ThePopTort

Occupy Wall Street vs. Erin Burnett and the NYPD

I’m glad someone else caught CNN’s new celeb “anchor du jour” Erin Burnett offering a “condescending and reductionist” analysis yesterday while covering the Occupy Wall Street movement.  Of course, it isn’t the first time this ex-Goldman Sachs/Citigroup employee used her TV perch to serve as a mouthpiece and apologist for Wall St. abuses, but at least people are noticing. 

Speaking of Occupy Wall Street, which is marching today along with at least 15 major unions not too far from ThePopTort’s offices in Lower Manhattan, a group of them have now filed suit against New York City and the NYPD for tactics used in arresting 700 peaceful protesters on the Brooklyn Bridge last weekend.   

A lot of people have been taking note of how the NYPD has been handling this protest, which is mostly taking place in an area that has been a virtual police state since 9/11 - just between the World Trade Center and the New York Stock Exchange.  We know.  We used to work a couple blocks away.  (Just forget trying to cross a street without navigating block-long barricade.)  While the NYPD has been getting lots of media attention for their anti-terrorism work, they’re also getting tons of attention for their abuses.  And it’s not just the Occupy Wall Street protestors or the city’s Muslim community that has grounds to complain.  

As we wrote in June,

[New York City] paid out $135 million to settle claims made against the NYPD last year - a soaring 71% jump in settlements against the department from a decade ago.

The surge - part of a half-billion dollars paid out by the city - included $56.4 million for alleged police misconduct, including excessive force and false arrest, an analysis by City Comptroller John Liu found.

Advocates said the number marks a disturbing trend: in 2003, Mayor Bloomberg’s first fiscal year in office, the city paid out $68 million in NYPD tort claims.

“This number and the increase over past decade cry out for close monitoring of the police,” said Donna Lieberman, head of the New York Civil Liberties Union.

“The NYPD’s hyper-aggressive tactics create a situation that is ripe for litigation,” she said.

And as we also noted, the solutions to this “pay out” problem lie not with taking away people’s rights but with reducing the misconduct that leads to claims in the first place.  Lets hope it doesn’t escalate now.

 

The Private Hell of Military Contractor Employees

This week, it’s “Mission Accomplished” for private military contractors in Iraq and Afghanistan.  No silly, not actual military accomplishments.  (Fool me twice, shame on me, right?)  This has to do with what’s apparently the other mission of these private miliary contractors – to mistreat their workers. 

This week, ProPublica reports that “private contractors injured while working for the U.S. government in Iraq and Afghanistan filed a class action lawsuit” against private contracting companies and their insurers for refusing their medical treatment and disability payments.  They say that in order to boost profits, companies like insurers AIG and contractor KBR “routinely lied, cheated and threatened injured workers, while ignoring a federal law requiring compensation for such employees.” (See the earlier investigation by ProPublica, the Los Angeles Times and ABC’s 20/20). 

Hundreds of thousands of civilians working for federal contractors have been deployed to war zones to deliver mail, cook meals and act as security guards for U.S. soldiers and diplomats. As of June 2011, more than 53,000 civilians have filed claims for injuries in the war zones. Almost 2,500 contract employees have been killed, according to figures kept by the Department of Labor, which oversees the system.

And speaking of KBR, this week a federal judge slammed KBR’s revolting attempt to force Jamie Leigh Jones to pay them $2 million in attorneys fees after Jamie failed to win her rape case against one of her KBR co-workers in Iraq.  She lost even though she was unconscious (due to drugs or alchohol, what’s the difference?) during a sexual encounter that her alleged attacker says was “consensual.”  (Sound familiar?)  However, although the judge clearly didn’t want to do it, he was forced by statute to order her to pay KBR $150,000 in court costs.  He stated in his order, “The fact that Jones presented prima facie claims of sexual harassment and hostile work environment highlights the impropriety of an award of attorneys’ fees in this case.”  Of course, the hostile work environment for women at this company could hardly be more clear but the jury never heard about it.  And you wonder why she lost? 

So after assassinating her character and getting away with not having to defend itself for what they put Jamie and other women through (check out the film Hot Coffee for more about Jamie when the DVD comes out in November), KBR and its corporate lawyers now want her to pay them money.  This is reprehensible on so many levels, but we like how Gawker put it:

In July, Jamie Leigh Jones lost her federal civil trial against KBR—one of America's most capable government contractors—when a Houston jury determined that her coworkers had never drugged, raped, and shoved her into a shipping container. Or maybe they had, but she'd been asking for it—you know, like KBR said.

