ThePopTort

Repost from 2012: The Unbearable Lightness of Being ... Unaccountable

You know how much I love quoting Ronald Reagan.  (Kidding.) (No offense, Tea Party friends.)  Here’s a good one: “We must reject the idea that every time a law's broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions.”

I’m guessing he believed that cigarette smokers, as one example, fell into that “individual accountability” category.  But what if the law breakers are the people who are supposed to be enforcing the law?  Should they be accountable?  Which brings us to last night’s 60 Minutes, and a couple other hot topics. 

The show last night was about the exoneration of Michael Morton, wrongly convicted of murdering his wife in 1987.  He was freed after 25 years in prison based on DNA evidence, thanks to the hard work of the Innocence Project. 

But, reports 60 Minutes, Morton’s attorneys, “recently discovered something astonishing: sitting in his prosecutor's file all those years was evidence that could have established Morton's innocence during his trial.”  That evidence was a police report, relating how Morton’s then 3-year-old son, who witnessed the murder, described in detail the guy who really killed his mother, and it wasn’t Michael Morton.  The DA who apparently failed to turn the report over to Morton at the time, Ken Anderson, later “was named prosecutor of the year in Texas and since 2002 he's been a district judge in the same court where Michael Morton was convicted. All those years, Morton languished in prison.” 

Here’s some of the conversation between 60 Minutes correspondent Lara Logan and Barry Scheck of the Innocence Project, and Logan and Anderson’s lawyer, Eric Nichols:

Lara Logan: So just to be clear, from both of you, you believe that Ken Anderson, the prosecutor in Michael's case, willfully, deliberately withheld evidence.

Barry Scheck: We believe that there's probable cause to believe that he violated a court order, withheld exculpatory evidence, and violated other laws of the State of Texas.

In February, a Texas judge agreed with Michael Morton's legal team that there was probable cause to believe Ken Anderson violated the law, and Anderson is now the subject of a special criminal inquiry. That's extremely rare. Studies have shown prosecutors are hardly ever criminally charged or disciplined for serious error or misconduct. And one thing Ken Anderson doesn't have to worry about is being sued for damages by Michael Morton because the Supreme Court has ruled that prosecutors have "absolute immunity" from civil lawsuits for their legal work.

Lara Logan: Doctors, lawyers, policemen, there are all kinds of people who do their job with limited immunity or no immunity. It just seems hard to understand why prosecutors have to have a different standard to everybody else.

Eric Nichols: Seeing that justice is done, in many instances, requires very difficult judgments. And to come back behind those prosecutors and second guess them, or sue them would throw a wrench into that system of prosecutors seeking justice.

Lara Logan: I have to say, there's a certain irony in hearing you say it's the job of a prosecutor to seek justice, right? Because in this particular case, that's exactly what Michael Morton did not get. …

Michael Morton: I don't have a lotta things really driving me. But one of the things is, I don't want this to happen to anybody else. Revenge isn't the issue here. Revenge, I know, doesn't work. But accountability works. It's what balances out. It's the equilibrium. It's the social glue in a way. Because if you're not count-- accountable, then you can do anything.

Pay attention, corporate and medical lobbies pushing for laws to limit their liability for wrongdoing, so-called "tort reform."  He's talking about you.  As Logan notes, accountability doesn’t just mean criminal accountability but also, civil liability - something we touched on last week in our post about how the civil justice system can sometimes step in where the criminal justice fails.  That is, except if the destructive, corporate-backed, right-wing American Legislative Exchange Council (ALEC) (which we’ve covered many times, like here, here, here) has anything to do with it. 

Paul Krugman's column in today’s New York Times, called "Lobbyists Guns and Money," hits it out of the park with a great piece about how ALEC is responsible for the spread of Stand Your Ground laws (among many other horrendous laws), which many believe not only contributed to the killing of Trayvon Martin but also, the failure by police to arrest his killer.  Writes Krugman:

Florida’s now-infamous Stand Your Ground law, which lets you shoot someone you consider threatening without facing arrest, let alone prosecution, sounds crazy — and it is. And it’s tempting to dismiss this law as the work of ignorant yahoos. But similar laws have been pushed across the nation, not by ignorant yahoos but by big corporations.

Specifically, language virtually identical to Florida’s law is featured in a template supplied to legislators in other states by the American Legislative Exchange Council, a corporate-backed organization that has managed to keep a low profile even as it exerts vast influence (only recently, thanks to yeoman work by the Center for Media and Democracy, has a clear picture of ALEC’s activities emerged). And if there is any silver lining to Trayvon Martin’s killing, it is that it might finally place a spotlight on what ALEC is doing to our society — and our democracy. …

But where does the encouragement of vigilante (in)justice fit into this picture? In part it’s the same old story — the long-standing exploitation of public fears, especially those associated with racial tension, to promote a pro-corporate, pro-wealthy agenda. It’s neither an accident nor a surprise that the National Rifle Association and ALEC have been close allies all along.

