Posts tagged ‘lawsuits’

"Ban the Box" And Corporate Liability -- When A Company Can Be Sued Both for Doing A and Not A.

New York City has instituted a draconian "ban the box" law that makes it extremely difficult for employers to avoid hiring people with criminal records  (via Overlawyered)

The bill, which is likely to become law in some form, would prohibit the commonly used "check boxes" on job applications that ask about past convictions. It also would forbid employers from asking questions about an applicant's criminal history until a conditional job offer has been tendered....

The bigger concern is lawsuits from job seekers. To be able to reject an applicant because of a past conviction, employers would have to go through a rigorous process that, if not followed, would result in the presumption that a business owner engaged in unlawful discrimination, Mr. Goldstein said.

“I think you’d see some increases in litigation, and this is not exactly a well-settled area of law,” he said.

Proponents say the bill would simply offer a clearer way for businesses to follow state law requiring employers to go through a multistep test to determine if an applicant's past criminal behavior correlates with the position being sought.

Additionally, the City Council bill would allow an applicant rejected because of a past crime seven days to respond. The job would have to be held open during that time.

An employer's failure to adhere to the process could lead to a fine of at least $1,000. In the bill's current form, the business would bear the burden of proof in any resulting lawsuit by the job applicant, Mr. Goldstein said.

“Rather than the normal context, we have the burden here shifting,” he said. “It would be on the employer to present clear and convincing evidence that it had not engaged in unlawful discrimination.”

Given that the burden of proof seems to be on businesses in employee lawsuits even when the playing field is supposed to be level, I shudder to think what a statutory burden of proof would mean.  Likely an automatic win for any employee.

Given this, here is a question for you:  Imagine that I hired a convicted felon who then committed a crime against one of my customers.    Would I be shielded from liability because I had limited ability to screen out candidates who posed dangers to customers?  HA!  No way.  The plaintiff's attorney for the customer would be in front of the jury making me look like Attila the Hun for not screening felons from my applicant pool, even as the government made that task effectively impossible.

That is the key to this law -- that proponents can claim that one can screen out felons "if appropriate to the job" but in fact the law makes it effectively impossible to do so without imposing staggering litigation costs on me.  So we get the Leftist ideal - I can be sued by employees for screening out felons and I can simultaneously be sued by customers for not screening out felons.

Thanks Popehat, for Throwing Cold Water on My Outrage

I read this in my feed today, and was all ready to vent some outrage at how we business owners were screwed over by the tort system

The owner of the Aurora movie theater that was the site of a deadly 2012 attack could have reasonably enough foreseen the danger of such an attack to be held liable for it, a federal judge ruled Friday.

Noting "the grim history of mass shootings and mass killings that have occurred in more recent times," U.S. District Court Judge R. Brooke Jackson ruled that Cinemark — owner of the Century Aurora 16 theater — could have predicted that movie patrons might be targeted for an attack. Jackson's ruling allows 20 lawsuits filed by survivors of the attack or relatives of those killed to proceed toward trial.

"Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, 'sitting ducks,' " Jackson wrote.

The about 6 spots down in my feed reader I found this from Ken White at Popehat:

The court said:

None of these facts, even when taken together, compels the conclusion that Cinemark knew or should have known of the danger that the patrons of Auditorium 9 faced. I reiterate that this Court is in no way holding as a matter of law that Cinemark should have known of the danger of someone entering one of its theaters through the back door and randomly shooting innocent patrons. I hold only that a court cannot grant summary judgment on what is normally a question of fact under Colorado law unless the facts so overwhelmingly and inarguably point in Cinemark’s favor that it cannot be said that a reasonable jury could possibly side with the plaintiffs on that question. I am not convinced. Plaintiffs have come forward with enough – and it does not have to be more than just enough – to show that there is a genuine dispute of material fact. A genuine fact dispute must be resolved by the trier of fact, not by a court’s granting summary judgment. Whether the jury will resolve this issue in the plaintiffs’ favor is a different matter entirely.

In other words, the court did not find that the shooting was foreseeable. The court found that if a jury believed the plaintiffs' experts and evidence, the jury could conceivably find that the shooting was foreseeable.

Wow, thanks for jamming a stick in to the spokes of my accelerating rage bicycle.  Ken seems to be making an implicit argument here for carefully understanding the facts first before haring off in a fever of righteousness over an inaccurate and perhaps purposefully inflammatory headline.  Boy, I don't think he understands the Internet at all.

PS-  I must agree with one of Ken's commenters -- while this may be absolutely correct as a matter of law, there is something wrong with a legal system that is going to subject Cinemark to a jury decision on whether the actions of a madman, perpetrating a crime that was by all measures unprecedented, were "foreseeable".  There has got to be some safe harbor against being responsible for bad outcomes that occur in the general vicinity of someone with deep pockets.  Juries strike me as a terrible vehicle for making this kind of determination.  Their decision is more likely to be made based on how sympathetic the plaintiff is and how rich and faceless the defendant corporation is, and not whether it is really justice to hammer a movie theater for not being prepared for crazed shooters.

EPA Enhancing Its Power with Sue and Settle

Congress has ceded far, far too much legislative power to Administration agencies like the EPA.  The only check that exists for that power is process -- regulators have to go through fairly elaborate and lengthy steps, including several full stops to publish draft rules and collect public comment.  A lot of garbage gets through this process, but at least the worst can be halted by a public or Congressional outcry to draft rules.

But like most government officials, regulators resent having any kind of check on their power.  Just like police look for ways to conduct searches without warrants, and even the President looks for ways to rule without Congress, the EPA wants to regulate unfettered by public comment process.

The EPA has found a clever and totally scary way around this.  In short, they collude with a friendly environmental group which sues the EPA seeking certain rules that the EPA believes to be too controversial to survive the regulatory process.  The EPA settles with the friendly group, and a consent decree is issued imposing the new rules, entirely bypassing any rules-making or public comment process.  The EPA then pretends that they were "forced" into these new rules, and as a kicker, the taxpayer funds the whole thing by making large payoffs to the environmental group who initiated the suit part of the settlement.  Larry Bell describes the process:

“Sue and settle “ practices, sometimes referred to as “friendly lawsuits”, are cozy deals through which far-left radical environmental groups file lawsuits against federal agencies wherein  court-ordered “consent decrees” are issued based upon a prearranged settlement agreement they collaboratively craft together in advance behind closed doors. Then, rather than allowing the entire process to play out, the agency being sued settles the lawsuit by agreeing to move forward with the requested action both they and the litigants want.

And who pays for this litigation? All-too-often we taxpayers are put on the hook for legal fees of both colluding parties. According to a 2011 GAO report, this amounted to millions of dollars awarded to environmental organizations for EPA litigations between 1995 and 2010. Three “Big Green” groups received 41% of this payback, with Earthjustice accounting for 30 percent ($4,655,425).  Two other organizations with histories of lobbying for regulations EPA wants while also receiving agency funding are the American Lung Association (ALA) and the Sierra Club.