Originally KBR had asked for $2 million from Jones, an IT worker whose claim stemmed from an incident that allegedly took place in Baghdad in 2005 (you can find the complaint here). But the presiding judge dropped attorneys fees from her bill, so now all she owes is $145,073.19—money she reportedly does not have, this being America. (I bet you $145,073 that KBR would quibble over the 19 cents.)...

[This is] the result of KBR taking advantage of its right under the federal Civil Rights Act to collect from Jones. However, the company could have decided against pursuing the costs (because they're already super-loaded), or possibly sought to recoup them from the government (because having taxpayers foot the bill for corporations is how we do business).

Concepcion v. AT&T – Here’s the Good News!

There’s been a lot of analysis of the disastrous impact of the Supreme Court’s 5 to 4 Concepcion v. AT&T decision yesterday (here is the 39-page opinion and here is Scotusblog), which allows corporations to ban class actions via what are now industry-wide, anti-consumer mandatory arbitration clauses.  The Court ruled that the Federal Arbitration Act barred states from protecting their own residents from these horrendous arbitration clauses.  Andrew Cohen at The Atlantic put it this way:

Suffice it to say that the Court's decision completely defies the very federalism principles which are so often articulated by the very conservative members who agreed Wednesday to strike down a state's effort to level the consumer playing field for millions of its residents. This is as big a pro-business, pro-corporate ruling as we've ever seen from the Roberts' Court -- and it will take explicit Congressional action to overturn it. 

That is just way too depressing, so we decided to search around for some good news in all of this.  First, we found a quote from corporate lawyer Sonya Winner at Covington & Burling, the law firm which used to funnel tobacco money into the "tort reform" movement and now houses the similarly anti-civil justice spokesperson, partner Phil Howard.  Yes, she says,

She spent the morning thinking about new strategies, including bringing arbitration back into matters where it was off the table. She estimated that about 80 percent of the matters she's worked on this week are affected by the new rule.  She doesn't expect this to be the end of class actions, though. ‘I didn't call the business committee to say I need a new practice area,’ she said with a laugh.”

 Oh ha ha.  The class action defense lawyers think they still have jobs!  But that’s something, right?

Then, there is Congress.  Once again, it’s their job to fix some terribly misguided thing that the Supreme Court did.  Unfortunately, Congress doesn’t have a great track record on that score.  They still haven’t fixed the Medtronic decision, where the Court immunized the medical device industry for implanting dangerous devices that kill or injure people.  But that effort didn’t have what this one does – Sen. Al Franken!

Luckily, Senator Franken, who actually has a great track record persuading Congress to outlaw unfair arbitration agreements, is taking the lead on this one, too.  Responding to yesterday's decision, “U.S. Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) and Rep. Hank Johnson (D-Ga.) said today they plan to introduce legislation next week that would restore consumers' rights to seek justice in the courts. Their bill, called the Arbitration Fairness Act, would eliminate forced arbitration clauses in employment, consumer, and civil rights cases, and would allow consumers and workers to choose arbitration after a dispute occurred.”

And there’s even more good news!  Daniel Fischer for Forbes wrote this:

Contained within the sprawling law regulating the financial industry is Section 1028 ordering the new Consumer Financial Protection Bureau to study such arbitration agreements with an eye toward banning provisions it deems “anti-consumer.” Given acting CFPB Chair Elizabeth Warren’s views on the ability of consumers to understand complex financial agreements, it’s a safe bet the new agency won’t think highly of class-action waivers or binding arbitration agreements at all.

I’m feeling better already.

Dirty Companies Pay Up

We are glad to report that the residents of Spelter West Virginia may finally get some relief after living near a dirty zinc smelter for far too many years.  DuPont has agreed to a settlement “valued at $150 million” for the community.  According to the Charleston Gazette, “In the late 1980s, federal environmental officials began investigating the site.  DuPont got involved, eventually repurchased the smelter and steered the cleanup toward the state Department of Environmental Protection's voluntary program, rather than the more stringent federal Superfund program.”  Meanwhile, people’s health continued to suffer.

Bloomberg reports that “residents sued DuPont in 2004, claiming exposure to toxic substances from the smelter. They pursued the case as a class-action, or group, suit for owners of about 3,000 properties, as well as about 8,500 people.”

