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POINTOFLAW FORUM
With government so involved in business, business cannot afford to sit on the sidelines. A recent Mercatus Center at George Mason University study explores the relationship between business political activity (lobbying and campaign expenditures) and business success, and finds that with few exceptions, lobbying isn't correlated with better business performance.POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool.POINTOFLAW.COM
PointofLaw returns to its coverage of the Richard Cordray confirmation standoff. In a 53-45 vote, Senate Republicans effectively blocked the confirmation of Richard Cordray, former Ohio attorney general, nominated to serve as the first director of the Consumer Financial Protection Bureau. While the CFPB can currently regulate the nation's banks, without a director, the new agency cannot assume KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT : OF The Supreme Court's five-to-four decision in favor of the landowners in Koontz v. St. Johns River Water Management District counts as a victory of sorts for the property rights movement. The case involved an all-too common exercise of state permit power. Koontz had applied for a permit to develop some 3.7 acres of his waterfront property and for that privilege he was prepared to offer the UPDATE: WHITTINGTON V. U.S. STEEL AND MADISON COUNTY Update: Whittington v. U.S. Steel and Madison County asbestos shenanigans. By Ted Frank on June 10, 2005 8:06 PM. Tweet. We've previously been critical of the Whittington v. U.S. Steel case (Overlawyered, Jan. 5, 2004; Sep. 20 ). Now the U.S. Steel lawyer makes a sensational allegation: it appears one of U.S. Steel's co-defendants was a Madison THOUGHTS ON THE LITIGATION LOTTERY Thoughts on the Litigation Lottery. Clay Conrad disputes the idea of a litigation lottery; his argument consists of quoting a Nancy Marder law review article: Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathizewith the
HEINONLINE -- 43 RUTGERS L. REV. 1013 1990-1991 HeinOnline -- 43 Rutgers L. Rev. 1014 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 1015 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 10161990-1991
CONNECTICUT SMOKER GETS $8 MILLION JURY VERDICT The Connecticut Law Tribune reports that Barbara Izzarelli has obtained an $8 million jury verdict against RJ Reynolds, whose cigarettes she smoked for more than 20 years.. Izzarelli was in her early teens in the 1970s when she began smoking Salems. She smoked heavily every day -- all day -- for more than 20 years. OVERCRIMINALIZATION IS A PROBLEM, BUT A 'MISTAKE OF LAW Regulatory crimes are a different kettle of fish. As some recent episodes have shown, regulations "criminalize" behavior based on what the regulator, acting to implement his view of vaguely described legislative intent, sees as forbidden. TRENT LOTT IS SUING STATE FARM FOR KATRINA LOSSES Trent Lott is suing State Farm in Federal District Court in Mississippi for his Katrina losses. (Biloxi Sun Herald).He is arguing that wind was the proximate cause of the storm surge and invokes Mississippi s valued policy provision which may suggest that the insurer must pay even if a contractually excluded event (storm surge) destroyed his house.POINTOFLAW FORUM
With government so involved in business, business cannot afford to sit on the sidelines. A recent Mercatus Center at George Mason University study explores the relationship between business political activity (lobbying and campaign expenditures) and business success, and finds that with few exceptions, lobbying isn't correlated with better business performance.POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool.POINTOFLAW.COM
PointofLaw returns to its coverage of the Richard Cordray confirmation standoff. In a 53-45 vote, Senate Republicans effectively blocked the confirmation of Richard Cordray, former Ohio attorney general, nominated to serve as the first director of the Consumer Financial Protection Bureau. While the CFPB can currently regulate the nation's banks, without a director, the new agency cannot assume KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT : OF The Supreme Court's five-to-four decision in favor of the landowners in Koontz v. St. Johns River Water Management District counts as a victory of sorts for the property rights movement. The case involved an all-too common exercise of state permit power. Koontz had applied for a permit to develop some 3.7 acres of his waterfront property and for that privilege he was prepared to offer the UPDATE: WHITTINGTON V. U.S. STEEL AND MADISON COUNTY Update: Whittington v. U.S. Steel and Madison County asbestos shenanigans. By Ted Frank on June 10, 2005 8:06 PM. Tweet. We've previously been critical of the Whittington v. U.S. Steel case (Overlawyered, Jan. 5, 2004; Sep. 20 ). Now the U.S. Steel lawyer makes a sensational allegation: it appears one of U.S. Steel's co-defendants was a Madison THOUGHTS ON THE LITIGATION LOTTERY Thoughts on the Litigation Lottery. Clay Conrad disputes the idea of a litigation lottery; his argument consists of quoting a Nancy Marder law review article: Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathizewith the
HEINONLINE -- 43 RUTGERS L. REV. 1013 1990-1991 HeinOnline -- 43 Rutgers L. Rev. 1014 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 1015 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 10161990-1991
CONNECTICUT SMOKER GETS $8 MILLION JURY VERDICT The Connecticut Law Tribune reports that Barbara Izzarelli has obtained an $8 million jury verdict against RJ Reynolds, whose cigarettes she smoked for more than 20 years.. Izzarelli was in her early teens in the 1970s when she began smoking Salems. She smoked heavily every day -- all day -- for more than 20 years. OVERCRIMINALIZATION IS A PROBLEM, BUT A 'MISTAKE OF LAW Regulatory crimes are a different kettle of fish. As some recent episodes have shown, regulations "criminalize" behavior based on what the regulator, acting to implement his view of vaguely described legislative intent, sees as forbidden. TRENT LOTT IS SUING STATE FARM FOR KATRINA LOSSES Trent Lott is suing State Farm in Federal District Court in Mississippi for his Katrina losses. (Biloxi Sun Herald).He is arguing that wind was the proximate cause of the storm surge and invokes Mississippi s valued policy provision which may suggest that the insurer must pay even if a contractually excluded event (storm surge) destroyed his house. ARTICLES - POINTOFLAW Articles. The articles below have been selected by our editors as useful introductions to issues of tort law. This list is not intended to be comprehensive; the authors of these articles, and many other individuals, have published much more on these topics. This list does, however, represent some of the best and most interesting work in thefield.