In addition, the Department of Justice forked over at least $43 million of our money defending EPA in court between 1998 and 2010. This didn’t include money spent by EPA for their legal costs in connection with those rip-offs because EPA doesn’t keep track of their attorney’s time on a case-by-case basis.

The U.S. Chamber of Commerce has concluded that Sue and Settle rulemaking is responsible for many of EPA’s “most controversial, economically significant regulations that have plagued the business community for the past few years”. Included are regulations on power plants, refineries, mining operations, cement plants, chemical manufacturers, and a host of other industries. Such consent decree-based rulemaking enables EPA to argue to Congress: “The court made us do it.”

Republicans Often Trash Property Rights As Well

It appears that Arizonans are all for property rights until a Goodwill store tries to open in their neighborhood.  And then not so much.  A group led in part by my former Republican Congressman John Shaddegg believes that their "right" to determine how other people's property is used were trampled by allowing a local strip mall to rent a large vacant store space to a legitimate business.

goodwill-protest1

 

Basically, these residents live in a small prosperous neighborhood called Moon Valley surrounded by less prosperous areas.  There are apparently not enough residents in this neighborhood to support the upscale commercial boutiques they would like to see, so their preference is that this poor landlord leave his property vacant rather than rent it to a business that might cause these folks to encounter a poor person on the street.  I am sure these folks would say they have no problems with poor (likely mostly Hispanic) folks per se, but not in their neighborhood!  (By the way, in this town we have the nicest Goodwill stores I have ever seen -- my daughter loves to shop for funky stuff there).

I don't think I am being too hard on them.  Here is one letter to the Mayor's office from a resident:

What does this mean? Quite simply, we now have a mega store/WAREHOUSE in Moon Valley. Goodwill has closed all the surrounding stores to create a "funnel" effect whereby all the surrounding neighborhoods will flock to Moon Valley for a deal. And, they are now free to import as many goods as they like from anywhere they choose to fill up their new mega store and bring loyal Goodwill shoppers to Moon Valley by the droves.

I sat in the parking lot of the Shaw Butte Plaza today and was so saddened. I thought, "We are such a wonderful, unique, special neighborhood, why would you do this to us? Was furthering your political career worth it?" Because, make no mistake, you have sold us out.

I guess all that brown skin walking around is going to destroy her little bit of specialness.  Tough.

We have the same thing going on in our neighborhood.  The country club on whose golf course many of the houses in my area are located was recently revamped.  It was redesigned into a links-style course that is very unusual in the Phoenix market.  I actually thought this was a pretty smart move -- when there are something like 200 golf courses in the area, it makes sense to try to be unique.

Well, most everyone in the neighborhood thinks it is ugly -- I don't live on the course but I actually kind of like it.  But the sort of shaggy, wild look they adopted for it is not at all what Arizonans are used to.  I will confess they did some things that seem crazy to me, like removing all the trees, but my general reaction has been, well, its their land.   My neighbors do not share my insouciance however, and have freaked, writing letters and threatening lawsuits.   Everyone wants property rights for themselves but veto power over what all their neighbors do with their property.

Disclosure:  I grew up in Houston, so zoning is foreign to me.

Three Cheers For Goldwater Institute Fighting Pension Spiking

The Goldwater Institute is threatening to sue the City of Phoenix in order to stop pension spiking.  According to the Arizona Republic,

State law says “unused sick leave, payment in lieu of vacation, payment for unused compensatory time or payment for any fringe benefits” cannot be used as compensation to compute retirement benefits.

State law also says that only “base salary, overtime pay, shift differential pay, military differential wage pay, compensatory time used by an employee in lieu of overtime not otherwise paid by an employer and holiday pay” may be used to calculate pension benefits.

This seems pretty explicit.  The City admits to using sick leave, vacation pay, and fringe benefit values (e.g. cars and cell phones) in the pension calculation.  So this seems pretty cut and dried.  The city is breaking the explicit letter of the law.

That Goldwater has a good case can be judged from the fairly lame defenses of Phoenix practices by local unions.  None seem to address the basic legal issue, but instead accuse Goldwater of "wasting taxpayer funds if it forced Phoenix to defend itself in court", a fairly hilarious attempt to claim the moral high ground of fiscal responsibility.

In fact, it appears that public workers believe  (and I think this is a fairly common belief) that their collective bargaining agreements trump state law.

John Teffy, a Phoenix Fire Department captain, said Goldwater should stand down.

“It seems to me that if the Goldwater Institute took the time to understand how the city works and how contracts work, they would know there is a much simpler way to address this than with (threats of) frivolous lawsuits,” Teffy said.

I did not understand this statement at first, but what I think he is saying is that since the "Contract" in his mind supersedes all laws, then the way to deal with this is through a contract renegotiation.  I think public workers see the writing on the wall and know that pension spiking is illegal, so they are hoping to handle this through a contract negotiation that just shifts this lost spiked value to workers in some other more legal form.  A great strategy for them, but a terrible one for taxpayers, who should not have to pay for the union's past illegality.

More California Idiocy -- Calpers Scam to Run Private Pension System

A new California mandate on employers I completely missed:

California Governor Jerry Brown signed a law that permits as many as 6.3 million private workers without a pension plan to set aside retirement money for management by the state.

It is the first state-run pension program for nongovernment employees and may add as much as $6.6 billion to funds managed by the California Public Employees’ Retirement System, the biggest U.S. pension. Calpers, as the fund is known, has assets of $242 billion.

The law is aimed at businesses with five or more employees that don’t offer pensions or 401(k) savings programs. The law requires companies to contribute 3 percent of a worker’s salary to a retirement account. Workers will be enrolled in the program unless they choose to opt out.

This is just insane, and I don't remember any public debate on it.  Given that the government already has a forced retirement program with a much higher percentage contribution (Social Security with 16% of wages when including the employer piece), my guess is that this is meant as a bone for or a bailout of Calpers.  Calpers wields enormous political power in the state, and it is entirely believable that they alone are behind this.  Calpers is about to be forced to acknowledge that it is billions short of what it needs to cover future pension obligations because it has been assuming unrealistically high returns form its investments.  Without those high returns, more money needs to be put in the fund to cover public employee pensions that march to ridiculous levels.

I have skimmed the law, and there is nothing in there about what returns will be paid to these new private employees.  My guess is that private contributions will be used as a slush fund to make sure public employees get paid, because they DO have defined benefits, as well as a justification to pay Calpers managers more money.  I can absolutely guarantee that when push comes to shove and Calpers is short of money, private employees will see their benefits rolled back and their contributions going to public employees' pockets.

This is also insane for two other reasons:

  1. In California, there has probably been a zillion lawsuits with the state punishing private entities for running "opt-out" rather than "opt-in" systems.   Having to explicitly opt out to keep ones money is a scam only the government is allowed to get away with
  2. In our company, all but a few of our workers are already retired, working part-time for us to keep busy.  The vast majority of our employees, for example, are on Social Security and many also have private pensions.  So why am I forced to set up all the expensive infrastructure to provide 401K contributions to people who are all drawing down their 401k's?

