Tortdeform

Kia Franklin

Lessons Sen McCain has learned from Pres Bush—part I

Sen. John McCain has officially earned an A in Prof. Bush’s course on Tort Reform Tropes, 101. Maybe that’s why they’re embracing in this photo (source).

The Senator and presumed Republican party Presidential nominee spoke in Rochester, Mich., the other day. (Thanks, Matt at ThinkProgress, for pointing out and analyzing McCain’s statements and his track record on women’s rights).

According to the Washington Post:

Although the Michigan audience was largely supportive, cheering McCain’s pledge to provide easy health care access for veterans, the meeting started out with a few tough questions. McCain singled out a 14-year-old girl who questioned why he opposes eliminating the statute of limitations on lawsuits over workplace discrimination, arguing it amounted to opposing “equal rights for women.”
“If you eliminate the statutes of limitations, and you make it unending, you may be violating the rights of the individuals who are being sued, whether they’re a man or a woman,” the senator responded. “ I don’t think you’re doing anything to help the rights of women, except maybe help trial lawyers and others in that profession.” (My emphasis added)

Haven’t we heard this before? It’s déja-vu all over again. McCain is using the same tactics Bush used to get elected: when in doubt, blame the trial lawyers.

When faced with a tough question about why people are being denied access to justice, say it’s because that’s the only way to stop the trial lawyers. Oh, and this will work no matter how inherently flawed, inane, or even insane your argument is at its substance. And for good measure you can sprinkle in some references to “evil in this world” to appeal to peoples’ morals, thus creating the inference that all of your political stances are directed at combating that evil.

McCain’s appeal to the breached rights of individual employers is strained from the start. First, the law does not create an unending statute of limitations—it clarifies that the statute starts running afresh with every new discriminatory act, such as the issuance of an inequitable paycheck based upon discrimination. Second, the defendant in employment discrimination claims is often a corporation and not an individual.

But even in cases in which the defendant is an individual, what is the right which McCain asserts is being violated? Is it the right not to be sued for discriminating against someone without getting caught within 180 days, even if you then discriminate over and over again after the 180 days are up? Even if it can be more cleverly articulated than this, does McCain really think one can compare the obstruction of some unsavory interest in evading responsibility to the infringement of a highly cherished right not to be victimized by discrimination and economic injustice? That’s ridiculous.

So, McCain’s not smarter than a twelve year old… but neither was Bush, and he got elected. The rhetoric works.

The “trial lawyers are evil” mantra addresses none of the values McCain touted in his speech to the Michigan audience. He told supporters that “evil still exists in the world” and “assails the great, animating truths we believe to be self-evident — that all people have a right to life, liberty and the pursuit of happiness — by subjecting countless human beings to abuse, persecution and even slavery.” He observed that the “failure to [confront this evil] affects even those who are complacent with our own blessings and secure in our human rights,” and pointed to this country’s founding “belief in the inherent dignity of all human life [which] can only be preserved through shared respect and shared responsibility.”

Of course that sounds great, but a true belief in those words would require McCain to recognize that discrimination is a form of persecution, and that the court system is a way for individuals to demand the “respect we are morally obliged to pay each other.” As someone unlikely to face workplace discrimination, he would nonetheless feel called to confront the evil of discrimination and economic inequity. And his call for “shared respect and shared responsibility” would compel him to acknowledge the assault to human dignitiy that is an unvindicated act of discrimination.

But it appears as though McCain has learned from Bush that matching your professed values with the political decisions you make would be no good at all. After all, It might help the trial lawyers.

Posted at 4:43 PM, May 08, 2008 in Civil Justice | Permalink | Comments (4) | TrackBack (0)

Kia Franklin

On DMI Blog—Exploting Borrowers Amidst the Foreclosure Crisis

By Antoine Morris, Cross-posted from DMI Blog:

On Tuesday, May 6th, a Senate Judiciary subcommittee held a hearing on abusive practices perpetuated by mortgage lenders in the bankruptcy court system. Businesses and consumers often turn to bankruptcy courts as they liquidate their assets in an effort to workout reasonable payment plans with their creditors. For families on the brink of losing their homes, bankruptcy courts play a key role in allowing at-risk homeowners one last chance to keep their homes.

In recent months, however, some mortgage services such as Calabasas, California based Countrywide Financial Corporation have come under intense scrutiny by the Department of Justice for foreclosing homes prematurely only to pile on unnecessary and costly fees on borrowers during bankruptcy proceedings.