There’s a lot more in Krugman’s piece about the corrupting influence of corporate money behind ALEC’s work.  So where does civil liability fit into this picture?  Well, forget prosecutor immunity laws.  These Stand Your Ground laws turn everyday people into prosecutor, judge, jury, and executioner, and then immunize them not just from criminal prosecution but also civil liability.  Just like dirty prosecutors in Texas are protected.  Just like the corporate members of ALEC are protected from civil liability when they commit wrongdoing, thanks to laws written and pushed by ALEC's civil justice task force, chaired by our friend Victor Schwartz, the General Counsel of the American Tort Reform Association.  Here’s Victor, below.  As they say, everything’s connected.

Equal Pay Means Ending Forced Arbitration

When Lilly Ledbetter discovered she had been paid significantly less than her male counterparts for the very same work at Goodyear’s Gadsen, Alabama plant, she filed a lawsuit and was awarded more than $3 million by a jury. After the U.S. Supreme Court overturned the decision, ruling that Ledbetter had waited too long to file her case, Congress passed the Lilly Ledbetter Fair Pay Act, the first bill President Obama signed into law. This law supplemented other important federal laws passed by Congress to remedy pay discrimination, namely the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.

Yet today, the gender pay gap persists. Indeed, what could be more clear than the absurd situation that the victorious women’s soccer team finds itself, forcing them to file a lawsuit against the U.S. Soccer Federation. Specifically,

As of Sunday, the U.S. women's team has won four World Cups — more than any women's soccer team in the world. The men's team has won none. But according to the lawsuit from the women's team, male players stand to make nearly three times as much per game as women.  There's also a major pay gap in the prize money awarded by FIFA, the global soccer federation that oversees the tournament. The prize pot for the women's team this year was $30 million — compared to $400 million for last year's Men's World Cup. 

With their record-breaking World Cup performance, which attracted a viewing audience of 1 billion people (along with crowds chanting “Equal pay! Equal pay!”), this should not be happening. Just, fuggedaboutit!

But then consider the U.S. labor market generally:

… women’s median weekly earnings in 2018 were 81.1 cents for every dollar earned by a man. (The gap is bigger for women of color: Compared with white men’s median weekly earnings in 2018, Hispanic women earned just 61.6 percent and black women earned just 65.3 percent.) And it’s getting worse. According to data analysis from the Institute for Women’s Policy Research, the gender wage gap actually widened last year. And some researchers believe the wage gap could be much bigger than what’s reported now.

The women's soccer team and U.S. Soccer tentatively agreed in June to mediate the lawsuit once the World Cup was over, and we will see how far they get. But for the everyday female worker these days, things are substantially tougher. Once reason, for sure, is that the rights secured by those 1960s-era early civil rights laws are in jeopardy as a result of forced arbitration clauses and class action bans, found in most employment contracts. A whopping 56.2 percent of nonunion private-sector workers are now subject to these clauses and by 2024, it is estimated that more than 80 percent of the private-sector nonunion workforce will be bound by them. These clauses make private litigation against violators virtually impossible. They allow corporations and businesses to break the law and operate with impunity. 

In the New York Times article covering the World Cup win, reporter Andrew Keh wrote,

Few sports teams are asked to carry so much meaning on their shoulders, to represent so many things to so many people, as the United States women’s soccer team. Few athletes are expected to lead on so many fronts at once, to be leaders for equal pay and gay rights and social justice, to serve as the face of both corporations and their customers. Fewer still have ever been so equipped to handle such a burden, so aware of themselves, so comfortable in their own skin, as those American women.

I know it’s a lot to ask, but … after they succeed in the mediation room and force USSF to pay them what they deserve, may we politely ask one more thing of this amazing team: join the fight to end forced arbitration clauses and class action bans, so female workers at every level have a fighting chance at equality and justice. #EndForcedArbitration

The Meaning of Class Actions to Sexual Harassment Victims

In 2016, Valeant settled with 225 female sales representatives who had been subjected to “unwelcome sexually-charged ‘jokes’ and commentary, name-calling, and offensive stereotypical comments about women, pregnancy, and caregiving,” expected to drink alcohol, socialize with and tolerate sexual advances from co-workers, denied promotions and paid less than their male counterparts.

That same year, BAE Systems Norfolk Ship Repair settled with female shipyard workers for horribly discriminatory practices, which in addition to relegating women to lower-level jobs and denying promotions, also created a work environment where managers and supervisors often “shared or displayed sexual photographs at work while making sexual comments,” “frequently and regularly us[ed] the words ‘bitch’ and ‘whore’ to refer to women, and discuss what they did sexually with women, including graphic descriptions of sex acts.” Victims who spoke out faced retaliation and termination.