Charles Carreon Totally Loses It

I will admit, I can get angry, especially when I believe someone has done me wrong.  But over time, I have learned to distrust this anger.  About twenty of twenty of the actions that I have most regretted in life or that have backfired on me have been undertaken during such periods of anger -- from yelling at innocent airline employees to writing scathing business letters that only make a situation worse.  I have learned to impose on myself a sort of count-to-ten rule, where if I am really ticked off about something, I force myself to wait 24 hours before I respond.  It works for me.

Attorney Charles Carreon needs to figure out a parallel strategy, or else he needs a business partner or family member who can perform an intervention for him.  Because last week, he totally lost it.

As you might remember from our last episode, Carreon was representing a web site called Funnyjunk where people post content strip-mined from other sites.  One of those sites, the Oatmeal, got mad about their cartoons ending up on this site without compensation, and called them out online.  No lawsuit, nothing unnatural, just good old American criticism.

I don't know enough about copyright law to know if Funnyjunk was in the right or wrong.  The Oatmeal could have tied it up anyway in copyright suits, but chose not to.  So of course Funnyjunk responded in asymmetric fashi0n by hiring Carreon to threaten the Oatmeal with a $20,000 lawsuit.  Apparently they were really sad and hurt by the Oatmeal's criticism, and argued that the Oatmeal abused their copyrighted name by using it online in the criticism (a hilarious charge given how the whole thing started).  By the way, in case anyone is confused about this, though this approach is tried constantly, courts have routinely held that there is no such copyright that bars someone from criticism or comment using one's name.

At this point, this all constituted irritating but fairly normal (unfortunately) behavior of people and lawyers online who don't really understand the First Amendment.

Then Charles Carreon drove over the cliff.

On Friday, he apparently sued not only the Oatmeal  (for criticizing him online, causing other people to hate him, and for violating his copyright in his own name) but also, get ready for this, the National Wildlife Federation and the American Cancer Society.  Why?  Because when the Oatmeal first got Carreon's demand letter, its proprietor said he would raise $20,000 for charity instead, and send Funnyjunk a picture of the money.  To date, nearly $200,000 has been raised for the two charities by Oatmeal fans who wanted to show their support.

Apparently, according to Carreon's suit  (I still can't believe he actually filed this), the money that was raised for these charities was tainted because it was raised in the name of making him look like a doofus.  Which, by the way, is exactly right.  I am not a huge fan of either charity (they use too much money in both cases for political activism rather than solving problems), but I gave $100 just to help hammer home the point that Charles Carreon is an idiot.

Perhaps this guy has no friends.  But if he does, one of them needs to be grabbing his collar and shoving him up against the wall and explaining in one syllable words how suing two prominent charities is NOT a path to success in the war to reclaim his reputation.  The guy basically kneecapped himself with his opening shot.   He will soon learn that while it may be increasingly against the law on college campuses to hurt someone's feelings with your speech, it is not illegal in the rest of America.  And he will also soon learn all about California's tough anti-SLAPP law, as he finds himself headed to Bank of America to take out a second mortgage on his home so he can pay the legal bills of those he has sued with the intent to suppress their speech.

Update:  Mr. Carreon, welcome to the Streisand effect.  Last Thursday, none of his first page Google results mentioned this incident.  Today, there are five.

Update #2:  Mr. Carreon claims his web site has been hacked.  Maybe.  But I will observe that for the web NOOB, "buying the cheapest Godaddy hosting account that is fine for my normal 12 visitors but crashes when I get 50,000 hits in an hour from Reddit" and "hacking" often look the same.

Update #3 and irony alert:  If you want to see something odd, check out the web site he and his wife run.  The site is full of very raw critiques that would easily land a desk full of lawsuits in the Carreon mailbox if the legal system routinely accepted the type of censorious lawsuits he himself is attempting to initiate.  If he takes the linked site down, the screenshot is here.  As an aside, I am constantly amazed at how liberals, including those who claim to be feminists, seem so obsessed with the sexuality of Conservative women and couch so much of their criticism in terms up to and including rape images (particularly oral sex).

Shareholder Lawsuits

The general utility of shareholder lawsuits has confused me for quite some time.  Way back in the blogging stone age of 2006 I wrote a guest post at Overlawyered that said in part:

But from a philosophical standpoint, shareholder suits have never made much sense to me. While I can understand the shareholders of the company suing a minority shareholder who might be enriching themselves disproportionately (e.g. Rigas family at Adelphia), suits by shareholders against the company they own seem… crazy.

Any successful verdict for shareholders against the company would effectively come out of the pockets of the company’s owners who are.. the shareholders. So in effect, shareholders are suing themselves, and, win or lose, they as a group end up with less than if the suit had never been started, since a good chunk of the payout goes to the lawyers. The only way these suits make financial sense (except to the lawyers, like Bill Lerach) is if only a small subset of the shareholders participate, and then these are just vehicles for transferring money from half the shareholders to the other half, or in other words from one wronged party that does not engage in litigation to another wronged party who is aggressively litigious. Is there really justice here?

OK, you could argue that many of these shareholders are not suing themselves, because they are past shareholders that dumped their stock at a loss. But given these facts, these suits are even less fair. If these suits are made by past shareholders who held stock (ie, were the owners) at the time certain wrongs were committed, they are in fact paid by current and future shareholders who may well have not even owned the company at the time of the abuses, and who may in fact be participating in cleaning the company up. So these litigants are in effect making the argument that because the company was run unethically when they owned it, they are going to sue the people who bought it from them and cleaned it up? Shouldn’t the payment be the other way around, with past owners paying current owners for the mess they left?

So I found this decision in a case at Sears refreshing:

A federal appeals court on Wednesday put the kibosh on a shareholder antitrust suit against the board members of Sears Holding Corp, finding that the suit only served to enrich the plaintiffs' lawyers.

The ruling from the Chicago-based U.S. Court of Appeals for the 7th Circuit marks the latest victory for Ted Frank, of the Center for Class Action Fairness, who argued that the suit was an abuse of the legal system and conferred no benefit on Sears shareholders at large. The 7th Circuit agreed.

"The only goal of this suit appears to be fees for the plaintiffs' lawyers," Judge Frank Easterbrook wrote for a unanimous three-judge panel.

Several law firms, including Vianale & Vianale, filed the proposed class action on behalf of two named investors in 2009. The derivative suit accused two Sears directors of holding positions on the boards of several competing companies, in violation of federal antitrust law.

Given the high cost of litigating an antitrust suit, Sears reached a settlement with the investor plaintiffs, agreeing to get rid of one of the directors and pay $925,000 to the investors' attorneys.

Frank, who specializes in challenging class action settlements, argued that the resolution was a raw deal for Sears shareholders, costing them legal fees and a director they had recently re-elected. The deal also would not prevent someone else from filing a copycat suit, given that one of the two targeted directors would remain on the Sears board. What's more, the problem of interlocking boards is usually resolved when the Department of Justice or the Federal Trade Commission asks a company to fix the violation.

Frank, himself a Sears shareholder, asked to intervene in the case to block the settlement, but the Illinois district court refused, finding that the plaintiff investors adequately represented the interests of Frank and the other shareholders.