According to the settlement, “DuPont will pay $70 million and fund a 30-year medical testing program estimated to cost $80 million in a deal that still faces a review by 8,500 area residents and needs the approval of Harrison Circuit Judge Thomas Bedell.” 

(By the way, the state Supreme Court had already cut down punitive damages by 40 percent, ruling “in a major new point of law - that punitive damages may not be awarded to plaintiffs who are seeking future medical monitoring costs because of past toxic exposure.”  And the case was headed towards a new trial over statute of limitations issues.) 

Notably, “The proposed deal comes six years after DuPont agreed to a $107.6 million deal in a medical monitoring case filed on behalf of thousands of residents whose drinking water was polluted with the toxic chemical C8 from DuPont's plant in Wood County."

Meanwhile, an “Oklahoma company that makes specialty chemicals used in paints and other products has agreed to pay $270 million for cleanup of contaminated sites in 22 states. Tronox Inc. agreed to the payments as part of a bankruptcy settlement announced Tuesday."

The Wall Street Journal reports,

The settlement agreement, filed in Manhattan bankruptcy court, will create five environmental response trusts. A multi-state trust will take control of 25 contaminated properties in 14 states and will perform or fund cleanup at more than 1,800 potentially contaminated former service station properties. The other trusts focus on fewer sites.

Tronox filed for Chapter 11 protection in January 2009. In August of that year, the U.S. filed claims against the company in bankruptcy seeking to recover past and future environmental cleanup costs and other damages. The U.S. also sought civil monetary penalties for violations of the Clear Air Act and the Clear Water Act, as well as other environmental laws.

Tronox is “one of the world's largest producers of whitening pigment.”  Talk about dirty whites.

AT&T Mobility vs. Concepcion and How the U.S. Supreme Court May Ruin the Movies

In January 2006, production started on the Oscar-nominated George Clooney movie Michael Clayton, a film about a corporation’s violent reaction to a class action lawsuit filed by sick people over health effects from one of its lethal pesticides.  Of all the issues raised by that film, I’m sure that the last thing anyone – including George Clooney, one of Hollywood’s most politically-aware actors  - would imagine is that class actions themselves may be on the path to extinction in America. 

In fact, just months before production started, Congress passed a dreadful corporate-back bill, the intent of which was to severely limit class actions in this country and may have even knocked out this very case.  (Oh and by the way, the Republican bill passed with the sad support of a few Democrats like then Sen. Barack Obama  - a vote to which few “progressives” paid attention in 2008 but they should have because it explains a lot.)

Next week, the U.S. Supreme Court hears argument in a case that could strike an even more deadly blow to this critical tool for justice.  The case is AT&T Mobility vs. Concepcion, and in the Los Angeles Times today, columnist David Lazarus writes,

The basic question before the court is whether companies can bar class actions in the fine print of their take-it-or-leave-it contracts with customers and employees.

High courts in California and elsewhere have ruled that class-action bans are unconscionable and contrary to public policy.

In other words, unless the court rules against AT&T,

any business that issues a contract to customers — such as for credit cards, cellphones or cable TV — would be able to prevent them from joining class-action lawsuits.  This would take away in such cases arguably the most powerful legal tool available to the little guy, particularly in cases involving relatively small amounts of money. Class-action suits allow plaintiffs to band together in seeking compensation or redress, thus giving substantially more heft to their claims.

For more, see the Alliance for Justice’s great new report, AT&T Mobility v. Concepcion: Will the Supreme Court Give AT&T a License to Steal?

Class actions are a critical tool used by everyday Americans to deter violations of individual rights and corporate misconduct involving product defects, financial fraud, toxic pollution, civil rights violations, and other abuses. They are vital for permitting consumers to gain access to the courts where a company may have profited by defrauding large numbers of people.  

But if that doesn’t grab you, just imagine a world without great legal dramas like Michael Clayton and Erin Brockovich (which of course was based on real life) and start looking forward to more Howard the Duck sequels.

Struggling Underground in New York City

David Letterman once said, “Everyone has this sense of togetherness right now. For example, one guy on the subway today, he wanted to share my pants.”  

If you are a New York City subway rider, you know that sometimes after big national events (like 9/11), everyone suddenly becomes really friendly, helpful, and not bothered by the daily annoyances that normally trigger a lot of complaining.  But that doesn’t last too long.  For the most part, the subway experience drives a lot of people a little crazy. 

New York Times columnsit Clyde Haberman had a piece a few weeks ago arguing that a few slight improvements could make every subway rider’s day-to-day life far more pleasant - like silencing screaching alarm bells, keeping doors open a few seconds to allow transfers betweent trains, better signage, and just more garbage cans. 

