim statutorily prescribed damages, multiplied by the (usually large) number of customers involved. In most such cases, there are no reports of any identity theft because of the breaches: “It’s like reckless driving in which no one had an accident and except for the lawyers, no one even noticed the car speeding,” I’m quoted as saying. [“Olive Garden diners may be eligible for $9 voucher”, May 19]
For CPSIA reform, unexpected bedfellows
It’s often been observed that the movement to reform CPSIA brings together people with remarkably diverse cultural, political, and social backgrounds, in a coalition that includes small-town woodcrafters and urban libertarians, homeschooling moms and regulatory economists, back-to-the-land localists and NPR-fan library administrators, and so forth. In her much-awaited article for the June Reason, now online, Katherine Mangu-Ward profiles people in groups like the Handmade Toy Alliance, Etsy, and the craft-fair world, few of whom ever expected to find themselves in a pitched battle against the regulatory state. Further discussion: Reason “Hit and Run“.
“Million Dollar Advocates Forum”
Prestigious honorific? Marketing gimmick? Eric Turkewitz does some digging, and also passes along this tangential but memorable anecdote:
My father likes to tell the story of the first lawyer to lose a million dollar malpractice case in New York. Rather than hurting his reputation, he became the million dollar go-to lawyer for the big cases.
Allegation: “‘General counsel’ to biker gang”
Not necessarily a line you want on your resume as a lawyer, especially if you practice with the respectable Detroit firm of Miller Canfield.
Trial lawyer earmarks: ending deductions for punitive damage payments
One can certainly see why ending tax deductions for punitive damages is a superficially appealing idea.
But the main effect will be to increase settlement pressure in cases where there are unjust punitive damages awards. Because settlements can be characterized as “compensatory” and tax-deductible while court-ordered judgments cannot, trial lawyers will be able to use the tax differential to discourage defendants from seeking appellate review. So one cannot expect very much tax revenue from this: “punitive damages” will drop precipitously, but money going to trial lawyers will go up. Moreover, appellate courts will have fewer opportunities to correct bad decisions by trial courts, creating more uncertainty in litigation, which raises litigation expenses because it will be harder to predict outcomes.
Note that taxpayers are not subsidizing punitive damages award deductions by businesses: the income “lost” because a defendant deducted the punitive damages award will be income realized by the plaintiff and his or her attorney. If the deduction is forbidden, the government will be, in effect, double-taxing the same money.
The Obama administration makes much of its claim of being pragmatic, rather than ideological, but this looks like an indirect giveaway to the trial bar rather than a source of government revenue. More: Walter at Point of Law; and my shining mug quoted at the Southeast Texas Record.
Donald Trump v. Tim O’Brien
Latest reports from the real estate figure’s defamation suit against New York Times writer Timothy O’Brien for allegedly underestimating his net worth. Our earlier coverage of the suit: Jan. 25, Feb. 12, and Mar. 12, 2006. (& welcome Adrianos Facchetti readers)
Small business, big business and regulation
Coyote has some thoughts on the tendency of market regulation to entrench bigger, more experienced companies at the expense of small:
I hate to admit it, but regulation in my own business (which I neither sought nor supported) has killed off many of my smaller competitors and vastly improved our company’s competitive position. It is no accident that the list of the largest companies in heavily-regulated Europe nearly never change, decade after decade, whereas the American list has always seen substantial turnover.
Or, put differently, CPSIA in its effects as a regulatory enactment is not so atypical as we might like to think.
Mencken on laughter in court
“The penalty for laughing in a courtroom is six months in jail. If it were not for this penalty, the jury would never hear the evidence.” — H.L. Mencken (via Melissa Gomez). The excellent Yale Book of Quotations (Fred Shapiro & Joseph Epstein) says the quote is found in Mencken’s A Little Book in C Major, ch. 4 (1916).
Conference tomorrow: “Libel Lawfare”
From the Federalist Society, which is among the sponsors of the D.C. event tomorrow, along with the Thomas Jefferson Center for the Protection of Free Expression and other groups:
Lawfare is the use of the law and legal institutions to achieve military, political or strategic objectives. In recent years, lawfare has come to include libel litigation aimed at suppressing public dialogue about radical Islam and terrorism. Parties with financial means have been filing lawsuits, in American courts and abroad, against people who speak out against or write critically about radical Islam. Defendants include authors, researchers, journalists, politicians, and human rights advocacy groups.
“Libel Tourism,” is a form of forum shopping, where plaintiffs bring actions against American citizens in foreign jurisdictions that lack the free speech protections afforded by the U.S. Constitution. As a result New York State has passed the Libel Terrorism Protection Act, and the U.S. government is considering the Free Speech Protection Act, both of which operate to nullify said foreign libel judgments.
Our conference will address these fundamental issues: What does freedom of speech truly mean? Is U.S. legislation prohibiting the enforcement of foreign libel judgments necessary? What should be the role of the European Union and the United Nations in addressing these issues?
Some further reading: Brooke Goldstein/Family Security Matters, Aaron Eitan Meyer/New Majority.
Frontiers of disabled-rights law
Via Daniel Schwartz: in Connecticut, S.B. 114, a bill introduced into the legislature this year by labor committee chair Sen. Edith Prague (D-Norwich) would protect the right of learning-disabled workers not to be fired by their employers “for taking long meal periods and losing track of time”.