ThePopTort

The New 9/11 Patriotism: Screw Over Rescue Workers

You may recall that for months after the 9/11 attacks, thousands upon thousands of people worked or volunteered on Ground Zero’s “pit”, generating both patriotic news bursts from the likes of Fox News, and tragedy for many of these workers who had already suffered quite enough, thank you.

I suspect that Fox News devotees are among the few members of Congress who showed their patriotic duty Thursday night by blocking aide ($7.4 billion for health care and compensation) for these same workers, now that it’s clear they’re sick and need help.

Failing to get these workers the help they need was not for lack of trying by a majority of the House, who were forced to use procedural rules to prevent a small number of bill opponents from trying to load the bill up with special interest amendments.

That meant two-thirds majority were needed to pass the bill.  They got a majority.  They didn’t get two thirds. 

To pay for this, the bill “would have prevented foreign multinational corporations incorporated in tax haven countries from avoiding tax on income earned in the U.S.”  No matter.  Critics decided to brand it anyway as “another big-government ‘massive new entitlement program’ that will raise taxes and kill jobs."   

So it’s back to the courts for these workers, who must decide by September 8 whether to accept a much smaller settlement.  Ninety-five percent of the 10,000 who sued must accept it for the settlement to take effect.  AP reports, “For weeks, a judge and teams of lawyers have been urging 10,000 former ground zero workers to sign on to a court-supervised settlement” totaling $713 million – far less than what a majority in Congress wanted.  That means, “Only the most seriously ill of the thousands of police officers, firefighters and construction workers suing New York City over their exposure to the dust would be eligible for a hefty payout.”

A lot of people from both parties were outraged by the House inaction, like New York City Mayor Michael Bloomberg, who said that “the nation owes more to ‘the people who worked down at 9/11 whose health has fallen apart because they did what America wanted them to do.’”

Ground zero demolition worker John Feal used considerable restraint when he noted, “Whatever member of Congress voted against this bill, whether Republican or Democrat, should go to jail for manslaughter.”

I have a feeling Congressman Anthony Weiner might agree.  Weiner, who championed the bill on behalf of many workers who live in his New York district, “spoke right before the vote when it was clear that Republican lawmakers would stake their opposition on grounds of procedural concerns. But for the grace of the C-SPAN cameras, he managed to stay physically behind his lectern.”   Check it out.

Sean Bell and Sherri Rasmussen - Civil Justice Remedies Police Violence

The anger which ignited the 1992 Los Angeles riots is frightfully similar to what many New York City residents felt after the acquittal of police officers who shot and killed Sean Bell in a hail of NYPD gunfire outside a strip club in Queens after leaving his bachelor party.  "The officers fired 50 shots in just a few seconds.  … Police said they believed at least one of the men had a gun, but no gun was found."

In both situations, a clearly exasperated public was left shocked and confused by a “not guilty” jury verdict returned in a criminal case against police officers.  When police officers are cleared of criminal misconduct in cases like these, however, the matter often does not end there. Sometimes, civil litigation against the perpetrators of police violence is the only way victims can receive justice, some form of compensation and move on.

New York City has finally settled the wrongful death and civil rights case over the shooting death of Sean Bell.  Of $7 million in total, $3.25 million will go to the estate of Sean Bell, $3 million to Joseph Guzman and $900,000 to Trent Benefield, both of whom were wounded.

In 2008, the three police officers were acquitted of manslaughter and other charges – an indication of how difficult it is to criminally prosecute police officers and why the civil justice system is so important.  Indeed, this is precisely what the judge in the criminal case said:

Justice Arthur Cooperman of New York State Supreme Court said inconsistent testimony and other problems "had the effect of eviscerating the credibility" of key prosecution witnesses, and that some testimony "just didn't make sense."

"The police response with respect to each defendant was not proved to be criminal -- i.e., beyond a reasonable doubt. Questions of carelessness and incompetence must be left to other forums," Cooperman said, according to a transcript released by his office.