POINTOFLAW.COM
PointofLaw.com is a website sponsored by the Center for Legal Policy at the Manhattan Institute.Focusing on America's civil justice system, the site includes original discussions featuring some of the nation's top legal scholars, an ongoing forum on liability issues, a bibliography of important books and articles, and links to topicallegal news stories.
POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool.POINTOFLAW.COM
The state of Alaska has followed a loser-pays system for decades. Rule 82 of the Alaska Rules of Civil Procedure provides a modest degree of fee-shifting, and operates in tandem with Rule 68, which provides for fee awards hinged on offers of settlement. The Alaska Judicial Council discusses the operation of the rules in this 1995 report.POINTOFLAW.COM
In an article in The Economist, adjunct fellow with the Manhattan Institute's Center for Legal Policy, Marie Gryphon, is cited for her work exploring the likely effects of adopting a loser-pays rule for attorneys' fees. In a loser-pays system, the losing party is responsible for reimbursing the winning party's legal expenses, including attorneys' fees. THE OFFER OF JUDGMENT RULE IN GEORGIA: ANALYZING SMITH V The Georgia offer of judgment rule (codified at O.C.G.A. 9-11-68) provides that either party may serve upon the other a written demand or offer to settle a tort claim for a specified amount of money. If either party's settlement demand or offer is rejected, that party may be entitled to recover its attorney's fees. The statute provides: (1) If a defendant makes an offer of settlement which is LOSER-PAYS IN ALASKA: THE WAY IT SHOULD BE Loser-Pays in Alaska: The Way It Should Be. Alaska is well known for being unique. Even in the state's court system, Alaska has demonstrated a break from the Lower 48 by early on adopting a "loser pays" system for attorneys' fees as a check and balance against unnecessary litigation. In a nutshell, the "loser pays" system says ifyou sue
SEXUAL HARASSMENT: A STRANGE, VAGUE "TORT" Sheehan, 493 F.3d 893, 902-04 (2007). But "sexual harassment" under federal case law is a term of art referring to whatever speech or conduct gives rise to a specified state -- a "hostile work environment" -- not to "harassment" as defined in the dictionary, or anything closely resembling a traditional tort, like a pattern ofinvasive conduct
CIVIL 'DEATH PENALTY' LEAVES NO DEFENSE Civil 'death penalty' leaves no defense. By Carter Wood on August 4, 2010 10:05 AM. Tweet. Business and legal reform groups last week filed an amicus brief with the Nevada Supreme Court, urging the court to reconsider its decision in Bahena v. Goodyear that deprived the company of its ability to defend itself in a product liability case. TRENT LOTT IS SUING STATE FARM FOR KATRINA LOSSES Trent Lott is suing State Farm in Federal District Court in Mississippi for his Katrina losses. (Biloxi Sun Herald).He is arguing that wind was the proximate cause of the storm surge and invokes Mississippi s valued policy provision which may suggest that the insurer must pay even if a contractually excluded event (storm surge) destroyed his house.POINTOFLAW FORUM
By Hester Peirce on August 4, 2014 6:51 PM. Tweet. Paul Krugman, in today's New York Times, assures us that Dodd-Frank is working, despite claims to the contrary from critics all across the political spectrum. To make his case, Krugman points to consumer protection, resolution, and the designation of systemically important financial institutions.POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool.POINTOFLAW.COM
Charles Hugh-Smith and Jim Geraghty note that if an employee cannot generate revenue to cover his or her wages plus overhead costs, he or she won't be hired. This is absolutely true, but both understate the problem, and the degree to which the Obama administration has made it worse, and is planning on exacerbating it.. One of the biggest overhead expenses is the expected litigation expense of KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT : OF The Supreme Court's five-to-four decision in favor of the landowners in Koontz v. St. Johns River Water Management District counts as a victory of sorts for the property rights movement. The case involved an all-too common exercise of state permit power. Koontz had applied for a permit to develop some 3.7 acres of his waterfront property and for that privilege he was prepared to offer the POINTOFLAW | ARTICLES: THE MYTH OF THE FORD PINTO CASE The case of the Ford Pinto, and its alleged tendency to explode in rear-end collisions, provided the occasion for what is universally hailed as our product liability system's finest triumph. Everyone knows that Ford engineers realized the car was defective but decided (in a smoking-gun memo unearthed by trial lawyers) that it would be cheaper to pay off death claims than to change the design. UPDATE: WHITTINGTON V. U.S. STEEL AND MADISON COUNTY Update: Whittington v. U.S. Steel and Madison County asbestos shenanigans. By Ted Frank on June 10, 2005 8:06 PM. Tweet. We've previously been critical of the Whittington v. U.S. Steel case (Overlawyered, Jan. 5, 2004; Sep. 20 ). Now the U.S. Steel lawyer makes a sensational allegation: it appears one of U.S. Steel's co-defendants was a Madison OVERCRIMINALIZATION IS A PROBLEM, BUT A 'MISTAKE OF LAW Regulatory crimes are a different kettle of fish. As some recent episodes have shown, regulations "criminalize" behavior based on what the regulator, acting to implement his view of vaguely described legislative intent, sees as forbidden. HEINONLINE -- 43 RUTGERS L. REV. 1013 1990-1991 HeinOnline -- 43 Rutgers L. Rev. 1014 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 1015 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 10161990-1991
THOUGHTS ON THE LITIGATION LOTTERY Thoughts on the Litigation Lottery. Clay Conrad disputes the idea of a litigation lottery; his argument consists of quoting a Nancy Marder law review article: Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathizewith the
CONNECTICUT SMOKER GETS $8 MILLION JURY VERDICT The Connecticut Law Tribune reports that Barbara Izzarelli has obtained an $8 million jury verdict against RJ Reynolds, whose cigarettes she smoked for more than 20 years.. Izzarelli was in her early teens in the 1970s when she began smoking Salems. She smoked heavily every day -- all day -- for more than 20 years.POINTOFLAW FORUM