What did these cases have in common? They were both class action lawsuits. And both resulted in compensation for the plaintiffs and significant policy changes at those companies.  Medicis/Valeant agreed to pay class members $4.4 million and institute extensive new company training and protocols as well as fairer compensation and promotion processes. BAE agreed to $3 million in class relief as well as to “changes in workplace policies and procedures, including the implementation of relief addressing BAE’s hiring, promotion, training, and complaint investigation process.”

These and other cases can be found in the Center for Justice & Democracy’s newly-updated survey of recent class action settlements, First Class Relief 2017: How Class Actions Benefit Those Who Are Injured, Defrauded And Violated. The report updates CJ&D’s 2014 report, First Class Relief, and describes important class actions that corporations have settled in recent months for financial fraud and abuse, sexual harassment, discrimination, price-fixing and product injuries. In March 2017, the U.S. House of Representatives passed legislation that would make it impossible for class actions like these to proceed.

Now, on Wednesday November 8, the U.S. Senate Judiciary Committee is set to hold a hearing to examine so-called “lawsuit abuse.” The focus is apparently on whether the legal rights of individuals and small businesses to file class actions and other kinds of cases should be taken away. This comes just weeks after Congress took the extraordinary step of undoing the Consumer Financial Protection Bureau’s rule that would have allowed defrauded and cheated individuals to file class actions against financial institutions that violate the law, like Wells Fargo and Equifax.

Class action lawsuits are among the most important tools for sexually harassed, cheated and harmed individuals and small businesses to hold large corporations and institutions accountable and deter future misconduct. Voters did not send politicians to Washington DC to take away their fundamental legal rights. The House may not have quite understood that. We hope the Senate does.

Forced Arbitration Closes Out the Summer – Again!

While clearly so much has changed since the ThePopTort's last summer break, actually much remains the same.

Take the issue of forced arbitration and gender discrimination. Last year, we closed out the summer with Roger Ailes trying to force Gretchen Carlson’s sexual harassment lawsuit into private, secret “forced arbitration,” sparking outrage. (He eventually gave up and settled.)

This year - actually today as we write this - the importance of class action lawsuits to remedy systemic gender workplace discrimination is the topic of a powerful new New York Times op ed from Anita Hill, titled, "Class Actions Could Fight Discrimination in Tech.” As one reader wrote, “Anita Hill has earned her wisdom the hard way, and her advice should be taken seriously by women employed in the tech industry.” So heed these words:

The tech industry is stuck in the past, more closely resembling “Mad Men”-era Madison Avenue or 1980s Wall Street than a modern egalitarian society. It may take the force of our legal system to change that.…

We can’t afford to wait for the tech industry to police itself — and there are few indications that it will ever do so. …

Instead, women in the industry should collectively consider their legal options. Top among these would be class-action discrimination cases against employers.

The tech sector is not the first white-collar “boys’ club” to demand an industrywide correction. In the 1990s, Wall Street firms faced a slew of class-action discrimination lawsuits. Perhaps the most notable was the 1996 “Boom-Boom Room” case. A group of 23 women filed a class-action lawsuit against the Smith Barney stock brokerage firm, charging it with rampant harassment and gender discrimination. By the time Smith Barney settled the case for $150 million, nearly 2,000 women had joined the suit and helped expose a culture of sexism to the outside world.

As a result of this and other cases that similarly challenged systemic practices at other Wall Street firms, many of these companies now have more extensive human-resource policies addressing sexual harassment and gender discrimination. While pay and promotion discrimination still exists, more women on Wall Street are advancing in their careers to managing directorship and other leadership roles. The lesson of these cases is clear: Class-action lawsuits can force industrywide change, even in the most entrenched, male-dominated industries.

Women in tech no doubt have hurdles to bringing class-action lawsuits, including the requisite preponderance of statistical evidence and the prevalence of confidentiality clauses and arbitration agreements, which are, in effect, designed to pre-empt class actions. But this challenge doesn’t mean the suits cannot be brought, or won. This is a route that the women of Silicon Valley should consider, especially if regulation is not an immediate and viable solution.

Unfortunately in many cases, forced arbitration clauses mean that "suits cannot be brought, or won," which is why Gretchen Carlson has become so active and outspoken on the issue. Every industry is trying to using these clauses to duck liability and responsibility for breaking laws and causing harm. Now they are getting some help from the Trump administration. In fact, if you can’t get enough of forced arbitration this summer, do check out the Center for Justice & Democracy’s comments to nasty Trump agencies that want to force arbitration on abused and neglected nursing home patients and defrauded students.

• Comments Objecting to CMS Forced Arbitration Rule for Nursing Homes
• Comments Objecting to Department of Education Forced Arbitration Class Action Waiver Actions

Summer o’fun, what can we say?

Ponder all of that for a few weeks, loyal readers. We’ll be trekking around some mountain somewhere, hoping to forget the damage our President is doing, and hoping for a much better Fall (as in “season,” not “off the mountain”). You get it, right?  See you after Labor Day!