Along a similar but somewhat different vein, this week, the parents of Sherri Rasmussen, who was beaten and shot to death in 1986 by a Los Angeles police officer – the ex-girlfriend of her husand - may finally get some justice for their daughter.  The officer, Stephanie Lazarus, “had repeatedly confronted and threatened Sherri Rasmussen before the killing.”  But because she was a fellow officer, the LADP failed to pursue obvious leads linking her to the crime. 

Instead, “over the next two decades Lazarus rose to the rank of detective. The case was eventually reopened, and last year Lazarus was arrested in the killing based on DNA evidence. Lazarus has pleaded not guilty and is in custody awaiting trial.”  

NFL Fumbles Concussion Data

In the last couple years, the dirty little secret of football brain injuries - concussions that cause brain damage and significant cognitive decline in players – has been kicked out of the closet.  It’s a significant problem, for example, diagnosed in all 12 former college and N.F.L. players of various ages that Boston University had tested for the condition.

In 2009, the NFL began a testing program of football helmets and concussions, but the testing was so corrupt (“poor methodologies” and “inherent conflict of interest” that were “not acceptable by any modern standards”) that all members of research group ultimately resigned “after strong criticism of their conduct from the House Judiciary Committee and outside medical experts.”

A new research committee was appointed and in June, two prominent neurosurgeons who chair it, “accused a fellow doctor of minimizing solid evidence of the dangers of football concussions” and “concurred that data collected by the N.F.L.’s former brain-injury leadership was ‘infected.’”  They made “clear they planned to chart a new course.”  Specifically, “The doctors said the old committee’s ongoing studies on helmets and retired players’ cognitive decline …would not be used in any way moving forward.”

But Friday, they went forward with it anyway, releasing these infected data, and claiming that based on them, “3 of 16 helmet models — two by Riddell, an official league licensee, and one by Schutt — had performed best in testing” yet insisting that these data "cannot be extrapolated to collegiate, high school or youth football.” 

But as the New York Times reports, “the public designation of three helmets as 'top performing' in tests thought to simulate only the highest 1 percent of forces to cause concussions, at a time when football head injuries are national news, led critics to fear that the safety of the nation’s four million youth football players would be compromised.”

“I believe that the document is accurate and that every word in it is true, but they imply something to the lay reader — namely that these top-performing helmets are safer against concussion,” said Dr. Robert Cantu, a senior adviser to the N.F.L. committee and director of the Neurological Sports Injury Center at Brigham and Women’s Hospital in Boston.

“It is recognized that helmets designed to work at high-impact forces, while efficient at protecting against skull fracture, are not necessarily effective at protecting against concussion,” Dr. Cantu added. “The danger in making this public is that even though it’s not stated, some people can infer and imply from this statement that the so-called top-performing helmets are safer.

“I fear that it will be used to market helmets to youth players. In reality, they may be more unsafe for the lower forces known to cause concussions, primarily in youth football.”

Dave Pear played in the NFL for six years as a defensive tackle between 1975 and 1980.  He broke his neck while playing and is facing hip replacement surgery in the very near future. Commentator Evan Weiner interviewed Pear recently:

"What they have done is create a myth," said Pear. "They have misled these young men telling them to be tough and work through injuries. Major League Baseball, the NBA and the NHL guarantee disability, pensions and medical their career. They (the NFL and the NFLPA) have convinced us that we do not deserve it. They have not allowed us access to our benefits which is not right and that has hurt players and players' families." …

Pear is of the opinion that Congress, a class action suit by former players and chipping away at the NFL's image are three areas where the retired players can make the most strides.

The class action suit demanding compensation for injuries would need a law firm with deep pockets willing to take on the NFL and would require players to step up and talk about their problems. It might be easier to find a law firm than getting macho tough guys to go public. There is still a stigma attached even in retirement for players who don't toe the company line.

Let's hope a trial lawyer is paying attention.

The Complicated Story of Shirley Sherrod, Tom Vilsack and the USDA

A funny thing happened to Agriculture Secretary Tom Vilsack on his way to repairing the USDA’s history of discrimination against African American farmers.  (There he is, all the way to the left.) 

