Consumer Law & Policy Blog

Margaret Kwoka's new article on the Freedom of Information Act

Former Freedom of Information Act litigator and now law prof Margaret Kwoka has been writing articles on the Act. Read Margaret's most recent: Unconstrained Deference, Chenery, and FOIA. Here's the abstract:

Litigation fails adequately to check agency secrecy decisions under the Freedom of Information Act (FOIA). To vindicate the public’s right to know what its government is up to, the dynamic of FOIA litigation needs fundamental change. This Article builds on previous work documenting that courts routinely defer to agency decisions to withhold records from the public, despite Congress’s clear mandate for de novo judicial review. In this Article, a paradox is revealed: while courts do not effectuate true de novo review, they rely on that statutory standard to allow agencies to raise claims of exemption in litigation not relied on in the agency’s response to a request for information. As a result, requesters end up in a worse position under de novo review than they would have been if Congress had chosen deferential review in FOIA cases. Given existing practice, FOIA’s goal of transparency would be best served by relocating FOIA within a more typical administrative law paradigm. Chiefly, it contends that the observed deference justifies applying the Chenery principle to FOIA litigation, which would preclude agencies from asserting exemption claims for the first time in litigation. This Article demonstrates that not only can the application of Chenery be justified doctrinally and theoretically, but also that the benefits of constraining agency litigation positions outweigh potential costs, rendering FOIA litigation a more fundamentally fair process that better advances government transparency.

Internet memes, copyright, and fair use

by Richard Bahrenburg (guest poster)

When the day at work seems to drag and the day seems never ending, along comes a meme to cheer you up. A successful meme is a perfect mix of great photographic timing and clever word choice. Although many meme creating websites exist, not many people know that there may be copyright issues raised by the creation of memes using pictures owned by others. Memes can be funny for all or embarrassing for one and funny for all. If you need an example, just ask Scarlett Johansson who has found herself  the center of new memes after her unfortunate fall.

Read this article, which discusses copyright issues raised by the use of memes.

9th circuit follows Justice Kagan's dissent in Genesis HealthCare

by Brian Wolfman

Last April, the Supreme Court decided Genesis HealthCare v. Symczyk, which held that an opt-in collective action brought under the Fair Labor Standard Act was moot on the assumption that an unaccepted offer from the defendant to the lead plaintiff of "complete relief" mooted the lead plaintiff's individual claim. (The Court made this assumption because, the Court said, the plaintiff conceded the point below and did not contest it until its Supreme Court merits brief.) With that assumption in place, the Court held that the collective action on behalf of others similarly-situated was also moot.

Justice Kagan's four-justice dissent in Genesis maintained that the assumption that an unaccepted offer would moot the lead plaintiff's claim was dead wrong. If Justice Kagan's view is correct -- and a lead plaintiff's claim remains alive in that circumstance -- the Genesis decision may have little practical effect (as her dissent argued). That's true because if the lead plaintiff's claim is not moot, then the opt-in representative action (and, presumably, a traditional opt-out class action as well) will remain alive.

On October 4, the Ninth Circuit agreed with Justice Kagan's dissent. In Diaz v. First American Home Buyers Protection Corp., the court held that the defendant's unaccepted offer to the plaintiff of complete relief under Federal Rule of Civil Procedure 68 -- that is, an offer of everything that the plaintiff could possibly recover -- did not moot the plaintiff's individual case.

Under that holding, an offer to a representative plaintiff, if unaccepted, cannot be used to kill off a class or representative action. The Ninth Circuit's holding in Diaz deepens an existing circuit split. So, the issue may be headed back to the Supreme Court.

Elizabeth Warren on the government shutdown

Go here or click on the embedded video below:

 

Column on amicus briefs supporting rehearing in Third Circuit class-action case

by Deepak Gupta

We've already blogged here quite a bit in the past few days about our rehearing petition in the Third Circuit class-action case of Carrerra v. Bayer -- including this post on a recent column by Alison Frankel of Reuters. 

