Does Louisiana Lawyer David Groner Have the Right to Have His Mistakes Forgotten?

by Paul Alan  Levy

Louisiana lawyer David Groner has made a few mistakes.  Which was the most serious?

David Groner's Misconduct Toward Clients

At some point time before January 18, 2007, one of Groner’s associates filed a lawsuit on behalf of some clients in the wrong venue; the defendants moved to dismiss. Groner’s firm nevertheless paid a small amount of money to the clients, but, apparently, left the clients believing that it was the defendants rather than Groner’s firm that were making the payments, leading the clients away from thinking about the possibility that they might have a claim for malpractice.   The clients ultimately learned the truth, then complained to the Bar; the upshot was a joint petition for discipline, signed both by Groner and the Office oi Disciplinary Counsel, calling for a deferred six-month suspension from the Bar because of what the joint petition called “at a minimum, . . .  a misrepresentation as to the true nature of the January 18 transaction."  The state Supreme Court characterized its ruling as having stemmed from an “investigation into allegations that respondent engaged in a conflict of interest and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.”  Groner later told blogger Eugene Volokh that “dishonesty, fraud, deceit, or misrepresentation” is simply one of the categories into which the Louisiana Supreme Court places disciplinary actions, and hence that the use of this phrase did not mean that he engaged in any “dishonesty, fraud or deceit”; he felt that the only fair characterization of the conduct for which he was disciplined was “misrepresentation.”

When Groner ran for public office in 2011, his consent discipline was raised as an issue against him.

Groner’s Misuse of His Position as an Officer of the Court

Then, in late August 2015, when the Daily Iberian, a local newspaper, published a story about a case that Groner was handling, an anonymous commenter sniped at Groner by referring to “the truth [having come out] about Groner having a reputation for engaging in conduct involving dishonesty, fraud, deceit and misrepresentation.”   Groner sued the Daily Iberian and, based on an ex parte verified complaint that he did not send to the defendant, he obtained a temporary restraining order forbidding the newspaper from “publishing or posting . . . any article or story in which plaintiff . . . Groner is accused of dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter.”

As Supreme Court considers contraception mandate petition, a district court chimes in -- with an injunction

We discussed last week the pending petitions in the Supreme Court regarding Obamacare coverage for contraception.

Yesterday, Judge Richard Leon of federal district court in D.C. ruled in favor of contraception-mandate challenger March for Life (a pro-life, non-religious non-profit) and enjoined the federal government from enforcing the mandate against it, ruling that the mandate violated the non-profit's rights even though it is not a religious organization.

Read the opinion here and NYT coverage here.

Will Biden's Positions on Consumer Law Hurt Him If He Runs for President?

The Times has the story here.

Airline mega-merger antitrust suits mount

...reports The Consumerist. We all know the background: airlines have been consolidating into fewer and fewer airlines in recent years. Since July, no fewer than 75 complaints have charged that the airlines violated federal antitrust laws; according to The Consumerist, United, American, Delta and Southwest now account for 80% of all domestic air travel. Here's the story.

Dodd-Frank at 5

We celebrated Dodd-Frank's 5-year anniversary on July 21 2015, by aggregating some news coverage of the event.

You may also want to read a negative account of the law contained in law professor Todd Zywicki's congressional testimony, entitled The Dodd-Frank Act Five Years Later: Are We More Stable? Here is the abstract:

This congressional testimony summarizes the effects on consumers and the economy of Dodd-Frank, the Durbin Amendment the Consumer Financial Protection Bureau, and other government regulations (such as the CARD Act of 2009) enacted in the wake of the recent financial crisis. The testimony notes that the combined effect of these laws and regulations has resulted in higher bank fees, a dramatic reduction in access to free checking, an increase in the number of unbanked consumers, a dramatic reduction in access to credit cards for low-income consumers, and continued low access to mortgages, especially among lower-income and higher-risk borrowers. In addition, because of the crushing and disproportionate burden of Dodd-Frank’s regulations on smaller banks, the law has promoted consolidation of the banking industry and forced many smaller banks to exit certain product markets, especially mortgages. This combined effect has reduced choice and competition for consumers. Finally, the lack of democratic accountability over the CFPB has resulted in an agency defined by bureaucratic overreach, resulting in an invasive and reckless data-mining project and assertion over many industries and products that stand outside of the agency’s authorized jurisdiction.