By Hester Peirce on August 4, 2014 6:51 PM. Tweet. Paul Krugman, in today's New York Times, assures us that Dodd-Frank is working, despite claims to the contrary from critics all across the political spectrum. To make his case, Krugman points to consumer protection, resolution, and the designation of systemically important financial institutions.POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool.POINTOFLAW.COM
Charles Hugh-Smith and Jim Geraghty note that if an employee cannot generate revenue to cover his or her wages plus overhead costs, he or she won't be hired. This is absolutely true, but both understate the problem, and the degree to which the Obama administration has made it worse, and is planning on exacerbating it.. One of the biggest overhead expenses is the expected litigation expense of KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT : OF The Supreme Court's five-to-four decision in favor of the landowners in Koontz v. St. Johns River Water Management District counts as a victory of sorts for the property rights movement. The case involved an all-too common exercise of state permit power. Koontz had applied for a permit to develop some 3.7 acres of his waterfront property and for that privilege he was prepared to offer the POINTOFLAW | ARTICLES: THE MYTH OF THE FORD PINTO CASE The case of the Ford Pinto, and its alleged tendency to explode in rear-end collisions, provided the occasion for what is universally hailed as our product liability system's finest triumph. Everyone knows that Ford engineers realized the car was defective but decided (in a smoking-gun memo unearthed by trial lawyers) that it would be cheaper to pay off death claims than to change the design. UPDATE: WHITTINGTON V. U.S. STEEL AND MADISON COUNTY Update: Whittington v. U.S. Steel and Madison County asbestos shenanigans. By Ted Frank on June 10, 2005 8:06 PM. Tweet. We've previously been critical of the Whittington v. U.S. Steel case (Overlawyered, Jan. 5, 2004; Sep. 20 ). Now the U.S. Steel lawyer makes a sensational allegation: it appears one of U.S. Steel's co-defendants was a Madison OVERCRIMINALIZATION IS A PROBLEM, BUT A 'MISTAKE OF LAW Regulatory crimes are a different kettle of fish. As some recent episodes have shown, regulations "criminalize" behavior based on what the regulator, acting to implement his view of vaguely described legislative intent, sees as forbidden. HEINONLINE -- 43 RUTGERS L. REV. 1013 1990-1991 HeinOnline -- 43 Rutgers L. Rev. 1014 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 1015 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 10161990-1991
THOUGHTS ON THE LITIGATION LOTTERY Thoughts on the Litigation Lottery. Clay Conrad disputes the idea of a litigation lottery; his argument consists of quoting a Nancy Marder law review article: Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathizewith the
CONNECTICUT SMOKER GETS $8 MILLION JURY VERDICT The Connecticut Law Tribune reports that Barbara Izzarelli has obtained an $8 million jury verdict against RJ Reynolds, whose cigarettes she smoked for more than 20 years.. Izzarelli was in her early teens in the 1970s when she began smoking Salems. She smoked heavily every day -- all day -- for more than 20 years. ARTICLES - POINTOFLAW Articles. The articles below have been selected by our editors as useful introductions to issues of tort law. This list is not intended to be comprehensive; the authors of these articles, and many other individuals, have published much more on these topics. This list does, however, represent some of the best and most interesting work in thefield.
POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool. BOOKS - POINTOFLAW FORUM Smoke-Filled Rooms: A Postmortem on the Tobacco Deal. W. Kip Viscusi, Professor, Harvard Law School (University of Chicago Press, 2002) The Case Against Lawyers. Catherine Crier, Host, Court TV s Crier Report (Broadway, 2002) The Collapse of the Common Good: How America's Lawsuit Culture Undermines OurPOINTOFLAW.COM
On Friday, the Center for Class Action Fairness LLC filed its opening brief in the Third Circuit case of Dewey v.Volkswagen (10-3618). The case presents some interesting jurisdictional issues as a side effect of Devlin, plus run-of-the-mill economic quackery and an inexplicable decision to arbitrarily include in the class a million vehicles without providing the same pecuniary reimbursementPOINTOFLAW.COM
Charles Hugh-Smith and Jim Geraghty note that if an employee cannot generate revenue to cover his or her wages plus overhead costs, he or she won't be hired. This is absolutely true, but both understate the problem, and the degree to which the Obama administration has made it worse, and is planning on exacerbating it.. One of the biggest overhead expenses is the expected litigation expense ofPOINTOFLAW.COM
Vinny Sidhu Legal Intern, Manhattan Institute's Center for Legal Policy. For all you interested readers out there, the Harvard Law School Forum on Corporate Governance and Financial Regulation has re-published a memorandum from the Manhattan Institute's 2013 Proxy Season Review.. This annual review analyzes various pre-voting facets of shareholder proposals, such as the types of proposalsPOINTOFLAW.COM
The state of Alaska has followed a loser-pays system for decades. Rule 82 of the Alaska Rules of Civil Procedure provides a modest degree of fee-shifting, and operates in tandem with Rule 68, which provides for fee awards hinged on offers of settlement. The Alaska Judicial Council discusses the operation of the rules in this 1995 report.POINTOFLAW.COM
In an article in The Economist, adjunct fellow with the Manhattan Institute's Center for Legal Policy, Marie Gryphon, is cited for her work exploring the likely effects of adopting a loser-pays rule for attorneys' fees. In a loser-pays system, the losing party is responsible for reimbursing the winning party's legal expenses, including attorneys' fees.POINTOFLAW.COM
Two Pennsylvania attorneys and a West Virginia doctor they hired to read clients' X-rays have just been found liable by a federal jury in Wheeling, WV for violating the (federal) Racketeer Influenced and Corrupt Organizations Act, and for (state-law) fraud, in connection with asbestos claims made against CSX Transportation.The jury awarded $429,240.47, which was the amount CSX said it 15 STRICT LIABILITY FOR LAWYERING 15 STRICT LIABILITY FOR LAWYERING May you have a lawsuit in which you know you are in the right. — Gypsy curse It's not as if lawyerscan't be sued.
