United States Supreme Court Decisions

Why do corporations hate class action lawsuits?

Let your congresspeople and senators know that they can’t kill class actions–one of your most powerful weapons against corporate wrongdoing.

Corporations love to demonize class action lawyers. Guess why? You can likely figure this out on your own, but I’ll spell it out here: Because a class action lawsuit is one of the most powerful tools that consumers have to make corporations accountable for their negligence. But the media doesn’t like to focus on the topic of class actions much because it’s not easy to digest via 10-second sound bites. Thus, witness another week of breathtaking, frenzied stories about the Trump administration. Reporters and talking heads gravitated to discussions about the abrupt departure of Flynn and Trump’s 77 minute presser. Meanwhile, a majority in the House worked in concert to destroy consumers’ most powerful tool to hold corporations accountable. That’s right, this past Wednesday the House Judiciary Committee voted on party lines to gut consumer protection class actions.

Interestingly, the corporate lobbyists’ anti-class-action talking points are eerily similar to the proposed “Fairness in Class Action Litigation Act of 2017,” introduced last week in the House of Representatives. Coincidence? Of course, not.

Most of the proposed procedural rule changes in Representative Bob Goodlatte’s  are directly traceable to the business lobby’s anti-class-action talking points. Goodlatte – a Virginia Republican and chair of the House Judiciary Committee is seizing on the corporate-friendly climate. He’s expanded last year’s proposed changes in a similarly named bill that was approved in the House but died in the Senate. If Congress adopts Goodlatte’s bill in anything like its current form, class actions will lose much of its potency. 

The bill will make class actions much more difficult to survive the most critical milestone–certification. And, for those class actions that would survive, the bill would make those automatically appealable. Moreover, the bill seeks to strip away attorneys’ fees so that fewer plaintiffs attorneys will pursue these.

Most consumers think that class actions are big, nebulous things that have little to do with their lives. But if you talk to regular people such like my class action clients, you’ll realize that the Congress needs to stop trying to striking fatal blows to this important vehicle for justice. Like my clients, consumers throughout this country need class action attorneys to fight for them because they can’t or don’t want to spend thousands of dollars and countless hours to fight a giant corporation. My class action clients are like your neighbors, your relatives, your colleagues, and your friends. They are Republicans, Democrats, and Independents. But, for them and for me, these lawsuits are not about politics. It’s about trying to hold a massive company accountable, when an individual consumer is wronged.

We all know that corporations are focused on maximizing profits. To maximize profits, these companies will cut corners, which often result in a harm to the consumers. When a consumer finds that they have a defective product or that their most private information has caused significant harm to them and their bank accounts, they are not sure who will go to bat for them. This is why class action attorneys play a critical role in leveling the field for the citizen who’s suffered injury because a manufacturer used shoddy material, security or processes.

Please, email/call/write your representatives and let them know that they represent your interests–not the corporations who’ve donated tens of thousands of dollars to their campaign.

Still “standing” after Spokeo. Time will tell what 2017 holds in store…

For consumer class action attorneys like myself, we can continue to count our blessings for the moment.  Indeed, a number of courts across the country continue to make commonsense and carefully crafted opinions that confer Art III standing for statutory damages claims.

I have much faith in the Ninth Circuit Court of Appeals. The panel just heard oral arguments,  as the U.S. Supreme Court had remanded Spokeo (back on Dec. 13th). The 9th Cir.’s new challenge is to tackle the concreteness requirement with newfound gusto. Judge O’Scannlain found it difficult to move past her view that Mr. Robin’s allegations (the resulting inability to find work because of a grossly incorrect report about him) were ostensibly sufficiently concrete, tangible harm. However, Counsel for Plaintiff, William Consovoy kept focus on the issue that the Spokeo court harped on: Defendant was making this about an apparently intangible harm that has yet to run through the rigors of a concreteness test as the one that Alito pieced apart in his majority opinion…

Well, hang tight, as the panel will render its decision in the early portion of next year. From that, we’ll get more guidance about what that court thinks is needed to satisfy Art. III standing requirements…

We have some phenomenal judges, such as Judge Lucy Koh in the N.D. of CA in the 9th Circuit. She recently decided the Matera v. Google case, which laid out a clear, incredibly thoroughly reasoned opinion indicating why specific allegations are substantive violations. As such, these violations give rise to sufficiently concrete and particular injuries in fact. Stay tuned for a more detailed analysis of her 9/23/16 order. I hope to write more about that case here as I reflect on the year’s developments in privacy law.