Fear Not, Sexual Predators, There’s a New U.S. Sheriff in Town!

You know what they say: the fish rots from the head down. And now that we have a sexual predator in the Oval Office, who hires other sexual predators to top posts, nothing should surprise us about the new direction of this administration.

Take the cases against the U.S. Department of Veterans Affairs and Mark Wisner, a former physician assistant at the Dwight D. Eisenhower VA Medical Center, who “is facing criminal charges of aggravated sexual battery.” Thirty-seven of his victims are suing him and the VA, but now, “the federal government is putting up an unusual fight against the suits given the circumstance.” According to one of the victims’ attorneys, “It’s rare in civil litigation to have a wrongdoer sitting in a jail waiting for his trial and then have the United States continuing to press a dissent.”

Then there’s last week’s Equal Employment Opportunity Commission settlement with Sterling Jewelers, which allowed the company to “settle federal civil charges accusing it of discriminating against female employees, reaching a deal without having to admit wrongdoing or pay any damages.” This is considered “a win for the company as it faces continuing legal challenges over its pay and promotion practices.”

Fortunately,

Sterling faces a separate class-action arbitration case from women who accuse the company of gender bias. Lawyers for the women in that case say the company regularly paid female employees less than their male counterparts and unfairly overlooked women for promotions and other opportunities. The case also accuses Sterling of fostering a culture in which sexual harassment was normal, although those accusations do not make up the basis of the suit.

In a statement, Joseph M. Sellers, the lawyer representing the women in the class-action arbitration, said the deal with the federal commission had no bearing on his case, which is expected to go to trial next year. Mr. Sellers said that “we very much look forward to getting justice for the victims and to forcing Sterling to enact meaningful reforms that will improve the working conditions for all Sterling employees.”

However, as we have noted in our earlier coverage of this case, this class action must be resolved in arbitration, not in court. So we will have to see what kind of justice is possible for these victims, given problems like secrecy, bias and the lack of appeal - problems that generally infect the forced arbitration process.

This all brings us to the curious case of federal prosecutors and former Fox News chairman Roger Ailes. Apparently, the U.S. Attorney’s Office for the Southern District of New York is investigating “whether Fox News Channel and its parent company tried to disguise a $3.15 million payment to a former employee who said she had a 20-year [consensual but a mentally abusive] affair with” Ailes. "The size of the payout is of less concern to the investigation than the manner in which it was accounted for,” specifically whether payments were made to “minimize their impact on Fox’s books.”

Just to refresh,

Ailes was pushed out in July after former Fox host Gretchen Carlson filed a sexual-harassment lawsuit against him, triggering a series of harassment complaints against Ailes by women who had worked for him. Carlson later settled with Fox for $20 million.

[Bill] O’Reilly was fired last month following a New York Times investigation that found he and Fox had paid $13 million to settle five harassment complaints by female employees since 2002. Both O’Reilly and Ailes have denied the claims against them.

The parent company has disclosed only the costs associated with the Carlson lawsuit. In an investor disclosure document filed Nov. 2, it said that it spent “approximately $35 million . . . related to settlement of pending and potential litigations” in the wake of Ailes’s resignation.”

Carlson has since become a very vocal and public opponent of the use of forced arbitration clauses in employment contracts, which keep harassment victims from getting into court.

I guess we will see if the White House cares as much about protecting Trump’s Fox friends as he did about protecting his own cabinet, which apparently led him to fire the original Southern District U.S. Attorney, Preet Bharara, in March. If they do, I’m sure they’ll think of something.

Airbnb: Tragically Hip

(With apologies to our Canadian friends, and you know who you are!)

Airbnb is at war with New York officials. Even though ThePopTort lives in New York, we take no official position on the law that the company is challenging in court because it’s not our fight. But we’ll make up for it here.

One of the biggest stories this election season is about “The Millennials.” A key observation about this generation can be summed up as follows: “Millennials seem to have a more refined radar for political BS talk—things that sound cliché and political get tuned out.” Although we’re not exactly Millennials over here, we do have our own BS detector and it works pretty well - especially when it comes to those who interact with the civil justice system. Let’s just say, Airbnb has loudly set if off.

We earlier addressed Airbnb’s hypocritical litigation behavior. Specifically, Airbnb requires its customers to waive their right to sue, or to join in any class-action lawsuit or class-action arbitration. These “forced arbitration” rip off clauses are so anti-consumer that the Consumer Financial Protection Bureau has proposed a rule to prevent companies (like banks and lenders) from imposing “class action bans” on customers. (Since then, the Center for Medicare and Medicaid Services has gone further with a rule to completely ban forced arbitration clauses in nursing home admission forms.) But Airbnb runs straight to court when its own rights need protecting (as they have done in New York.)