POINTOFLAW FORUM
By Hester Peirce on August 4, 2014 6:51 PM. Tweet. Paul Krugman, in today's New York Times, assures us that Dodd-Frank is working, despite claims to the contrary from critics all across the political spectrum. To make his case, Krugman points to consumer protection, resolution, and the designation of systemically important financial institutions.POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool.POINTOFLAW.COM
PointofLaw returns to its coverage of the Richard Cordray confirmation standoff. In a 53-45 vote, Senate Republicans effectively blocked the confirmation of Richard Cordray, former Ohio attorney general, nominated to serve as the first director of the Consumer Financial Protection Bureau. While the CFPB can currently regulate the nation's banks, without a director, the new agency cannot assume KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT : OF The Supreme Court's five-to-four decision in favor of the landowners in Koontz v. St. Johns River Water Management District counts as a victory of sorts for the property rights movement. The case involved an all-too common exercise of state permit power. Koontz had applied for a permit to develop some 3.7 acres of his waterfront property and for that privilege he was prepared to offer the UPDATE: WHITTINGTON V. U.S. STEEL AND MADISON COUNTY Update: Whittington v. U.S. Steel and Madison County asbestos shenanigans. By Ted Frank on June 10, 2005 8:06 PM. Tweet. We've previously been critical of the Whittington v. U.S. Steel case (Overlawyered, Jan. 5, 2004; Sep. 20 ). Now the U.S. Steel lawyer makes a sensational allegation: it appears one of U.S. Steel's co-defendants was a Madison THOUGHTS ON THE LITIGATION LOTTERY Thoughts on the Litigation Lottery. Clay Conrad disputes the idea of a litigation lottery; his argument consists of quoting a Nancy Marder law review article: Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathizewith the
HEINONLINE -- 43 RUTGERS L. REV. 1013 1990-1991 HeinOnline -- 43 Rutgers L. Rev. 1014 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 1015 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 10161990-1991
OVERCRIMINALIZATION IS A PROBLEM, BUT A 'MISTAKE OF LAW Regulatory crimes are a different kettle of fish. As some recent episodes have shown, regulations "criminalize" behavior based on what the regulator, acting to implement his view of vaguely described legislative intent, sees as forbidden. THE NVIDIA CLASS ACTION SETTLEMENT BAIT-AND-SWITCH They deny it, but NVIDIA marketed a defective chip for use in laptop motherboards that would overheat and damage other components in thelaptop.
CONNECTICUT SMOKER GETS $8 MILLION JURY VERDICT The Connecticut Law Tribune reports that Barbara Izzarelli has obtained an $8 million jury verdict against RJ Reynolds, whose cigarettes she smoked for more than 20 years.. Izzarelli was in her early teens in the 1970s when she began smoking Salems. She smoked heavily every day -- all day -- for more than 20 years.POINTOFLAW FORUM
By Hester Peirce on August 4, 2014 6:51 PM. Tweet. Paul Krugman, in today's New York Times, assures us that Dodd-Frank is working, despite claims to the contrary from critics all across the political spectrum. To make his case, Krugman points to consumer protection, resolution, and the designation of systemically important financial institutions.POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool.POINTOFLAW.COM
PointofLaw returns to its coverage of the Richard Cordray confirmation standoff. In a 53-45 vote, Senate Republicans effectively blocked the confirmation of Richard Cordray, former Ohio attorney general, nominated to serve as the first director of the Consumer Financial Protection Bureau. While the CFPB can currently regulate the nation's banks, without a director, the new agency cannot assume KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT : OF The Supreme Court's five-to-four decision in favor of the landowners in Koontz v. St. Johns River Water Management District counts as a victory of sorts for the property rights movement. The case involved an all-too common exercise of state permit power. Koontz had applied for a permit to develop some 3.7 acres of his waterfront property and for that privilege he was prepared to offer the UPDATE: WHITTINGTON V. U.S. STEEL AND MADISON COUNTY Update: Whittington v. U.S. Steel and Madison County asbestos shenanigans. By Ted Frank on June 10, 2005 8:06 PM. Tweet. We've previously been critical of the Whittington v. U.S. Steel case (Overlawyered, Jan. 5, 2004; Sep. 20 ). Now the U.S. Steel lawyer makes a sensational allegation: it appears one of U.S. Steel's co-defendants was a Madison THOUGHTS ON THE LITIGATION LOTTERY Thoughts on the Litigation Lottery. Clay Conrad disputes the idea of a litigation lottery; his argument consists of quoting a Nancy Marder law review article: Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathizewith the
HEINONLINE -- 43 RUTGERS L. REV. 1013 1990-1991 HeinOnline -- 43 Rutgers L. Rev. 1014 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 1015 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 10161990-1991
OVERCRIMINALIZATION IS A PROBLEM, BUT A 'MISTAKE OF LAW Regulatory crimes are a different kettle of fish. As some recent episodes have shown, regulations "criminalize" behavior based on what the regulator, acting to implement his view of vaguely described legislative intent, sees as forbidden. THE NVIDIA CLASS ACTION SETTLEMENT BAIT-AND-SWITCH They deny it, but NVIDIA marketed a defective chip for use in laptop motherboards that would overheat and damage other components in thelaptop.
