Overlawyered: Chronicling The High Cost Of Our Legal System

Agreeing with EEOC, jury awards demoted boozing truck driver $119,000

In 2009, a driver with Old Dominion Freight Line, Inc., admitted to the company that he had an alcohol problem. The company told him that it would no longer allow him to drive heavy trucks for the firm. (It said it offered him a less safety-sensitive, but also significantly lower-paying, dock job.) The Equal Employment Opportunity Commission (EEOC) stepped in and sued on his behalf under the Americans with Disabilities Act (ADA). It conceded that Old Dominion could (and indeed had to) take the keys away from a heavy truck driver it found to be currently drinking on the job, but contended it had failed in its obligation to “make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment.” Of course backsliding and remission are common following rehab treatment, which means as a group drivers with known past alcohol problems will have a higher risk profile than drivers without. That is why at an earlier stage of the case I asked, “Are we really required to take chances with 18-wheelers on the highway?”

Now we know the answer: Yes. A jury agreed with the EEOC and awarded the driver $119,000 in back pay.

P.S. On the other hand, upholding the decision of a federal district court in Georgia, the Eleventh Circuit has ruled that Crete Carrier Corp. did not violate the ADA when it declined to employ a truck driver with a “current clinical diagnosis of alcoholism,” a bar to driving under DOT regulations.

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Banking and finance roundup

  • Calvin’s refuge: how Swiss banking confidentiality undermined state despotism [Matt Welch, who also discusses how the gruesome FATCA law is proving to be the first component of an multilateral effort by OECD governments to curtail account privacy]
  • Dodd-Frank compliance costs and the rapid decline of community banks [Marshall Lux and Robert Greene/Kennedy School, Carrie Sheffield, Jeff Sovern with a scoffing view; WSJ]
  • “The IRS seized $242 million based on suspected structuring in more than 2,500 cases from 2005 to 2012.” [Jacob Sullum, new Institute for Justice report (PDF) by Dick Carpenter II and Larry Salzman and summary] More: new structuring case against Dubuque, Iowa widow raises question of whether feds have really followed through on promise not to press structuring charges where income is otherwise legal [AP/WHEC]
  • “House Investigators: DOJ Forced Banks to Donate to Left-Wing Groups” [Joel Gehrke, NRO]
  • “FDIC retreats on Operation Choke Point?” [Todd Zywicki] Rep. Luetkemeyer likely to keep up the pressure on regulators [Kevin Funnell]
  • “Fed Officials Accused of Perjury in AIG Bailout Trial” [Lawrence Cunningham, Concurring Opinions]
  • “Standard & Poor’s Settlement Shows Futility Of Fighting Government Policy” [Daniel Fisher, earlier]

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Eighth Circuit limits cy pres

Former Overlawyered contributor Ted Frank, in his more recent capacity as class-action objector, has done much to direct judicial attention to the abuses and problems of cy pres settlement provisions that channel supposedly leftover settlement moneys to third parties, often nonprofits to which the parties, their lawyers, or the judge is sympathetic. Last month a split Eighth Circuit panel, agreeing with his arguments, disallowed a deal by which money from the settlement of a class action over the NationsBank/BankAmerica merger would be sent to Legal Services of Eastern Missouri [Ted Frank/CCAF; Alison Frankel/Reuters; David Oetting v. Green Jacobson, ruling in PDF; Bill McClellan, St. Louis Post-Dispatch in September (“Why should money belonging to the class members be given to a charity — no matter how much the judge and the class-action lawyers like the charity?”); Sean Wajert] Per James Beck:

The Court explained, “Because the settlement funds are the property of the class, a cy pres distribution to a third party of unclaimed settlement funds is permissible only when it is not feasible to make further distributions to class members, except where an additional distribution would provide a windfall to class members with liquidated-damages claims that were 100 percent satisfied by the initial distribution.” … The Court disagreed with the district court’s finding that further distributions (including the search for class members whose checks had been unreturned) would be too “costly and difficult”, emphasizing that “that inquiry must be based primarily on whether the amounts involved are too small to make individual distributions economically viable.” …

The Court also “flatly rejected” class counsel’s argument that further distribution would be inappropriate because “it would primarily benefit large institutional investors, who are less worthy than charities such as LSEM,” … In other words, class counsel can’t use legal French to take a class’ money.

