Consumer Law & Policy Blog

Can police search your prescription drug records without a warrant?

That's the issue on appeal in Pyle v. Woods, in which Public Citizen filed the opening brief today in the Tenth Circuit.

Utah law directs the Utah Division of Occupational and Professional Licensing to create and maintain a state Controlled Substance Database of all prescriptions for controlled substances filled at pharmacies in the state. Pharmacists are required to report patients’ prescription records — including patient’s name, date, and drug dosage and quantity — to the Database without patients’ consent. These prescription records can reveal an array of private information about a person, such as whether he has AIDS, cancer, epilepsy, anxiety, depression, or a variety of other conditions. 

In 2013, to investigate the theft of medicines from ambulances belonging to a Salt Lake City-area fire department serving more than half a million people, local police used the Database to obtain, without a warrant or any individualized suspicion, the prescription drug records of all 480 employees of the fire department. Two of the employees were fire fighter Ryan Pyle and Assistant Fire Chief Marlon Jones. As a result of the search, defendants learned private facts about Pyle’s and Jones’s prescription history. Both men were taking pain medications as prescribed by their doctors for serious injuries or medical conditions – for Pyle, a motorcycle accident and complication arising from a dental surgery; for Jones, an on-the-job back injury, double knee replacements, and gout. Although Pyle and Jones were taking medications lawfully prescribed by their doctors, the police thought they were taking too many medications (but not, apparently, that they had anything to do with the theft from the ambulances). Based on the records obtained from the database, Pyle and Jones were suspended them from their jobs and subjected to lengthy prosecutions, which were all eventually dismissed.

Now Pyle and Jones are seeking compensation under the Fourth Amendment and the Fair Credit Reporting Act. Their case has nationwide significance: Nearly every state has a database like Utah’s, and most do not require a judge to sign off before police access individual’s private prescription drug information.

Read our press release here.

Supreme Court affirms class certification in Tyson Foods wage/hour case

Today, the Supreme Court decided in Tyson Foods v. Bouaphakeo that a group of 3000-plus meat processing workers were properly permitted to proceed as a class in seeking unpaid wages from their employer.

It's an important win for workers, consumers, and plaintiffs generally seeking to hold corporations accountable for wrongdoing. Just as important, in a case that had originally been billed as a big opportunity for the corporate defense bar, the Supreme Court declined the invitation to expand Wal-Mart v. Dukes and refused to reach Tyson's sweeping challenge to plaintiffs' standing.

Public Citizen was merits co-counsel in the Supreme Court. Read more background about the case here.

Read today's decision here, and our press statement here.

Supreme Court asks for U.S. view of rate-cap cert petition

Last year, we praised a Second Circuit decision holding that the National Bank Act doesn't preempt New York usury law in a claim against a debt buyer. In response to a cert petition, the Supreme Court has now asked for the Administration's views on the case. You can read more about it (from an industry source) here.

Criminal justice databases and online privacy

Ars Technica reports on a disturbing report out of Colorado that Denver cops are querying state and federal law enforcement databases for personal uses, such as "to help officers' in the romance department and to assist friends, according to an independent department monitor."

Read the story here and the independent monitor's report here (go to page 16 for the start of the relevant section).

On the influence between drug company payments and doctors' prescription decisions

NPR reports:

Doctors have long disputed the accusation that the payments they receive from pharmaceutical companies have any relationship to how they prescribe drugs.

There's been little evidence to settle the matter, until now.

A ProPublica analysis has found that doctors who receive payments from the medical industry do indeed prescribe drugs differently on average than their colleagues who don't. And the more money they receive, the more brand-name medications they tend to prescribe.

Read more, including helpful graphics, here.

House Financial Services Committee Member Luetkemeyer: Elizabeth Warren is Darth Vader

From Politico's Morning Money, by Ben White:

M.M. hosted a panel at the ABA conference on Wednesday that generated some controversy when Rep. Blaine Luetkemeyer (R-Mo.), a senior member of the House Financial Services Committee, said people needed to "find a way to neuter" Sen. Elizabeth Warren (D-Mass.), whom he called "the Darth Vader of the financial services world." Rep. Ed Perlmutter (D-Colo.) rebuked the remarks: "His comments about Elizabeth Warren using the words 'neuter' and 'Darth Vader' are very misplaced because she speaks for a lot of people.'"