CONNECTICUT SMOKER GETS $8 MILLION JURY VERDICT The Connecticut Law Tribune reports that Barbara Izzarelli has obtained an $8 million jury verdict against RJ Reynolds, whose cigarettes she smoked for more than 20 years.. Izzarelli was in her early teens in the 1970s when she began smoking Salems. She smoked heavily every day -- all day -- for more than 20 years. ARTICLES - POINTOFLAW Articles. The articles below have been selected by our editors as useful introductions to issues of tort law. This list is not intended to be comprehensive; the authors of these articles, and many other individuals, have published much more on these topics. This list does, however, represent some of the best and most interesting work in thefield.
POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool.POINTOFLAW.COM
On Friday, the Center for Class Action Fairness LLC filed its opening brief in the Third Circuit case of Dewey v.Volkswagen (10-3618). The case presents some interesting jurisdictional issues as a side effect of Devlin, plus run-of-the-mill economic quackery and an inexplicable decision to arbitrarily include in the class a million vehicles without providing the same pecuniary reimbursementPOINTOFLAW.COM
Now that the Supreme Court's flurry of opinions for the last term is out, we can start thinking ahead to the new term. The Court will consider a case based on a provision of the Sarbanes-Oxley Act, which was the legislative response to the Enron-era accounting scandals.POINTOFLAW.COM
On November 22, 2013, the Food and Drug Administration flexed its regulatory muscle by sending a warning letter to a genetic-testing company that goes under the stylish name of 23andme. The object of FDA scorn was a diagnostic kit that the tech company, backed by among others Google and Johnson & Johnson, sold to customers for $99.POINTOFLAW.COM
PointofLaw returns to its coverage of the Richard Cordray confirmation standoff. In a 53-45 vote, Senate Republicans effectively blocked the confirmation of Richard Cordray, former Ohio attorney general, nominated to serve as the first director of the Consumer Financial Protection Bureau. While the CFPB can currently regulate the nation's banks, without a director, the new agency cannot assumePOINTOFLAW.COM
Two Pennsylvania attorneys and a West Virginia doctor they hired to read clients' X-rays have just been found liable by a federal jury in Wheeling, WV for violating the (federal) Racketeer Influenced and Corrupt Organizations Act, and for (state-law) fraud, in connection with asbestos claims made against CSX Transportation.The jury awarded $429,240.47, which was the amount CSX said it MASTHEAD - POINTOFLAW FORUM Ted Frank. Ted Frank is an Adjunct Fellow with the Center for Legal Policy at the Manhattan Institute. The Wall Street Journal has called him a "leading tort-reform advocate.". In addition to his role with the Manhattan Institute, Mr. Frank is the president of the Center for POINTOFLAW | ARTICLES: THE MYTH OF THE FORD PINTO CASE The case of the Ford Pinto, and its alleged tendency to explode in rear-end collisions, provided the occasion for what is universally hailed as our product liability system's finest triumph. Everyone knows that Ford engineers realized the car was defective but decided (in a smoking-gun memo unearthed by trial lawyers) that it would be cheaper to pay off death claims than to change the design. THE NVIDIA CLASS ACTION SETTLEMENT BAIT-AND-SWITCH They deny it, but NVIDIA marketed a defective chip for use in laptop motherboards that would overheat and damage other components in thelaptop.
POINTOFLAW FORUM
By Hester Peirce on August 4, 2014 6:51 PM. Tweet. Paul Krugman, in today's New York Times, assures us that Dodd-Frank is working, despite claims to the contrary from critics all across the political spectrum. To make his case, Krugman points to consumer protection, resolution, and the designation of systemically important financial institutions.POINTOFLAW.COM
PointofLaw.com is a website sponsored by the Center for Legal Policy at the Manhattan Institute.Focusing on America's civil justice system, the site includes original discussions featuring some of the nation's top legal scholars, an ongoing forum on liability issues, a bibliography of important books and articles, and links to topicallegal news stories.
POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool. KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT : OF The Supreme Court's five-to-four decision in favor of the landowners in Koontz v. St. Johns River Water Management District counts as a victory of sorts for the property rights movement. The case involved an all-too common exercise of state permit power. Koontz had applied for a permit to develop some 3.7 acres of his waterfront property and for that privilege he was prepared to offer the UPDATE: WHITTINGTON V. U.S. STEEL AND MADISON COUNTY Update: Whittington v. U.S. Steel and Madison County asbestos shenanigans. By Ted Frank on June 10, 2005 8:06 PM. Tweet. We've previously been critical of the Whittington v. U.S. Steel case (Overlawyered, Jan. 5, 2004; Sep. 20 ). Now the U.S. Steel lawyer makes a sensational allegation: it appears one of U.S. Steel's co-defendants was a Madison THE EFFECTS OF THE U.S. MALPRACTICE SYSTEM: A REVIEW OF Working Paper The Effects of the U.S. Malpractice System: A Review of the Empirical Literature Daniel P. Kessler* Stanford University, Hoover Institution, and the National Bureau of THOUGHTS ON THE LITIGATION LOTTERY Thoughts on the Litigation Lottery. Clay Conrad disputes the idea of a litigation lottery; his argument consists of quoting a Nancy Marder law review article: Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathizewith the
HEINONLINE -- 43 RUTGERS L. REV. 1013 1990-1991 HeinOnline -- 43 Rutgers L. Rev. 1014 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 1015 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 10161990-1991
OVERCRIMINALIZATION IS A PROBLEM, BUT A 'MISTAKE OF LAW Regulatory crimes are a different kettle of fish. As some recent episodes have shown, regulations "criminalize" behavior based on what the regulator, acting to implement his view of vaguely described legislative intent, sees as forbidden. CONNECTICUT SMOKER GETS $8 MILLION JURY VERDICT The Connecticut Law Tribune reports that Barbara Izzarelli has obtained an $8 million jury verdict against RJ Reynolds, whose cigarettes she smoked for more than 20 years.. Izzarelli was in her early teens in the 1970s when she began smoking Salems. She smoked heavily every day -- all day -- for more than 20 years.POINTOFLAW FORUM
By Hester Peirce on August 4, 2014 6:51 PM. Tweet. Paul Krugman, in today's New York Times, assures us that Dodd-Frank is working, despite claims to the contrary from critics all across the political spectrum. To make his case, Krugman points to consumer protection, resolution, and the designation of systemically important financial institutions.POINTOFLAW.COM
PointofLaw.com is a website sponsored by the Center for Legal Policy at the Manhattan Institute.Focusing on America's civil justice system, the site includes original discussions featuring some of the nation's top legal scholars, an ongoing forum on liability issues, a bibliography of important books and articles, and links to topicallegal news stories.