I will also write more about this a couple of recent cases out of the E.D. Va, including my insights regarding Thomas v. FTS, which lays out some strong arguments that a statutory damages class action attorney may want to crib. A fun but rocky ride ahead of us is guaranteed…

Post Spokeo: Data breach class actions see vastly different results

In Joan Longenecker-Wells v. Benecard Services, Inc., plaintiffs were employees who learned that their personal information, including date of birth, social security number, addresses, etc. which resulted in fraudulently filed tax returns. The Third Circuit dismissed the Plaintiff’s claims, stating that their negligence claims were barred by the economic loss doctrine. The Third Circuit explains:

The District Court held that because Plaintiffs’ negligence claim sounds only in economic loss resulting from the fraudulent tax returns filed with their information, the economic loss doctrine bars their claim. We agree.

Food for thought. Eh? Can we say that a plaintiff, who experiences this grave injustice of losing the benefit of a 5 figure tax return is only sustaining economic loss. I would think that the experience is emotionally draining if not traumatic to know that a fraudster has exploited your key identifying data to extract money that was owed to you.

In contrast, we have Taylor v. Spherion Staffing LLC, et al. No. 3:15-cv-2299 (N.D. Ohio 2015), Ernst v. Dish Network, LLC, et al. No. 1:12-cv-8794 (S.D.N.Y May 27, 2016); Hillson et al. v. Kelly Services, No. 2:15-cv-10803 (E.D. Mich. June 8, 2016). These cases settled and involved allegations of statutory violations. Keep in mind that Spokeo left open the possibility that a statutory violation may involve a sufficient risk of harm to satisfy the concreteness requirement. Thus, settlement may have presented a more attractive alternative than extended litigation about the sufficiency of alleged harms.

Note: This blog post is republished from my Privacy Law Diva blog.

Why all parents should care about Data Privacy for their families. #PrivacyAware

Jan. 28, 2016 is Data Privacy Day. Let's do what we can to defend our children's privacy.

Jan. 28, 2016 is Data Privacy Day. Let’s do what we can to defend our children’s privacy. #PrivacyAware

Today, January 28, 2016, is Data Privacy Day.  Big deal? It actually is: The first Data Privacy Day that occurred in the United States and Canada was in 2008, which was observed as an extension of the Data Protection Day celebration in Europe. Data Protection Day commemorates the Jan. 28, 1981 signing of Convention 108, which was the first legally binding international treaty dealing with privacy and data protection.

Now led by the National Cyber Security Alliance (NCSA), Data Privacy Day has become the signature event promoting privacy awareness. Without committed defenders of privacy, like the Electronics Frontier Foundation, we would not have seen a complaint filed with the FTC against Google for unauthorized collection of school aged children’s information, when they are using Google Apps and Chromebooks in their schools. Google’s unauthorized collection of personal information from school children via Chromebooks and Google Apps for Education (GAFE)—caught the attention of Senator Al Franken, a ranking member of the Senate Judiciary Subcommittee on Privacy, Technology and the Law. Franken responded by writing a letter to Google CEO Sundar Pichai asking for information about GAFE’s privacy practices.

The first step to ensure that our student privacy campaign succeeds, is to educate ourselves as parents. This way, we can direct our energy and knowledge effectively. On this Data Privacy Day, take the time to check out the resources that the Electronic Frontier Foundation compiled to regain control of your children’s privacy. Please spread the word about student privacy by sharing these and similar resources with other parents!

I can’t emphasize enough how important it is that parents understand their and their children’s rights. We live in a world where parents may be asked by schools to waive those rights before their youngsters are permitted to use technology in the classroom. Third parties will too often encourage parents to give schools consent to release their children’s information to those very third parties.

Interested in becoming part of the “privacy defender team?” There are many ways in which you can get involved.

NOTE: This blog post is republished from my PrivacyLawDiva blog post.

 

Brad J. Moore takes the helm as Public Justice President

SKW partner Brad J. Moore is ready to lead the nation's largest public interest law firm into 2016.

SKW partner Brad J. Moore is ready to lead the nation’s largest public interest law firm into 2016.

