Tyson Foods v. Bouaphakeo argued in the Supreme Court

This morning, the Supreme Court considered whether a group of workers at an Iowa meat-processing plant appropriately proceeded as a class on their federal and state wage-and-hour claims where their proof of the amount of hours worked was based in part on an expert time study because the company failed to keep legally required records of the time the employees worked.

The case (in which Public Citizen was co-counsel for the plaintiffs) has important implications for both class action law and wage-and-hour law.

SCOTUSBlog covers the argument here. You can read our brief and find more information about the case here. The transcript of the argument is here.

The Medicaid expansion map

As our readers will recall, under the Supreme Court's decision in NFIB v. Sebelius, the Affordable Care Act's very significant expansion of the Medicaid program will not operate in any state unless the state opts in. If a state does not opt in, its residents cannot benefit from the expansion.

Under the expansion, almost everyone with incomes at or below 133% of the federal poverty line is entitled to comprehensive government-provided health insurance. Without the expansion, entitlement ends at considerably lower income levels, and, generally, childless, non-disabled adults are not eligible at all. Under the ACA, the federal government funds the great majority of the expansion's cost.

So far, 31 states have opted for Medicaid expansion; 19 states are not currently considering expansion at all; and one state (Utah) is currently considering whether to opt in.

It's been well publicized that most states that have opted for expansion are located along the mid-Atlantic and west coasts, in the northeast and north central U.S., and in the southwest. Most southern and heartland states have stayed away.  But when one actually looks at a Medicaid-expansion map (below), the geographic coverage differences by region seem starker. (Only one state that seceded from the Union -- Arkansas -- has opted in.)

If low-income people with Medicaid coverage are healthier than low-income people who lack insurance -- and that's the idea of ACA Medicaid expansion -- have we created (or are we further engraining) a nation divided geographically by the health of its people? 

 

Conservative group to run television ads attacking CFPB

The Wall Street Journal reports:

Most Americans have probably never heard of the Consumer Financial Protection Bureau. Many will learn about it on Tuesday night when millions tune in to watch the next Republican presidential debate.

The American Action Network, a right-leaning advocacy group that has spent heavily to elect Republicans, plans to blanket the Fox Business airwaves during the debate, which is co-sponsored by The Wall Street Journal, with a new ad criticizing the agency created in the wake of the 2008 financial crisis.

According to the article, the ad will run seven times during the debate and all week on Washington, DC cable stations. "The whole campaign has a $500,000 price tag and could be the opening salvo of a much broader fight over the impact of regulations on everyday Americans."

The WSJ article (subscriptiuon may be required) is here.

FDA requests comment on use of "natural" on food labels

Recent years have brought lots of litigation about food products that are labeled as "all natural" but contain highly processed or "unnatural" ingredients. Dating back much further, the Food and drug Administration has long acknowledged the confusing and even misleading use of the term, but until today, the agency had not used its regulatory authority to define what it means for a food to be "all natural." Today, the FDA announced:

Because of the changing landscape of food ingredients and production, and in direct response to consumers who have requested that the FDA explore the use of the term “natural,” the agency is asking the public to provide information and comments on the use of this term in the labeling of human food products. ....

Although the FDA has not engaged in rulemaking to establish a formal definition for the term “natural,” we do have a longstanding policy concerning the use of “natural” in human food labeling. The FDA has considered the term “natural” to mean that nothing artificial or synthetic  (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in that food.  However, this policy was not intended to address food production methods, such as the use of pesticides, nor did it explicitly address food processing or manufacturing methods, such as thermal technologies, pasteurization, or irradiation.

Specifically, the FDA asks for information and public comment on questions such as:

• Whether it is appropriate to define the term “natural,”
• If so, how the agency should define “natural,” and
• How the agency should determine appropriate use of the term on food labels.

The FDA's request for comments is here.

 

Video: Shopping at CarMax? Beware of Unsafe Recalled Cars!

Here.

Public Citizen's Global Trade Watch on text of Trans-Pacific Partnership

The text of the is out -- finally -- and it's "worse than we thought," according to a Public Citizen analysis.

Among the lowlights, according to Public Citizen, are "New Rights for Fossil Fuel Corporations to Challenge Climate Protections"; "Constraints on Food Safety Provisions"; "Opportunities for Drug Firms to Contest Medicine Purchasing and Pricing Decisions"; and expansion of the controversial Investor-State Dispute Settlement (ISDS) regime that "elevat[es] individual foreign corporations to equal status with the 12 sovereign governments signing the deal."

Read the full analysis here. For prior discussion on this blog of ISDS, see here.

NYTimes editorial on arbitration

Following up on its 3-part series on forced arbitration clauses, the New York Times published an editorial reiterating the conclusions of the series. The editorial concludes:

Reversing the broader trend of forced arbitration, however, will require public outcry loud and long enough to stir the White House and Congress to action. Many people interviewed in The Times’s series did not realize that their right to sue had been lost until they needed it. A common refrain was the disbelief that this could happen in America. But it is happening, and it needs to stop.

The full editorial is here.

Hosea Harvey Article on Disclosure Laws

Hosea H. Harvey of Temple has written Opening Schumer’s Box: The Empirical Foundations of Modern Consumer Finance Disclosure Law, 48 University of Michigan Journal of Law Reform (2014). Here's the abstract:

This Article explores the fundamental failure of Congress’ twenty-five-year quest to utilize disclosure as the primary tool to both regulate credit card issuers and educate consumers. From inception until present, reforms to this disclosure regime, even when premised on judgment and decision-making behavioralism, were nomothetic in orientation and ignored clear differences in population behavior and the heterogeneity of consumers. Current law prohibits credit card issuers from acquiring consumer socio-demographic data and prevents issuers and regulators from using market and policy experimentation to enhance disclosure’s efficacy. To explain why this regime was structured this way and why it must change, this Article contains four key sections: (1) a comprehensive review of the creation of our modern consumer credit card regulatory scheme; (2) a survey of the empirical evidence used to update and expand that disclosure-centered regime over twenty-five years; (3) an account of why the existing scheme’s disclosure function substantially fails, not- withstanding recent reforms; and (4) an argument that to achieve optimal credit card disclosure efficacy, the law must permit issuers to acquire and utilize customer socio-demographic information, including race, gender, and other characteristics.

LA Times's David Lazarus: Using TiVo? Your personal choices may be going straight to advertisers

Here.  Here's the beginning of the story:

If you're a TiVo user, your digital video recorder may be ratting you out to advertisers.

In the latest example of consumer privacy being threatened by Big Data, TiVo's number-crunching subsidiary this week announced a partnership with media heavyweight Viacom that helps advertisers target TV viewers with specific commercials.

Think of it like this: A car company wants to reach men in their 20s. Viacom knows that younger guys like watching the spy cartoon "Archer" on Comedy Central. TiVo will now be able to say whether the commercial actually was seen by target viewers — and if any of them went on to buy the car.

"The Holy Grail of TV advertising has been to figure out who's watching and match it with their behavior," said James Dempsey, executive director of UC Berkeley's Center for Law & Technology. "This seems to do that."

Supreme Court will resolve yet another challenge to Obamacare

We've flagged before the issue of whether the Obamacare mandate that employers provide contraceptive coverage raises religious liberty problems even if an opt-out is available.

The Supreme Court announced today it will decide the issue in seven consolidated cases.