 

 

Drobac: The Myth of 'Legal' Consent in a Consumer Culture

Jennifer Ann Drobac of Indiana's McKinney School has written The Myth of 'Legal' Consent in a Consumer Culture in FACETS OF CONSUMERISM IN A GLOBAL ECONOMY (Anand Pawar, ed., Twenty First Century Publications, 2015).  Here is the abstract:

This Essay challenges the legal default of unquestioned human capacity for consent. It posits that legal capacity for consent is not an “on/off” switch. It questions the notion that capacity – our rough filter for the ability to consent – flips on at some relatively arbitrary time that one might, as a matter of tradition, call “the age of consent,” and off again with early onset dementia or Alzheimer’s disease. A more nuanced view of consumer capacities rests, in part, on the understanding neuroscience and psychosocial evidence provide. This perspective suggests that we should match our rules and jurisprudential approaches to the variable capacities that we all show in different contexts and stages of life. By highlighting that most negotiating parties, in a given moment or context, may possess rather less than legally presumed capacity to consent, this Essay emphasizes the need for legal reform.

"Peer-to-Peer Lenders Losing Court Battle Over State Usury Laws"

...reports Bloomberg Business. A recent decision by the Second Circuit (on which the court this month rejected a motion to reconsider)

restricts the so-called marketplace lenders from bypassing state usury laws by partnering with banks in states where there are no such rules. The ruling effectively would stop a practice whereby the lenders can make a loan to a borrower in, say, New York -- where interest rates are capped at 16 percent for most loans -- by originating it in Utah, which has no usury limits.

Firms like LendingClub and Prosper Marketplace Inc., also known as peer-to-peer lenders because they started out by directly linking borrowers and funders over the Internet, match up people seeking consumer or small-business loans with investors such as hedge funds.

Barring a successful request for review by the U.S. Supreme Court, the lower court’s May ruling means some of these firms’ existing loans may suddenly be deemed in violation of state interest-rate caps, Moody’s Investors Service said in June.

Read the story here.

Court limits cellphone tracking

As Reason.com reports, in a recent case in federal court in northern California,

Officials sought the right to track suspects' Cell Site Location Information, or CSLI, for 60 days without gaining a warrant. Such location information lets law enforcement track the whereabouts of our cell phones in relation to cell towers. . . .

The government argued the public can avoid their surveillance by not using a cell phone. But [Judge Lucy] Koh rejected that argument: "Considering the ubiquity of cell phones, and the important role they play in today's world, it is untenable to force individuals to disconnect from society just so they can avoid having their movements subsequently tracked by the government."

She ruled that the government needs a warrant — and not just a court approval, which is based on lower standards of proof. Warrants require probable cause.

Read the story here.

"How student loans help keep expensive schools in business"

...is the title of a Post op-ed questioning whether federal student loan assistance is most wisely allocated toward grad schools. The piece questions, in particular, low-rate loans for law students:

Nowhere has Grad PLUS [the government's loan assistance program for graduate students] had a greater impact than in the nation’s law schools. Law-student indebtedness grew from an average of $66,000 for public institutions in the 2005 academic year to $88,000 in 2012, according to a recent American Bar Association (ABA) task force report. The figures for private law schools were $102,000 in 2005 and $127,000 in 2012. More than half of law students use Grad PLUS.

But after the Great Recession, the piece notes, the legal profession has been restructuring and demand for lawyers has decreased, leading to only a 60% immediate employment rate for law school graduates in the class of 2013. Instead of causing law schools to rethink their models, the op-ed argues, "the flow of easy taxpayer-backed loan money through Grad PLUS operated as a de facto bailout, enabling many law schools to maintain capacity and delay reforms, or settle for modest ones, while continuing to charge more or less the same high tuition."

I don't know enough about the industry to judge whether it's a fair charge that misdirected student loan money is responsible for spiraling grad school (and particularly law school) cost. After all, undergrad tuition has been spiking too. But it's an argument worth considering.

Read the full piece here.

Suit against major car manufacturers alleging that keyless ignitions are deadly carbon monoxide hazards

A 135-page class-action-complaint filed yesterday in federal court in Los Angeles alleges that the major car manufacturers are liable because their keyless ignition systems create a carbon monoxide hazard. This story by Jonathan Stempel explains:

Ten of the world's biggest automakers were sued on Wednesday by U.S. consumers who claim they concealed the risks of carbon monoxide poisoning in more than 5 million vehicles equipped with keyless ignitions, leading to 13 deaths. [The plaintiffs alleged that] carbon monoxide is emitted when drivers leave their vehicles running after taking their electronic key fobs with them, under the mistaken belief that the engines will shut off. [The suit claims] that this can injure or have "deadly" results for people who inhale the colorless and odorless gas, including when vehicles are left in garages attached to homes. They also said the defect reduces their vehicles' resale values.