Archive for the ‘Litigation’ Category

Each day this week we’ll be highlighting some of the anti-regulatory bills that Public Citizen and our allies have been pushing back against this fall.

REVIEW Act or the “Endless Corporate Lawsuits” Act

Photo courtesy Eric Parker/Flickr/CC BY-NC 2.0

Photo courtesy Eric Parker/Flickr/CC BY-NC 2.0

Industry has a long history of running to the courts to block or delay public protections that would cut into their massive profits. As a gift to their industry donors, House conservatives crafted the Require Evaluation before Implementing Executive Wishlists Act or the REVIEW Act (H.R. 3438).

The REVIEW Act would make our system of regulatory safeguards weaker by requiring courts to review “high-impact” regulations to automatically “stay,” or block the enforcement of such protections, until all litigation is resolved– a process that takes many years to complete.

If passed, it would add several years of delay to an already unreasonably slow rulemaking process, invite more rather than less litigation, and rob the American people of many critical science-based public protections, especially those that ensure clean air and water, safe food and consumer products, safe workplaces, and a stable, prosperous economy.

H.R. 3438 would reverse one of the most fundamental and settled legal principles in our regulatory system. Under current law, courts are allowed to use their discretion to determine if it is appropriate to issue an injunction blocking the enforcement of a regulation while it is being challenged in court.

Each day this week we’ll be highlighting some of the anti-regulatory bills that Public Citizen and our allies have been pushing back against this fall.

Image courtesy of Eric Lynch/Flickr under CC BY-NC-ND 2.0 license.

Image courtesy of Eric Lynch/Flickr under CC BY-NC-ND 2.0 license.

When Congress returned from its longest summer recess in 60 years, and before they ran back to districts to campaign, conservatives in the U.S. House of Representatives were determined to assail our system of public protections. Remember that arcade game staple, whack-a-mole, where players try to hammer down the target as others pop up, more and more quickly?  Essentially playing whack-a-mole in the four weeks of September, Public Citizen and our partners in the Coalition for Sensible Safeguards defended against multiple pieces of legislation aimed at limiting the power of the government to protect the public.

Conservatives attempted to pass four misleading and damaging anti-regulatory bills and were successful in pushing through three of them – the fourth was shelved until Congress’ post-election return.

  • Stop Settlement Slush Funds Act (H.R. 5063) – passed on Sept. 7, 2016
  • Regulatory Integrity Act (H.R. 5226) – passed on Sept. 14, 2016
  • REVIEW Act (H.R. 3438) – passed on Sept. 21, 2016
  • Midnight Rules Relief Act (H.R. 5982) – shelved for the lame duck on Sept. 26, 2016

Regulations protect and safeguard our lives in everything from the food we eat to the water we drink and from the air we breathe to the products we use. These government standards ensure that we can go about our daily lives without much fear of dying at work, eating poisonous food or having our cars go up in flames. The process for producing these vital standards is already glacially slow and exceedingly cumbersome, and if signed into law, these damaging bills would exacerbate the problems in the rulemaking system.

The slow process of our current rulemaking system already has a negative impact on communities of color and low income communities, who it has been shown face the biggest health, safety and economic threats and inequities in public protections.  Further delays to public safeguards would do nothing but increase this disproportionate impact, heightening the injustices and inequities in our society.

These bills that conservatives rushed through would prolong and further delay lifesaving rules from reaching full enforcement and having maximum impact. They aren’t about protecting the public good; they’re about helping industry line their own pockets at the expense of the American people. The bills were cleverly designed to use back door approaches to gut key safeguards. And, since the bill titles were designed to be bland and meaningless, here they are re-named to call them out for what they really are.

By Eren Orellana, Congress Watch legal intern and Susan Harley, Congress Watch Deputy Director

Recently, consumer advocate and Public Citizen founder, Ralph Nader hosted Breaking Through Power, a four-day conference highlighting the different ways Americans can work together to organize change in a political system that has been overrun by wealthy corporate special interests. A longtime advocate for consumer rights, starting in the automobile industry, Nader dedicated the last day of the conference to speaking about the underutilization of the civil law system.

logo225Special topics included “The Need to Educate the Public on The Importance of Tort Law” and “Why Lawsuits are Good for America.” In a panel discussion titled “Plaintiffs for Justice” victims shared their stories and their road to advocacy. Laura Christian, an auto safety advocate, urged the need to create a system that regulates and provides notice of recalls to buyers and existing owners of used cars. Todd Anderson, a victims advocate, shared the personal story of his son’s death. Anderson’s son was killed in a car accident due to an automobile malfunction that he was not notified of in time to correct. Susan Vento, a mesothelioma advocate, spoke about the need to ban asbestos and the legal rights victims of mesothelioma have against corporate negligence. Overall, the panelists pushed the point that greater advocacy is needed to improve consumer protections and positively increase the utilization of the court system.

In the much-anticipated session “Litigating for Justice,” renowned trial lawyer, Thomas Girardi spoke about how corporations attempt to shame lawyers and how he has succeeded in trying his cases and breaking the stigma associated with personal injury suits. In 1970 Girardi became the first attorney to win a one million dollar award for a medical malpractice case. However, Girardi is best known for the part he played in the Pacific Gas & Electric case of the Hinkley groundwater contamination. In that case, residents of Hinkley brought a class-action suit against PG&E for claims of contamination of the town’s water supply due to a leak from PG&E’s gas compressing station. The leak apparently began as early as the 1950’s and the residents did not receive notice until 1987. The residents blamed incidents of cancer and other diseases on the contaminated water and in 1996 PG&E settled the suit and agreed to pay the town’s residents $333 million. This case was the inspiration for the film Erin Brockovich.