As we all know by now, he erroneously fired black USDA employee Shirley Sherrod based on a videotape of a speech she gave that was doctored by a right-wing blogger, and which then hit the web and Fox News.  Apologizing to Sherrod and offering her job back, Vilsack said, “’This is a good woman; she’s been put through hell.  I could have done and should have done a better job.’” 

There may be no way to truly make amends to Shirley Sherrod, whose life’s work was trying to rectify discrimination (not to mention that of her husband, renowned civil rights leader Charles Sherrod.)  But I suspect she would want this terrible mess to be used as an opportunity to remind the American public of the larger story of USDA discrimination, which we covered several months ago here at ThePopTort.  It’s worth reviewing again.

During the early 1980s, several African-American farmers began a movement to try to force the USDA to stop discriminating against black farmers over “price support loans, disaster payments, operating loans and farm ownership loans.”

Nothing happened. Then, in 1997, Timothy Pigford, a North Carolina black farmer, filed a lawsuit against the USDA.…

In 1999, Pigford and about 2,000 other farmers in the class action settled for $50,000 apiece to avoid prolonged litigation. Thousands of other black farmers were unaware of the Pigford vs. Glickman class-action lawsuit and missed the deadline for filing. The USDA disqualified thousands of others. [John Wesley Boyd Jr.] led an effort, known as the Black Farmers Late Claim Bill, to ensure that some 80,000 black farmers would receive compensation.

Indeed, in May, the White House set aside $1.15 billion to help settle claims in conjunction with the Pigford lawsuit. 

Sherrod and her family were themselves part of this lawsuit “because of the land trust they started in the 1960s along with several other black families.”  Apparently, “complaints of discrimination began piling up after the Reagan administration shut down the department's civil rights division in 1983, and the lawsuit covered the years between 1983 and 1997.”

The Sherrods’ land trust -- New Communities – “was awarded $13 million, mostly for loss of land and loss of income and including $300,000 for the Sherrods, according to the Rural Development Leadership Network.”

Said Vilsack, “’We have been working hard through the past 18 months to reverse the checkered civil rights history at the department and take the issue of fairness and equality very seriously.’” 

Let’s hope the full story doesn’t get lost in the media chaos surrounding this teachable incident.  Moving forward. 

Lesbian Teen Sues, Wins and Changes High School Forever

Kurt Vonnegut once said, “True terror is to wake up one morning and discover that your high school class is running the country.” 

For most of us (except for Carrie here), that’s a pretty funny “ha ha” joke.  But also, except for 18-year-old Constance McMillen,  a lesbian whose rural Mississippi school (i.e., the Itawamba County School District) canceled its prom rather than allow her to attend with her girlfriend.  (She had also wanted to wear a tuxedo.)   Not only that, “they sent her to a fake prom while the rest of her class partied at a secret location at an event organized by parents.” 

She smartly brought the ACLU onboard and sued.  After a judge said her rights were violated, the school agreed to pay $35,000 for discrimination and harassment.  The school also agreed to a non-discrimination policy.

Constance said, “she thinks the case resonated with so many people because ‘prom is a common theme and everyone knows how it feels to want to go to prom.’”  Can't say that's necessarily true, but whoever does want to attend the prom certainly should have the right to bring whomever they want and to wear whatever they want.  And hopefully, the bullies and the mean girls stay clear.

The Curious Case of George McGovern

Yesterday, I received a direct mail piece on behalf of an outstanding and vital organization, the Southern Poverty Law Center.  The SPLC, based in Montgomery, Alabama, is a legendary civil rights organization, renowned for fighting hate groups and dismantling them, i.e. bankrupting them, with large civil jury verdicts.   We can’t imagine a more important function for the civil jury system than crippling hate groups.

SPLC is also well known for very effective direct mail fundraising, and this letter looked pretty interesting so I opened it. 

Why so interesting?  Well, right there on the envelope it said in large letters “George McGovern, Missoula, Montana.”  Sure enough, SPLC had gotten George McGovern to sign its direct mail piece, touting the group's monumental verdicts that have “crippled or bankrupted a dozen hate groups” like the “$7 million verdict against the United Klans,” and the “$2.5 million verdict against the leaders of the Imperial Klans of America.”  And now, I was really confused. 

