Consumer Law & Policy Blog

Georgia Dentist's Quest to Out YouTube User For Preserving Unflattering Newscast

by Paul Alan Levy

A few years ago, Gordon Austin, a Georgia dentist from the small town of Carrollton, about 50 miles west of Atlanta, was indicted on multiple charges stemming in part from Medicare fraud and in part for a series of incidents in which he beat patients with a dental instrument. According to several witnesses, he sometimes did not sufficiently anesthetize his patients, which led them to cry out while he was operating on them. He would them tell the patients to be quiet so they would not disturb others in his waiting room.  And when patients were not quiet, it was charged, he would hit them, even children, with a dental instrument.   In the end, Austin was allowed to plead guilty to the Medicare fraud charges while the charges of assault and cruelty to children were dismissed. Austin was placed on five years’ probation which forbade him from practicing dentistry for a period of years, except in the federal service; and paid roughly $15,000 in fines, fees and reimbursements to Medicaid. Georgia's dental board pulled his dental license; and he was pushed out of the Naval Reserves.

Back in 2009, there were a spate of news stories about Austin, including a two-part newscast on the Atlanta local Fox station, which had two of Austin’s victims, as well as a former employee, on camera relating their experiences.  Most of the news stories can now be accessed only on the Wayback Machine, and the TV program can no longer be found on the Fox station’s own web site.  However, back in 2009, an anonymous individual using the pseudonym GordonAustinsaCoward posted the TV series to YouTube, where it can be viewed today.   Here is a transcript of the video.

This fall, out of the blue, Austin, represented by a pair of lawyers from the firm of Coles Barton, filed a defamation against the anonymous poster. It is not at all clear why Austin suddenly revived his interest in the adverse story; a Carrollton lawyer to whom I spoke speculated that Austin might have retained that same firm to help him get his license back.  Perhaps the suit might have been intended to exercise the “right to be forgotten” by pushing a compelling account of the previous charges against him out of the public eye.  Apparently, Austin and his lawyers have no understanding of the Streisand effect. 

Braucher & Litwin Article on Examination as a Method of Consumer Protection

The late Jean Braucher of Arizona and Angela K. Littwin of Texas have written Examination as a Method of Consumer Protection, 87 Temple Law Review, 807 (2015).  Here is the abstract:

Lack of compliance with consumer protection law has been a crucial problem in the field for as long as such law has existed. The Consumer Financial Protection Bureau (CFPB) has the potential to change this state of affairs, especially with its supervision powers, which provide for dedicated consumer protection examination, a new development in the law. Although examination commands resources both from the agency and regulated entities, it is far less resource-consuming than litigation. It thus provides a relatively cost-effective way for an agency to obtain both changes in company practices and compensation for victims.

For a symposium honoring the scholarship of Professor William C. Whitford, we apply to the CFPB’s supervision program a framework Whitford developed for predicting whether a consumer protection law will produce compliance. Our answer to this question is a tentative yes. The CFPB’s statutory structure enables a strong commitment to consumer protection, especially with respect to supervision. In practice, the CFPB relies heavily on this robust regulatory tool, and there is evidence the CFPB is using this power to the fullest. If the CFPB maintains this level of commitment, its supervision program has the potential to radically reshape the market for consumer financial services. Reading the Bureau’s reports on its supervision activities is like stepping into an alternate universe in which consumer protection is the norm. Major problems that academics, advocacy groups, and the news media have been documenting for the past several years are now being written up as official government findings and followed with corrective action. But supervision is necessarily a confidential process, which makes it susceptible to agency capture. The CFPB, however, is currently implementing two strategies that may mitigate this risk in the future — so long as political forces do not eliminate the agency outright.

A dramatic graphic on gerrymandering

Gerrymandering -- the drawing of district lines for the purpose of giving one candidate or party an electoral advantage -- dates back to the Founding. (It was named for Elbridge Gerry, a signer of the Declaration of Independence and later Vice President under James Madison.) It's alive and well today, and as President Obama pointed out in this week's State of the Union, it distorts democracy by letting "politicians . . . pick their voters, and not the other way around." The problem goes both ways -- Democratic state legislatures draw the lines to maximize Democratic congressional representation; Republicans do the same for their party.

How rigged are the districts? A story in today's Washington Post gives us an idea by comparing the actual congressional map with a map drawn by a computer using an algorithm to maximize compactness (rather than one party's political advantage). It's a revealing comparison -- check it out after the jump.