OK bad enough. But let’s drill down a little into how Airbnb’s hypocritical behavior is now being used to shut down application and enforcement of this nations’ civil rights laws at the same time the company tries to promote the idea that it cares deeply about civil rights. I don’t think so.

Here’s the problem, as described by The Consumerist:

In March 2015, a man named Gregory Selden was planning a visit to Philadelphia and signed up for Airbnb on his iPhone. He created his account and uploaded a photo of himself to the site. Selden, an African-American, then says he tried to rent a listed home from a host named Paul, only to have Paul give him the bad news that this room was no longer available.

However, Selden says that he soon noticed that this same listing was still posted as available to rent on Airbnb. Curious to find out if he’d been rejected by the host because of the color of his skin, Selden created copycat accounts under the name of “Jessie,” a white male whose profile was otherwise no different from Selden’s, and “Todd,” an older white male. Both accounts tried to reserve the same listing and same time period for which Selden had been rejected, and he says both fictional guests’ requests were accepted by Paul.

Selden claims that he repeatedly tried, with no success, to bring this incident to Airbnb’s attention, and so he ultimately filed a lawsuit [PDF], alleging violations of the Civil Rights Act of 1964 and the Fair Housing Act. He hoped to represent all Airbnb users who may have been similarly wronged.

I don't know if the case has merit but Mr. Selden and the class he represents have a right to be heard. However, in July, Airbnb moved to throw the case out of court based on the fiction that Mr. Selden “agreed to” (i.e., by clicking Airbnb’s non-negotiable terms of service) resolve all disputes in secret arbitration via the kind of clause the CFPB and CMS have found unconscionable. And yesterday, a judge used their argument to throw the case out of court, preventing any class action at all.

To understand how dangerous this development is, consider how critical class action lawsuits have historically been for proper enforcement of our nation’s civil rights laws. For example, read the amicus brief filed by the NAACP Legal Defense & Educational Fund, Inc. in the AT&T Mobility LLC v. Concepcion case or see this fact sheet. Gretchen Carlson knows something about this, too. (See here.) Just like Airbnb, Fox News and Roger Ailes argued for months that her sexual harassment case should be buried in secret arbitration and kept out of court. They eventually settled but Carlson is not keeping quiet about this. In a recent Time Magazine cover story, she said: “[F]orced arbitration … is a huge problem. Because it’s secret. And it plays into why we think that we’ve come so far in society and we probably really haven’t—because we don’t hear about it.”

One might imagine a hip tech company like Airbnb would respect their aggrieved customers’ civil rights enough to hear them out in a court of law (as Congress intended) instead of trying this issue in the media with an orchestrated PR campaign. But disrespect is what Airbnb customers are getting. Few media outlets covered Airbnb’s legal maneuvers to force Mr. Selden’s case into arbitration, but the company made sure that many covered its hiring of high-priced discrimination consultant, former AG Eric Holder (like here).  Holder may have a fine reputation in some areas but not when it comes to defending misconduct by corporate clients of his law firm, Covington & Burling. Covington also happens to be one of the principal architects of the “tort reform” movement, limiting the legal rights of everyday people who have been injured, cheated or otherwise wronged. So pardon my cynicism.

What would I like to see? I’d like to see Airbnb get rid of its biased forced arbitration rip off clause. Fat chance. The company just updated its terms of service and the following clause is the first thing you see - in bold:

Terms of Service

IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE: SECTION 34 OF THESE TERMS OF SERVICE CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES WITH AIRBNB ARE RESOLVED. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.

I’m sure AG Holder and his hip client couldn’t be happier. But all we hear is the deafening sound of our BS detector.

Lawsuits and the Tech Industry – The Hippest Hypocrites Around

Technology is moving and changing so quickly that even its proponents are wondering if it’s happening too fast. No doubt. The whole “driverless car” thing terrifies most people, with “66% … scared of possible collisions when in the vehicles, while 45% … worried about cyber attacks stealing their personal data.”

Unfortunately, there’s something that hasn’t changed much in over a decade: the tech industry’s hypocritical litigation behavior.

In 2002, the Center for Justice & Democracy published a white paper called NOT IN MY BACKYARD II: The High-Tech Hypocrites of “Tort Reform.” At that time, the tech industry was pushing federal class action legislation to make it more difficult for consumers to win class action suits against corporations that commit fraud and other health, safety and environmental violations. They eventually got their wish in 2005 with a dumb law called the Class Action Fairness Act

But as the CJ&D study also found,

Litigation has become a time-honored way for high-tech companies to do business. But they do not like being held legally accountable by consumers. To these companies, the courts should be reserved exclusively for their patent, trademark, breach of contract and damaged property suits to recover for commercial losses. … Tort restrictions advocated by these companies virtually never limit the rights of corporations to bring such lawsuits.