POINTOFLAW.COM
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).. Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool. KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT : OF The Supreme Court's five-to-four decision in favor of the landowners in Koontz v. St. Johns River Water Management District counts as a victory of sorts for the property rights movement. The case involved an all-too common exercise of state permit power. Koontz had applied for a permit to develop some 3.7 acres of his waterfront property and for that privilege he was prepared to offer the UPDATE: WHITTINGTON V. U.S. STEEL AND MADISON COUNTY Update: Whittington v. U.S. Steel and Madison County asbestos shenanigans. By Ted Frank on June 10, 2005 8:06 PM. Tweet. We've previously been critical of the Whittington v. U.S. Steel case (Overlawyered, Jan. 5, 2004; Sep. 20 ). Now the U.S. Steel lawyer makes a sensational allegation: it appears one of U.S. Steel's co-defendants was a Madison THE EFFECTS OF THE U.S. MALPRACTICE SYSTEM: A REVIEW OF Working Paper The Effects of the U.S. Malpractice System: A Review of the Empirical Literature Daniel P. Kessler* Stanford University, Hoover Institution, and the National Bureau of THOUGHTS ON THE LITIGATION LOTTERY Thoughts on the Litigation Lottery. Clay Conrad disputes the idea of a litigation lottery; his argument consists of quoting a Nancy Marder law review article: Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathizewith the
HEINONLINE -- 43 RUTGERS L. REV. 1013 1990-1991 HeinOnline -- 43 Rutgers L. Rev. 1014 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 1015 1990-1991. HeinOnline -- 43 Rutgers L. Rev. 10161990-1991
OVERCRIMINALIZATION IS A PROBLEM, BUT A 'MISTAKE OF LAW Regulatory crimes are a different kettle of fish. As some recent episodes have shown, regulations "criminalize" behavior based on what the regulator, acting to implement his view of vaguely described legislative intent, sees as forbidden. CONNECTICUT SMOKER GETS $8 MILLION JURY VERDICT The Connecticut Law Tribune reports that Barbara Izzarelli has obtained an $8 million jury verdict against RJ Reynolds, whose cigarettes she smoked for more than 20 years.. Izzarelli was in her early teens in the 1970s when she began smoking Salems. She smoked heavily every day -- all day -- for more than 20 years. ARTICLES - POINTOFLAW Articles. The articles below have been selected by our editors as useful introductions to issues of tort law. This list is not intended to be comprehensive; the authors of these articles, and many other individuals, have published much more on these topics. This list does, however, represent some of the best and most interesting work in thefield.
POINTOFLAW.COM
PointofLaw.com is a website sponsored by the Center for Legal Policy at the Manhattan Institute.Focusing on America's civil justice system, the site includes original discussions featuring some of the nation's top legal scholars, an ongoing forum on liability issues, a bibliography of important books and articles, and links to topicallegal news stories.
BOOKS - POINTOFLAW FORUM Smoke-Filled Rooms: A Postmortem on the Tobacco Deal. W. Kip Viscusi, Professor, Harvard Law School (University of Chicago Press, 2002) The Case Against Lawyers. Catherine Crier, Host, Court TV s Crier Report (Broadway, 2002) The Collapse of the Common Good: How America's Lawsuit Culture Undermines OurPOINTOFLAW.COM
On Friday, the Center for Class Action Fairness LLC filed its opening brief in the Third Circuit case of Dewey v.Volkswagen (10-3618). The case presents some interesting jurisdictional issues as a side effect of Devlin, plus run-of-the-mill economic quackery and an inexplicable decision to arbitrarily include in the class a million vehicles without providing the same pecuniary reimbursementPOINTOFLAW.COM
Now that the Supreme Court's flurry of opinions for the last term is out, we can start thinking ahead to the new term. The Court will consider a case based on a provision of the Sarbanes-Oxley Act, which was the legislative response to the Enron-era accounting scandals.POINTOFLAW.COM
Charles Hugh-Smith and Jim Geraghty note that if an employee cannot generate revenue to cover his or her wages plus overhead costs, he or she won't be hired. This is absolutely true, but both understate the problem, and the degree to which the Obama administration has made it worse, and is planning on exacerbating it.. One of the biggest overhead expenses is the expected litigation expense ofPOINTOFLAW.COM
Vinny Sidhu Legal Intern, Manhattan Institute's Center for Legal Policy. For all you interested readers out there, the Harvard Law School Forum on Corporate Governance and Financial Regulation has re-published a memorandum from the Manhattan Institute's 2013 Proxy Season Review.. This annual review analyzes various pre-voting facets of shareholder proposals, such as the types of proposalsPOINTOFLAW.COM
The deadline was Friday, Dec. 17, for submitting comments in response to the Securities and Exchange Commission's proposed rules to implement the whistleblower provisions of the Dodd-Frank Act, i.e., the financial regulatory reform legislation . As the Federal Register summarystates:. The Dodd-Frank Wall Street Reform and Consumer Protection Act ADMINISTERED COMPENSATION Kenneth R. Feinberg, partner and founder of Feinberg Rozen and administrator of the government's two outside-the-courts victims' compensation funds for September 11 and the BP Deepwater spill discusses mass injuries and alternative dispute resolution in the American legal system.Manhattan Institute's Center for Legal Policy also hosted an event featuring Mr. Feinberg which 15 STRICT LIABILITY FOR LAWYERING 15 STRICT LIABILITY FOR LAWYERING May you have a lawsuit in which you know you are in the right. — Gypsy curse It's not as if lawyerscan't be sued.