Today, Frankel has a new story about the case. This time, she writes about the amicus briefs. Specifically, she focuses on the fact that a neutral class-action claims adminsitrator, Angeion Group, filed a brief supporting the petition. It's unusual for a claims administrators to file a brief in any case because they treasure their reputation for neutrality. Frankel interviewed Angeion VP Steve Weisbrot to find out why this case was important enough to make an exception:

[P]ublic interest groups and law profs are frequent filers of amicus briefs. Claims administrators are not. So why did Angeion feel the need to poke its head up? It was to defend the expertise and best practices of its industry, Weisbrot told me, from an appellate ruling that, in Angeion’s view, disregarded claims administrators’ hard-won ability to discern between valid and invalid claims. . . . 

Angeion’s amicus brief argued that the 3rd Circuit panel was too quick to discount those screening processes. “Class action administrators have a wealth of expertise about how to ensure fair participation and valid claims without fraud and have been refining that expertise for a half century,” the brief said. “The panel wholly dismisses the ‘programmatic audits’ that are routinely, successfully used to identify duplicate and fraudulent claims by claims administration companies…. We employ proven algorithms in a rules-based processing technology that has been derived from the other industries such as the health care claim processing space. This enables us to further identify fraudulent claims based on a range of data and behavioral patterns.”

Angeion was careful to note that it is a neutral third party, but it’s also true that it is in the business of administering class action settlements. If classes can’t be certified, Angeion and its rivals don’t have claims to administer. The amicus brief warns that the 3rd Circuit standard “would result in no claims – that is, no class action at all…. That decision is not only unprecedented, but ignores the way things actually work in the real world. Requiring the parties to create and submit a detailed screening model for each particular case prior to class certification – instead of relying on known and proven claims administration industry standards generally – would be a burdensomely expensive and time consuming effort.”

Study Finds Housing Discrimination Against Same-Sex Couples

Samantha Friedman of SUNY University at Albany and Angela Reynolds, Susan Scovill, Florence R. Brassier, Ron Campbell, and McKenzie Ballou, all of . Davis and Company, Inc. have written An Estimate of Housing Discrimination Against Same-Sex Couples.  Here's the abstract:

This is the first large-scale, paired-testing study to assess housing discrimination against same-sex couples in metropolitan rental markets via advertisements on the Internet. The research is based on 6,833 e-mail correspondence tests conducted in 50 metropolitan markets across the United States from June through October 2011. For each correspondence test, two e-mails were sent to the housing provider, each inquiring about the availability of the unit advertised on the Internet. The only difference between the two e-mails was the sexual orientation of the couple making the inquiry. Two sets of correspondence tests were conducted, one assessing the treatment of gay male couples relative to heterosexual couples and one assessing the treatment of lesbian couples relative to heterosexual couples. This methodology provides the first direct evidence of discriminatory treatment of same-sex couples compared with the treatment of heterosexual couples when searching for rental housing advertised on the Internet in the United States.

The study finds that same-sex couples experience less favorable treatment than heterosexual couples in the online rental housing market. The primary form of adverse treatment is that same-sex couples receive significantly fewer responses to e-mail inquiries about advertised units than heterosexual couples. Study results in jurisdictions with state-level protections against housing discrimination on the basis of sexual orientation unexpectedly show slightly more adverse treatment of same-sex couples than results in jurisdictions without such protections. This study provides an important initial observation of discrimination based on sexual orientation at the threshold stage of the rental transaction and is a point of departure for future research on housing discrimination against same-sex couples.

Study on Statutes Protecting Food Industry From Obesity-Related Health Claims

Cara L. Wilking of the Public Health Advocacy Institute and Richard A. Daynard of Northeastern have written Beyond Cheeseburgers: The Impact of Commonsense Consumption Acts on Future Obesity-Related Lawsuits, Food and Drug Law Journal, Vol. 68, No. 3, pp. 229 -329, 2013.  Here is the abstract:

Since 2004, 25 states have passed Commonsense Consumption Acts (CCAs) to shield the food industry from civil liability for claims arising from obesity-related health harms. These laws continue to be introduced. CCAs have generally been discussed in terms of “tort reform.” For this article, we conducted a systematic analysis of the content of all 25 state laws and found that the potential impact of CCAs goes well beyond obesity-related tort reform to limits on state Attorney General (AGs) authority and significant reforms to future statutory consumer protection claims by AGs, individuals and classes of consumers. Moreover, every CCA state had pre-existing legal protections against frivolous litigation- greatly undercutting arguments made by CCA proponents.