As bad as things seem for most of us, though, these minor problems are nothing campared to what people in wheelchairs face trying to use New York City subways at all.  I honestly don’t know how they do it, and now it turns out, many can’t. 

The New York Daily News reports that today, the United Spinal Association and Disability Rights Advocates have  filed a class action suit in Manhattan against New York City's Metropolitan Transportation Authority “for not spending a federally mandated 20% of station rehabilitation budgets on improvements like elevators and ramps.”   United Spinal Association's senior vice president James Weismann says:

"Without access to the subway, the MTA makes travel next to impossible for New Yorkers with physical disabilities and prevents them from getting to work or seeking employment.

"The authority's bus and subway division is in the early stages of a $20 million overhaul to the Dyckman St. station on the No. 1 line in northern Manhattan, but it hasn't allocated any funds to making it handicapped accessible, in violation of the Americans with Disabilities Act.

"The need for accessible subway stations is even more critical because the authority eliminated or scaled-back dozens of bus routes to help close a budget gap earlier this year."

The MTA is also applying a stricter interpretation of who is eligible for its door-to-door van service, Access-A-Ride.

C'mon, MTA, was that really necessary?

B is for Bastards and Other Hot News

Lots of interesting non-election stuff in the news, too!  Here’s a little review:

Reuters reports, “A new survey of primary care practices in North Carolina shows nearly one in six patients believed their physician had made a wrong diagnosis or a treatment error, and about one in seven said they had changed doctor as a result.… [E]ight percent said they had experienced ‘a lot’ or ‘severe’ harm from the perceived mistake in care."

Meanwhile, a new study by Carnegie Mellon University researchers found that “telling physicians they shouldn't accept gifts from drug companies is all well and good.  But convincing them that doing so is wrong is another matter... [P]hysicians rationalize such gifts as payback for all the sacrifices they made to get their education -- although they may not realize they're doing it.  The attitude, the researchers said, is one of ‘because I'm worth it.’” 

Here’s another thing some docs may think they’re entitled to do: branding body parts. Smoking Gun reports, “After performing a hysterectomy last year, a California gynecologist used a cauterizing tool to brand his patient’s name on her removed uterus, an unorthodox move that the doctor calls a ‘friendly gesture,’ but which the woman terms ‘despicable conduct’ in a medical negligence lawsuit.”

As for one of the medical establishment’s best “tort reform” allies, the tobacco industry, they’re having a good day thanks to Supreme Court Antonin Scalia, who granted their request to block “a state court order requiring tobacco companies to pay $270 million for a smoking cessation program in Louisiana.”  We’ll see what happens when the full court gets its hands on this case – a class action that the tobacco industry lost.

And now that we’re on the topic of doctors and tobacco, Texas Magistrate says that Texas' brutal, anti-patient tort reform law, which “capped medical liability for non-economic damages at $250,000, doesn't violate victims' constitutional rights.”   Yeah, the business and medical lobbies took care of that by getting the constitution changed first. 

BP oil fund administrator Ken Feinberg has changed his tune on ruling that certain businesses are ineligible to submit claims based on “proximity.”  That may seem like a victory for some, but not so fast. Check out Olbermann’s Worst Person’s segment last night on MSNBC, skewering BP and its new chief executive, Bob Dudley, over their recent courtroom shenanigans.  Read, or watch, below:

BP's court filings say the fishermen, seafood processors, hotel owner, restaurateur, oyster farmers and the like must first apply to relief from the official BP compensation fund, that they must play that game of bureaucratic red tape before they can begin to sue. Even the lawyers are saying they should wait until next March before which test cases should proceed to trial and which should not. That's moving too fast for BP and now we know why.  BP agreed to the $20 billion fund. Because it buys them time for the public to forget, for the remaining oil to dissipate, for them to potentially lose internal memos and e-mails and text messages and other evidence of their culpability, and especially time for the victims to run out of money with which to pay their lawyers. Bob Dudley of BP, never did figure out what the P really stands for. But the B is clearly for bastards, today's worst person in the world.

Visit msnbc.com for breaking news, world news, and news about the economy

Huff Post Repost: America Wakes Up to the Importance of Liability and the Stupidity of “Caps”

Teachable moments can come almost anytime, from anywhere. The recent history of corporate and professional breakdowns and mess-ups should provide a number of them. Bob Herbert raised the issue in a stinging New York Times column recently when he asked, "Will we learn anything from this disaster ...?" BP was his focus but also on his mind was "how the giant financial firms almost destroyed the American economy" and the "devastating mine explosion in West Virginia -- at a mine run by a company with its own hideous safety record ..."