On appeal, the 7th Circuit panel reached the opposite conclusion, finding the interests to be "entirely incompatible." The panel sent the case back to the district court, with instructions to allow Frank to intervene and to rule in favor of the Sears defendants.

"The suit serves no goal other than to move money from the corporate treasury to the attorneys' coffers, while depriving Sears of directors whom its investors freely elected," Easterbrook wrote.

Charles Carreon Discovers the Streisand Effect in 3..2..1...

I hate excerpting Ken at Popehat in times like this, because I simply love reading all his prose and hope you will do so as well rather than settling for the excerpt only.  I love Neal Stephenson's Cryptonomicon not because it is his best story (it's not) but because it has some of his best prose.  Six pages on eating Cap'n Crunch and ten or so on getting a wisdom tooth extraction, and I was left begging for more.  Ken is my blogging equivalent.  I could read a whole book just with Ken calling out censorious lawyers for threatening bloggers to try to shut them up.

That said, he has been writing of late about a site called Funnyjunk sending a lawyer-cum- Tony-Soprano after the Oatmeal.  Today he really rips into said lawyer, named Charles Carreon:

See, a legal threat like the one Charles Carreon sent — "shut up, delete your criticism of my client, give me $20,000, or I'll file a federal lawsuit against you" — is unquestionably a form of bullying. It's a form that's endorsed by our broken legal system. Charles Carreon doesn't have to speak the subtext, any more than the local lout has to tell the corner bodega-owner that "protection money" means "pay of we'll trash your shop." The message is plain to anyone who is at all familiar with the system, whether by experience or by cultural messages. What Charles Carreon's letter conveyed was this: "It doesn't matter if you're in the right. It doesn't matter if I'm in the wrong. It doesn't matter that my client makes money off of traffic generated from its troglodytic users scraping content, and looks the other way with a smirk. It just doesn't matter. Right often doesn't prevail in our legal system. When it does, it is often ruinously expensive and unpleasant to secure. And on the way I will humiliate you, delve into private irrelevancies, harass your business associates and family, disrupt your sleep, stomp on your peace of mind, and consume huge precious swaths of your life. And, because the system is so bad at redressing frivolous lawsuits, I'll get away with it even if I lose — which I won't for years. Yield — stand and deliver — or suffer."

Our system privileges Charles Carreon to issue that threat, rather than jailing or flogging him for it. And so Carreon supports bullying like that. He's got a license to do it. He knows that his licensed threats — coming, as they do, on the [slightly odd] letterhead of a lawyer — inspire far more fear and stress than the complaints of a mere citizen, and by God he plays it to the hilt.

By contrast, Charles Carreon doesn't like shows of force that you or I can muster. "I'm completely unfamiliar really with this style of responding to a legal threat," he sniffs. There's a whiff of Paul Christoforo of Ocean Marketing in there — the sentiment "how was I to know that I was picking on someone stronger than I am? Is that fair?" But what he means is "if the people I threaten don't have to dig into their pockets to go hire a lawyer, and spend unpleasant hours with that lawyer, and lay awake at night worrying, and rely on a lawyer who is part of my privileged culture, but can stand up for themselves . . . how can I intimidate them so easily?" Perhaps some rude Oatmeal followers did actually send true threats or abuse to Charles Carreon's office — which I condemn. That's morally wrong and not helpful to the cause of free speech; it's harmful. But I fail to see why Charles Carreon sending that threat letter is more legitimate, admirable, or proper than ten thousand Oatmeal fans sending back the message that Charles Carreon is a petulant, amoral, censorious douchebag. It doesn't take lawyers, it doesn't take law school, it doesn't take any special privilege conferred by the state — it only takes a robust right of free expression — sending it back by blogging it, tweeting it, posting it on Facebook, and posting it in comments on forums. Charles Carreon has power derived from an inadequate legal system and letters of marque from the State Bar; The Oatmeal has the power of goodwill and community respect earned by talent. There's no reason to exalt Carreon's power and condemn The Oatmeal's.

Read it all.  The Oatmeal's response is also classic.

Profile on the Corporate-Regulatory State

This article from the Chicago Tribune on fire retardants has everything, from regulations that benefit a small industry group to tort lawyers effectively forcing the propagation of a bad standard to playing the race card and the "for the children" card in policy debates.   Here is a bit of history I did not know:

These chemicals are ubiquitous not because federal rules demand it. In fact, scientists at the U.S. Consumer Product Safety Commission have determined that the flame retardants in household furniture aren't effective, and some pose unnecessary health risks.

The chemicals are widely used because of an obscure rule adopted by California regulators in 1975. Back then, a state chemist devised an easy-to-replicate burn test that didn't require manufacturers to set furniture on fire, an expensive proposition.

The test calls for exposing raw foam to a candle-like flame for 12 seconds. The cheapest way to pass the test is to add flame retardants to the foam inside cushions.

But couches aren't made of foam alone. In a real fire, the upholstery fabric, typically not treated with flame retardants, burns first, and the flames grow big enough that they overwhelm even fire-retardant foam, scientists at two federal agencies have found.

Nevertheless, in the decades since that rule went into effect, lawyers have regularly argued that their burn-victim clients would have been spared if only their sofas had been made with California foam. Faced with the specter of these lawsuits — and the logistical challenge of producing separate products just for California — many manufacturers began using flame retardant foam across their product lines.

The "if only the manufacturer had used technology X, little Sarah would not be dead" argument should be very familiar to readers of Walter Olson's blog.  Part II of the story argues that the Tobacco industry helped reinforce this story to shift the blame for fires started by cigarettes to the furniture (can't any of this be, you know, the person's fault who dropped burning items onto flammable items?)

It also, by the way, has plenty of elements of environmental panic in it.  For example:

"When we're eating organic, we're avoiding very small amounts of pesticides," said Arlene Blum, a California chemist who has fought to limit flame retardants in household products. "Then we sit on our couch that can contain a pound of chemicals that's from the same family as banned pesticides like DDT."

I am open to believing that flame retardant chemicals pose some harm to humans, though one must posit some way for them to get out of the foam and into people for it to be harmful (just existing nearby is not enough).  Further, being from the "same family" as another chemical is meaningless, particularly as compared to DDT which was banned for suspected thinning of bird eggs and not for demonstrated harm to humans.

I finally read through all four parts  of the story, and its interesting to compare the approaches to science.  The authors make a really good case that the science of flame retardants effectiveness is deeply flawed and that lobbying pressure and actions in tort cases have led to their expanded use rather than any particular benefit.

But the authors' scientific standards change wildly when it comes to their own side's science (I write it this way because the authors clearly have  a horse in the race here, they want these chemicals banned). I kept waiting for their bombshell study that these chemicals posed a danger, but we never get it.  All we get is the typical journalistic scare quotes about trace quantities of these chemicals being found in house dust and in certain animals.

