“Paying to Learn Nothing = Legal; Paying Nothing to Learn = Illegal” [Andrew Coulson, Cato, contrasting internship ruling with the general lack of a legal or political remedy against educational institutions should you “go into serious debt [but] learn nothing of value”; more on the absence of “educational malpractice” relief; earlier here, etc.]
Food roundup
- Watch on the rinds: consumers protest against Mimolette import ban [Cato interview with Jill Erber of Northern Virginia cheese shop Cheesetique, Katherine Mangu-Ward, Mark Steyn on French and U.S. attitudes toward cheese freedom, earlier here, etc.] “The Inside Story of a ‘Juror Revolt’ in Amish Raw Milk Trial” [Modern Farmer] History of Canadian margarine regulation [more from Steyn, NRO]
- Steve Chapman on the utopian quest for zero BAC driving [syndicated/Reason]
- “In addition to its constitutional flaws, California’s foie gras ban is unenforceable.” [Baylen Linnekin]
- Class actions vs. food and beverage defendants soar, “from roughly 19 cases in 2008 to more than 102 in 2012” [Reuters]
- Beware the kale: “The Terrible Tragedy of the Healthy Eater” [Erica, NW Edible Life]
- Culinary, legal, insurance and scientific aspects of roadkill [Edible Geography]
- “FDA And Caffeine: Selective Regulation By Unsubtle Threat” [Cory Andrews, WLF]
“…It was certainly *not* some impulsive, ham-fisted attempt to bully a local resident…”
The township of West Orange, N.J. sends a cease and desist letter to a local political activist who runs the domain westorange.info and gets the following response from attorney Stephen Kaplitt (via Above the Law):
Dear Mr. Trenk:
I am pro bono counsel to Jake Freivald and write in response to your “cease and desist letter,” dated May 13, 2013, regarding his domain westorange.info. Obviously it was sent in jest, and the world can certainly use more legal satire. Bravo, Mr. Trenk! ….
Oh, and just to play along, had you intended for your letter to be taken seriously, even in some small measure, we would have sent in response something along the following lines: …
[several legal points follow about municipalities’ general lack of a right to exclude others from using their names as part of domains]
If you manage to produce supporting authority that even remotely passes the laugh test, I will donate $100 in your honor to the American Civil Liberties Union — N.J. chapter. I plan to make the donation online, assuming the state of New Jersey has not shut down aclu-nj.org.
Corporations as people, cont’d
“Attention, liberals: The ACLU wouldn’t be able to sue the NSA if it weren’t for Citizens United.” [Wendy Kaminer, The Atlantic]
Frequent litigant against NYC’s rich and famous
“Mr. Smith says he is simply trying to get the truth out about New York’s powerful. … But I came to believe that his intent could well be to tell fanciful stories in hopes of drawing media attention to extract settlement payments in his lawsuits.” [Andrew Ross Sorkin, New York Times]
D.C. government vs. food trucks, cont’d
Nick Sibilla of the Institute for Justice says the re-regulation plan has some devilish details:
Portions of the current proposal could cripple entrepreneurship. For starters, food trucks that park at an expired meter could face $2,000 fines for a first-time offense. From there on, fines would escalate quickly, reaching $4,000 for the second infraction, $8,000 for the third, and $16,000 onwards. In D.C., this would be a Class 1 infraction, the same legal category as possessing explosives without a license.
Earlier here; more background, NBC Washington.
SCOTUS: trial lawyers can’t scoop up DMV names to solicit cases
Yesterday, in the case of Maracich v. Spears, the Supreme Court ruled that the Driver’s Privacy Protection Act of 1994 (DPPA) prohibits trial lawyers from accessing names and contact information from states’ drivers license databases with the intention of soliciting potential clients for litigation. Under DPPA, the general rule is that states must keep the information in such databases private; there is a “litigation exception” for queries intended to investigate or prepare for legal proceedings, but the Court ruled that soliciting clients was not part of its scope. As I argue in a new post at Cato at Liberty, the dispute brought about a curious reversal in the polarities displayed in the case of Maryland v. King earlier this month: the pro-privacy justices in that case were more likely to be willing to dispense with privacy this time, and vice versa.
