The circuit courts have split on how to apply standards of “ascertainability” — a key threshold in certifying class actions, which in turn is the key stage in litigating them. Although the Supreme Court has repeatedly been invited to weigh in on the question, thanks in part to the efforts of NYU lawprof Sam Issacharoff, it has decided each time to pass on the issue. But a case against food producer ConAgra over the labeling of Wesson cooking oil as “all natural” may present the issue squarely enough to tempt the Justices to grant certiorari. In that case, Neil Gorsuch could get his first chance to tip his hand as to whether he will emerge as a successor to Scalia in applying skeptical limits to the class action device. [Alison Frankel, Reuters]
Recruiting on campus might be an age discrimination violation
“Are college job fairs and recruiting doomed as discriminatory activities? In February, a District Court in California ruled that job applicants could maintain a disparate impact claim under the Age Discrimination in Employment Act (ADEA) challenging the practice of recruiting entry-level workers mostly through a program available only to recent college graduates.” Other courts, however, have adopted standards markedly less favorable toward age discrimination plaintiffs. Eric Dreiband of Jones Day discusses in a Federalist Society podcast. More: Roy Maurer, SHRM on PWC (Price Waterhouse Coopers) class action.
Blue-ribbon excuses: “Lawyers for quadruple murder suspect blame low sodium levels”
“Medical experts testifying in Erbie Bowser’s capital murder trial Tuesday blamed his deadly rampage on a ‘perfect storm’ in his brain, ultimately triggered by low sodium levels in his body. Bowser, 48, is on trial in the killings of four women — including his girlfriend and his estranged wife — and the injuring of four children in two attacks at homes in Dallas and DeSoto on Aug. 7, 2013.” [Tasha Tsiaperas, Dallas News via Jackie Salo, New York Post]
Campus climate roundup
- “Explore the unthinkable”: invite a speaker whose message makes you uneasy [Walter M. Kimbrough, Chronicle of Higher Education]
- “The Pseudo-Science of Microaggressions” [Althea Nagai, National Association of Scholars via George Leef, Martin Center]
- Imagine setting out to combat the influence of the Greeks and Romans in American life — by vandalizing college fraternities [Jillian Kay Melchior on University of Texas episode]
- Hereditary intelligentsia and self-actualizing graduate study: “Lessons from Mid-Century Soviet Higher Education” [Alex Usher via Tyler Cowen]
- Some resemblances between “get them off campus” campaigns against George Soros in Hungary, Koch brothers here [Alberto Mingardi]
- “Some who in private were sympathetic to Tuvel, felt compelled to join in the attacking mob.” [Kelly Oliver, Philosophical Salon] More on Rebecca Tuvel/Hypatia furor: Jesse Singal/New York, Daily Nous, Jason Brennan (“Personally, I’d say that failing to fully engage critical theory is a feature, not a bug, of the paper.”), commenter on Singal article (“Hypatia herself, the journal’s namesake, was murdered by a mob in the year 415.”).
“Lawyer submitted bills for working over 24 hours in a day. Twice.”
“West Virginia’s top court imposed a two-year suspension on a lawyer who submitted bills for court-appointed work for more than 24 hours a day on two different occasions.” [Debra Cassens Weiss, ABA Journal]
May 10 roundup
- Redistricting, transit farebox, Court of Appeals, decriminalizing barbers, and more in my latest Maryland policy roundup [Free State Notes] And I’m quoted on the highly unpersuasive “six-state compact” scheme, which amounts to an excuse for leaving gerrymandering in place [Danielle Gaines, Frederick News-Post]
- After scandal over falsified safety records, fired track workers sue Washington’s Metro on claims of discrimination and hostile work environment [Martine Powers, Washington Post]
- Chicago mulls ordering private shopkeepers to provide bathroom access to non-customers who say they’ve got an emergency need. Too bad its own CTA is no-go zone [Steve Chapman]
- Says a lot about why Obama CPSC ignored pleas for CPSIA relief: “US Product Safety Regulator Sneers at ‘Fabricated Outrage’ Over Regulations” [C. Ryan Barber, National Law Journal on Elliot Kaye comments]
- “Implied certification” theory, okayed by SCOTUS in Universal Health Services last year, enables False Claims Act suits hinging on controversial interpretations of regulation [Federalist Society podcast with Marcia Madsen and Brian D. Miller] “A Convincing Case for Judicial Stays of Discovery in False Claims Act Qui Tam Litigation” [Stephen A. Wood, WLF]
- Judge signals reluctance to dismiss hospital’s suit against Kamala Harris over her actions as California AG on behalf of SEIU in merger case [Bianca Bruno, Courthouse News via Sean Higgins/Washington Examiner, earlier]
“Know-your-customer” meets the trafficking panic
According to a British think tank report, one unnamed British bank has been “monitoring” its customers’ accounts for possible indications of involvement in prostitution, among them “payments to ‘high end restaurants and cheap diners on the same day’ in the belief that such transactions could indicate a sex worker dining with a client while her ‘handler’ eats more frugally nearby.” Another bank cooperating with authorities is looking for daily payments to drugstores “that might indicate repeated purchases of contraceptives.” [Martin Bentham/Evening Standard, Elizabeth Nolan Brown/Reason, Tom Keatinge and Anne-Marie Barry/Royal United Services Institute on bank cooperation with law enforcement] More on bank privacy here.