For those who are younger than, say, 50, you may not remember George McGovern, the former Senator from South Dakota who was the anti-war Democratic presidential candidate running against Richard Nixon in 1972.  Still outspoken against the Iraq war and a strong advocate for addressing child hunger and poverty, George McGovern is what you might call a progressive’s progressive. 

Sounds like a perfect match for the SPLC.  Except for one little thing.  George McGovern has allowed himself to be used by one of the most anti-lawyer, anti-civil jury organizations in the nation, called Common Good.  In fact, he’s on its Advisory Board.  This group’s founder and intellectual leader - a corporate lawyer name Philip K. Howard (see his writings all over their site) has made a career of attacking laws, regulations, lawyers and lawsuits.  His most recent book, Life Without Lawyers, says it all.  As ThePopTort’s Andy Hoffman wrote in his review of this book:

In schoolyard terms, according to Howard, Americans have become a bunch of rule-following wusses, more concerned with staying out of trouble than "doing what’s right." The antidote? Tearing off the shackles of wussiness by doing away with rules, regulations, and most importantly, those pesky plaintiffs’ attorneys who might be inclined to enforce them.

Workplace discrimination lawsuits should be prohibited, says Howard, unless the employer discriminated against minorities as a group, not just against an individual.  That’s because in Howard’s world, allowing single plaintiff suits might result in a "chilled" work environment that would stifle "open interaction" between the races. Apparently, for Howard, it isn’t racism, but lawsuits that create society’s obstacles to "real integration."

Do not ask me why George McGovern is on the Board of this group, membership of which he shares with Newt Gingrich.  I suspect he probably has no honest idea either.  But don’t think Common Good and Phil Howard do not exploit his name at every opportunity.   

If George McGovern isn’t aware of this conflict, I’m hoping someone at the SPLC is.  Linking oneself to a group that has contempt for plaintiffs’ attorneys and thinks juries are too dumb to handle cases cannot be helpful.

Huff Post Repost: U.S. Chamber of Commerce Sells Out Small Businesses and Local Communities

Last week, a student walked into the offices of the South Carolina Small Business Chamber of Commerce, asking to see the organization's public 990 tax forms. Odd, thought Frank Knapp Jr., the organizations' president and CEO. There was nothing legally wrong with this request, of course. But this was the first time in 10 years that anyone had asked.

After a few polite questions, the student finally spilled the beans. He'd been sent from The McNair law firm, one of the most politically connected corporate firms in the state, and recently honored by Chambers USA, America's Leading Lawyers for Business. As Mr. Knapp wrote on his blog, "[the student] understood that someone from out-of-state had asked McNair to obtain information on us." Why would a Chamber-friendly law firm covertly send a student to collect information on a local chamber of commerce?

Keep reading.

Financial Reform Gives State Attorneys General New “Kick Butt” Powers –CJ&D Interns Discuss!

One of the financial reform stories not receiving all that much attention (except, we imagine, at U.S. Chamber of Commerce headquarters) is the grant of new authority to state Attorneys General to enforce parts of the new financial protection law.  (House Report 111-517, Section 1042 of the bill.) 

Of course, what Congress giveth, it also sometimes taketh away, adding, “Except as permitted under subparagraph(B), the attorney general (or equivalent thereof) of any State may not bring a civil action in the name of such State against a national bank or Federal savings association to enforce a provision of this title.”  And so on.)

But generally, the new enforcement powers are a great thing, and AGs think so too.   And we’re lucky to have anything, given that Sen. Tom Carper (D-DE) originally tried to wipe out these AG powers altogether.

Today, the Center for Justice & Democracy’s three summer interns talk about this whole deal – and more- with CJ&D’s Communications Director Alicia Young.  The interns are working on a groundbreaking new study examining federal consumer protection laws that grant state AGs enforcement power. They also discuss the importance of private counsel to aide the work of AG offices.  Check it out!