OK, but with improving detection technology, we are constantly finding traces of chemicals at tiny levels we did not know were there before.   How much risk do they pose?  We never find out.  It would be nice to know.  I'm convinced I would rather not have this crap in my couch, but there has to be a better standard for legislation than this.  Ironically, the whole point of their story is to highlight regulation pushed by small groups based on bad science, and their response is to ... mobilize a group to push different legislation based on bad science.    There is a heck of a lot of "OK for me but not for thee" here.

Here is what is really going to happen:  After years of being stampeded by tort lawyers into putting these chemicals into furniture as a defense against "you should have..." lawsuits based on bad science, these same furniture makers are now going to be sued by people claiming the chemicals make them sick based on bad science.   And yet another industry will find itself in a sued-if-you-do-sued-if-you-don't trap.

The one group never interviewed in all four parts were furniture makers.  It would have been fascinating to get an honest interview out of them.  I am sure they would say something like "legislatures just need to tell us what they freaking want, chemicals in or out, and then shield us in the courtroom when we follow the law."

Update:  The updates to the story are classic.  After describing how the race card was abused in what should have been a straight up fight over chemical effectiveness and safety, the authors then pen a story called "Higher Levels of Flame Retardants in Minority Children."  It's OK, I guess, to play the race card in a scientific debate if it is for your own side.

Workers Comp. and Unemployment

Breaking news from California:

The Workers' Compensation Insurance Rating Bureau (WCIRB) made it official and submitted a mid-year filing for a 9.1% increase in the pure premium advisory rate that Insurance Commissioner Dave Jones approved less than six months ago. The proposed July 1 increase follows the 37% increase that Jones approved for January 1 that was hidden by the change in benchmarks for pure premium rates that was made at his request....

The Bureau insists that an increase of this magnitude is necessary to combat the continued deterioration in the claims experience, as well as an uptick in claim frequency in the 2010 accident year. Much of the increase will also go to pay for the higher loss adjustment expenses carriers are incurring fighting liens and litigating permanent disability claims. Projected ALAE costs are up to $11,403 per indemnity claim for the 2011 accident year compared to $10,698 the year before.

A 9.1% increase a half year after a 37% increase is just crazy.  This tends to confirm three issues I have written about before:

  1. People are filing workers comp claims as a substitute for or a supplement to unemployment.  Our company has seen a significant increase in people "coincidentally" suffering an injury on one of the last few days, and particularly the very last day, before they are to be laid off.  Only such fraud explains an increase in claims when economic activity is way down, particularly when more dangerous professions like construction employment fell much more than office employment in the recession.  We have also seen, by the way, an increase in frivolous labor lawsuits in CA coincident with the economic decline.  A year ago I had an employee in CA tell me that she had attended a brainstorming session the night before among several of my ex-employees trying to generate ideas for ways to sue our company.  I can't wait for an improvement in the economy when the returns of working are higher than the returns of brainstorming ways to extract money from our company via the legal system.
  2. California in general does a bad job of policing workers comp. fraud.  Woe to the employer that actually attempts to question an outrageously suspicious claim.  Last time I tried to do so in CA I got slapped with a lawsuit.
  3. All states do a terrible job policing permanent disability claims.  I hire a lot of older workers.  I can't tell you how many people show up at my door trying to be paid under the table because they don't want to endanger their permanent disability by having a record of getting paid for doing very physical outdoor work for us.  They assure me they are 100% capable to do heavy physical labor.  Since I don't pay anyone off the books, they end up finding work elsewhere.   Many of you may not believe such people exist, but I have met a number of folks who consider getting a permanent disability, or at least something a doctor will testify is a permanent disability, the equivalent of hitting the lotto.  I have even been sued by a woman for submitting testimony to the social security administration that might have harmed her chances of getting a permanent disability ruling.  The lawsuit stated that if she was denied the disability payment after I testified that I had seen no evidence of any limitations in what she could do on the job,  that I should be liable for paying her the lifetime amount she would have gotten.  So I wimped out and withdrew my testimony and let the taxpayers pay her rather than farting around with a lawsuit.

Using Copyrights and Trademarks to Duck Accountability and Criticism

There is an ever-present effort among corporations, government officials, and public figures to suppress criticism.  A new tool in this war on speech is the trademark or copyright, where folks argue that criticism that uses even their name is somehow in violation of intellectual property protections.

Of course, this is all so much BS, and courts have been pretty good about protecting speech in these circumstances, but the need for vigilance never goes away.  Example

There's plenty of genuine trademark and copyright piracy out there: people trying to make money off of other people's work, or enjoy it for free. But increasingly, copyrights and trademarks are used by their owners, with the assistance of thuggish lawyers, as weapons to suppress satire, criticism, and comment. We've discussed the trend here before — Forever 21's embarrassing attack on a humor site,Ralph Lauren threatening lawsuits against people who comment on its freakish photoshops of models,Meghan McCain's attempt to use the California "right of publicity" to suppress parody of her awful writing, the TSA attempting to criminalize use of its logo,scummy telemarketers arguing that people criticizing them are violating the trademark in their name, andthe Guinness World Records people reacting to a hilarious screenshot with trademark threats. [Now that I look at it, I think we need a tag for this.] Sometimes the copyright and trademark thuggery goes meta, as whenjackass attorneys send cease-and-desist letters, claim copyright in the letters, and threaten suit if they are released and discussed.

The rest is worth reading, written in Ken's, uh,  trademark style that is both informative and enjoyable.  Like Ken, I have to confess to a deep befuddlement as to the appeal of Louis Vuitton gear, which generally look like brown Hefty bags with a pattern printed on it.  Why someone would go to the effort of copying them seems as odd to me as building a replica of the Peabody Terrace apartments where I used to live in Boston.

 

Why Would Anyone Start a Business in San Francisco?

Via Protein Wisdom:

A legislative proposal in San Francisco seeks to make ex-cons and felons a protected class, along with existing categories of residents like African-Americans, people with disabilities and pregnant women. If passed by city supervisors, landlords and employers would be prohibited from asking applicants about their criminal past. [...]According to The City’s Human Rights Commission, San Francisco has the highest recidivism rate of any big city in California, almost 80 percent. With an influx of new prisoners set to be released because of the state’s budget crisis, supporters argue felons need legal protections before they’re disqualified simply because of their record, which could be decades old and for crimes that have nothing to do with the job they’re hoping to get.

Do you really want to open your customer contact business in a location where you cannot background check employees, or are not legally allowed to fire them if you find some horrible criminal history?  Can you imagine the lawsuits flying?  And don't tell me that the company would be safe in a courtroom arguing that it was illegal to check.  I could easily see a California jury holding a company liable for not background checking an employee for an incident even when it was illegal to do so.

 

What a Bunch of Wusses

It would be difficult to find many folks who are more paranoid protectors of privacy information than I am.  But I have to say the tone of this is really pathetic.  (via Overlawyered)   Seriously, how many people think these folks feel truly harmed and how many think they are acting in order to try to score a tort payoff?

Consumers are hoping to cash in on last week's state Supreme Court ruling that it's illegal for retailers to ask customers for their ZIP Codes during credit card transactions, except in limited cases.

