Health care reform rhetoric, vandalism and violence: what are the legal options?

Here is a disturbing CNN report on threats of violence and acts of vandalism triggered by heated rhetoric of the health care reform debate. I have to say that I’m especially troubled by Rep. Steve King (R-Iowa) and his smug admission that this is all melodrama.

Thanks, sir. Glad that putting your opponents in harm’s way is “just” a little game.

I’ve seen questions floating through blogs and social media about why these people can’t be stopped from abusive rhetoric.  Short answer is that the First Amendment generally prevents a court from telling someone that they can’t speak.

So the demigods, sideshow freaks, and rodeo clowns are free to continue heating things up with half baked allegations and over-heated rhetoric. But when violence results in injury, lines have been crossed. Only then will we be able to hold people accountable in court. Only then will an irresponsible speaker face a reckoning.

Not pretty, I know–especially when you see and hear the kind of stuff that we’ve faced over the last few days. But it’s a line that we have to honor.

A similar thing happened here in Oregon many years ago. When the White Aryan Resistance leader, Tom Metzger, incited a trio of skinheads to violence, he faced a wrongful death claim brought by the Seraw family, who lost their son in a senseless hate-filled attack.

If any wingnut is crazy enough to start firing shots or throwing bombs, there will be a reckoning. And it will be epic.The threats of violence aren’t going to shout the rest of us down. We’re going to have health care reform. Now maybe it’s time to act like grown ups and get on with the business of living in a democracy.

Letter to Governor Perry-stay the Hank Skinner execution-updated

The Hank Skinner execution is slated to take place today in Texas. My criminal defense pals who frequent Twitter pointed out the problem with this case. Most notably, there hasn’t been DNA testing of evidence in the DA’s possession. Interestingly, by pushing forward without DNA testing the State of Texas is giving death penalty opponents another great case for their strongest argument against the death penalty.

I laid that out in a faxed letter to Governor Rick Perry (512 463-1849) today. I’ve pasted it below:

RE: Inmate Hank Skinner-Scheduled Execution March 24, 2010, 6 p.m. CDT

Dear Governor Perry;

I write to join those asking you to order a stay execution in this matter to allow DNA testing for Hank Skinner. The various reports on Mr. Skinner’s conviction are troubling. The biggest problem appears to be a lack of confirmatory DNA testing.

Those who oppose the death penalty make their strongest arguments by pointing to executions of prisoners who may be innocent of their crimes, notwithstanding their convictions. Death penalty opponents make their most compelling case when they point to major irregularities in proceedings. In short, execution of Hank Skinner without confirming DNA testing assists those who oppose the death penalty.

If DNA testing confirms Mr. Skinner’s guilt, nothing is lost by the stay. If on the other hand the testing establishes wrongful conviction, then avoiding his execution demonstrates the integrity of the Texas criminal justice system.

Thanks for your careful consideration of these issues.

***

More: My Twitter buddy @thetrialwarrior, known in real life as Antonin Pribetic, provides a much more thorough take here. Antonin is a jewel. Great blog on Canada and U.S. justice issues and Twitter amusement to virtually no end.

***

Last word for now: Late in the day the U.S. Supreme Court issued an order staying the execution so that it could decide whether it wants to consider Skinner’s civil rights claim that he is entitled to DNA testing under federal civil rights law. Here is more detail at SCOTUSblog laying out the order. It’s a tenuous halt, but a stop all the same. Let’s hope that Texas does the right thing in the meantime and provides access to the evidence for DNA testing.

Constitutional challenge to health care reform-good luck with that

It took less than 24 hours for various states’ attorneys general to start the saber rattling. Apparently,  at least 10 states are lining up to litigate constitutional challenges to the historic passage of health care reform.

The talking points memo was apparently released early. My understanding from a casual review of the media stories is that various challengers claim that Congress lacks the power to require individuals to take actions to obtain health insurance.  The story goes that the Commerce Clause of the United States Constitution (“The Congress shall have power ****To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) does not allow Congress to require citizens to affirmatively act.

As I understand the argument, someone who doesn’t buy insurance isn’t affirmatively affecting interstate Congress. As a result, Congress has no power to regulate these non-actors  through federal legislation. Legal geeks know that the power to regulate interstate commerce is far-reaching. There are few limits on that power and very few acts that don’t otherwise impact interstate commerce.

So it’s an interesting theory. Novel, really. But wrong. People who don’t have insurance are only non-actors as long as they don’t seek medical care. But once they show up in an emergency room,  apply for benefits, or otherwise incur medical care costs, they are impacting interstate commerce. Thus, it’s facetious to claim that they are not affecting interstate commerce.

