Consumer Law & Policy Blog

Are PACER Fees Unlawfully High? Do They Undermine Some People's Access to Federal Court Records?

by Brian Wolfman

On January 25, 2013, Steve Schultze of Princeton University spoke about the fee-based system for access to federal court documents known as PACER. (PACER stands for Public Access to Court Electonic Records.)  At a Capitol Hill event sponsored by the Advisory Committee on Transparency, Schultze said that PACER charges far more than the actual cost of providing access to federal court records. He claimed that although the courts collect about $120 million in fees per year, they spend only a fraction of that on providing the service. The rest, he says, goes to subsidize other things, in violation of the E-Government Act of 2002 and arguably, in Schultze's view, the Supreme Court's opinions in Richmond Newspapers v. Virginia (which concerned the First Amendment rights of the press and the public to attend trials -- in that case, a criminal trial).

Schultze has proposed the Open PACER Act of 2013, which would mandate no-fee access to electronic federal court records. You can watch the video of the Capitol Hill event here, or by clicking on the embedded video at the end of this post.

Just some basics about PACER. On PACER, any registrant who has provided his or her credit card information can obtain filed court documents via the Internet: dockets entries, filings such as complaints, briefs, and motions, and court orders and opinions. Unless court material is sealed or redacted for some reason -- for instance, social security numbers must be redacted -- it is all there. The price is 10 cents per page, with any one document free to view and download after the 30th page. That is, both a 30-page brief and a 100-page brief costs $3.00 to view and download. But all the attachments to that brief count as separate documents, which, again, cost 10 cents a page to view and download. (Last year, I filed a motion for summary judgment with over one hundred attachments and an opposition to summary judgment with 58 attachments. So, as you can see, the cost of viewing and downloading some filings can add up.) Judicial decisions are supposed to be free, but sometimes they aren't. On top of that, the user is charged "per page" for every search of PACER and for every "page" of the docket. So, if you are searching for a judicial decision, once you find that decision, it should be (and generally is) free, but getting to it can cost you some cash. According to Schultze, PACER contains over 500 million documents. Buying the whole shebang (or even a substantial portion of the shebang) would not be cheap.

 

Kent Barnett Paper on Separation of Powers Litigation

Kent H.Barnett of Georgia has written To the Victor Goes the Toil--Remedies for Regulated Parties in Separation-of-Powers Litigation, in which he mentions the Big Spring case over the validity of the president's recess appointments, including to the Consumer Financial Protection Bureau.  Here's the abstract:

The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural remedies”—i.e., how to remedy the violation of structural safeguards for prevailing regulated parties. This inattention may arise because courts often provide what seems at first blush to be an appropriate remedy: severing the structural defect from an agency’s “organic” act. In fact, however, structural remedies often fail to satisfy core remedial values relevant to regulated parties—namely, compensating past harm, preventing future harm from the past defect, incentivizing regulated parties to seek redress, and deterring structural violations—and may leave regulated parties in a worse place than they occupied before asserting the challenge. These ineffectual remedies thereby undermine the very safeguards that judicial decisions purport to vindicate and rendering any “private right” potentially illusory. Courts, in response, can improve the status quo. They could select (or Congress could provide) better remedies, and this article considers how they could do so. But if structural remedies cannot be sufficiently improved, courts should either become more candid about the underlying safeguards’ limitations, or reconsider altogether the nature of the safeguards and regulated parties’ relationship to them.  

 

Recess Appointments Challenge Reaches the Supreme Court; Justice Ginsburg Denies Emergency Application

by Deepak Gupta

Earlier than many had expected, a challenge to President Obama's recess appointments reached the doorstep of the U.S. Supreme Court this morning, but it was quickly rebuffed this afternoon by Justice Ginsburg in her capacity as Circuit Justice for the Second Circuit. Justice Ginsburg did not request a response or refer the application to the full Court.

Today's challenge came in the form of an emergency application filed by Paul Clement on behalf of an employer in a labor dispute. The employer sought a stay of a district court injunction ordering the reinstatement of striking workers. The district court issued the order under a National Labor Relations Act provision authorizing injunctive relief to protect the NLRB's jurisdiction while the board decides whether to take action. Clement's application argues that “[i]t makes little sense for lower courts to order immediate action at the behest of the Board when the Board’s ability to act is in profound doubt and will be addressed by this Court. ... The validity of the President’s recess appointments to the Board is a question that will inevitably and quickly find itself before this Court."  He's probably right about that last part; many cases raising the constitutionality of the NLRB recess appointments are now pending before the courts of appeals. As far as I'm aware, none of the court of appeals cases directly challenge the CFPB appointment and the only direct court challenge to the Cordray appointment is in the Big Spring case, in which the plaintiffs lack standing.