Call for Papers for Students and Young Lawyers

We have received the following Call for Papers:

The three Consumer-Protection related committees of the ABA Antitrust Section (Consumer Protection, Privacy, and Advertising Disputes & Litigation Committees) are excited to announce a new initiative geared towards young lawyers and law students interested in the consumer protection and privacy fields – an opportunity to get published in a special edition of our newsletter, What’s in Store.  This edition will be devoted to issues of concern and interest to the next generation of consumer-protection scholars & practitioners – you!   

To be considered for publication:

• Select a topic relating to an emerging issue of consumer protection or privacy law (we are happy to provide potential topics to get you started); 
• Prepare a 2,000-2,500 word paper on that topic; and 
• Submit your article by May 20, 2016 to antitrust@americanbar.org with subject line – Consumer Protection Article Submission
• Include in your submission the following information:
• Certification that you have been in practice for 5 years or less or are under 36;
• Your law school/organization;
• Why you selected the topic; and
• The paper’s word count

We will notify you if your piece has been selected for publication by June 10, 2016.  We are eager to receive entries from law students, young government attorneys (federal and state), economists, or young lawyers from private practice (big, small, plaintiff or defense, think tanks, or business organizations).  If you have any questions, please email Consumer Protection Committee Co-Chair, Svetlana Gans, at whatsinstorecp@gmail.com.

FCC proposal would let consumers decide how ISPs use their data

Predictably, privacy groups like the idea; ISPs don't. NPR has the story.

Hensarling on the CFPB

House Financial Services Chair Jeb Hensarling gave a speech today to the American Bankers Association Frank Act.   During the speech, he said the following about the CFPB:

[T]hey’re certainly not helped when Obama’s Financial Control Law [his name for the Dodd-Frank Act that created the CFPB, among other things] has killed off a benefit many, if not most, consumers once took for granted:  free checking.  Before it became law, 75 percent of banks offered free checking.  Just two years later, only 39 percent did so. 

Furthermore, as account fees rise due to Obama’s Financial Control Law, so do the number of low and moderate income households who are unbanked or underbanked – a number that stands at more than 34 million, according to the FDIC.

Only someone from Washington would dare call this “consumer protection.”

When it comes to the Orwellian-named Consumer Financial Protection Bureau, the Federal Reserve reports that – when fully implemented – one-third of black and Hispanic borrowers will be denied home ownership opportunities by the CFPB’s Qualified Mortgage rule.

Regrettably, it looks like the consumer protection agency is going to “protect” millions of Americans right out of owning a home.

If there were any justice in the world, consumers would be able to sue the CFPB for unfair, deceptive and abusive practices – early and often!

* * *

James Madison, in Federalist 47, . . . . wrote, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.”

If that doesn’t sound like the very definition of the CFPB, then I don’t know what does.  It is a case study in the overreach and pathologies of the unaccountable administrative state run amok.  At almost every opportunity, the Bureau abuses and exceeds its statutory authority, which is already immense.  The Bureau operates with such secrecy, unaccountability and bureaucratic tyranny it would make a Soviet Commissar blush!

It intentionally or, at best, negligently makes bad policy.  It acts as judge, jury and executioner – all without accountability and due process.  This should alarm every American.  Because as we become less governed by the rule of law and more governed by the whims of Washington regulators -- fear, doubt, uncertainty and pessimism are sown. 

The Bureau typifies not only the shadow regulatory system but also the unfair Washington system that Americans have come to loathe:  powerful government administrators, arbitrary rules, and unchecked power to punish or reward.   

Hensarling promised a GOP alternative to Dodd-Frank shortly.

Justice Department to state courts: Stop policing for profit

We've discussed previously the troubling practice of some state and local courts using low-level offenses to generate fees, sometimes for the courts themselves and sometimes for for-profit entities that run court-related services. (See, for instance, here and here.)

Now the Justice Department is warning states that these practices are unconstitutional and must stop, the New York Times reports. According to the Times, such letters, issued rarely, "do not have the force of law, but they declare the federal government’s position and put local officials on notice about its priorities."

This week's DOJ letter:

echoes the conclusions of the Justice Department’s investigation of the Police Department and court in Ferguson, Mo. Investigators there concluded that the court was a moneymaking venture, not an independent branch of government. [Assistant Attorney General for Civil Rights Vanita] Gupta, who oversaw that investigation, has often cited Ferguson as a cautionary tale in her speeches, describing how fines for minor offenses like jaywalking pulled people into the criminal justice system and made it impossible to escape.

Read more here.