FTC report on pay-for-delay deals by pharmaceutical companies

The Federal Trade Commission reports that pharmaceutical companies entered into substantially fewer potential pay-for-delay patent dispute settlements in fiscal year 2014.

Under such settlements, brand-name drug companies pay generic companies to delay entry of less costly drugs onto the market. In FTC v. Actavis (2013), the U.S. Supreme Court held that a brand-name drug manufacturer’s payment to a generic competitor to settle patent litigation can violate U.S. antitrust laws.

The number of these potentially anticompetitive agreements has fallen significantly following the Supreme Court decision in Actavis. The FTC found that the total number of such deals filed with the FTC has dropped to 21 in FY 2014 from 29 in FY 2013, and 40 in FY 2012 prior to the Actavis ruling. 

The report is here. The FTC's press release is here.

How much should you put away for retirement?

By age 67, you'll need 10 times your salary, according to one investment firm -- a more aggressive target than it had previously recommended.

The Post explains the details, here.

Misclassification suit against Uber

"The plaintiffs allege Uber misclassified them as independent contractors, effectively stripping them of rights such as business-expense reimbursements and gratuities," explains the L.A. Times. Read more here.

TheStreet's Susan Antilla on the Chamber of Commerce

Here.  An excerpt:

 

[The Chamber] slammed the U.S. Securities and Exchange Commission for sometimes pursuing violators of securities law in the comfort of its in-house courts rather than try the cases in the public courts.

There are "substantial differences" in the processes used in the two forums, the Chamber's Center for Capital Markets Competitiveness wrote on its Web site in July. Those differences can impede the pursuit of "a full, fair and impartial adjudication," according to the Chamber.

A fix suggested by the Chamber is for the SEC to offer enforcement targets the option of having a case heard in federal district court, which sounds fair enough to me.

* * *

But giving choices to litigants appears only to be fair game when it suits the Chamber and its members, who, no doubt, see advantages to using the courts if the SEC is after them, but avoiding the courts if their customers sue.Little surprise that when consumer advocates suggest the public should have the option of going to court when they file complaints -- instead of being compelled by a company to arbitrate -- the Chamber suddenly thinks it's fine to forego the due process that court provides.

Should agencies process consumer complaints?

Looking in particular at the Consumer Financial Protection Bureau's complaint process, that's the issue addressed by law prof Angela Littwin in Why Process Complaints? Then and Now.  Here's the abstract:

The creation of the Consumer Financial Protection Bureau (CFPB) established the first comprehensive federal forum for processing consumer complaints about financial products and services. The CFPB not only handles consumers complaints; it also publishes a database that includes most complaints and their initial resolutions. For a symposium honoring the scholarship of Professor William C. Whitford, I analyze the CFPB’s complaint system and database using a framework he developed to explore the reasons why government agencies process consumer complaints and whether these reasons justify the resources that complaint processing entails. Whitford and his co-author proposed three “obvious” reasons to process consumer complaints: to settle consumer disputes; to inform the agency’s regulatory activities; and to generate good will for the agency among constituencies such as consumers, government actors, and the companies the CFPB regulates.

I find that the CFPB has mixed success in providing an alternative dispute resolution forum for consumers. I am, however, missing key information for this evaluation. The CFPB Consumer Complaint Database contains the financial institutions’ responses to consumer complaints but there is almost no information available about any follow up actions the CFPB takes. The CFPB is particularly strong on the regulatory function. It makes significant use of complaint data in its regulatory roles and evinces a commitment to ensuring that companies are handling complaints well. Last comes good will. With respect to public good will, I was unable to find much evidence one way or the other. As for good will among government actors, the CFPB appropriately appears not to apply different treatment to complaints referred by government entities or officials. Finally, the CFPB’s complaint data reveal an intriguing possibility that the process may provide some legitimization of financial institutions' complaint resolutions. But given that consumer financial companies are pushing for the CFPB’s elimination, working to generate good will among financial institutions in this way may be entirely reasonable on the CFPB’s part. This is especially true because the CFPB has made important complaints decisions – such as publishing the database without redacting company names – despite financial companies’ vociferous objections.

 

On not hitting the jackpot

As NPR explains this morning, your chances of winning the $1.4 billion Powerball jackpot are 1000 times worse than picking a particular penny out of a stack the height of the Empire State Building.

A new use of government surveillance: the "threat score"

The Post reports that some local police now calculate a person's "threat score" by combining information from social media, drone surveillance, and cameras.

Read about it here.