Overlawyered: Chronicling The High Cost Of Our Legal System

EEOC pay reporting: the better to sue you with, my dear

“Under a new rule proposed by the Equal Employment Opportunity Commission, all companies with more than 100 employees would be required to submit summary pay data each year. Since 1966, large companies have reported to the EEOC the number of their employees by sex, race, ethnicity and job group. The new proposal would add to that list pay data in 12 salary ranges, [with individual salaries] grouped together to protect privacy.” [USA Today, EEOC press release] “The data will be used to identify employers that may be engaging in pay discrimination so that the agency can target its enforcement resources where problems may be likeliest to exist. The proposal would cover more than 63 million U.S. workers, according to the White House. The plan… won’t require legislative approval.” [WSJ]

Aside from driving a high volume of litigation by the EEOC itself, the scheme will also greatly benefit private lawyers who sue employers, including class action lawyers. An employer might then weather the resulting litigation siege by showing that its numbers were good enough, or not. Would today’s Labor Department and EEOC policies look much different if the Obama administration frankly acknowledged that it was devising them with an eye toward maximum liability and payouts?

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“A Little Wal-Mart Gift Card for You, A Big Payout for Lawyers”

“A member of a class-action lawsuit received a Walmart gift card as part of a settlement, but because of a legal ambiguity, the real gift may be for the lawyers.” With bonus Ted Frank interview quotes [David Segal, “The Haggler,” New York Times] And more on the mentioned Duracell case as showing why the Supreme Court should police class action settlements, as Cato has urged in a brief [Ilya Shapiro]

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Public employment roundup

  • NYPD retiree “shared his happiness at scoring the disability pension, as well as his achievements running marathons” [New York Daily News]
  • Scott Greenfield on public sector unionism and Friedrichs v. California Teachers Association [Simple Justice, earlier] Pending Illinois case raises issues parallel to Friedrichs [Cato podcast with lead plaintiff Mark Janus and attorney Jacob Huebert]
  • San Diego voters tried to address public employee pension crisis, now state panel says doing things by ballot initiative violates obligation to bargain with unions [Scott Shackford, Reason]
  • “Staten Island Ferry deckhand who has already pocketed $600K in job related injuries sues city for $45M” [New York Daily News]
  • Detroit “firefighters were paid for 32-hour days….Numerous top-level fire officials signed off on the overtime.” [Motor City Muckraker]
  • “Without public worker unions, who would lobby against making it a crime to strike a pedestrian with right of way?” [Josh Barro on NYC controversy]
  • “Not Even a Criminal Referral to the Dept. of Justice Can Get You Fired From the VA” [Amanda Winkler, Reason]

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Climate deniers to the wall — 15 years ago

Checking back through the archives from our very first weeks at this site, I found this from August 1999:

In yesterday’s Washington Post, David Ignatius calls global warming a potential “plaintiff’s lawyer’s dream”, quoting former deputy energy secretary Lynn Coleman as saying that if doomsayers’ predictions prove accurate, lawyers could file trillions of dollars in claims against utilities, oil companies and others for weather-related effects. Significantly, Ignatius suggests (“the best analogy may be tobacco”) that future juries will be angered by some companies’ current boldness in debating the issue by way of counter-studies and newspaper ads. Apparently one “lesson of tobacco” is that it’s henceforth going to count as an independently punishable offense to defend one’s business in public controversy…

Devising punitive legal consequences for having argued the wrong side in public controversies isn’t just a notion Sheldon Whitehouse and Eric Schneiderman come up with the other day.

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Real estate agent blew whistle on dodgy GM ignition plaintiff

A witness stepped forward with a story to tell about changed numbers on a check stub, and what followed was something of a “wow” moment as modern litigation goes [Erik Larson and Margaret Cronin Fisk, Bloomberg]:

Dramatic revelations are unusual in U.S. litigation these days, when reams of evidence and testimony are reviewed before the trial begins, making Kleven’s appearance on the scene a rare “Perry Mason” moment, said Leonard Niehoff, a law professor at the University of Michigan.

“The typical television scenario where a witness comes out of nowhere in a trial doesn’t actually happen much.”

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Obama Department of Justice punts on web accessibility

Did our message finally get through? (See “How ADA-for-the-Web Regulations Menace Online Freedom,” 2013). Or that of other commentators like Eric Goldman, who warned (of a related court case) that “all hell will break loose” if the law defines websites as public accommodations and makes them adopt “accessibility”? At any rate, the U.S. Department of Justice, after years of declaring that it was getting ready any day now to label your website and most others you encounter every day as out of compliance with the ADA, has suddenly turned around and done this:

In an astonishing move, the Department of Justice (DOJ) announced that it will not issue any regulations for public accommodations websites until fiscal year 2018 — eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).

Yes, eight years is a very long time for a rulemaking, especially one pursuing issues that have been in play for many years (that link discusses testimony I gave in 2000). And predictably, some disabled interest-group advocates are already charging that the latest delay is “outrageous” and shows “indifference.” More likely, it shows that even an administration that has launched many audacious and super-costly initiatives in regulation has figured out that this one is so audacious and super-costly that it should be – well, not dropped, but left as a problem for a successor administration.

Besides, as so often happens, for regulated parties the issue is (to borrow a phrase) not freedom from obligation, but freedom from specification as to what that obligation might be. Court decisions, which for years ran mostly against ADA advocates’ “public accommodations” claim, now point confusingly in both directions. And in the mean time both private litigants and DoJ itself continue to sue online providers and fasten on them new settlements and decrees, as when Amazon lately agreed to caption more videos for the deaf; Harvard and MIT, meanwhile, were still being sued for the audacity of having offered uncaptioned online courses to the public. Minh Vu and Kristina Launey of Seyfarth Shaw:

…since issuing that [2010] ANPRM, DOJ’s enforcement attorneys have investigated numerous [entities claimed to be] public accommodations, pressuring them to make their websites accessible. DOJ even intervened in recent lawsuits (e.g., here, here, and here) taking the position that the obligation to have an accessible website has existed all this time in the absence of any new regulations.

The next administration – or better yet Congress – should summon the courage to give a firm and final No.

[cross-posted from Cato at Liberty]

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Live-tweeting last night’s GOP debate

I was otherwise engaged during the undercard debate but here are a few things I had to say during the Seven No Trump main panel:

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