Wes

News paper article about a recent win

Summary:  a business can’t sue you for speaking against them in a public hearing, and if they do, you can sue them back – both for malicious prosecution and for the violation of your constitutional rights, I’m proud of the decision because the second part – recognising a cause of action against a private entity for a violation of the First Amendment under New Jersey’s Civil Rights Act – is a pretty big step for the court, even if all of the case law leading up to it indicated that’s how the law was going to be interpreted.

 

Ruling in defamation suit favors Glassboro activist | Courier-Post | courierpostonline.com.

A better illustration of the importance of fairness hearings

About a month ago, I posted about the importance of class action fairness hearing in the context of a class action again the makers of Nutella.  In a nut-shell, the class action mechanism creates a potential for plaintiffs’ counsel or the lead plaintiff to work with defence counsel to settle a case for relatively cheap but in a manner that still enriches the attorneys.  This is particularly troublesome because in many class actions the class members will be barred from pursuing individual claims unless they take an affirmative step to opt out within the time period set by the court.  Two things that protect against this abuse are the need to get judicial approval of class action settlements and a fairness hearing in which class members are invited to raise any objections.

In the Nutella case, I sympathised with the plaintiffs’ attorneys because they actually obtain a darn good result for the class.  No so in a recent case against Sprint.  Apparently, Sprint was imposing unlawful contract termination fees on its customers.  Sprint settled the case in a manner that wouldn’t have resulted in class members getting paid because the parties agreed that Sprint going through its records was to much to ask of the telecom.  The objectors showed up and even appealed, whereupon the Third Circuit upended the settlement.

Not only was this a good result, but it does the good plaintiffs’ attorney a service.  There is always pressure to take less money to settle a case sooner rather than later.   And sometimes the client or class is better served with a speedy compromise than a hard fought and risky war of attrition.  However, the potential for objectors to give everyone a black eye – and delay disbursement – is a pressure that drives the value of settlements up regardless of when they settle.

Sprint Class-Action Settlement Upended by U.S. Appeals Court.

Good move: consumer watchdog agency puts credit card complaints from public online

Credit Card Complaints | Consumer Financial Protection Bureau.

Apparantly event service of process is a process, not a result

The Defendant in suit brought by a bank intentionally made herself hard to find.  The bank tracks her down on Facebook and wants to effectuate service.  Rather than serve her via an online service she actually uses, the stone age judge requires the bank to render service by publication in four news papers the defendant probably doesn’t read.  Justice!

Judge Rejects ‘Unorthodox’ Plea to Permit Service by Facebook.

Fairness hearings: an important protection, but a plaintiff’s attorneys nightmare!

Nutella is desert-like-topping with cult following.  It tastes good, I suppose, but I’ve met people out there that REALLY like it.  Whatever the case may be, Nutella was sued because their marketing was deceptive in that it promoted the product as healthful.  One of the primary objectives obtained in the case was injunctive in nature -  a change in labels and marketing by the manufacturer.  That kind of relief doesn’t translate into money for the Nutella purchasers, and its arguable that this class isn’t a good candidate for any monetary relief because its hard to prove that any one member of the class relied on the allegedly representations of healthfulness.  In fact, most of the people that I know love it will admit its a guilty pleasure.  I don’t agree with this argument – but the defendants surely raised it.  Nevertheless, Plaintiff’s counsel managed to put some money in their pockets of the class.

Only problem is that the amount being paid to the class is less than the legal fees.

So class members are exercising their right to object.  I sympathise with the attorneys in this case.  However, the class action mechanism lends itself to abuse and class member’s right to object at a fairness hearing is a crucial protection.  In fact, the threat of objections is a force that pushes settlements higher.

One thing there should be no tolerance for sorry puns and corny jokes in the law journal.  For example, the article reporting the settlement reads:

A proposed settlement of a class action suit against makers of the chocolate hazelnut spread Nutella isn’t melting in the mouths of some of its intended beneficiaries.

So lame.

Objections Slathered on Thick to Nutella Class Action Settlement.

Good result: A homeowners association’s ban on political signs in windows, especially those posted by a candidate for public office, violates state constitutional free speech guarantees, the New Jersey Supreme Court ruled on Wednesday.

