Archive for the ‘Litigation’ Category

If you read one thing today

A Virginia judge’s ruling against the Obama health care plan shows that the constitutional challenges to the law “can no longer be dismissed as frivolous,” writes the NYT’s Kevin Sack. Judge Henry E. Hudson of Federal District Court in Richmond came down strongly against the health care reform, just as two other judges in other states had upheld it.

Ultimately, the Supreme Court will have to resolve the conflict, and many court watchers already expect a characteristically close decision. But what is now clear is that the challenges from dozens of states to the law’s constitutionality can no longer be dismissed as frivolous, as they were earlier this year by some scholars and Democratic partisans.

“All the insiders thought it was a slam dunk,” said Randy E. Barnett, a professor of constitutional law at Georgetown University who supports the health care challenges. “Maybe a slam dunk like weapons of mass destruction were a slam dunk.”

“All the insiders thought it was a slam dunk,” said Randy E. Barnett, a professor of constitutional law at Georgetown University who supports the health care challenges. “Maybe a slam dunk like weapons of mass destruction were a slam dunk.”


And this from Politico on how President Obama feels he’s perceived by the American public:

“I don’t think there’s a sense that I’ve been successful,” Obama told Colorado’s 9NEWS. “I think people still feel that over all, Washington is about a lot of politics and special interests and big money, but that ordinary people’s voices too often aren’t represented, and so my hope is that we’re going to continue rebuilding a trust in government.”


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The U.S. Supreme Court, which hasn’t had the best year when it comes to looking out for the rights of average citizens, heard arguments this morning in another case that has huge implications for everyone reading this post. The case, AT&T Mobility v. Concepcion, puts the rights of consumers to band together in class-action lawsuits at risk. If the court rules in favor of AT&T, corporations could put clauses in their consumer contracts prohibiting class-actions. David Lazarus wrote about the potential fallout in a recent L.A. Times column:

Consumer advocates say that without the threat of class-action lawsuits, many businesses would be free to engage in unfair or deceptive practices. Few people would litigate on their own to resolve a case involving, say, a hundred bucks.

“The marketplace is fairer for consumers and workers because there’s a deterrent out there,” said Deepak Gupta, an attorney for the advocacy group Public Citizen who will argue on consumers’ behalf before the Supreme Court on Tuesday.

“Companies are afraid of class actions,” he said. “This helps keep them honest.”

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Next Tuesday, the Supreme Court will hear oral arguments in AT&T v. Concepcion, a significant case that will decide whether corporations can use the fine print of their contracts to ban consumers and employees from participating in class actions. Public Citizen’s Deepak Gupta is lead counsel for the respondents in the case.

David Lazarus of the Los Angeles Times discussed the case in a column today. The Huffington Post saw fit to highlight Lazarus’ article, posting it as its lead central story for a time on its web site. The story has garnered over 4,000 comments from readers, mostly critical of business’ effort to take away ordinary citizens’ legal rights.

The NAACP Legal Defense and Educational Fund points out on its web site that the outcome of AT&T v. Concepcion could have severe implications on civil rights litigation. Class action lawsuits, such as Brown v. Board of Education, made “significant progress toward the Constitutional aspiration of a “more perfect Union,”” the NAACPLDF says on it web site.

Consumer Action, a national nonprofit organization that provides consumer advocacy and education, released a statement today on the case. “Class actions are a critical tool for consumers to pursue justice against giant corporations like AT&T,” says National Priorities Director Linda Sherry.

Both the NAACPLDF and Consumer Action submitted amicus briefs in favor of the consumers in Concepcion.

Christine Hines is the consumer and civil justice counsel for Public Citizen.

Cross-posted from FairArbitrationNow.org

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If you don’t know anything about AT&T Mobility v. Concepcion, you should. The case, which will be heard by the U.S. Supreme Court on Nov. 9, has frightening implications for consumers.

Basically, the court will decide whether companies can deny consumers and employees the right to band together through class actions to fight fraud, discrimination and other illegal practices. AT&T argues that the courts must enforce the fine print of its contracts that ban class actions. Public Citizen attorney Deepak Gupta will argue before the court on behalf of consumers, claiming that the contracts are unconscionable and unenforceable.

When a large number of consumers have claims for small amounts, it is not feasible to pursue the claims without a class action. Concepcion is exactly that kind of case. The Concepcions allege that AT&T illegally charged them $30.11. Multiplied by the number of AT&T’s California customers alone, the allegations implicate ill-gotten gains in the millions of dollars. But if consumers can litigate the claims only one by one, no one will do so, and AT&T will keep the proceeds of its illegal activity.

In the video above, Public Citizen President Robert Weissman and Gupta give a telephone press briefing on the case.

If AT&T wins, not only will it be difficult for AT&T’s customers to hold that company accountable for its actions, but also for people with civil rights, labor, consumer and other kinds of claims that stem from corporate wrongdoing. Dozens of organizations, including leading civil rights and consumer groups, have filed briefs asking the court not to allow corporations to ban class actions. The briefs and other information about the case are available at the Consumer Law & Policy Blog.

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Is the Ninth U.S. Circuit Court of Appeals going to take another look at Vernor v. Autodesk, the case in which software maker Autodesk says consumers don’t have the right to resell their software on secondary markets, such as eBay or even yard sales? Last month, a Ninth Circuit panel ruled against the consumer, Timothy Vernor.