“I was meant to be a part of this place.”

That’s how Brad Moore, the newly elected President of the Public Justice Foundation, described the natural fit he sees between his work as a trial attorney and his commitment to Public Justice’s work.

Noting that his firm – Stritmatter Kessler Whelan – “has done three cases with Public Justice over the years,” Moore says that “The work that Public Justice does is right up my alley.”

The road leading to his year-long Presidency at the organization’s helm, which has just kicked off, began as early as Public Justice itself. He was introduced to the organization through his law partner and mentor, Paul Stritmatter, who is a founder of Public Justice. That, in turn, led to a close friendship with former president Jack Landskroner, who guided Moore on the path to his current leadership position on the board.

A career as a litigator, however, wasn’t always a sure thing.

Moore grew up with a lawyer for a dad (who would later become his law partner), and a mom who served as Majority Leader in the Washington State House of Representatives. His own journey to the law began, in part, as a tour guide through the Canadian Rockies. Moore led over 50, eight to ten day motorcoach tours throughout British Columbia and Alberta, and his stint as a tour guide revealed how comfortable he was with talking and engaging with people of varied backgrounds. As a result, “talking with and in front of jurors has come somewhat natural to me,” he says.

That, along with an influential Philosophy of Law class in college, led to Moore becoming a passionate advocate for insureds and consumers, injury victims and victims of defective products. His work fighting for those seeking justice makes him a perfect choice to lead Public Justice.

In addition to guiding Public Justice’s existing work in the States, Moore says another priority for his tenure as President will be finding ways to build relationships and associate with Canadian lawyers to pursue high impact public interest lawsuits in Canada.

“The things we care about as a public interest organization here in the States, Canadians also care about,” he notes. “Canadian trial attorneys are fighting so many important battles that are the same as we’re facing here: environmental degradation, preserving access to civil justice and civil rights advocacy, like this year’s Trial Lawyer of the Year finalist from Nova Scotia.”

“That’s why I’m looking into how we can create a strong presence up there.”

Reaching out across borders is another talent that comes naturally to Moore. Outside of his work and home in Seattle, he also has a home in Thailand. He has been fascinated by Southeast Asia since his first trip to the region in the mid-1980s, during which he became one of the first Americans to enter Vietnam following the end of the war.

Now Moore, who succeeds Esther Berezofsky as President of Public Justice, will turn that same passion for reaching out, building alliances and fighting for justice to his new role leading the organization into 2016.

NOTE: This article was republished from PublicJustice.net.

The Best at Closing the Doors of Justice: Hall of Hypocrites

While amusing at first glance, the milestones and goals of these “honorees” of the Hall of Lawsuit Hypocrites deserve ruthless scrutiny. Take a closer look at each of those listed in this hall of infamy.

he Hall of Hypocrites features corporations and others who have worked hard to close the courthouse doors to ordinary Americans.

The Hall of Hypocrites features corporations and others who have worked hard to close the courthouse doors to ordinary Americans.

Know this before skipping over the fine print

As consumers, we are constantly asked to sign agreements with our cell phone provider, a credit card company, a cable company, an ecommerce merchant, etc. Before signing these agreements, we are typically asked to agree to the terms and conditions of the agreement. These contracts of adhesion now have standard forced arbitration clauses. So what? Well, watch this brief documentary, which will open your eyes to how corporations are warping the justice system against consumers with forced arbitration.

As Paul Bland, Executive Director of Public Justice explains in the documentary’s companion article, forced arbitration has thwarted the justice system in our country. Replacing the public justice system that our founding fathers developed and envisioned, consumers are now thrust into a for-profit system rigged in favor of corporations. As I wrote in a previous blog post,  AMEX v. Italian Colors was a devastating decision, which now allows the Federal Arbitration Act to override virtually any other statute. Merchants like the small town restaurant owner of Italian Colors are bound to forced arbitration clauses:

Before this decision, SCOTUS said that courts should only enforce arbitration clauses where a party could “effectively vindicate its statutory rights.” However, with American Express v. Italian Colors, a majority (composed of the five conservative justices) held that the arbitration clauses are enforceable even if doing so makes it impossible for a plaintiff to actually vindicate its statutory rights.*

Lost in the Fine Print

 

*Excerpt from blog post July 2013 blog post.

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