More than a dozen new lawsuits have been filed against major chains that do business in California, including Wal-Mart Stores Inc., Bed Bath & Beyond Inc., Crate & Barrel andVictoria's Secret. More filings are expected in the coming weeks.

The flurry of litigation stems from a decision last week againstWilliams-Sonoma Inc. in which the state high court ruled unanimously that ZIP Codes were "personal identification information" that merchants can't demand from customers under a California consumer privacy law.

This rush to court is pathetic on a number of levels

  • Zip code is personal, really?  Do you believe that?
  • Just say no.  Seriously.  I do it all the time -- I get asked for a phone number or a zip code and I always answer "no, sorry."  You know how many retailers have decided they did not want to make a sale to me at that point?  Zero.
  • It's ex post facto law.  Nowhere was it made clear to retailers that the law barred collecting zip codes.  Not until a group of judges effectively made this individual practice illegal did it become so, and then it was enforced retroactively on stores.  If the legislature wants collecting zip codes to be illegal, it should have written in the law that collecting zip codes is illegal.  Or, as a minimum, liability should begin on the day after the court decision.  Suing someone for taking a zip code last year when it only became clear this week it was illegal is classic ex post facto law.
  • Ira Stoll has a funny comment - guess what the first piece of information Jerry Brown's web site asks for?

The Most Depressing Thing I Read Today

I hope JD is wrong:

Further complicating this picture is that Sheriff Joe Arpaio, despite erratic and confrontational conduct that has repeatedly put him at the wrong end of lawsuits and press coverage, is immensely popular with Maricopa County voters. In fact, recent polling suggests that the governor's office is his for the asking. He's a favorite for the Republican nod and an apparent shoe-in in the general election.

I was under the impression that the Repub's cut Arpaio loose in the last election, but I don't really follow the politics stuff much.  JD has an update on the latest Arpaio shenanigans, as does Radley Balko:

  • The Maricopa County Sheriff's Office announced on Tuesday that Stoddard would surrender to jail ahead of his midnight deadline to aplogize. But when Stoddard showed up, the jail refused to book him, citing a "clerical error." Stoddard insisted on spending the night in jail anyway.
  • Maricopa County Sheriff Joe Arpaio announced he has filed a federal lawsuit against the county and its judges, alleging a "widespread conspiracy" against Arpaio and his officers. Arpaio remarkably and apparently with no self-awareness whatsoever called the county a "good ole boys network," and commented that he had "never seen these kinds of things occur in the justice system." Arpaio also called Donahoe's contempt finding against Stoddard a "vendetta," and said, "For political reasons, [Stoddard's] been thrown to the wolves."
  • Yesterday, the day after Stoddard spent a night in jail, 19 sheriff's deputies scheduled to work security at the courthouse called in sick, throwing the day's court proceedings into disarray. The building also had to be evacuated after a phone-in bomb threat.
  • As crowds returned after the bomb threat was cleared, the law enforcement unions commenced with a conveniently-timed rally in front of the courthouse, calling Stoddard a "victim" and demanding that he be released from jail.

Wow, it sure is a real coincidence when a bomb threat against the public defenders (it was a public defender the deputy originally stole the document from) at the exact same moment the sheriff's were trying to disrupt the courthouse over a dispute involving the public defenders office.

Those who don't live here would be appalled and disgusted by how such a large segment of the local population absolutely revere this man.  He's like the right-wing Obama, living off a manufactured image.

Fox, Meet Henhouse

Via Maggies Farm and a commenter on TigerHawk:

During consideration of H.R. 3126, legislation to establish a Consumer Financial Protection Agency (CFPA), Democrats on the House Financial Services Committee voted to pass an amendment offered by Rep. Maxine Waters (D-CA) that will make ACORN eligible to play a role in setting regulations for financial institutions.The Waters amendment adds to the CFPA Oversight Board 5 representatives from the fields of "consumer protection, fair lending and civil rights, representatives of depository institutions that primarily serve underserved communities, or representatives of communities that have been significantly impacted by higher-priced mortgages" to join Federal banking regulators in advising the Director on the consistency of proposed regulations, and strategies and policies that the Director should undertake to enforce its rules.

By making representatives of ACORN and other consumer activist organizations eligible to serve on the Oversight Board, the amendment creates a potentially enormous government sanctioned conflict of interest. ACORN-type organizations will have an advisory role on regulating the very financial institutions from which they receive millions of dollars annually in direct corporate contributions and benefit from other financial partnerships and arrangements. These are the same organizations that pressured banks to make subprime mortgage loans and thus bear a major responsibility for the collapse of the housing market.

In light of recent evidence linking ACORN to possible criminal activity, Democrats took an unprecedented step today to give ACORN a potential role alongside bank regulators in overseeing financial institutions. This is contrary to recent actions taken by the Senate and House to block federal funds to ACORN.

ACORN was an important actor in the housing bubble, responsible for numerous lawsuits and other political pressure to force banks to lend to borrowers who by objective standards did not have the income or credit history to sustain mortgage payments.  It would be interesting to see how many mortgages ACORN was involved with have gone belly up.  But now, as part of the "solution" to the financial crisis, we will put ACORN in charge.

It's Apparently Racist to Creat Jobs in Minority Neighborhoods

I remember the fuss a number of years ago that a disproportionate number of heavily polluting industrial plants were in poorer neighborhoods.  I suppose it is no surprise that companies look to site plants where there are large labor forces and cheap land, which probably means that they are not going to buy of large swaths of Grosse Pointe for their new auto plant.  But there also seemed to be some chicken and egg here - residential land around industrial tracts probably attract residents who can't afford to live somewhere else.

Anyway, I had never realized just how destructive public policy had become in response to this "problem," nor how much our current climate czar had to do with it:

Case in point is "Climate Czar" Carol Browner, former EPA chief under Bill Clinton and ghostwriter of Al Gore's apocalyptic book Earth in the Balance. In the late 1990s, Browner championed the effort to apply Title VII U.S. civil rights law to plant permitting, arguing that locating industrial facilities in majority black cities "disproportionately impacted" minorities and was there "environmental racism."The policy provoked outrage among those black elected officials across the country who believe it's a good thing to have jobs available in minority areas.

Some of those officials were in Michigan, where Browner's green allies tried to use EPA rules to shut down electric power facilities and auto plants. At the time, Browner had already bagged the pelts of two major facilities in Louisiana -- a plastics plant and nuclear fuel facility -- that would have brought hundreds of jobs to minorities.

As can be expected, African-American politicians who were told it was racist to locate jobs in their communities were not amused:

Horrified by this threat to jobs within poor communities, Detroit mayor Dennis Archer led the primarily Democratic U.S. Conference of Mayors to scrap "green redlining" -- so called because the EPA actually drew circles around plants located in minority areas that would encourage lawsuits. The mayors were joined by a rainbow coalition of groups from the National Association of Black County Officials to Republican pols like L.A.'s Richard Riordan and Michigan Rep. Joe Knollenberg.

Addressing the Black Chamber of Commerce's annual meeting, then-U.S. Chamber president Thomas Donahue said: "I'm trying to think of a policy that would be more effective in driving away entrepreneurs and jobs from economically disadvantaged areas -- and I can't do it."

