- In latest of string of courtroom losses for media, Raleigh News & Observer hit with nearly $6 million libel verdict [Corey Hutchins, CJR] Profile of Charles Harder, newly prominent attorney in suits against media [Hollywood Reporter]
- Following coverage of taco trademark dispute, lawyer demands takedown of image on news story [TechDirt] “California Supreme Court will decide: Can court order Yelp to take down defendant’s post, though Yelp wasn’t even a party to the lawsuit?” [Volokh]
- Theodore Boutrous: “I will represent pro bono anyone Trump sues for exercising their free speech rights. Many other lawyers have offered to join me.” [Ronald K.L. Collins, related chronology of Trump’s record of legal conflict with press]
- Familiar old war on porn re-outfits itself as new war on trafficking [Collins, Elizabeth Nolan Brown on so-called Justice for Victims of Trafficking Act (JVTA)]
- Another where-are-they-now on copyright troll Prenda Law [Joe Mullin/ArsTechnica, see also on Hansmeier]
- “The ‘freedom of the press’ doesn’t give the media any special privileges — but it’s also not a redundancy” [Eugene Volokh]
Don’t expect Trump to roll back gay rights
Of reasons to worry about the Donald Trump administration, so far as I can see, anti-gay policies aren’t in the top 25. Or so I argue in an opinion piece in today’s New York Post. It was written before, but includes an updating reference to, the airing of a “60 Minutes” interview last night in which Trump said, of the Supreme Court’s marriage cases, “They’ve been settled, and I’m fine with that.”
Environment roundup
- Feinstein-Collins bill (“Personal Care Products Safety Act”) to regulate soap, lotions, and cosmetics is best left to swirl down drain [Eric Boehm/Reason, earlier, Handcrafted Soap and Cosmetics Guild and ICMAD (mid-sized and smaller companies), Modern Soapmaking, my appearance on KPCC “AirTalk”]
- Standing in the need of standing: federal judge denies motion to dismiss suit over global warming against federal government and business groups on behalf of 21 young persons and scientist James Hansen [Phuong Le, AP/ABC News]
- Seattle home buyers, it’s okay to choke a little at what your money could have bought in low-regulation Houston instead [Randal O’Toole, more] Land use regs impede economic mobility: you could have read it at Cato first [David Boaz]
- “Why Industrial Farms Are Good for the Environment” [Jayson Lusk]
- “Suit claiming air emissions that fall to the ground constitute hazardous waste under Superfund proves too ambitious even for the Ninth Circuit” [WLF’s summary of Kevin Haroff and Zachary Kearns, Marten Law]
- “State social justice groups did not feel consulted” in carbon tax proposal on Washington ballot, which failed [Coyote, AP/KIRO]
“Law firm ‘bonuses’ tied to political donations”
After initially resisting, Sen. Elizabeth Warren (D-Mass.) has agreed to return nearly $130,000 in donations she and her PAC received from the Boston-based Thornton Law Firm, known for asbestos plaintiff’s litigation. An investigation found the law firm paid $1.4 million in bonuses in patterns strongly suggesting they were being used to cover “straw donations” nominally from partners [co-published Boston Globe/Open Secrets story; New York Post]
From 2010 through 2014, Strouss and Bradley along with founding partner Michael Thornton and his wife donated nearly $1.6 million to Democratic party fundraising committees and a parade of politicians from Senate minority leader Harry Reid of Nevada to Hawaii gubernatorial candidate David Ige to Sen. Elizabeth Warren of Massachusetts. Over the same span, the lawyers received $1.4 million listed as “bonuses” in Thornton Law Firm records; more than 280 of the contributions precisely matched bonuses that were paid within 10 days.
That payback system, which involved other partners as well, helped make Thornton the 11th-ranked law firm nationally for political contributions in 2014, according to data analyzed by the Center, even though the firm is not among the 100 biggest in Massachusetts, much less the U.S.
Capitol Hill recipients of Thornton money include many figures who have played a role in blocking asbestos litigation reform, including Sens. Chuck Schumer (D-N.Y.) and Lindsey Graham (R-S.C.), and then-Sen. Joe Biden (D-Del.).
“Courts Should Stop Approving Unfair Class Action Settlements”
A “claims-made” class action settlement
allows the defendant to make a large amount of money “available” to class members, but in order for the members to collect, they must jump through the hoops of correctly filing claims. Because of the low response rate in such settlements, the defendants will end up paying much less than the funds made available. Indeed, of the $8.5 million made available to the class members [in an action over gym membership fees], Global Fitness only paid $1.6 million — a payout of approximately 10 percent of the settlement funds. Despite this low payout to plaintiffs, class counsel are still paid a certain rate based on the funds that were made available — not the funds that were actually paid out — in some instances giving them attorney fees larger than the class members’ damages award!
The class counsel here were paid $2.4 million, nearly $1 million more than the class members collected.