The only sad part is that the home-owners association lobby is trying to minimize the scope of the ruling by arguing it only applies to signs placed in windows.

via Residential Community’s Ban on Political Signs Unconstitutional.

It wouldn’t surprise me if a judicial “strike” was an inteded result of failing to appoint judges

At the very least, the refusal of multiple vicineages to hear civil cases  because of the judicial vacancy crisis is something our governor is quietly pleased with.   As of now, the Superior Courts of two counties (Union and Essex) are not hearing any civil matters.  According to Union County Bar Association President Janet Pisansky, this judicial “strike”:

is going to be a big hardship.  To explain [this] to all the litigants … is going to be a difficult thing. It perplexes them why there aren’t judges who can handle their cases.

But let’s get something straight:  it’s going to be hardest on the attorneys that use civil lawsuits to vindicate the rights of injured and aggrieved  individuals.   These attorneys rarely get paid up front for their work.  They only get paid when a case resolves in their favor, whether by settlement or verdict.   Making money from one’s cases is not just about being compensated for the work – or making the attorney rich: it’s also about being able to fund the next case.  Unlike the institutions that are often responsible for harming people, everyday people that are injured can’t typically afford to pay to take depositions or hire experts to prove their case.  They can’t afford to constantly take off work, either.  Unfortunately, the financial and time costs associated with a lawsuit are just as taxing on Plaintiff’s counsel.  If cases don’t settle or go to trial, the firms that bring cases on behalf of the injured will lack the cash flow to front the money for attorney hours, litigation expenses, and expert fees.

Mindful of this reality, Defendants – especially institutional defendants (like governments and big business) or defendants represented by insurance companies – will often wait until the eve of trial to engage in meaningful settlement negotiations.  For them, its about holding onto their money for as long as they can, staring down (and hopefully starving out) plaintiff’s counsel, and only voluntarily accept responsibility for their wrongdoing when there is areal risk somebody will impose it upon them anyway.  If you take away that risk, many cases will not settle.

That means the attorneys that represent the injured will not get paid for their work, depriving them of the capital needed to fund their cases.  Attorneys that take on institutional defendants will have no choice but to file less cases  or find a different line of business.  That means that justice will be placed out of reach for more people.  In the big picture, that’s pretty good news for big government and big business.

Union Co. Freezes Civil Trials in Summer Due to Judge Shortage.

The consequences of de jure discrimination

Spyer left all of her property to Windsor, including the apartment they shared. Spyer’s estate normally would have passed to her spouse without any estate tax. But DOMA prevents recognition of same-sex marriages and Windsor was assessed more than $363,000 in federal estate taxes.

via Judge Finds DOMA Discriminates Against Married Same-Sex Couples.

Good result

According to the Court:

Contrary to Oracle, copyright law does not confer ownership over any and all ways to implement a function or specification, no matter how creative the copyrighted implementation or specification may be. The Act confers ownership only over the specific way in which the author wrote out his version. Others are free to write their own implementation to accomplish the identical function, for, importantly, ideas, concepts and functions cannot be monopolized by copyright.

Groklaw – Judge Alsup Rules: Oracle’s Java APIs are Not Copyrightable (Order as text) ~pj.

Respect authority

Like the officers that look at you naked through a machine and do aggressive pat downs on little kids:

An airport passenger screener was found to “routinely” use social media web sites to receive and distribute child pornography. The man “was initially identified as an employee through a picture of him wearing a TSA uniform that he posted on a social media web site,” the IG report stated. He was sentenced to 11 years in prison.Two other TSA employees got caught stealing laptop computers from passengers’ luggage. Another was sentenced to six months in jail for committing a hate crime at the Minneapolis airport

And the people we trust to keep our bad elements from coming into the country:

A supervisory immigration services officer and his son, a construction worker, were caught charging immigrants as much as $6,000 for expedited application processing and other benefits, including U.S. citizenship. After the payments were made, the officer “would direct his unwitting subordinates to favorably adjudicate the applications,” according to the IG report. He got five years in jail; his son got four.During the investigation, IG officials found another employee in the same office was running an entirely separate scheme accepting money from illegal immigrants in exchange for immigration benefits. He pled guilty and was awaiting sentencing.

via Homeland Security IG details wide range of illegal activity in semi-annual report.

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