Public Citizen, which represents Vernor, had argued that Vernor was protected by a century-old precedent that says consumers have the right to transfer or dispose of copyrighted products they have bought. However, the court ruled that Vernor had infringed on the company’s copyright and violated the terms of Autodesk’s “license agreement” with the original owner – the fine print that software users see upon installation and must click “accept” to gain access to the product.

If the court’s ruling stands, consumers face the risk of being slapped with a copyright infringement lawsuit whenever they sell used software or video games at a garage sale, donate these items to a library or even loan them to friends. If book and music publishers were to use the same sort of licensing agreements, the same risk would extend to books and music CDs.

Public Citizen asked the full Ninth Circuit to rehear the case, and on Oct. 20, the court asked Autodesk to respond to Public Citizen’s request. The move signals the Ninth Circuit’s interest in reconsidering Vernor.

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The Chief Justice of the United States Supreme Court is now on record saying he doesn’t read the fine print.

Much of that fine print is there just to take away consumer rights. If Supreme Court justices don’t even read it, one hopes they will limit the damage that corporations can do with it.

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Today’s Flickr Photo

From the 10/10/10 rally in front of the White House. Flickr photo by 350.Org

If you read one thing today . . .

It seems the civil court system in this country is a lot like our health care system. It might seem like the best in the world until you start examining important details, such as access and affordability. Then it’s a different matter entirely. Dan Froomkin’s piece in the Huffington Post cites a new survey that ranks the U.S. “lowest among 11 developed nations when it comes to providing access to justice to its citizens — and lower than some third-world nations in some categories.” Froomkin writes:

Why haven’t more Americans successfully sued the banks that lured them into fraudulent mortgages, then foreclosed on them without the required paperwork?

It could be because the civil justice system in this country is essentially inaccessible to many Americans — and when it does get accessed, is tilted toward the wealthy and moneyed interests.


David Corn at Mother Jones wonders why Team Obama would have opened up about their failings to New York Times Magazine writer Peter Baker so close to the election. The NYT magazine piece was posted Wednesday and includes choice tidbits, including this from trusted presidential confidant David Axelord:

“Perhaps we were naive,” White House adviser David Axelrod remarked to Baker. “First, [the president’s] always had good relations across party lines. And secondly, I think he believed that in the midst of a crisis you could find partners on the other side of the aisle to help deal with it. I don’t think anyone here expected the degree of partisanship that we confronted.”

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Remember all the hand-wringing over medical malpractice litigation that opponents of health care reform brought to bear during last winter’s debate? This month’s Health Affairs includes three articles that empirically confirm what common sense told us all along: their claims had nothing to do with reality.

To recap, Republican House leader John Boehner last winter called “medical malpractice and the defensive medicine that doctors practice” the “biggest cost driver” of all in health care. Former House Speaker and 2012 presidential hopeful Newt Gingrich pegged the nation’s bill for “defensive medicine” at $625 billion a year, which is about 180 times the sum of actual medical malpractice payments.

Boehner and Gingrich were careful to tout “defensive medicine” – care rendered out of fear of litigation – because actual litigation costs are universally acknowledged to be tiny in relation to total health care spending – less than 0.6 of 1 percent by our estimate. Defensive medicine cannot be definitively measured. As in Gingrich’s wild estimate, the fear mongers usually rely on (more…)

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A New Jersey man who was left legally blind after supposedly botched lasik eye surgery decided to criticize his surgeons online to inform others of his dissatisfying experience. He ran into more trouble than he anticipated, though, after sticking the surgeons’ names in the domain name.

The surgeons, Herbert Nevyas and Anita Nevyas-Wallace, who have offices in Pennsylvania and New Jersey, sued the patient for trademark violation. Public Citizen attorney Paul Alan Levy, who is representing the patient in the U.S. District Court for the District of New Jersey, says that argument doesn’t fly.

“The domain names in question do not violate the Nevyases’ rights under trademark laws, and their efforts to obtain the names constitute reverse domain name hijacking,” he said. “The Nevyases’ attempts to close the website stifle [the patient’s] free speech rights.”

Find out why.

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A daily look at news from the Washington Post, New York Times and Wall Street Journal that caught our eye:


Congressional Charities Pulling in Corporate Cash (NYT)

The Courts

Polarization of Supreme Court Is Reflected in Justices’ Clerks (NYT)

Obama getting fewer judges confirmed than Nixon – (WP)

Energy and Environment

A Necessary Moratorium (NYT – Editorial)

Mr. Obama vs. the greens [WP editorial]

U.S. Won’t Say if Blowout Preventer on Way to Shore – (WP)

Economy and Financial Reform

Lehman’s Last Hours – (NYT)

New Council of Regulators to Tackle Systemic Risks – (WP)

Bankruptcy Court is Latest Battleground for Traders – (WSJ)

Obama to Push Tax Break – (WSJ)

Obama in Infrastructure Push – (WSJ)

Washington and the “Recovery Summer” that Wasn’t – (WSJ)


Who Should Provide Anethesia Care? -( NYT)

Health Care Wastefulness Is Detailed in Studies – (NYT)

When is a hospital patient not an inpatient? (WP)


New lawsuit to challenge laptop searches – (WP)

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