But there is a bigger technical problem here which each of these political attorneys general know. It’s such a big problem that it makes the mandate argument frivolous.  In order to pursue a claim, a party going seeking relief in court must be able to claim a real legal injury. The label in legal jargon is “standing.”  There is an awful lot of case law on standing out there. Much of it comes from environmental law with courts deciding who has suffered legal injury and who has standing.

As I understand it, the current version of the health care reform bill doesn’t mandate coverage until 2014. So no one has been injured yet.

Sorry cowboys, if you file the suit now, you won’t be able to establish legal injury or standing. And by the way, I’m sure all of you are very concerned about crowding the courts with frivolous lawsuits. And for all of the times you’ve denounced frivolous lawsuits, you would never, never, never file one yourselves.  Right?

The wisdom of requiring legal injury is illustrated by the opponents’ two-pronged approach to fighting health care reform.  At the same time that the GOP attorneys general are revving up the lawsuit teams, the Congressional republicans are yammering about a repeal.  They’re also laying plans to tie up the reconciliation bill in the Senate.  As it’s a long way until 2014, how can any court ruling made today be definitive?

This scenario potentially raises an interesting series of law-geek questions under the political-question prong of the abstention doctrine. I don’t have time to think about that on this busy day. And besides, you would have to be a serious law geek to be interested. And even if you were, you would probably want to read stuff by people much smarter than me.

In any event, if the courts will truly call this on the law and not take thinly-veiled political sides, this case gets flushed quickly at all levels. Of course the U.S. Supreme Court abandoned pretenses of deciding cases on legal principles. (See, e.g., Gore v. Bush)

I suppose the U.S. Supreme Court could change the law of standing to hear this premature challenge. That would lead to a radical new theory of standing. Radical changes to the standing doctrine would be a mistake because it would unleash a torrent of future litigation. You would allow all manner of excited people their day in court to litigate issues of what might happen four years from now. That would be a really bad idea.

I think the GOP AGs might want to think carefully about what they are doing. Or maybe they’re simply too desperate to reflect?

Senator Wyden pushes VA for assistance to Qarmat Ali veterans

Our toxic exposure case for Oregon National Guard vets exposed to sodium dichromate at the Qarmat Ali facility in Iraq continues. The case is against Kellogg Brown and Root (KBR) and its various offshoots.  Background: Link to NBC Nightly News story and reflections on the case here.  Earlier updates on the case here.

Meantime, worth noting is that Senator Ron Wyden’s sent a letter today to Eric Shinseki, the Secretary of the Department of Veterans Affairs regarding the matter. Here is a pdf copy-  Qarmat Ali vets letter fr Sen Wyden.

I am appreciative that Senator Wyden continues pushing on these issues. As well, Senator Merkley, Rep. Schrader, and Oregon Sen. Shields have carried this issue, too.  Some of this is about good constituent service, I suppose.

But in talking to Sen. Wyden, Sen.  Merkley, Oregon Sen. Shields and their staff members, I know that this is about more than simply providing service to voters.  We all agree that we owe our vets better. To my way of thinking, this includes that KBR face its day of reckoning.

To all of our leaders who continue advocating for our soldiers-I am sure you know from your own conversations that our Qarmat Ali vets deeply appreciate your continuing efforts.  One of our vets’ father served in Vietnam. He quietly shared with me his appreciation that a senator or a busy lawyer would come to the aid of his son. As he explained it, usually soldiers think that they can only rely on other soldiers.  I thanked him for his kind words and simply said that it was the very least we could do.

Add U.S. Chamber of Commerce to losers list on health care reform

Good post here at the PopTort, about the U.S. Chamber of Commerce’s latest legislative loss. This time it’s health care reform. But as the PopTort article goes on to note that loss is the latest in a string of losses for the U.S. Chamber, which also opposed financial regulation, EPA action on greenhouse gases, and Sen. Franken’s efforts to limit defense contractors’ use of mandatory arbitration clauses.

On my prior blog, I’ve noted the problems with the U.S. Chamber of Commerce. They supported Bush-Cheney policies that led us to financial crisis. The U.S. Chamber rails against lawsuits and verdicts for consumers. But when a big business obtains a $300 million verdict, they remain silent.

I imagine the talking heads will be sorting winners and losers over last night’s historic health care reform vote. Let’s be sure to add the U.S. Chamber of Commerce to the health care reform losers. To be fair, they are not alone.

At our house over the weekend, my teenage daughter asked whether health care reform was a good idea.  Her mom and I talked it through slowly, pointing out that over 30 million Americans who previously lacked insurance would have access to health care. We also explained the the dread and indefensible pre-existing condition snafu that would bar all four members of her immediate family from care in the current environment.  But we were quick to say that there were a lot of unanswered questions about the bill.

My own take is that the bill did not go far enough. I don’t think that access to medical care should be a luxury, and as a small business owner, I have serious doubts about the wisdom of continuing to tie health care to employment. Still, a step forward is better than none.