(Photo, L to R: Allie Curreri, Alicia Young, Warren Allen, Jacob Agron)

What’s Clogging the Courts? Debt Collections, That's What

Unless you’re about 200 years old, you probably don’t remember debtors’ prisons, given that the U.S. abolished them in 1833. At least that’s what we thought.

Two Minnesota legislators announced yesterday that they will be introducing legislation to deal with “a growing public concern -- highlighted in a continuing Star Tribune series, ‘Hounded’ -- that debtors are being sued for money they don't owe and, increasingly, jailed when they fail to appear in court.”   Apparently the paper found that “use of arrest warrants against debtors jumped 60 percent in the past four years, with 845 cases in 2009. Some debtors who were arrested said they were unaware they had been sued for their debts and were required to appear in court.”

All of this comes on the heals of an incredible report issued Monday from the Federal Trade Commission, Repairing A Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration, that found “that the system for resolving consumer debt collection disputes is broken, and recommends significant litigation and arbitration reforms to improve efficiency and fairness to consumers.” (text here)

The report “recommended that state governments toughen laws to reduce the number of unsubstantiated lawsuits against debtors. It called on states to require collectors to offer more proof of debts in their lawsuits, and to curb suits over debts for which the statute of limitations has expired.”

In addition, “The Commission vote to issue the report was 5-0. Commissioner Julie Brill issued a concurring statement in which she urged Congress to enact a temporary ban on the mandatory arbitration of consumer debt collection disputes. ‘Such a ban should remain in place until the arbitration process can be shown to be fair, transparent, and as affordable as traditional litigation, and until consumers have a meaningful opportunity to opt out of pre-dispute arbitration without losing access to the credit services they seek,’ she said.”

The Minnesota lawmakers have been pushing this issue for years, and believe – hopefully – that the FTC report will “strengthen[] the case for changing the law."

Also incredibly, the New York Times reported that debt collection law firms have been clogging the courts with these lawsuits.

The litigation boom has been propelled by fundamental changes in the way debts are collected, particularly for credit cards.… Collection law firms are able to handle such large volumes of cases because computer software automates much of their work.…  Once the data is obtained by a law firm, software like Collection-Master from a company called Commercial Legal Software can “take a file and run it through the entire legal system automatically,” including sending out collection letters, summonses and lawsuits, said Nicholas D. Arcaro, vice president for sales and marketing at the company. … Most consumers fail to show up in court, and those who do rarely have a lawyer.

…

Lawsuits are sometimes filed against the wrong people, critics say. Other times, they say, the amount owed is incorrect or includes questionable fees and interest that has been added to the balance.

So while debt collections are skyrocketing, personal injury lawsuits continue to drop.

Lawsuits Protecting Students

Some “tort reform” groups have built entire campaigns around liability issues in schools, lamenting (falsely) that lawsuits prevent teachers and principals from not only disciplining (or hitting) students, but touching them in “nice” ways, too.  (Like when Vincent L. Ferrandino, then Executive Director of the National Association of Elementary School Principals, complained in 1999, “A Kentucky principal told me how very concerned she and her staff are about touching students.… Today, at a time when children need adult attention more than ever, educators must keep their hands off.”) 

Hmmm.  The vast majority of teachers and principals would never engage in or condone the inappropriate touching students, of course.  But let’s talk about the fact that sexual abuse in schools does go on (some examples here), and is often covered up.

On Friday, an Illinois jury awarded $3.5 million to “the families of nine girls who say they were bound, gagged and molested by a Berwyn band teacher and then ignored by school officials when they complained of the abuse.”  The case was against both the former teacher, Robert Sperlik, and the former principal, Karen Grindle.

Sperlik is now in jail after pleading guilty to sexual abuse and “kidnapping of more than 20 girls, some as young as 9.”  But according to the jury verdict, the principal “knew about the abuse and intentionally hid information from authorities.”  Apparently, “ police found two letters of reprimand … that warned Sperlik to ‘quit doing inappropriate touching,’ officials have said.”  None of those concerns were forwarded to police or the Illinois Dept. of Children and Family Services. 

This is what can happen when school officials do not protect students – but lawsuits do.  More immunity for school officials?  I don't think so.