Josh Blackman, a Cato adjunct scholar and law professor, is a member of the class and raised objections to the settlement. [Ilya Shapiro and Frank Garrison, Cato, on Blackman v. Gascho]
International trade: don’t stop the music
“The reason so many Americans own guitars today is thanks, in large part, to past trade agreements” [Vincent Caruso, Reason]
President Donald Trump and… litigation reform?
Yes, he’s litigious. But that doesn’t mean his administration is going to be be pro-litigation. My new Cato piece ventures predictions on where Donald Trump might depart from previous Republican thinking on lawsuit reform, and where he’s likely to maintain continuity.
“CFPB seeks to silence investigation targets, drawing fire on free speech”
A proposal from the Consumer Financial Protection Bureau (CFPB) has drawn “unanimous fire from a broad coalition of financial companies, as well as from the American Bar Association and the American Civil Liberties Union, which called it unconstitutional. The plan would prohibit targets of civil investigative demands or notice and opportunity to respond and advise letters — CIDs and NORA letters — from disclosing the receipt of such notifications. Legal experts called the proposal a restraint on free speech and warned that it could run afoul of laws that require companies to disclose material information to shareholders.” A second element of the proposal would allow the CFPB to “share privileged information with any ‘federal, state, or foreign governmental authority, or an entity exercising governmental authority’ whenever ‘it is relevant to the exercise of the agency’s statutory or regulatory authority.'” The ABA has sharply criticized the provision as a weakening of attorney-client privilege. [Lorraine Woellert, Politico Pro, reprinted at House Financial Services Committee]
In Albany talking New York’s lawsuit mess
I joined Thomas Stebbins and host Liz Patterson on Wednesday to discuss municipal liability on New York Time Warner Cable’s Capital Tonight, with the conversation reaching such perennial Overlawyered topics as trees and playgrounds. I was in Albany to keynote (and sign books at) the annual meeting of the Lawsuit Reform Alliance of New York, which Stebbins directs; my talk mentioned the recent Saratoga County case in which an adult woman sued her brother after a trampoline injury, Ralph Nader’s Museum of American Tort Law, and many other topics.
The $720 million that New York City paid out in judgments and claims in fiscal 2016 amounts to more than the payouts of the next 19 biggest cities combined, writes Thomas Stebbins in a piece for the Progressive Policy Institute based on a new Governing magazine article by Mike Maciag on the burdens of municipal liability. (Four of the nation’s 24 biggest cities did not respond to the Governing survey and are not included in the calculation.) Trial lawyers’ political clout in New York — which has preserved such throwbacks as the notorious “scaffold law” in construction — is a prime reason, and it doesn’t help that the state’s highest court has begun regularly handing down verdicts driving the law in a pro-plaintiff direction. While serious police brutality suits are only too common in the city, flimsy ones are too:
In past years, New York often agreed to pay out small settlements just to make cases go away. Elizabeth Daitz, who heads the police department’s legal unit, says it got to the point to where protesters would taunt police officers at rallies, telling them about settlements they’d received and threatening to sue again. One settlement in early 2015 drew particular ire from officials. A man wielding a machete had threatened police officers and was shot in the leg during an altercation; the man then accused the police of wrongdoing. The city agreed to a $5,000 settlement, even though the man had plead guilty to menacing an officer. Mayor Bill de Blasio vowed to make changes. “Unfortunately, the reality is, if we stand and fight, we will be spending a lot of time in court, using up a lot of lawyers, and it will cost a lot of money,” he told reporters after the settlement was announced. “But it’s worth it to end the madness of these frivolous lawsuits, which are not fair to the city, and not fair to the officers involved.”
One favorable trend for New York City: payouts by its Health and Hospitals Corporation declined somewhat after the city put the entity in charge of its own legal cases.
Constitutional law roundup
- When government uses regulation to retaliate against someone’s politics, relief shouldn’t depend on whether the harassment would have silenced an ordinary citizen [Ilya Shapiro, Trevor Burrus, and Thomas Berry, Cato]
- More thoughts on the constitutional amendment process [Mike Rappaport, Liberty and Law] To what extent did Antonin Scalia’s thinking on Article V constitutional conventions change over the years? [Josh Blackman on this 1979 AEI roundtable, Paulette Rakestraw and Mead Treadwell/Ricochet] I debated the issue in April in St. Louis [Show-Me Institute] “Conservative groups pushing for a constitutional convention are just six states short of their goal.” [ABA Journal]
- D.C. Circuit panel, Judge Brett Kavanaugh writing, strikes down structure of Consumer Financial Protection Bureau (CFPB) as unconstitutional [Thaya Brook Knight, Ira Stoll back in 2013]
- Sounds like the ACLU’s internal “Civil Liberties Caucus,” as it’s been nicknamed, continues to lose clout within the org [David Meyer Lindenberg, Fault Lines]
- It’s not just Baltimore: unreasonable and unconstitutional police searches are common [Steve Chapman]
- A curious subject of academic wrath: constitutional “extremism” [Scott Greenfield]