In other news of governments’ war on financial privacy, the Internal Revenue Service has demanded transaction and customer records for U.S. customers of Bitcoin exchange Coinbase [Jacob Gershman, WSJ]
Liability roundup
- “A handful of plaintiffs’ lawyers dominates MDL (multi-district) litigation. Is that a problem?” [Alison Frankel, Reuters]
- “A. 5918: Unconstitutional, Unwise and Futile Effort to Expand N.Y. Courts’ Jurisdiction” [Marc Gottridge and Lisa Fried, New York Law Journal, earlier on would-be end-run around Daimler limits on state court jurisdiction]
- “Hawaii counties threaten to pull lifeguards off state beaches if liability bill dies” [Nathan Eagle, Honolulu Civil Beat]
- No good reason why New York municipalities should be required to pay interest rate as high as 9 percent a year on lawsuit outlays [Adam Morey, Auburn Citizen letter to editor]
- “Ohio Supreme Court orders halt in liquidation of defunct Chesley law firm” [James McNair, City Beat (Cincinnati)]
- “What Should Tort Law Do When Autonomous Vehicles Crash?” [Michael Krauss; Jones Day]
What happens to misbehaving prosecutors?
In more than 100 cases since 1980, Massachusetts courts of appeal have thrown out criminal convictions based on prosecutorial improprieties, and in 20 of those cases they have used the words “egregious” or “misconduct” or both to describe impropriety. Both numbers are likely to be lower bounds for impropriety that reaches judicial notice, given the number of cases in which prosecutorial missteps are addressed by trial judges, or take place in cases that result in acquittals or are not appealed. Because prosecutors are virtually immune to suit, professional discipline and public exposure are left as among the few ways to deter misconduct or bad practice.
But the Massachusetts study found that since 1980, just two prosecutors have been publicly disciplined by that state’s bar. Nine others were disciplined, but the public was prevented from knowing their names. And it isn’t as if the bar is averse to disciplining attorneys. Since 2005, it is has imposed sanctions on more than 1,400 non-prosecutors.
The study points out that many of the prosecutors found by appeals courts to have committed misconduct went on to higher office: “Three went on to become judges, one became Massachusetts attorney general, and others rose to top positions in district attorneys’ offices and state legal-ethics bodies.” We’ve recently seen efforts in some parts of the country to hold bad prosecutors accountable at the polls. But it’s hard to do that if we don’t even know who the bad prosecutors are. The study found that of the numerous times state courts have found misconduct, the courts mentioned the offending prosecutor’s name just four times.
[Radley Balko citing New England Center for Investigative Reporting study]
P.S.: From Texas, prosecutor John Jackson faces possible sanctions in the case of Cameron Todd Willingham, executed after his conviction for murder by arson in 2004 [Balko]
Food roundup
- Good: Incoming Agriculture Secretary Perdue to introduce “flexibility” into Obama-era school lunch mandates [Tony Mecia, Weekly Standard; Baylen Linnekin, Reason; Joe Simonson, Heat Street; Pat Roberts letter; earlier]
- Also good: FDA delays mandate for calorie labels on prepared food [Tim Devaney/The Hill, WSJ editorial, Seyfarth Shaw, earlier]
- And your hot dog isn’t from Frankfurt or Wien either: consumer class actions claiming beer names are geographically misleading struggle to convince judges [Greg Herbers, WLF]
- “We must destroy the ice cream man,” Senators told at hearing [Renae Ditmer, Indian Country Today]
- Canada recalls batch of liquor for having too much alcohol. Way to set up a sure-fire punch line [Canadian Food Inspection Agency]
- Yet another blow to oft-refuted “food deserts” theory [Christine Vaughan et al., RAND Corporation, earlier]