But Steve Bailey, the Chief Executive for Loan Administration at Countrywide, disputed those allegations. In a prepared statement before the Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts, he said, “Countrywide is committed to helping our borrowers avoid foreclosure whenever they have a reasonable source of income and a desire to remain in the property.”

He also claimed, “Recent media reports alleging that mortgage servicers are systematically charging excessive fees and using the bankruptcy process to push borrowers into foreclosure or abusing the process more generally are inaccurate.” Bailey attributed any perceived abuses to no more than run of the mill “individual employee errors.”

But Countrywide’s track record of overcharging borrowers facing foreclosure and during bankruptcy proceedings suggests otherwise. One New Jersey couple who owned their home for the last 10 years were served with foreclosure papers by Countrywide and were inexplicably charged expensive flood insurance that they could not afford and did not need. It took months to resolve the error. Meanwhile, she fell behind on her mortgage payments.

In several other cases, the mortgage company has repeatedly been accused by the attorneys of the borrowers and U.S. Trustees in bankruptcy courts of inflating overdue mortgage payments and fabricating documents to bolster their claims and collect more money in bankruptcy court.

Robin and John Atchley’s experience with Countrywide seems to be emblematic of these very same abuses. In 2004, the Atchley’s moved from a mobile home to what Atchley described as her family’s dream home in Waleska, Georgia. After securing a home loan from American Freedom Mortgage her mortgage was sold to Countrywide. During Mrs. Atchley’s grieving period after her sister’s death, she took unpaid leave from her job at the U.S. Postal Service. Soon afterwards, the Atchleys fell behind on their mortgage payments by about three months worth.

Apparently, that was enough for Countrywide to initiate foreclosure proceedings against the Georgia family and create what Atchely called a “tug of war” over her home she said in her testimony. The Atchleys hoped the bankruptcy court would allow her and her husband pay off her debts and keep her house, but, according to Atchley, “to take advantage of our predicament and to profit from our struggle.” At one point, Countrywide alleged that the Atchley’s owed an extra $14,000 on her home loan and $2,250 for other unspecified fees.

Neither of those extra charges were substantiated once they were vigorously challenged by her attorney.

Katherine Porter, a bankruptcy law expert who has studied 1700 bankruptcy cases, told the Subcommittee that the Atchleys suffered an all too common fate. Proter said she found that in bankruptcy cases “mortgage servicers disregard bankruptcy law in more than half” the time.

Mortgage services frequently misapply payments during the bankruptcy case or fail to disclose post-bankruptcy attorneys fees and property inspection or simply not itemized their fees at all to overcharge borrowers. Porter contends that such a pattern of falsifying or withholding documentation demonstrates a deliberate attempt to manipulate a system intended to help those trying to aviod financial ruin.

An unpersuasive defense from Bailey of Countrywide’s treatment of the Atchleys led Senator Chuck Schumer, chairman of the Subcommittee, to conclude “Companies know that the hapless homeowner is too poor, too unsophisticated or too overwhelmed to challenge often blatantly fraudulent demands for payment.”

The Atchleys eventually lost their home and are currently living with other family members until they can save enough money to rent a place of their own.

Posted at 9:53 AM, May 08, 2008 in Civil Justice | Housing | Permalink | Comments (0) | TrackBack (0)

Kia Franklin

You got ID, sister?

As Stephanie Mencimer points out, maybe I shouldn’t complain about getting carded at CVS for my allergy meds. After all, the plight of people who could be negatively affected by the recent Supreme Court case upholding Indiana’s voter ID law (Crawford v. Marion County Election Board) is really nothing to sneeze at.

Okay, that was a bit cheesy.

But my point is that access to the ballot is just as important as access to the courts, and this recent Supreme Court decision may make it more difficult for elderly and poor Indiana voters to vote if they don’t have i.d.’s and face significant difficulties obtaining one.

Need proof? Well, the Court didn’t get any. Proponents of the Voter ID law claimed the law would prevent voter fraud but could not find one instance of voter fraud; opponents to the law also failed to provide proof that people would be prevented from voting as a result of the law.

But yesterday’s primary election fills that evidentiary gap with a human interest story compelling enough to be summed up in two words: elderly nuns. Elderly nuns, for God’s—please excuse me—for Goodness sakes, were turned away because they did not have updated identification. From the article:

About 12 Indiana nuns were turned away Tuesday from a polling place by a fellow bride of Christ because they didn’t have state or federal identification bearing a photograph.
Sister Julie McGuire said she was forced to turn away her fellow sisters at Saint Mary’s Convent in South Bend, across the street from the University of Notre Dame, because they had been told earlier that they would need such an ID to vote.