We'll add to that list the Toyota debacle, drug companies marketing contaminated childrens' medications, builders who pushed defective Chinese drywall into thousands of homes, Delaware doctors who covered-up a pedophile pediatrician who raped children, not to mention more and more dangerous hospitals everywhere. What a couple of months.

Keep reading.

Cases Move Forward in that Other Southeast U.S. Environmental Catastrophe – Chinese Drywall

The last time we covered the Chinese Drywall “hot mess," the Deepwater Horizon oilrig occupied nary a nanosecond of brain power for most people.  Of course, now our collective brains are hurting pretty badly over that.  Incredibly, what is happening in the Gulf is just the latest environmental calamity to hit the southeast recently– and I’m not even talking about hurricanes. 

We like to talk about Chinese Drywall because it highlights so very well the important role that civil courts and good trial lawyers play in getting not-so-easy-to-come-by justice for people.

Bloomberg reports that so far, over 2,100 people are plaintiffs in coordinated nationwide federal drywall litigation and the New Orleans judge overseeing it said that USG (“North America’s largest maker of gypsum wallboard”) and Germany’s Knauf Group "are among about 1,000 defendants” that may face claims.  That should help residents in their quest for justice and compensation.  He also said that “as many as 40,000 plaintiffs may bring claims,” which gives one a sense of the breadth of this problem.

And in Florida, a drywall case received the first-ever class action status.  It’s a smaller case, involving “152 families from three Homestead neighborhoods,” but a very important one.  A Miami New Times blogger put it quite well:

For the first time in the nation, a Miami judge this morning certified a class action lawsuit against distributors and manufacturers of the toxic drywall.

The class action suit is limited to a single subdivision in Homestead, but lawyers say the judge's decision could be an important precedent for thousands of other victims.

"Now that we've established the precedent that there is a defective product with a common source, we can start to expand on the victory," says Victor Diaz, the lawyer representing the Homestead couple who brought the lawsuit.

…

Diaz also sits on the steering committee of the large federal case seeking a class action suit, which sits in New Orleans' federal court. He says the Miami ruling -- issued by Circuit Court Judge Joseph Ferina -- could help the federal judge in Louisiana authorize a nationwide class-action.

"This was all about testing whether these cases could be brought on as a class-action and we won a big victory today," he says.

Hang in there, southeast!

Farm Justice

Civil rights and farmers.  These are not terms you often hear in the same sentence but thanks to years of relatively recent discrimination by the United States Department of Agriculture, they are forever linked.  

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.”  But as the St. Petersburg Times reports,

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.

In January, the administration announced a $1.2 billion agreement to settle the claims against the USDA, one of the biggest civil rights settlements ever. Congress was given a March 31 deadline to approve the funds. Lawmakers conveniently left Washington on March 23 for a two-week break, thereby missing the deadline for approving the funds.

CNN reports that “Congress now has a target date of the end of May to come up with a plan. The problem is that under new federal PAYGO rules, Congress must balance any increased spending with equal savings elsewhere. The other option would be to designate the settlement as an emergency, which would be exempt from PAYGO.”  (See more coverage here.)  But the Administration has told the farmers that this situation “does not meet the administration's criteria to be designated as an emergency.”

CNN commentator Roland Martin recently wrote,

It's understandable that Congress doesn't want to add more to the growing U.S. deficit, but what about the enormous opportunities denied to these black farmers for years by the same federal government? These men and women weren't asking for a handout. They were using their own hands to till land, grow crops, provide a way of life to send their children to college, and grow and prosper like every American. But it was clear racism that denied them of that opportunity. Thousands of dollars were provided for white farmers to build and grow, and if they received any money at all, hundreds were thrown their way.

This generation of Americans, when confronted with the past sins of racism, often remark that slavery and Jim Crow was so long ago. But we are talking about men and women who have fought a racist system in the last 20 to 30 years. They are the victims of racism, so why should Congress continue to deprive them by not setting the money aside?

Meanwhile, farmers continue to die off. John Wesley Boyd Jr., president of the National Black Farmers Association, has been relentlessly lobbying on this -  in between funerals.  He asks, “How many more eulogies will I deliver before we see some justice?"