The docket is here. More details at SCOTUSblog, Politico, and the Legal Times.

"Dubious Doctrines: The Quasi-Class Action"

That's the name of a new piece by University of Texas law prof Linda Mullenix. Here's the abstract, with emphasis added to the last paragraph:

In the past few years, the term “quasi-class action” has been appearing with increasing, uncritical frequency in a spate of federal court decisions. While it may be premature to characterize these sporadic references as a trend, it is perhaps soon enough to call attention to the misuse of loose labels that carry with them significant consequences. Before the quasi-class action gains any further traction, there are several valid reasons for definitively quashing this quasi.

Three simple points about the quasi-class action. First, there is no such thing as a quasi-class action. A quasi-class action brings to mind the old joke about being slightly pregnant. Hence, either you are a class action, or not. There is no constitutional, statutory, doctrinal, or other basis for the quasi-class action. The label “quasi-class action” is a convenient, lazy fabrication to justify the lawless administration of aggregate claims.

Second, whatever historical antecedents or analogues may exist for the concept of a quasi-class action, the 1966 amendments to Rule 23 the Supreme Court’s decisions in Amchem and Ortiz, and multiple class actions decisions lay to rest any notions of a quasi-class action. The entire point of the class action rule is not only to supply an aggregate mechanism for efficiently resolving multiple claims, but to balance efficiency values with the due process protection of absent class members in representative litigation. The so-called quasi-class action is the antithesis of due process. The quasi-class action is a jurisprudential oxymoron that its proponents deploy to justify the expeditious resolution of aggregate claims, while failing to adequately protect the interests of claimants.

Third, the quasi-class action ought to be repudiated as an unfortunate drift into further lawlessness in administering aggregate claims. Over the past thirty years actors involved in resolving aggregate claims ― especially aggregate tort claims ― have embraced claims-resolution models that allow malefactors to control, manage, and settle their liabilities on highly preferential terms, permit plaintiffs’ attorneys to reap bountiful and often excessive fees, and enable heroic judges (and their heroic surrogates) to clear their dockets of large numbers of cases.

The primary staging ground for deployment of the quasi class action has been in multi-district proceedings. Modern MDL proceedings that consolidate thousands of claims are unlike other private settlement auspices. Detached from class action status, claimants who are the subject of an MDL proceeding are largely unmoored from representation. While class certification at a minimum ensures adequate representation at the outset of proceedings ― both by adequate representatives and class counsel ― individuals involved in an MDL proceeding have no assurance that anyone is protecting their interests. Furthermore, there are few mechanisms that provide claimants with meaningful opportunities to consent to ongoing negotiations, or the results of negotiations.

Thus, MDL settlement negotiations that are conducted outside the auspices of the class action mechanism encourage precisely the type of self-dealing and collusion among the attorneys which became the object of criticism in Amchem. With judicial embrace of the notion of a quasi-class action, we have returned to a pre-Amchem era of lawless aggregate claims resolution. Worse still, under the rubric of the quasi-class action, the federal judiciary now provides an equally “quasi judicial” imprimatur to such dealings.

 

A window on foreclosure process in Florida

This NPR story this morning takes a look at Florida's judicial foreclosure process, comparing it unfavorably with other states where foreclosures move faster. A banker blames the courts and defense attorneys; a judge blames the banks sloppy paperwork; a defense attorney chimes in for consumer protection. Worth a listen (or read), though the thrust of the story seemed to be that the process is too slow, with little discussion of the importance of safeguards, and no comments from struggling homeowners.

Is the Recess Appointment Case Justiciable?

by Brian Wolfman

We have covered the D.C. Circuit's recent ruling striking down President Obama's "recess" appointments to the NLRB here, here, here, and here. In defending the case, government lawyers did not argue that the case was not justiciable under the political question doctrine, and the D.C. Circuit did not raise and decide the issue on its own (which it should have if it thought there was a serious justiciability question). I don't know why the government did not raise the issue, but one reason may be that it thought the claim quite weak (as the D.C. Circuit panel apparently did). I'll note that, in recent years, the Supreme Court has rarely found constitutional challenges to be non-justiciable under the political question doctrine. See Hart & Wechsler's Federal Courts and the Federal System 247-48 (6th ed. 2009).