Apparently, the whole to-do was BS anyway

Mastio's News investigation further uncovered that Browner's EPA had suppressed documents finding that there was not a corporate conspiracy to locate polluting industries in black areas (in fact, they are mostly in white areas), and the bipartisan outrage eventually led to a Congressional vote blocking the EPA rule.

23 Different Health Reform Plans, and Not One Mentions Torts

It is amazing to me that there can be numerous health care plans in Congress plus a jillion speeches on the topic by the President and not once does anyone mention "torts."  Now, I am not one to ascribe all cost problems in the medical field to defensive medicine and tort settlements.  Buthey t certainly are a factor.  It is just stunning that a President can stand up and talk numerous times about "unnecessary tests and procedures" and ascribe all of these to some weird profit motive by the doctors - weird because generally, the doctor gets no extra revenue from these tests, so somehow he or she is motivated by the profits of a third party lab.

But I think the rest of us understand that American tort law, which allows juries to make multi-million dollar judgements based on emotions and empathy rather than facts and true liability, has at least a share of the blame.   Not just the settlements, but the steps doctors go through to try to protect themselves from frivolous suits down the road.  Here are two interesting stories along these lines.  The first from Carpe Diem:

Zurich University Hospital has stopped treating North American "medical tourists," fearing million-dollar claims from litigious patients if operations go wrong. Hospitals in canton Valais have also adopted measures to protect themselves against visitors from the United States, Canada and Britain.

"The directive applies only to patients from the US and Canada who come to Zurich for elective, non-essential health treatments," said Zurich University Hospital spokeswoman Petra Seeburger.

"It is not because treatment is not financed; it is because of different legal systems." In a statement the hospital said it was "not prepared to risk astronomical damages or a massive increase in premiums." Seeburger emphasised that the restrictions only affected people not domiciled in Switzerland.

Apologies to Mark Perry for quoting his whole post, but if you are not reading Mark Perry, you should be.  The second example comes from Overlawyered:

Oh, I miss the days when you got a radiology report that said, "fracture right 3rd rib, no pneumothorax". Because of frivolous lawsuits radiologists have learned to be vague, noncommittal and to pass the buck of possible litigation. So now you get a 2 page report that says "linear lucency in right 3rd rib, clinical correlation recommended, underinflated lung fields cannot exclude underlying interstitial disease and or masses. CT recommended for further evaluation, if condition warrants." along with several other paragraphs of lawyer imposed legalmedspeak"¦.

Update on Joe Romm Oil Bet

I realize I did not comment on the Joe Romm oil price bet per se.  Here are two reasons I don't like the bet:

1.  Romm is making a catastrophic forecast (ie oil >$200) but wins his bet at $41, what one might consider a fairly normal current oil price.  This is very equivalent to Romm forecasting a 15F increase in world temperatures in the next century (which he has) but making a bet that he would win if temperatures go up by only 0.1F.  Clearly, a 0.1F increase over the next century would be considered by all a thorough repudiation of catastrophic anthropogenic global warming forecasts.  So why should he win the bet at this level?

2.  The bet, particularly in the next few years, has more to do with the current government's actions than Exxon's or Saudi Arabia's.  To bet that oil prices will stay low in nominal dollars, one must bet that Obama's deficits won't destroy the value of the dollar, that the Fed's expansionist monetary policy won't lead to inflation, that Congress won't pass some kind of legislative restrictions making oil production more expensive, and that the world won't sign a treaty to restrict carbon.  In short, Congress will have more effect in the near term on oil prices than flow rates in Saudi fields, and I am certainly not going to make a bet in favor of Congressional or Presidential restraint.

Postscript: Here is what you have to believe to accept Romm's 15F global warming forecast.   Here is how I opened that post.  It is interesting how similar the forecasting issues are:

For several years, there was an absolute spate of lawsuits charging sudden acceleration of a motor vehicle "” you probably saw such a story:  Some person claims they hardly touched the accelerator and the car leaped ahead at enormous speed and crashed into the house or the dog or telephone pole or whatever.  Many folks have been skeptical that cars were really subject to such positive feedback effects where small taps on the accelerator led to enormous speeds, particularly when almost all the plaintiffs in these cases turned out to be over 70 years old.  It seemed that a rational society might consider other causes than unexplained positive feedback, but there was too much money on the line to do so.

Many of you know that I consider questions around positive feedback in the climate system to be the key issue in global warming, the one that separates a nuisance from a catastrophe.  Is the Earth's climate similar to most other complex, long-term stable natural systems in that it is dominated by negative feedback effects that tend to damp perturbations?  Or is the Earth's climate an exception to most other physical processes, is it in fact dominated by positive feedback effects that, like the sudden acceleration in grandma's car, apparently rockets the car forward into the house with only the lightest tap of the accelerator?

Boycotting Whole Foods

I don't tend to shop at Whole Foods because they offer a value proposition that does not appeal to me.  Their prices are too high for products that generally don't seem noticeably better than ones I can get in other stores.  To some extent the placebo effect of having "all natural" on the package does not really work for me, though I do buy most of my fish and meat there  (and not just because I like the irony of buying only meat products from a store populated by vegans).

That said, I like having the choice in stores.  I even drop by a farmers market once in a while, though generally the hassle is not worth it for me.  The same is true in beers -- I am seldom in the mood for something as dark and rich as a Belhaven, I love the explosion of choices in beer we have seen since the dark days of the late 70's/early 80's.  Other people will make different choices.  Cool.

Which makes it all the more ironic that those who benefit from the explosion in retail choice in the free marketplace are using that choice to protest the CEO of Whole Foods for advocating similar levels of choice in health care.  Anyway, I would write more but Radley Balko did a much better job here.

You see, he shared his ideas on health care reform, thinking that you, being so famously open-minded and all, might take to a few of them, or that it at least might start a conversation. I guess he felt he'd built up some cache with you, and wanted to introduce you to some new ideas. His mistake wasn't in intentionally offending his customers. He's a businessman who has built a huge company up from the ground. I'm sure he knows you don't deliberately offend your customers. His mistake was assuming you all were open-minded enough consider these ideas without taking offense"”that you wouldn't throw a tantrum merely because he suggested some reforms that didn't fall in direct line with those endorsed by your exalted Democratic leaders in Washington. In retrospect? Yeah, it was a bad move. Turns out that many of you weren't nearly mature enough to handle it.

Its hard even to understate the how absolutely nuts self-styled "progressives" have gone over this pretty tame and sober editorial in the IBD.  Here is just one example -- this is a mainstream green blogger and not some weird comment to a Kos post.  I honestly thought this was satire at first:

I agree with CEO John Mackey that it's okay to make money by making your green business big. But Mackey crossed the line with an op-ed in the Wall Street Journal this weekend, whose very publication put him in the company of the lunatic right-wing fringe who edit the paper's opinion section.

The op-ed reads like a page from the Republican playbook, touting individual responsibility for one's health. What a load of unorganic crap!