I was struck by the tenor of the opponents. They would not negotiate. They hurled horrifying epithets. They wanted to make it all or nothing, and now–having lost–they complain bitterly about the process. By choosing a loud and nasty campaign, they galvanized the middle against them. I’m not much of a legislative geek, but from my perspective, the anger and distortions helped drive the ambivalent to support the bill.

As the debate unfolded over the weekend, I followed with keen interest the comments on Twitter.  (Yes, I’m on Twitter–@DavidSug.) Lots of trash talk about Speaker Pelosi and President Obama.  Seemed like it was pretty simple. They did what none of our prior leaders could do. I’m impressed by their political skills and dedication in getting it done.

So as to the U.S. Chamber of Commerce, I can’t help but wonder how that high spendin’, loud talkin’ worked out for you.  Feel free to let me know.

From the editor-That darned spam filter and comments

I just realized that our askimet settings may have been a bit too extreme in filtering out real comments. Apologies if you posted and didn’t see it. I blame Mr. Sugerman.  You should, too.

-Ed.

Thanks for your comments. Apologies if you thought I didn’t appreciate them. And as for this Ed. dude:  I’m seriously thinking about canning him. Too much attitude. Sadly, he works for cheap. And he generally does pretty good work, so I’m reluctant to pull the trigger. Feel free to weigh in on whether I should ix-nay Ed.

David Sugerman (aka “Ed.”)

Payday loans trap consumers

Thinking about a payday loan? Please check out this article on the hazards of on-line payday loans. The author, Herb Weisbaum, is one of my favorite consumer news resources. He writes the ConsumerMan column for MSNBC.

The Weisbaum article focuses on the nastiness of on-line payday loans. Consumers who are desperate for quick cash can get sucked in to horrible deals with on-line payday lenders who often evade regulation.

The article notes a few horror stories that are worth marking. When on-line lenders charge interest rates of 800 percent, the borrower will be so deep underwater so quickly that the borrower can never pay down interest.

On-line lenders often require the borrower to provide social security numbers and bank information and automatic payment from the consumer’s bank account.  I suppose I could write a long and technical explanation about this using flowery legal language/ Not necessary. This is very simple. Don’t do it. It is a trap.

It’s easy for consumers to assume that regulations protect them in these transactions. Truth is that many states have no real regulations on payday loans.

Some states, like Oregon, cap interest rates. But the cap is 36 percent APR, and that does not include origination fees.  Yikes! For those who like things a bit more concrete, let’s do some basic math to show why these are bad deals.

If you borrow $3,000 for one year at 36 percent interest, your monthly payments will be $302.78 on that loan. That, of course, is a new payment on top of all the other obligations like food, rent, auto and the like. Assuming you manage to pay it off without rolling it over, you will have paide a total of $3,616.68. Not a pretty deal, and it gets worse if you don’t get it paid off and have to roll it over.

So here’s how it gets even worse with the on-line payday lenders. Many will set up shop off shore and claim that Oregon laws don’t apply to their loans. So instead of the high rate of 36 percent, they’ll charge 800 percent annual interest.

Here is what a small 800 percent interest loan looks like. A one-month $300 dollar loan adds over $200 per month in interest. And of course that interest payment is on top of the $300. So borrowing $300 for a month at 800 percent annual interest means you will owe a bit more than $500 in a month’s time.

It’s easy to see how people fall deeper down the hole in that situation. Look at this explanation from the Federal Trade Commission on how payday loans work to see how easy it is to get sucked under. The FTC piece is a bit dense, but it also contains suggestions on how to avoid the traps.

This isn’t a new issue. But the Weisbaum article prompted me to think about it again. In these tough economic times, I have no doubt that these loans are tempting. Just say no.

For further information:

Oregon consumer payday loan information (pdf) from the Oregon Department of Consumer and Business Services.

Oregon statutes relating to payday loans (scroll down to ORS 725.600 – 725.630)

Summary of states’ payday lending laws (Author’s note: I haven’t verified that this is accurate or up to date.)

Comcast late fee class action update: ruling striking defenses

This is an update report for those following our Comcast late fee class action.  In this certified class action, Oregon Comcast cable television subscribers claim that Comcast illegally assessed late fees for cable TV service. The class seeks damages. Here is the last update on the case. Go to my old blog, here, if you want a copy of the class certification decision.

So Friday, Tim Quenelle and I returned to court to argue discovery and pleading motions. We did something a bit unusual and filed motions to strike various affirmative defenses raised by Comcast.