The underlying lawsuit (Kevin Russell at SCOTUSBlog and background here, here) also involves a bit of a reversal: class action lawyers are themselves being sued in a class action. The majority opinion by Justice Anthony Kennedy sketches in some of the background:
In the case now before the Court, petitioners are South Carolina residents whose personal information was obtained by respondents from the South Carolina DMV and used without their consent to send solicitation letters asking them to join the lawsuits against the car dealerships. Petitioner Edward Maracich received one of the letters in March 2007. While his personal information had been disclosed to respondents because he was one of many buyers from a particular dealership, Maracich also happened to be the dealership’s director of sales and marketing. Petitioners Martha Weeks and John Tanner received letters from respondents in May 2007. In response to the letter, Tanner called Richard Harpootlian, one of the respondent attorneys listed on the letter. According to Tanner, Harpootlian made an aggressive sales pitch to sign Tanner as a client for the lawsuit without asking about the circumstances of his purchase.
Some of these points may be relevant on remand, because the court will be asked to consider whether the original solicitation letter (marked “SOLICITATION”) had the predominant purpose of investigating the developing lawsuit, or of attracting clients for it. And this leads to the third turnabout. In the second class action, the one over privacy and the lawyers’ use of the DMV database, petitioners are seeking specified statutory damages of $2,500 for each person whose privacy was breached, which could add up to an “astronomical” (as Justice Ginsburg put it in her dissent) sum of hundreds of millions of dollars in all. Indeed, the majority opinion as well as the dissent signaled disquiet at a possible assessment of damages so far out of proportion to any actual harm done — a phenomenon we have seen again and again in statutory class or group damages cases in the past. Some trial lawyers have in the past pooh-poohed, as the griping of sore losers, complaints about mechanical multiplication of statutory damages into huge sums (e.g. FACTA, junk faxes, song piracy, California Labor Code). In this case, such multiplication could pose a threat to the fiscal well-being of some of their own number. (& welcome TortsProf, Legal Ethics Forum, SCOTUSBlog, JOLT Digest (Harvard Journal of Law and Technology) readers)
Intellectual property roundup
- “Make patent trolls pay in court” [Judge Randall Rader, Colleen Chien, and David Hricik, NYT]
- “Let’s play”: Nintendo claims “monetization rights” to fans’ videos on YouTube [Doctorow, BoingBoing]
- I only read it for the cease and desist notices: University of Kansas lawyers go after Twitter feed featuring suggestive display of university licensed apparel [Gawker]
- Alleged misdeeds of Prenda Law just got even stranger [Mike Masnick, TechDirt, earlier; Nate Anderson ArsTechnica] Piling up statutory damages, experimental suit-filing, cost infliction? Copyright mills like Prenda didn’t invent any of that [Mitch Stoltz, EFF]
- “Here’s the Chipotle Ramen Concept Lawsuit, in Full” [Eater]
- “Help the EFF save podcasting from a patent troll” [Mark Frauenfelder]
- Semi-defense of Craigslist suits against competitors [Jerry Brito]
Westchester monitor: take down that criticism of HUD settlement
When local governments lack a properly compliant attitude:
The federal monitor overseeing Westchester’s much-debated court settlement with the U.S. Department of Housing and Urban Development over affordable housing asked County Executive Rob Astorino on Wednesday to remove a news release from the county’s website, saying it contains falsehoods….
[Manhattan-based attorney James] Johnson cast doubt on whether Astorino can say whatever he wants about the controversial 2009 settlement.
During a conference call with journalists shortly before Astorino’s news conference, Johnson said the settlement calls for the county to educate the public about the benefits of integration. Astorino, on the contrary, has been antagonistic toward much of the agreement, Johnson said.
Johnson says Astorino wrongly suggests that HUD is pressing for construction of more than the 750 units of “affordable” housing specified in the settlement; Astorino responds that HUD officials keep citing a study under which a much larger number of units would be required to bring the towns into compliance. Westchester voters elected Astorino in part because of his criticism of the much-disliked deal. [Newsday, paywall; earlier here, here, here, etc.]
Knock me over with a feather
A bill passed by the New York Senate would make it a felony to “subject” any police officer to “physical contact” with the intent to “harass, annoy, threaten or alarm” such officer. Under current law, only contact that results in injury rises to the status of a felony. Sen. Joe Griffo (R-Rome), sponsor of the bill, cites “shocking incidents” of “disrespect.” [Gothamist, Scott Greenfield; Gannett LoHud (Sen. Griffo complains his intent was misunderstood, says bill is doomed in Assembly)]