Indeed, tech companies love running to court, like in 2002 when Amazon sued Von Eric Lerner Kalaydjian and his small business, Amazon Cosmetics and Tan Products, for using the word “Amazon” to sell beauty products. Or in 2001, when eBay sued a little company called BidBay, alleging that use of the word “bay” in its name and the overall appearance of the BidBay website infringed on the eBay trademark.

Sadly, that brings us to today, and to Airbnb – a company with staggeringly hypocritical litigation behavior. I mean, scratch your head, “did they just do that?” kind of behavior.

Airbnb requires its customers “to waive their right to sue, or to join in any class-action lawsuit or class-action arbitration, to use the service.” These “forced arbitration” clauses are so anti-consumer that the Consumer Financial Protection Bureau has proposed a rule to prevent companies (like banks and lenders) from imposing them on customers.  (Public comments due August 22.) But that hasn’t stopped “hip” companies in the tech world, like Airbnb, however. As the New York Times wrote,

When there is litigation, Airbnb has not been afraid to use the class-action waiver clause. In March, the company cited the clause in fighting a class-action suit that accused Airbnb of acting as an unlicensed real estate broker. The company said the suit was moot because the plaintiffs had agreed to waive their class-action rights and, in a related clause, agreed to resolve disputes through individual arbitration.…

Airbnb may soon test the waiver clause directly in a class-action discrimination suit, which was filed in May in the United States District Court in Washington. The chief plaintiff, Gregory Selden, who is African-American, claimed Airbnb violated civil rights laws that forbid housing discrimination when a host on the service denied him accommodation last year because of his race. Airbnb’s response to the lawsuit is due by July 13.

Ok, this is all disturbing enough. But while arguing that the rights of Airbnb customers to go to court should be eliminated, they run straight to court when their own rights need protecting.

Airbnb went to court Monday seeking to block forthcoming amendments to San Francisco law requiring short-term rental companies to police their websites and remove unregistered hosts.

“While we have attempted to work with the City on sensible, lawful alternatives to this flawed new ordinance, we regret that we are forced to now ask a federal court to intervene in this matter,” Airbnb wrote in a blog post. The company’s suit in the U.S. District Court of Northern California seeks an injunction to suspend the new rules, claiming that they violate federal laws, including the Communications Decency Act, the Stored Communications Act and the First Amendment.

These are federal liability limitations that you may not even know exist. For example, explains SF Gate:

Section 230 of 1996’s Communications Decency Act shields Internet companies from liability for content posted by users on their websites. It covers reviews on Yelp, posts on Facebook and Twitter, and classified ads on a myriad of sites, among others.

And speaking of Yelp (cause Airbnb isn’t the only hypocrite here), at the same time the company is pushing terrible federal legislation that would wipe all out kinds of legitimate lawsuits (see our coverage last week ), it doesn’t hesitate to use the courts whenever it likes.

In sum, despite its trendy image, the tech industry appears to be no different than any other detested industry - at least when it comes to placing far more value on its right to sue than it does on the public's - and its own customers' - legal rights. Somehow we expected more.

Civil Lawsuits, Civil Rights, and Pride

June 1 marks the beginning of National LGBT Pride Month – a time to highlight, celebrate, and remember the advancements and sacrifices of the LGBT community. Over the past 60 years, we have made meaningful strides toward a more inclusive country. Hard-fought civil cases, brought by groups and leaders in the LGBT community, have led to some of the most significant advancements in LGBT rights. (See here, here, here.) We thought this might be a good time to tell you about a few of them.

One, Inc. v. Olesen (1958)

In 1954, the FBI and the U.S. Post Office deemed One: The Homosexual Magazine obscene and refused to deliver the publication through the mail. In response, the magazine’s owners sued, claiming that the magazine deserved protection under the First Amendment. After both a federal district court and the 9^th Circuit Court of Appeals rejected their claim, the U.S. Supreme Court granted certiorari and ruled unanimously for the magazine, allowing it and other LGBT publications to be sent through the mail. This case was the first U.S. Supreme Court case to deal with homosexuality and the first to address free speech rights for the LGBT community.

Romer v. Evans (1996)

In 1992, the state of Colorado passed a law “prohibiting all branches of state government in Colorado from passing legislation or adopting policies prohibiting discrimination against lesbians, gay men or bisexuals based on their sexual orientation.” In response to this pro-discrimination law, several residents and municipalities claimed unconstitutional discrimination and filed a lawsuit. In a 6-3 decision, the U.S. Supreme Court found that these types of laws lacked a rational basis and, therefore, violated principals of equal protection. The decision in Romer set the stage for future landmark LGBT civil rights cases.

Collins v. United States (2010)

The Department of Defense established a policy that entitled military personnel who were forcibly discharged for homosexuality (before the end of “Don’t Ask Don’t Tell”) to only half the separation pay guaranteed to honorably discharged soldiers. With help from the ACLU, Richard Collins, a decorated former staff sergeant in the U.S. Air Force, brought a class action lawsuit claiming that the DOD’s policy was discriminatory and unconstitutional. As a result of the suit, the DOD changed its policy and all affected service members (with in the statute of limitations) received 100 percent of the separation pay they would have received if discharged honorably.