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Treading the Regulatory WatersBy HESTER PEIRCE
on August
13, 2014 10:04 PM
Tweet
With government so involved in business, business cannot afford to sit on the sidelines. A recent Mercatus Center at George Mason Universitystudy
explores the relationship between business political activity (lobbying and campaign expenditures) and business success, and finds that with few exceptions, lobbying isn't correlated with better business performance. The paper's findings must be viewed in light of an important factor driving companies' involvement in policy debates: the need to fend off distortive, ineffective, and costly regulations. This type of lobbying is not likely to generate profits. Continue reading Treading the Regulatory Waters.
TAGS:
* corporate speech
,
* crony capitalism
,
* lobbying
Dodd-Frank: A Success Story?By HESTER PEIRCE
on August
4, 2014 6:51 PM
Tweet
Paul Krugman, in today's _New York Times_, assures us that Dodd-Frank is working, despite claims to the contrary from critics all across the political spectrum. To make his case, Krugman points to consumer protection, resolution, and the designation of systemically important financial institutions. On each of these fronts, his defense falls short. Continue reading Dodd-Frank: A Success Story?.
TAGS:
* Dodd-Frank
Dodd-Frank at Four
By HESTER PEIRCE
on July 21,
2014 11:35 AM
Tweet
Dodd-Frank turns four today. Proponents marketed the law as the response to the financial crisis of 2007 to 2009, even though it included many unrelated items and left out many matters central to the crisis. It is not surprising that four years later, Dodd-Frank is still flawed. A recent poll conducted on behalf of Better Markets found that sixty percent of the respondents support "stricter federal regulation on the way banks and other financial institutions conduct their business." Only ten percent of survey respondents think the federal government is doing a good job regulating the financial industry using the powers it has already, so additional authority for the government is not the answer. A more effective approach would be to allow the markets to do what they do best--allocate resources to their most productive use and punish firms that are not delivering products and services that people want and need at prices they are willing to pay. Government regulations often impede these healthy market functions. An intense government regulatory regime, such as the one embodied in Dodd-Frank, comes with deep government relationships with large financial institutions and implicit or explicit guarantees that the government will be there to clean up those firms' meeses. Taxpayers bear the cost of this regulatory regime, but so do the consumers and Main Street companies that financial markets are supposed to serve.TAGS:
* Dodd-Frank
The $10 Million Bedtime Story: Yankees Sued by Sleeping SpectatorBy ISAAC GORODETSKI
on July
18, 2014 8:33 AM
Tweet
_By Olivia Davidson
Summer Intern, Manhattan Institute's Center for Legal Policy_ Two weeks ago, supposed baseball fan Andrew Rector filed a defamationlawsuit
against Major League Baseball, ESPN, commentators Dan Shulman and John Kruk, and the New York Yankees for $10 million. Rector, who was caught sleeping on camera during a Yankees-Red Sox game on April 13th, claimsthat the
commentators "unleashed an avalanche of disparaging words" commenting on his weight and ability to sleep through a home run. Defamation is not a crime, but a tort, and for a statement to qualify as slander (a defamatory statement that is spoken), the following elements must be proven, writes attorney Emily Doskow:
> "PUBLISHED" means that a third party heard or saw the statement...>
> A defamatory statement MUST BE FALSE -- otherwise it's not > considered damaging. Even terribly mean or disparaging things are > not defamatory if the shoe fits...>
> The statement must be "INJURIOUS". Those suing for defamation must > show how their reputations were hurt by the false statement -- for > example, the person lost work; was shunned by neighbors, friends, or > family members; or was harassed by the press...>
> "UNPRIVILEGED": Lawmakers have decided that in situations, > which are considered "privileged," free speech is so important that > the speakers should not be constrained by worries that they will be > sued for defamation... In Rector's case, the alleged slander is evidently published and unprivileged, though whether or not it was injurious and false remains to be determined by the Court. According to a NY Times article,
> Mr. Rector maintains the announcers used words like 'fatty' and > 'stupid' to describe him, but neither Mr. Shulman nor Mr. Kruk > uttered such insults in the clip> .
> It is unclear whether they commented later in the game on Mr. > Rector's lengthy nap, implying perhaps the falsehood lies in Rectors > idiosyncratic and frequently grammatically incorrect complaint. Undeniably, following the upload of the clip to Youtube by MLB, Rector was subject to public ridicule, being called 'Sleeping Beauty' by one Twitter user. Rector goes as far as to say he has "suffered substantial injury" to his "character and reputation," as well as "mental anguish, loss of future income and loss of earning capacity." Rector's mother supported his claims saying he had missed work because of the public scorn he had experienced and that "everyone made fun of him everywhere he went."' Rector is also suing for intentional infliction of emotional distress which requires an intentional or reckless act, outrageous conduct, causation and sufferance of emotional distress by the plaintiff. As Texans for Lawsuit Reform wrote, "Lampooning the lawsuit industry has become an industry unto itself." We'll have to see if Rector has what it takes to make it in this business and win his plea.TAGS:
* civil justice
,
* defamation
,
* New York Yankess
,
* slander
,
* tort law
Fish-nancial Fraud
By HESTER PEIRCE
on July 11,
2014 10:47 PM
Tweet
Now that the Supreme Court's flurry of opinions for the last term is out, we can start thinking ahead to the new term. The Court will consider a case based on a provision of the Sarbanes-Oxley Act, which was the legislative response to the Enron-era accounting scandals. The law is now being used to pursue fish destruction--a type of fraud that most certainly was not within Sarbanes-Oxley's intended reach. Continue reading Fish-nancial Fraud.