The nuns, all in their 80s or 90s, didn’t get one but came to the precinct anyway.

Regressive court rulings and terrible judicial appointments illuminate the importance of being able to elect the right representatives and pass the right laws. This, obviously, requires that people be able to actually cast their ballot.

For some great opinions on the Supreme Court decision, go here (subscription may be required).

Posted at 12:06 PM, May 07, 2008 in Elections/Voting | Permalink | Comments (2) | TrackBack (0)

Kia Franklin

Mitigating the Potential Damage of Being Stuck in Arbitration

As TortDeform regulars know, we debate about binding mandatory arbitration a lot on this site (i.e., see the comments section for this prior post). I thought I’d pass along some great reads I’ve come across, thanks to others’ tips and my own digging, for those who have yet to decide how they will weigh in on the debate. So…

First, thanks to Paul Bland of Public Justice for a tip on two interesting reads on binding mandatory arbitration: an article advancing the case for bma in securities cases, and an article scrutinizing bma’s appropriateness when applied to parties of unequal bargaining power, giving special attention to bma’s impact on large, complex, and class action claims.

Next, moving from the bigger policy questions to the practical question of what to do once you’ve already been sucked into bma, thanks to Daniel de Bonis at Public Citizen’s WatchDog blog, who offers this informative post, and cites to CreditCards.com’s 6 tips for dealing with binding mandatory arbitration.

Happy reading!

Posted at 12:21 PM, May 06, 2008 in Arbitration | Permalink | Comments (0) | TrackBack (0)

Kia Franklin

Muy Bizzarro…

Talk about bizzarre: A racist 1931 law banning “Spanish or Mexican” people from certain buildings in a small Texas town was just abolished. To add to the absurdity, the 2000 census recorded that the South Texas town was 97% Latino. An anti-Latino ordinance in a predominantly Latino town…

Clearly this obscure racist law has sat on the books without notice for quite some time. But I consider it a marker of both how far we’ve come and how far we still have yet to go that this law managed to survive (albeit in technicality only) for so long.

What do you think? How do you think the existence of laws like this affect our perception of the legal system?

Update—While I’m at it, I might add that while overtly anti-Latino ordinances are being taken off the books, the racial overtones of many anti-immigrant laws and policies keep this sentiment alive. For starters, check out: Immigration 101 and MALDEF’s publications on anti-immigrant ordinances.

Kia Franklin

Corps of Engrs. Can Be Sued for “Hurricane Highway”

A federal judge wrote on Friday that the Army Corps of Engineers can be sued for Hurricane Katrina flood damage caused by a navigation channel called “a hurricane highway.”

Judge Stanwood Duval is the same judge who in February found that, despite signs of clear wrongdoing, the Corps of Engineers could not be sued for flood control projects gone wrong. But this case is different from the February claim because the channel at issue, the Mississippi River-Gulf Outlet, or MRGO, was “clearly a ship channel and not a flood control project.”

From his opinion:

“The United States should not be immunized for a tort which occurred from an activity unrelated to a flood control project… Taken to its logical conclusion, such a policy would yield absurd results.” [Read the article here]

(Thanks to CJ&D for the alert)

Posted at 11:24 AM, May 05, 2008 in Hurricane Katrina | Permalink | Comments (0) | TrackBack (0)

Kia Franklin

Obama for Tort Reform?

We’re being outfoxed here, guys. And not just in the sense that has been discussed all over the blogosphere over the past week (like here), after both Senators Obama and Clinton did interviews on the notoriously biased Fox News Station. But we’re also outfoxing ourselves by allowing influential leaders to discuss the issues that affect us in very misleading ways, without holding them accountable.

I consider it very unfortunate that a prime example comes from Senator Obama’s Fox interview, wherein he touted his support for tort “reform” as an instance in which he transcended party politics. One assumes he is referring to his vote in favor of the Class Action Fairness Act (go here to see why CAFA is no good for middle class Americans). Chris Wallace asked Senator Obama:

On some issues where Democrats have moved to the center… you stay on the left and you are against both. And so people say, “Do you really want a partnership with Republicans, or do you really want unconditional surrender from them?”

To which he responded:

No, look, I think this is fair. I would point out, though, for example, that when I voted for a tort reform measure that was fiercely opposed by the trial lawyers, I got attacked pretty hard from the left.