United States v. Windsor (2013)

U.S. residents Edith Windsor and Thea Spyer were legally married in Canada, but when Thea died, the U.S. Defense of Marriage Act (DOMA) barred Edie from taking advantage of the federal estate tax exemption for spouses. The IRS forced her to pay over $363,000 in taxes. Edie brought a civil suit maintaining the law was unconstitutional. Ultimately, the Supreme Court agreed, finding DOMA violated due process and equal protection under the Fifth Amendment.

Obergefell v. Hodges (2015)

Several couples filed individual discrimination suits after learning that their states would not issue marriage licenses or recognize out of state marriages of same-sex couples. In a 5-4 decision that consolidated their cases, the Supreme Court held that the fundamental right to marry should also be guaranteed to same-sex couples. The Court found that the due process and equal protection clauses of the 14^th Amendment require all states and U.S. territories to license same-sex marriages and recognize those performed in other states.

V.L. v. E.L. (2016)

The Alabama Supreme Court invalidated a Georgia adoption agreement giving parental rights to both partners in their same sex marriage. In the Alabama court’s view, the adoption should have never been granted by a Georgia court in the first place. V.L. filed suit to have the agreement reinstated. On March 7, 2016 the U.S. Supreme Court unanimously ruled that the Alabama court erred by supplanting its judgment and not granting full faith and credit to the Georgia court’s decision. V.L.’s full and equal parental rights were restored as a result.

According to GLAD, one of many organizations that uses legal action to establish and protect LGBT rights, civil lawsuits have been used as a tool to fight discrimination in health care, education, employment, club membership, housing, protections from outing in criminal trials, and on other fronts.

Civil justice for Pride. Pride for civil justice.

North Carolina’s “Bathroom Bill” Is About So Much More Than Bathrooms

The age discrimination lawsuits filed by Maryanne White and Rick Compton were both kicked out North Carolina state court recently - but not because they lost their cases. They were kicked out because of North Carolina’s infamous transgender bathroom law.

Say what?

“I had no idea that there were two additional addendum attached to this bill,” Maryanne White said. And we didn’t either. It turns out, the law, aka HB 2, contains some “extra” sections, which have been almost completely ignored in the national conversation about this law. Writes Pro Publica/Mother Jones, among those provisions “tucked inside is language that strips North Carolina workers of the ability to sue under a state anti-discrimination law, a right that has been upheld in court since 1985.” In other words, North Carolina still prohibits race, sex, religion, age, national origin, and disability employment discrimination. But HB 2 removes any way for victims to enforce this law in state court. From now on, discrimination victims in North Carolina must sue only under federal civil rights laws, and only in federal court. This is no small problem.

Advocates explain that the federal system is more difficult to access, rules are more complicated, and businesses often have “significant advantages.” Compared to filing in a North Carolina court, for example, bringing a federal civil rights claim is nearly twice as expensive, victims are subject to an arbitrary cap on damages, filing procedures are more complicated, time frames are more restrictive, and there are only a handful of federal courthouses across the state. Ultimately, experts claim, these factors will discourage most victims from filing any employment discrimination cases at all. As “Erika Wilson, a law professor at the University of North Carolina who co-directs a legal clinic for low-income plaintiffs with job and housing discrimination claims” put it, “The LGBT issues were a Trojan horse.… [P]eople were so caught up in [the LGBT] part of the law that this snuck under the radar.”

And what’s behind it is clear: 

Conservative-leaning groups have been trying for decades to reduce the number of civil lawsuits in the states. In HB2, lawmakers accomplished this by adding a single sentence to the state’s employment discrimination law that says: “[No] person may bring any civil action based upon the public policy expressed herein.”

Democracy North Carolina executive director, Bob Hall, explains that he too sees this legislation as a continuation of an agenda by the North Carolina Chamber of Commerce and conservative North Carolina lawmakers.

State chambers of commerce in Georgia, Indiana, Mississippi and South Carolina have all come out against similar anti-LGBT legislation, but unlike proposals in other states, House Bill 2 includes provisions that make it much harder for workers to sue for job discrimination and that bans local governments from requiring contractors to pay a certain wage. Both are key priorities for the N.C. Chamber, Hall said.

"These are the kind of things they like. They want to get rid of liability," Hall said.…

After being conspicuously silent on the matter for over a month, declining to comment when asked if they played a part in drafting the new bill, the North Carolina Chamber of Commerce issued a statement calling for reopening the path to sue for employment discrimination in state court. But instead of calling for a return to the previous law, “the Chamber proposal create[s] a new bureaucratic maze for workers unlawfully terminated.” In fact, they model their suggestions on the already inadequate federal protections.