For another point of view, read this opinion piece by Catholic University law prof Victor Williams, which argues strenuously that the D.C. Circuit was presented with a political question. Williams filed an amicus brief in the D.C. Circuit case, but, as indicated, the panel ignored it.

Ninth Circuit: Class Action Plaintiffs Need Not Arbitrate Claims Against Toyota Over Faulty Brakes

by Brian Wolfman

Typically, consumers buy or lease new (and used) cars from car dealers, not car makers. When Toyota owners sued Toyota over faulty anti-lock brakes recently, Toyota sought to compel arbitration, invoking the arbitration clauses in purchase contracts that the individuals plaintiffs had with various Toyota dealers. Believe it or not, that gambit is not terribly unusual. There's a body of case law arising from attempts by defendants to enforce arbitration clauses against non-signatories and, as in the Toyota case, by non-signatories. The results are not uniform, and they depend on the facts (as most things do!), including the nexus, if any, between the contract and the underlying dispute and the type of relationship, if any, between the signatories and the non-signatories.

In any event, the Ninth Circuit's new decision in Kramer v. Toyota Motor Corporation -- which said no to Toyota's attempt to take advantage of the arbitration clauses in the consumer-dealer contracts -- is worth a look. Among other things, the Ninth Circuit rejected Toyota's argument that it should be able to invoke the arbitration clause because the plaintiffs' claims concerning the faulty brakes are "intertwined with" the subject matter of the plaintiffs' purchase agreements with the dealers.

This discussion leaves me wondering: Why don't car companies enter into some kind of "agreement" with buyers and lessors of their cars that purports to require arbitration of future tort claims, while retaining the dealer as the (principal) seller or lessor of the cars?

Should All Consumers Get Free Wi-Fi?

That's what the Federal Communications Commission would like to see, as explained in this front-page Washington Post article by Cecilia Kang. As you might imagine, some industries like this idea a tad better than others. Here's a short excerpt:

The federal government wants to create super WiFi networks across the nation, so powerful and broad in reach that consumers could use them to make calls or surf the Internet without paying a cellphone bill every month. The proposal from the Federal Communications Commission has rattled the $178 billion wireless industry, which has launched a fierce lobbying effort to persuade policymakers to reconsider the idea, analysts say. That has been countered by an equally intense campaign from Google, Microsoft and other tech giants who say a free-for-all WiFi service would spark an explosion of innovations and devices that would benefit most Americans, especially the poor.

The article goes on to say that some people think that the government-supplied network envisioned by the FCC won't be maintained adequately and/or won't be powerful enough to handle the expected traffic.

Feds Issue Final Rule Requiring Drug Companies to Submit Data on Perks They Give to Doctors and Hospitals

by Brian Wolfman

The federal Centers for Medicare and Medicaid Services (CMS) has issued this final rule that will require manufacturers of drugs, biologics, medical devices, and certain other medical products to report annually to the Secretary of HHS about the payments the manufacturers make to doctors and hospitals. The Secretary is then required to make the information available on a public website. The manufacturers must collect the data by August of this year and submit it to CMS by April 2014. The government website should be up and running by September 2014. A variety of perks must be reported, including speaking fees, consulting payments, research, gifts, food, entertainment, honoraria, research grants, royalties, and license fees.

In the meantime, ProPublica has been making some of this information public on its website, Dollars for Docs, with this explanation:

Drug companies have long kept secret details of the payments they make to doctors and other health professionals for promoting their drugs. But 12 companies have begun publicizing the information, some because of legal settlements. ProPublica pulled their disclosures into a database so patients can search for their doctor. Accepting payments isn’t necessarily wrong, but it can raise ethical issues.

The Affordable Care Act mandated the new CMS rule.

$15 for a 1-minute phone call!

Journalist and consumer advocate Christopher Elliott has this article in Sunday's Washington Post about the high cost of using a credit card to charge a call on a public pay phone. According to the article, the posted rate applies only to coin payment, and the rate for credit card calls is typically not posted at all. The result can be surprisingly high charges.