“In a 7-4 en banc decision, the U.S. Court of Appeals for the Seventh Circuit ruled that the bona fide error defense in the Fair Debt Collection Practices Act (FDCPA) did not protect a debt collector who complied with then-controlling Seventh Circuit precedent — which was subsequently overruled by that court.” [Stefanie H. Jackman, Inside ARM]
Google (per)plex, continued
Nick Gillespie interviews me for the Reason podcast on the Google/James Damore story. I get to make a point there wasn’t space for in my USA Today piece: the indirect government pressure on employers to police speech to avoid litigation mirrors the pressure put on classroom content at universities under Title IX and similar laws.
I also appeared on Guy Gordon’s radio show on Detroit’s WJR, and wrote a piece for Cato at Liberty on a dispute between Google and the federal government on employment discrimination and employee privacy that would probably be getting more attention if the memo story weren’t consuming all the oxygen in the room.
Meanwhile, Conor Friedersdorf asks Google CEO Sundar Pichai: could you clarify which passages of the memo tripped the wire, and which were OK? [earlier] And a piece by Nick Wingfield in the New York Times recalls part of the backdrop to the memo dispute: years of callout campaigning in tech to force political dissenters off of boards and out of jobs.
Pharmaceutical roundup
- What if law firms advertising about drugs had to live with the same set of rules as drug firms advertising about drugs? [Beck, Drug and Device Law]
- Jury: no injury damages for testosterone-gel plaintiff, but lawyer got us upset at AbbVie so here’s $150 million anyway [Lisa Schencker, Chicago Tribune]
- “Plaintiff’s design defect claim was that the defendant shouldn’t have used ibuprofen at all, but rather [an alternative compound] even though the FDA has not approved [that compound] for sale in the United States.” That won’t fly even in California [Beck]
- Sky-high prices: “The pharmaceutical market is anything but free at present” [Marc Joffe, Reason]
- Opioids epidemic poses a policy challenge but no time to panic [Jeffrey Singer/Cato, related podcast, op-ed, panel; an ACA angle?]
- “Gene editing isn’t about designer babies, it’s about hope for people like me” [Alex Lee, Guardian]
Eighth Circuit: employer may not dismiss over picket-line racial slurs
In strike situations, the law can wind up getting flipped on the question of when an employer may or must dismiss an employee for racial slurs that create a hostile environment. An Eighth Circuit panel in Cooper Tire v. NLRB, over a dissent from Judge C. Arlen Beam, approved a court’s decision overturning an arbitrator’s ruling and reinstating the offending worker who had yelled the slurs at replacement workers. More: Terry Carter, ABA Journal.
“An arcane American law protected by powerful interests is causing insane traffic jams”
Because the protectionist Jones Act makes coastwise shipping inordinately expensive, much freight moves in trucks along the interstates that parallel the coasts, contributing to congestion and fuel use [Erik Olsen, Quartz]
Congress can correct NLRB’s joint employer mistake
House members introduce “Save Local Business Act (H.R. 3441), which would restore the traditional joint employer standard that the NLRB upended and modifies the definition of joint employer under the Fair Labor Standards Act to be consistent with the definition under the National Labor Relations Act.” [Trey Kovacs, CEI, Connor Wolf/Inside Sources Ben Gitis, American Action Forum, earlier on Browning-Ferris and joint employer standard]
Coral Gables sues to unmask critical social media accounts
Florida: “someone set up a handful of social media accounts criticizing the City of Coral Gables for its use of private security guards. … So in late May, deputy city attorney Miriam Ramos fired off two cease-and-desist letters and sent them to Silicon Valley, threatening to fine Facebook and Instagram $500 a day if they didn’t remove the posts, which Ramos said infringed on the city’s trademarks. Now, the city is suing Mark Zuckerberg’s multibillion-dollar businesses in an attempt to get the name, phone number, and address of whoever ‘cast the city in a false light.'” While cities can own trademarks, as in the slogans and logos used in marketing campaigns, courts are likely to accord broad recognition to fair use of those marks in discussions of civic affairs. Can cities sue over false light at all? [Jessica Lipscomb, Miami New Times; Lance Dixon/Miami Herald]
Legal incentives and the Google Memo firing
I’ve got a new piece at USA Today on the background of why hostile-environment law creates incentives for a company like Google to discipline or fire an employee like James Damore, who wrote a now-famous memo on the the firm’s gender policies.
Now, just as two decades ago, many outsiders look at a firing-over-speech and say it’s just a private firm’s decision. No public policy or First Amendment implications, right?
And it’s true that sometimes an employer’s decision to fire would have been made even with no legal thumb on the scale. The disruption caused by an instance of speech, or co-workers’ or managers’ dislike for it, would have been enough. Other times legal considerations did make the difference. Hard to tell the two cases apart!
So as a way of evading responsibility system-wide it’s kind of brilliant. Those who write laws can blame private actors’ decisions. The private actors in turn can feel as if their hands were tied given the legal reality they might face.
And the piece concludes:
Google is currently being sued on sex discrimination claims, which means lawyerly caution would be at a zenith on whether to let its corporate culture be portrayed in a future courtroom as tolerant of sexist argumentation.
To sum up: don’t assume Google acted unusually. Under current legal incentives, what just happened counts as normal.
Full piece is here. Here’s the text of the memo, and here’s Conor Friedersdorf on how early coverage of the memo misrepresented its contents. The Jonathan Rauch 1997 New Republic piece I quote in my USA Today article is here; it quotes my 1997 book The Excuse Factory. And I also recommend this take by law professor Erica Goldberg at In a Crowded Theater.
More: Also see @mcclure111 in this ZeroBin post on Google’s legal posture.
August 9 roundup
- “What is the essence of a two by four?” And how did class action lawyers manage to get into the act? [Coyote, earlier]
- Don’t: “Syracuse lawyer accused of making bomb threat to avoid court hearing” [John O’Brien, Syracuse Post-Standard]
- Texas: “Even if you’re not the biological father, you still owe child support that accrued before the DNA test” [Fernando Alfonso III, Houston Chronicle]
- Federalist Society podcast with Justin (Gus) Hurwitz, Michael Daugherty, and Devon Westhill on long cybersecurity battle between FTC and Daugherty’s company, LabMD [earlier]
- Judge rejects suit by student over grade in poetry class [Sari Lesk, Milwaukee Journal-Sentinel; U. of Wisconsin-Stevens Point]
- On Johnson Amendment (tax status of churches’ political speech) don’t expect a revolution [S.M. Chavey, Heartland, quoted]
Climbs commuter railroad tower, contacts high voltage lines
“A trial is set to begin for a $20 million lawsuit against Metro-North Railroad by a man severely injured when he climbed a Metro-North tower in Connecticut and fell on electric wires that power the trains….Colon alleges Metro-North didn’t post adequate warning signs on the tower.” [AP/Fox61]