Holy brothers-keeper Batman - He's advocating individual responsibility!!  Here, since I have not reproduced it before, are the "lunatic" ideas of Mr. Mackey:

"¢"‰Remove the legal obstacles that slow the creation of high-deductible health insurance plans and health savings accounts (HSAs).

"¢"‰Equalize the tax laws so that employer-provided health insurance and individually owned health insurance have the same tax benefits.

"¢"‰Repeal all state laws which prevent insurance companies from competing across state lines.

"¢"‰Repeal government mandates regarding what insurance companies must cover.

"¢"‰Enact tort reform to end the ruinous lawsuits that force doctors to pay insurance costs of hundreds of thousands of dollars per year.

"¢"‰Make costs transparent so that consumers understand what health-care treatments cost.

"¢"‰Enact Medicare reform.

"¢"‰Finally, revise tax forms to make it easier for individuals to make a voluntary, tax-deductible donation to help the millions of people who have no insurance and aren't covered by Medicare, Medicaid or the State Children's Health Insurance Program.

The tort reform area is one where Obama is particularly disingenuous. It is just amazing that anyone could write about the cost of medicine being driven by too many useless procedures without once mentioning the words malpractice or defensive medicine.  I wonder if this might explain Obama's silence on tort reform (via maggies farm)

legal

It Is Getting Harder and Harder to Write Satire

A portion of my novel BMOC was satire of oddball lawsuits.  In that book, for example, I had a woman suing Disney because she found that the characters at Disney World were people in costumes rather than the actual animated characters she had expected.  I thought that was enough beyond reason and reality to constitute satire, but I guess I was wrong:

On May 21, a judge of the U.S. District Court for the Eastern District of California dismissed a complaint filed by a woman who said she had purchased "Cap'n Crunch with Crunchberries" because she believed "crunchberries" were real fruit. The plaintiff, Janine Sugawara, alleged that she had only recently learned to her dismay that said "berries" were in fact simply brightly-colored cereal balls, and that although the product did contain some strawberry fruit concentrate, it was not otherwise redeemed by fruit. She sued, on behalf of herself and all similarly situated consumers who also apparently believed that there are fields somewhere in our land thronged by crunchberry bushes.

The Ultimate Story

Here is a real journalistic triumph -- the story of a multi-party conflict in which I immediately dislike absolutely everyone in the story on all sides of the conflict, up to and including the jury and the third parties quoted.  Via Overlawyered.

Update: I failed to make clear that what really makes the article special is that the writer herself is at least as bad as everyone involved.  She writes in the first paragraph, "If you are black, you probably call the act of disciplining a child with corporal punishment 'a whupping.'"  Really?  What's next, is she going to tell us that they all like watermelon too?  Is this kind of blanket unsupported supposition about the habits of a particular race really in the the Chicago Sun-Times style manual on how to open a news feature?  I grew up in Texas and "getting a whupping" was a term favored right across racial lines.  Anyway,  I gotta go now and chase some varmints away from my cement pond out back.

Update #2: I just got an email that said "If you are white, you probably trade jars of Grey Poupon out the windows of your Rolls Royce."  LOL.

Tort Reform in Mississippi

WSJ, via Libertarian Leanings:

One of the worst places, in
term of frivolous lawsuits, was Jefferson County. It became renowned as
the lawsuit capital of the country, with more plaintiffs than
residents. This is the infamous county where one pharmacist was named
in more than 1,000 lawsuits. In one legendary case against a
pharmaceutical company that sold the diet pill Pondimin (part of the
weight-loss combination known as fen-phen, which was later banned), a
Jefferson County jury awarded $1 billion to the family of a woman who
had taken the drug.

But four years ago, Mississippi transformed itself
from judicial hell hole to job magnet, a story that is instructive for
other states trying to attract jobs in turbulent economic times. The
lessons here are especially timely, because the pro-growth tort reform
trend that was once spreading across the country may soon reverse
course....

Almost overnight, the flow
of lawsuits began to dry up and businesses started to trickle in.
Federal Express invested $1 billion in a new facility in the state.
Toyota chose Mississippi over about a dozen other states for a new $1.2
billion, 2,000-worker auto plant. The auto maker has stipulated that
the company would pull up stakes if the tort reforms were overturned by
the legislature or activist judges.

That hasn't happened. About 60,000 new jobs have
arrived in four years "“ not a small number in a workforce of about 1.3
million "“ and a sharp improvement from the 30,000 jobs lost in the four
years before Mr. Barbour took office. Since the law took effect, the
number of medical malpractice lawsuits has fallen by nearly 90%, which
in turn has cut malpractice insurance costs by 30% to 45%, depending on
the county.

Experience is in the Eye of the Beholder

Via TJIC, on Hillary:

In 1973 she worked for a non profit.

In 1974 she was a government employee.

In 1975 she failed the D.C bar exam, and married Bubba.

In 1976 she joined the Rose Law Firm, and somehow made partner
three years later in 1979, despite rarely appearing in court "¦a
stunningly quick rise!

Oh, and Bubba became the Governor of Alabama in 1976, but that's unrelated.

In 1976 she was made, through political appointment by Jimmy
Carter, head of a government funded non-profit corporation which did
nothing but launch lawsuits.

In 1978 she laundered $100,000 of bribes through cattle
trading contracts. Despite having never engaged in cattle trading
before, she somehow managed to pick the two best times to trade each
day: she bought cattle contracts at the absolute lowest price each day,
and sell them at the absolute highest price. After laundering the
bribes, she quite cattle trading forever.

From 1993 to 2001, Hillary attempted, from her unelected
position, to socialize American health care, and routinely violated
open meetings laws.

In 2000 Hillary carpet-bagged her way into a senatorship.

Women's groups seem to be supporting Hillary's contention that being married to the President counts as presidential experience.  Wow!  If that is the case, the glass ceiling is exploded!  Melinda Gates has 20 years of experience as Microsoft CEO!

I'd like to say that I would love to see someone who has actually tried to run his/her own business running for the White House, but most of the candidates who claim to have business experience seem to have the politically-connected rent-seeking business experience (e.g. GWB) rather than the real try to make a business work against the general headwind of government bureaucratic opposition type of experience.

I'm Unclear Here

I would prefer not to see warrantless searches without judicial oversight be legal under any circumstances, so I am happy there are roadblocks in the FISA extension.  What I am unclear about, though, are the exact issues surrounding telecom immunity from lawsuits which is apparently what has the thing held up.  By no means do I wish to give telecoms some blanket immunity from the consequences of their handling of private data.  However, it seems odd to want to hold them liable for complying with what would be, under the new law, a legal government order.  Or, is the immunity issue all retroactive to past compliance with government orders when it wasn't so clear if the government orders were legal?

I must say I have some sympathy for businesses, particularly those that are highly regulated as telecom, who bow under government pressure and then get sued for doing so.  For example, as I wrote before, I am required by Arizona law to take actions that the Feds consider illegal.  Its a frustrating place to be.

Anyone who can provide clarity on the issues here (not the FISA issues or wiretapping issues but narrowly on the immunity issue) is encouraged to do so.