Meanwhile, “despite the growing controversy, the Rules Advisory Committee is considering formalizing the use of cy pres” in Rule 23 class actions, a step that not all will welcome [Andrew Trask]

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Free speech roundup

  • Departing NPR ombudsman claims U.S. free speech guarantees wouldn’t protect Charlie Hebdo, many on Twitter would like to set him straight on that [Edward Schumacher-Matos] More: Hans Bader.
  • Ninth Circuit urged to revisit whether First Amendment protects right to refer to real-world players in fantasy sports [Volokh]
  • Multi-party parliamentary panel in Britain proposes banning persons who “spread racial hatred” from Twitter, Facebook, other social media [BBC] Visiting newsagents: “Police from several UK forces seek details of Charlie Hebdo readers” [The Guardian]
  • Ecuador regime continues counterattack against social media critics at home and abroad [Adam Steinbaugh (Twitter suspends account “for posting DMCA notice”), The Guardian, earlier] Cartoonist “Bonil” put on trial [Freedom House]
  • Burt Neuborne, Robert Corn-Revere debate Williams-Yulee v. Florida Bar case: “Should elected judges be allowed to ask for donations?” [National Constitution Center podcast with Jeffrey Rosen via Ronald Collins, Concurring Opinions]
  • Second Circuit confirms: law allowing expungement of arrest records doesn’t require media to go back and delete related news stories [AP, Volokh]
  • Rakofsky suit against legal bloggers and other defendants (more than 80 in all) sputters toward apparent conclusion [Turkewitz, more (need for stronger protections against speech-chilling suits under New York law)]

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Rikers Island and the correctional officers’ union

It isn’t just in California (here, here, here, here, here, here) that the political power of guard unions makes prisons hard to reform. In December the New York Times investigated the head of the guards’ union in New York City, Norman Seabrook, seen as “the biggest obstacle to efforts to curb brutality and malfeasance” at the city’s notorious Rikers Island, and noted that most elected officials are reluctant to be quoted discussing him by name, sometimes due to “fears about their safety while visiting Rikers” if they get on his wrong side. Seabrook has derailed investigators, reformers, and oversight officials for years:

Perhaps the most naked display of Mr. Seabrook’s power came on Nov. 18, 2013, when a Rikers inmate, Dapree Peterson, was scheduled to testify against two correction officers in a brutality case. Mr. Seabrook essentially shut down the city’s courts by sidelining the buses that ferry inmates to and from court, interviews and documents show. As a result, hundreds of inmates missed court dates, including Mr. Peterson, whose beating had been investigated and referred for prosecution by [deputy commissioner for investigation Florence] Finkle.

The blockage also caused 49 inmates to miss scheduled medical appointments at Bellevue Hospital Center.

Full story here. More: John McGinnis (despite personal tone of Times’s criticism of Seabrook, his actions respond to the predictable incentives of a union leader), Daniel DiSalvo, Washington Examiner (unions can win popularity by preventing discipline of misbehaving workers), Ed Krayewski, Kevin Williamson. See also our coverage of correctional officers “bill of rights” laws in Maryland, Pennsylvania, etc. here, here, here, and here.

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Liability roundup

  • Lester Brickman, others testify before House subcommittee on proposed asbestos-reform FACT Act [Chamber-backed Legal NewsLine]
  • “B.C. student-turned-dominatrix awarded $1.5M after car accident left her with new personality” [National Post]
  • Here, have some shredded fairness: New Jersey lawmakers advance False Claims Act bill with retroactive provisions [NJLRA] Maryland False Claims Act, which I warned about last year, reintroduced as leading priority of new attorney general Brian Frosh [Maryland Reporter; my coverage here, here, etc.]
  • Oregon: a “man badly burned when he poured gasoline on a fire is suing Walmart, claiming the gas can he bought there was defective.” [KOIN]
  • Minnesota jury is latest to buy sudden-acceleration case, awards $11 million against Toyota [Reuters]
  • Insurers, trial lawyers gear up for Texas legislative fight over hailstorm litigation [Bloomberg/Insurance Journal]
  • Breaks ankle in “watch this” stunt, files negligence claim, but some spoilsport posted the footage to YouTube [U.K.: City of London police]

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Please Don’t Eat the Daffodils

Public Health England has sent a letter to major British supermarket chains asking them “to ensure that daffodils, both the bulbs from which they sprout and the cut variety too, are displayed well away from the produce of fruit and vegetable area.” A number of shoppers “for whom English was not their first language” have mistaken the stalks for Chinese chives, an ingredient used in stir-fry and dumpling dishes. Eating daffodils results in vomiting and other gastrointestinal distress although ordinarily no lasting effects. [Telegraph, BBC]

One wonders why an informational strategy — perhaps especially aimed at word of mouth in the Chinese community — would not be preferred. Gail Heriot comments (via Facebook):

When we act to minimize tiny risks we often create other risks that will go unnoticed. Flowers are kept near produce in grocery stores in part because they both need water from time to time to stay fresh. One guy with a mop can take care of spills pretty efficiently. If the two are separated, he may be a tad less quick about getting that job done. If some little old lady slips, no one ever makes the connection between her broken leg and this nonsensical daffodil policy. Trying to deal with tiny, oddball risks frequently results in increasing more ordinary risks to everyday shoppers. The thing to do is cool it.

P.S.: Chuckle at “handwashing optional” Senator if you like, but then try actually thinking through what value choice might have in food safety [Jacob Grier]

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