According to Dick Taylor, head of N.C. Advocates for Justice,

The proposal would essentially graft complications of federal litigation onto state claims and create a new and expensive bureaucracy within the N.C. Department of Labor. The Chamber seeks to create new barriers for employees terminated unlawfully and new protections for employers violating the law.

And what if the U.S. Justice Department wins its case and gets a court to strike down the law? As to the “right to sue” section, a big nothing happens. As Laura Coates put it for CNN, “[U]ltimately, the reality is that the bill itself is likely a Trojan horse. Focusing on a visceral emotional response to the social policies … will allow the remaining provisions … to infiltrate unnoticed.” 

 

A Good News Review

“The slings and arrows of outrageous fortune.” So said Hamlet about his dire life circumstances at the time. No doubt, the nation’s messed up politics are probably leaving some of you in a similarly depressed funk these days. So let us help! Here’s some good news to consider.  

In the workers comp arena, ProPublica and NPR are reporting on a frankly extraordinary development in Oklahoma. The “business-friendly” Oklahoma Workers’ Compensation Commission unanimously ruled that the state’s 2013 law to allow corporations to “’opt out’ of state workers’ compensation — and write their own plans for dealing with injured workers — was… unconstitutional”! It compared alleged “[c]ompany plans … to provide equal benefits to workers’ comp., ‘a water mirage on the highway that disappears upon closer inspection.’” Wow! In addition, the media outlets write,

[T] he U.S. Department of Labor said in a letter obtained Monday that it is evaluating whether opt-out plans in Texas and Oklahoma violate workers’ rights under federal law.

The opt-out effort was the focus of an investigation by ProPublica and NPR last fall, which found that the plans almost universally had lower benefits and more restrictions than workers’ comp.…

[I]n recent years, well-known corporations, led by Walmart and Lowe’s, have been pushing states to let them handle injuries themselves, arguing they can provide better care, higher wage benefits and a more efficient system if freed from the bureaucracy of state workers’ comp. In 2013, Oklahoma became the first state to pass a law allowing employers to opt out, joining Texas, which has never required businesses to have workers’ comp.…

Last year, the corporations’ offensive appeared to be gaining steam. Tennessee and South Carolina were seriously considering bills. A national campaign drew support from Nordstrom, Whole Foods, Macy’s, Sysco and Safeway, among others. And supporters said they planned to get laws passed in as many as a dozen states within the next decade.

But months after the ProPublica and NPR story, which was republished in several news outlets, the movement appears stalled. …

Bob Burke, a workers’ comp attorney who has filed 17 cases challenging the law, said the decision will “put a cold, wet rag” on the opt-out movement.

Here’s some of what commission said about these plans:

They “give employers significant power to deny claims by letting them define what constitutes a workplace injury. For example, workers sickened by asbestos can generally receive workers’ comp. But most opt-out plans in Oklahoma specifically exclude asbestos exposure from coverage.…

Rather than creating a more efficient process for handling disputes, the system developed by the plans adds several layers that may actually make the process longer.…

Businesses are now challenging the commission authority to strike down this law. And they are appealing to the Oklahoma Supreme Court. So it's not all good news yet.

Speaking of courts, on the SCOTUS front (and perhaps a sign of things to come):

The Supreme Court on Monday rejected Wal-Mart's bid to overturn a federal appeals court decision allowing female workers to sue the retail giant for paying women less and giving them fewer promotions than men.

The court's decision not to take the case leaves intact a 6th U.S. Circuit Court of Appeals ruling that found former members of the landmark Dukes v. Wal-Mart class action did not miss the deadline to bring their gender discrimination claims on a regional basis after the Supreme Court rejected the nationwide class in 2011.

Finally in Indiana, some state lawmakers are trying to do a very small thing for patients by raising Indiana’s cap on compensation for victims of medical malpractice damages. But barely.  As we’ve noted before, Indiana has a draconian compensation cap on all damages, including economic costs, lost wages, medical expenses, etc. It is, clearly, among the “lowest in the nation.” So now,

[L]awmakers are considering a $400,000 increase to the cap to set a new limit for those claims at $1.65 million beginning in 2017. The cap also would increase over time to $2.25 million by 2031 in an attempt to keep up with inflation – an aspect of the proposal strongly opposed by doctors and some medical lobbyists.

Wow, the cruelty of Indiana doctors apparently knows no bounds.

Dan Ladendorf, a representative of the Indiana Trial Lawyers Association, said the group doesn’t believe in capping damages and questioned the proposed $1.65 million limit. If Indiana’s cap was based on a medical cost index, it would exceed $2.2 million, he said.

“Even with these proposed changes, the opponents to this bill have told you Indiana would still be the most favorable state in the nation for medical malpractice,” he argued. “If you are going to commit medical malpractice, come to Indiana, because we’re the most favorable state in the nation.”

Well, we tried. So much for good news, I guess!