In general, Senator Obama was characteristically diplomatic during the interview. Maybe the folks over at Fox are a little disappointed that Obama did not give them much of a show, but I think they’ll soon be pleased to see that the way he handled this opportunity actually played into their agenda.

The fatal flaw in Obama’s response is that it characterizes a vote for tort “reform” as a refusal to cave in to those “trial lawyers” (and by proxy the Dems, I guess)—a common trick used to subsume the relevance this issue has for ordinary citizens who just want to live in safety from dangerous products, fraud, and unnecessary injury.

Yes, trial lawyers make a living off of successful lawsuits. So does the defense bar—actually, the defense bar often makes money either way a trial gets resolved. But with respect to tort “reforms” that eliminate or severely limit a person’s right to get into court in the first place or to obtain adequate compensation, or to otherwise hold a wrongdoing corporation accountable, much more is at stake than lawyers’ fees…We’re talking about the rights of regular people not to be defrauded, discriminated against, unlawfully harmed, etc., and our ability to enforce our rights through the civil courts.

So all that to say we’re severely missing the point if we think of Obama’s vote for CAFA merely as an ideological divergence from the majority of his Democratic colleagues. Indeed, most Republican voters would be just as freaked out as their Dem counterparts, about tort “reform” and what it does to their rights. Just read the insights of conservative civil justice activist Jordan Fogal for some enlightenment on this. If we all knew the extent to which tort “reform” affects our lives as consumers, employees, and citizens who want to live a safe and healthy life, none of us would be in favor of it. Unfortunately, this isn’t discussed very much, especially not in the mass media.

In the same Fox Interview, Obama said he wants to “do what works for the American people.” In another speech he added that “people want some help in stabilizing their lives… and that’s what we should be talking about today.” I’d suggest then, that the Senator start talking about strengthening the civil justice system and stop talking about the mistakes of his past votes for harmful tort “reform”.

And because Obama embraces a politics of listening to constituents and has spoken at length about the importance of regular people feeling like their voices are heard, it is very important that we pay attention to things like this, voice our concerns about them, and observe whether this makes any impact at all on how our legal rights are discussed.

See Edwards for Tort Reform?

Kia Franklin

In the News… Gender Discrimination Cases

54 More Claim Discrimination against Bloomberg Firm (NYT). More female employees have come forward against the Bloomberg firm, claiming the firm discriminated against pregnant employees.

In Business Week we learn that Citigroup is near settlement of a gender class action suit against its Smith Barney division, brought by female financial advisers alleging discrimination in “compensation and business opportunities.”

Posted at 11:18 AM, May 02, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Kia Franklin

New York Development Lawsuit

In the New York Times today: anticipated delays in a Brooklyn development project are not just a nuisance to many, they’re the centerpeice of a lawsuit for some. Tenants of Brooklyn-based apartments who are being displaced from their apartments due to eminent domain, are suing because of indications that the project won’t meet the law’s timelines.

Their lawyer says:

“When you spend hundreds of millions of dollars in public money on something you know the developer is never in a position to deliver,” Mr. Locker said, “and government bodies take votes and appropriate hundreds of millions of dollars of taxpayer money, which is in short supply, based on the promise of affordable housing and jobs, and it’s not going to be built in the statutory 10 years, it’s really a fraud on the public.”

For more on the Atlantic Yards controversy, visit here.

Posted at 2:25 PM, May 01, 2008 in In the News | Permalink | Comments (0) | TrackBack (0)

Kia Franklin

Former D.C. Workers Say Law Doesn’t Prevent Retaliation

In the Washington Post: Lawyers and advocates of whistle-blowers say that despite a whistleblower protection law, employers still retaliate. The article highlights three stories of employees who witnessed or faced workplace harassment, unsafe working conditions, and improper corporate conduct, reported it, and then were fired. The former employee who was fired for reporting a potential embezzlement case told the paper:

“They fired me for doing what the law says is the right thing to do,” Cooper said. “Is it any wonder that no one spoke out all this time about the largest embezzlement case in D.C. history? Of course not. Who would dare speak? It’s a culture of corruption — to look the other way and act like you don’t see it.”

The article tracks what has happened to these former employees since being fired. One has filed a lawsuit. Can you blame him? Read the article and determine for yourself.

Posted at 5:48 PM, Apr 30, 2008 in Labor/Employment | Permalink | Comments (0) | TrackBack (0)