Judge Baldwin ruled today. He granted the class’s motions to strike the following eight defenses:  Reduction of damages based on losses Comcast claims to have suffered (Sixth Affirmative Defense); Subscribers’ breach of their cable TV subscription agreements (Ninth Affirmative Defense); Failure to timely assert rights under the late fee statute (Tenth Affirmative Defense); Estoppel (Eleventh Affirmative Defense); Laches (Twelfth Affirmative Defense); Ratification (Thirteenth Affirmative Defense); Reservation of Rights; and Comcast’s prayer for attorney fees.

Judge Baldwin denied the class’s motions as to four affirmative defenses: standing of the class representatives, voluntary payment, unclean hands, and set-off for class members’ unpaid balances.

Judge Baldwin’s rulings limit Comcast’s defenses and narrow the scope of the case. It’s another step forward for the class. While there is still far to go, we’re counting it as a great day.

Western Culinary Institute class action featured in New York Times story

Peter Goodman of The New York Times does a nice job here of looking at the problem of for-profit trade schools. The story mentions our class action against Western Culinary Institute/Le Cordon Bleu College of Culinary Arts in Portland.  And while it’s all exciting to see the case written up in the Times, that’s hardly the point.

The Goodman article points out the disparity between the costs of trade school education and expected earnings.  I was taken by a Sr. Vice President, Brian Williams, comment, “You go in the industry and work your way up.”

I don’t have any idea how much Mr. Williams knows about labor statistics. But the cold reality is that there are very few high-paying jobs in the culinary field–at least as compared to the scads of low-wage kitchen jobs that require no training. In short, there isn’t much “up” to reach.

Some suggest that this is not different from an expensive law or medical degree or a BA in liberal arts from a four-year school. I suppose it’s tempting to take that view, but in reality the differences are profound.

Let’s look at them.

Western Culinary Institute/Le Cordon Bleu say in their catalogs that they provide entry level training. In the lawsuit, we take issue with what they don’t tell students.  A culinary degree doesn’t provide a student much in the way of qualifications for an entry level kitchen job. By comparison, you simply can’t practice law or medicine without degrees and licenses.

In marketing the program, the school tells its prospective students about high placement rates–above 90 percent. But they don’t talk about the pay.  The school collects initial placement and earnings for its graduates. As the New York Times article explains, the vast majority of students earn very low wages upon graduation. Those low earnings won’t allow most students to repay their loans.

Defenders of for-profit trade schools also cite the profoundly expensive four-year bachelors degree problem. They are right about the high cost of four year schools, but wrong to compare the two. Ivy league schools cost far in excess of most middle income families’ abilities to pay, leading many students to incur heavy debt loads.

But several things are different.  The liberal arts program doesn’t sell itself as “vocational training.” Nor does it tout its placement statistics or skill-based career training as the reason to attend. And the universities aren’t run by billion dollar corporations who are concerned about their Wall Street performance.

Our case has taken two years so far. If we succeed, students who suffered losses will recover money that will help pay down their debts.

We need better oversight of these schools, these loans and these lending practices, as students who enroll at for-profit trade schools often are underwater from the day they graduate.  Effective oversight of trade school programs and educational loans would prevent these types of abuses.

Toyota cover-up much worse than the acceleration problem

The Toyota acceleration problem has gotten a lot of press play. Most recent is yesterday’s story about a Prius that went berserk on a California interstate.  Looks like the engineering staff at Toyota doesn’t yet have this thing corralled.

One of the interesting things about the work I do representing consumers is that I’ve learned that juries are often fairly forgiving of institutions and mistakes. Here is what I mean. In court when businesses, hospitals, or government agencies admit to mistakes, my experience is that jurors are very understanding.

On the surface, it appears that Toyota is taking this, “mistakes were made” approach to defending the sudden acceleration cases.  But underneath is a story that so far has not gotten much play.

Apparently, Toyota has known for years about the problems with its cars. Not a big surprise.

But much worse, Toyota may have hidden the defects and may have violated all sorts of court rules and orders by hiding evidence and stonewalling in cases.  At least that is what one of Toyota’s former lawyers claims.

If this is true and if the story gets traction, Toyota is in major trouble.  Apart from sales issues, their liabilities will go through the roof when–not if–these Book of Knowledge documents are ordered produced.  Seems like their only hope is to completely discredit their former counsel.  I suppose it’s possible that everything he says in the linked CNN interview is fiction. But I doubt it.

The linked story talks about Toyota’s trade secrets.  Toyota thinks it doesn’t have to disclose those in injury cases. Toyota is wrong.

But as long as we’re on the subject, here is a trade secret from a consumer-side lawyer who toils in the trenches. Representing an injured consumer in a  design defect case is tough.  It’s hard to communicate the technical parts of the case. Leading the jury through the thicket of complexity to a just result for the injured consumer is a major challenge.  On the other hand, when that complicated design defect case becomes a case about hidden or destroyed evidence, the business is very likely in big trouble should the business choose to go to trial.