TAGS:
* overcriminalization,
* Sarbanes-Oxley
,
* Supreme Court
Class-Actions & Market IntegrityBy HESTER PEIRCE
on July 7,
2014 1:15 PM
Tweet
The ruling
in Erica
P. John Fund v. Halliburton got lost among the other opinions released at the end of the Supreme Court's term. The case had already been to the Supreme Court once on a separate issue. This iteration presented the Court with the opportunity to fundamentally rethink its own role in generating securities class actions. Instead, the Court made only peripheral changes that slightly limit the leverage that class action attorneys have against a corporation after a drop in its stock price. Continue reading Class-Actions & Market Integrity.
TAGS:
* securities class actions,
* securities fraud
,
* securities litigation Stress Tests and Managerial DistractionBy HESTER PEIRCE
on June 28,
2014 12:11 AM
Tweet
The Wall Street Journal reports that Michael Corbat, the CEO of Citigroup, has a singular focus--ensuring that his bank passes its next stress test. The bank's failure of its most recent stress test last spring was an unwelcome surprise. The Journal reports that its failure was rooted in the qualitative portion of the test. Mr. Corbat is thus focusing on "courting the Fed" with visits; "passing next year's stress test his 'Mission No. 1.'" How sad that a bank manager's overriding objective is to cozy up to his regulators so that they give him their blessing. Doing so might not even keep the bank safe. What if the regulators' focus is misplaced? As much as we want to believe that regulators are omniscient and unbiased decision-makers, they have limited information and sometimes miss things or exercise imperfect judgment. The Fed made supervisory missteps with respect to entities like Citi in the lead-up to the last crisis, and that is not surprising. Regulators simply are not able to collect and process information as quickly and effectively as necessary to be outside risk managers for the big banks. Moreover, as John Cochrane observed in arecent article
,
" system more ripe for capture and a revolving door would be hard to design." Our regulatory system should be designed to encourage bankers to pay close attention to the challenges and opportunities faced by their institutions, not to keep their eyes fixed on every move their regulators make. Bank executives with their heads in the regulatory clouds are likely to miss important happenings on theground.
TAGS:
* Federal Reserve
,
* financial regulationFINRA's Fines
By HESTER PEIRCE
on June 20,
2014 4:28 PM
Tweet
The Wall Street Journal reports that the Financial Industry Regulatory Authority is reviewing its penalty guidelines to make sure they are appropriately severe. This review follows a speech by Securities and Exchange Commission member Kara Stein, in which she opined that FINRA penalties are "too often financially insignificant for the wrongdoers" and urged FINRA to make penalties high enough to be "impactful, and provide strong motivation for compliance." It is good that someone at the SEC is paying attention to FINRA, but a blanket suggestion to raise penalties may serve only to exacerbate problems that arise from FINRA's inadequate accountability structure. Continue reading FINRA's Fines.
TAGS:
* FINRA
,
* SEC
,
* Securities and Exchange Commission,
* securities regulation Operation Choke Point's Back DoorBy HESTER PEIRCE
on June 14,
2014 10:35 PM
Tweet
Last week, payday lenders suedthe
Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, and the Board of Governors of the Federal Reserve System for allegedly dissuading banks from doing business with payday lenders. Plaintiffs argue that the bank regulators' efforts are partof the now infamous
"Operation Choke Point," the Department of Justice's program to prevent fraudsters from gaining access to the banking system. Bank regulators, through these Choke Point initiatives, have effectively changed the regulatory landscape for banks and legitimate businesses without affording these entities an opportunity to weigh in. The payday lenders contend that the banking regulators, urging banks to be mindful of reputation risk, have forced banks to sever their relationships with payday lenders. Rather than using notice-and-comment rulemaking, bank regulators have used informal methods to spur action, such as guidance documents and suggestions by bank examiners. Using guidance documents and other informal means to influence bank behavior, plaintiffs argue, runs afoul of the Administrative Procedure Act, because they are de facto mandates on banks that are implemented without public input. FDIC guidance,
for example, identifies as higher-risk activities payday lending, magazine subscriptions, and pharmaceutical sales. Although these regulatory directives are about keeping banks away from bad actors, banks would rather cut ties with a legitimate customer than risk attention from their regulators. As the Department of Justice explained in a September 9, 2013 memo,
it is up to legitimate businesses "through their own dealings with banks, present sufficient information to the banks to convince them that their business model and lending operations are wholly legitimate." Such information campaigns likely will go unheeded by bankers following the not-so-subtle hints they are getting from theirregulators.
TAGS:
* FDIC
,
* Federal Reserve
,
* OCC
,
* Operation Choke Point,
* payday loans
Second Circuit: Pragmatism Trumps TruthBy HESTER PEIRCE
on June 5,
2014 4:30 PM | No CommentsTweet
Yesterday's decision in _SEC v. Citigroup_ weakens the much needed judicial check on the Securities and Exchange Commission's enforcement program. The U.S. Court of Appeals for the Second Circuit told District Court Judge Jed Rakoff to stop being so skeptical when the SEC presents him with settled enforcement actions. Continue reading Second Circuit: Pragmatism Trumps Truth.
TAGS:
* Securities and Exchange Commission,
* securities litigation,
* securities regulationArchives
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