Texting and driving as a safety problem with a social underpinning

Check out this thought-provoking article from the Boston Globe about why texting and driving remains such a persistent problem. We all know that texting and driving can be dangerous (and by "all,"the article cites an amazing 94% figure from a federal survey about the number of people who know this is a risky practice). Yet we do it anyway, in large numbers. Why? The Globe posits:

It seems clear something powerful is at work, overriding people’s knowledge that what they’re doing behind the wheel is dangerous. To figure out what that something might be, psychology and communications researchers around the world have started studying what exactly is happening in our heads when we reach for a phone in the car. What their research so far suggests is that texting and driving is unlike any public safety issue we’ve dealt with before. It’s not like the judgment error of drinking too much and deciding to drive home anyway; it’s not like neglecting to put on your seat belt. That’s because at the center of the problem, the experts say, is an entirely new kind of object—the modern smartphone—that has become embedded in our consciousness in a way that’s changing our behavior on a massive scale.

The article concludes that the solution might lie in changing social norms rather than merely telling the public what they already know -- and are ignoring -- about the dangers of texting and driving.

More on the 3rd circuit's decision in Carrera

by Brian Wolfman

As we've explained in a series of recent posts, in Carrera v. Bayer, the Third Circuit reversed a grant of class certification on the ground that the class wasn't "ascertainable." Among other things, the panel said that the class of purchasers of an over-the-counter weight-loss product had not shown that it would be able to screen out "fraudulent or inaccurate claims"--claims that would not have been made until after judgment or settlement. Until the Carrera decision, plainitiffs have not been required to make that kind of showing at the class-certification stage.

We previously told you about the plaintiff's petition for en banc hearing and Public Citizen's amicus brief in support of rehearing. Last Friday, three more amicus briefs were filed, one from a group of law professors, another from Public Justice, and another from Angeion Group. The latter brief is particularly interesting. Angeion Group is a class-action administration company, and its brief says that the panel's decision misunderstood the ability of courts and claims administrators to root out fraud and inacurracy in class actions.

Arizona Court Strikes Down Arbitration Clause as Too Expensive for Plaintiff

By F. Paul Bland   On Twitter @PblandBland

This is a classic good news/bad news type of case for plaintiffs.  The good news is that a court struck down as unconscionable an arbitration clause that imposed enormous fees on an individual before the individual could go to arbitration.  The bad news is that the case shows what a heavy evidentiary burden is placed on plaintiffs.

In Clark v. Renaissance West, a man sued a nursing home for medical malpractice, alleging that neglect had caused him to develop a severe pressure ulcer that caused enormous problems.  The nursing home (of course) tried to force the case into arbitration.  An Arizona state Court of Appeals held that the man had proven that the arbitration clause would impose prohibitively expensive costs of arbitration on him before he could pursue his claim, and it struck down the clause as unconscionable.

The court held that a plaintiff alleging that an arbitration clause would be prohibitively expensive has the burden of showing specific facts proving that claim, with reasonable certainty.  So in this case, the plaintiff had an expert who testified about the average hourly rates of arbitrators in the Phoenix area (hundreds of dollars an hour), and who testified that the complexity of the plaintiffs' claims would require him to put forward testimony from enough expert and fact  witnesses that an arbitration hearing on his claims would likely take five days.  Because the arbitration clause required that any case be heard by a three arbitrator panel (a typical sign of a clause where a corporation is trying to make arbitration too expensive for the individual), the upshot is that the plaintiff -- a retiree with a fixed income -- would have had to pay $22,800 to arbitrate his claims, and he couldn't afford it.

This case is instructive for plaintiffs' lawyers.  While most sophisticated corporations are willing to pay nearly all the cost of arbitration (mostly because they want to ban class actions, and they don't want to lose their shield against class action liability because they've gouged individuals with prohibitive arbitration costs), other types of corporations -- and nursing homes are by far the worst actors in the marketplace right now on this point -- DO like to stick individuals with enormous fees to arbitrate claims.

The key, though, is that plaintiffs' lawyers have to really put some effort into proving how expensive arbitration is.  Every year, when I sit and read through stacks of cases involving unconscionability challenges to arbitration clauses when I'm working on updating the National Consumer Law Center's manual Consumer Arbitration Agreements, I see a ton of cases where courts rejected challenges to arbitration clauses because the plaintiffs hadn't proven their case adequately.  This case shows that plaintiffs CAN win these challenges, but that they have to really shoulder the heavy evidentiary burden that most courts will put on them.