More recently, Girardi was on the team of lawyers who tried Bryan Stow’s case. Bryan Stow was the man brutally beaten after a baseball game at Dodger Stadium. Girardi reasoned that the Dodgers and the stadium’s personnel were partially to blame for the incident due to a lack of organized and effective security personnel, which was not suited to handle such large crowds. Girardi described his pride in the fact that after winning the verdict of Stow’s case, Dodger Stadium heightened security and started regulating the consumption of alcohol during games.

In addition to the important monetary compensation lawyers, like Girardi, earn for their clients in these cases, there is the societal benefit of trying these cases. Win or lose, civil law cases bring to light many of the ways corporations fail to protect consumers, sometimes even at the cost of death. These cases expose corporate lawbreakers and force them to better protect their customers. Utilizing the justice system to compensate victims has proven to be one of the best mechanisms to hold corporations accountable. Conferences like Breaking Through Power are doing a great service to society by bringing this very powerful tool to light. Even better, videos from the conference are available so you too can learn how to join the Breaking Through Power movement.

– Eren Orellana

 

Last week, Ralph Nader headlined a panel at the 2016 Freedom of Information Summit focused on dissecting the challenges facing the open government movement, but also celebrating the victories. At the top of the list of successes is the Freedom of Information Act (or FOIA,) which gives the public the right to access government records subject to nine limited exemptions. Recently having celebrated the 50th anniversary of FOIA’s passage, the panel on which Nader spoke was aptly entitled “FOIA at 50.”

Nader and the other panelists spoke about critical consumer protections that were achieved as a direct result of the public’s right-to-know as granted by FOIA. The panelists also addressed areas where the law continues to fall short, even after the open government community’s recent victory in securing passage of bipartisan FOIA reforms that were signed into law by President Barack Obama right before the law hit its 50 year mark.

It was especially moving to hear the other panelists speak so eloquently about the steadfast commitment that Public Citizen has to protecting FOIA. Notably, for most of the organization’s 45 year history, our litigation group has been a national leader in upholding the public’s right-to-know. Getting access to government records had uncovered threats to public health, safety, and the nation’s financial security. This law is an invaluable tool for holding the government accountable and ensuring it is acting in the public’s best interest.

Nader said it best during the panel: FOIA is the ultimate tool of democracy.

And Public Citizen will be there for the next 45 years protecting our right-to-know.

-Susan Harley

 

497px-edward_snowden-2Oliver Stone’s 2016 film Snowden debuted at the height of a controversy over whether or not President Obama should pardon Edward Snowden. His defenders argue that his disclosures prompted important legal and policy changes, while his opponents argue that he’s a criminal who should come back to the United States to stand trial.

The film itself paints a portrait of Snowden as a young conservative from a military background. He begins his career with the Central Intelligence Agency (CIA) with a loyalty to the United States and a desire to serve his country. As he transitions through different positions with private contractors in the intelligence community, he becomes increasingly disturbed by the breadth of government mass surveillance systems. What he witnesses at work haunts him – he develops an aversion to being photographed – and plagues his relationship with his girlfriend. Eventually, it leads him to flee to a hotel room in Hong Kong where he works in secret with The Guardian’s Glenn Greenwald and Ewen MacAskill and documentary filmmaker Laura Poitras. They race against the clock to make his story public before the government can arrest him.

The rest, as they say, is history.

It’s easy to get lost in the controversy of Snowden’s disclosures, but it’s important to remember the context of his decision to go public. Snowden was familiar with the whistleblowers in the intelligence community who came before him. Despite making their own disclosures through designated channels within the government, these workers had no safeguards against the severe retaliation they faced.

Take the case of Ed Loomis, a former National Security Agency employee and contractor within the intelligence community. After he reported an ineffective and wasteful surveillance program through a designated government hotline, the government responded by revoking his Top Secret security clearance, rendering him unable to work in the intelligence community. The Federal Bureau of Investigation (FBI) also raided his home for five hours. He and his wife watched as agents in Kevlar vests confiscated their possessions.

Contractors in the intelligence community deserve better than what happened to Ed Loomis. Public Citizen and many other organizations committed to open and transparent government support extending protections to contractors who blow the whistle on waste, fraud, and abuse in the intelligence community.  Without safeguards against employer retaliation, whistleblowers may either stay silent about government wrongdoing or make disclosures through the media.

Lawmakers recognize the urgent need for reform, but change has been slow. In 2015, Sen. Claire McCaskill (D-Mo.) introduced a bill to extend whistleblower protections to contractors in the intelligence community. In theory, this bill should not be contentious. Certain intelligence community contractors had access to such protections for a limited time without any evidence of negative consequences to national security. But, lawmakers controversially revoked these rights in 2012. So far, Congress has failed to take action on Sen. McCaskill’s critical measure.

Snowden ends with familiar audio clips from the 2016 presidential primary debates where the candidates voiced their opinions about his actions. Their reactions are mixed, but frustratingly, there is no discussion of the much-needed whistleblower protection reforms like those in Sen. McCaskill’s bill.

The controversy over Snowden and his 2013 disclosures is unlikely to end anytime soon. However, if policymakers want to prevent future national security leaks, they should make whistleblowing safe for all intelligence community workers – including contractors. Congress should enact Sen. McCaskill’s bill to protect these individuals who bravely risk so much in serving the public good.

The U.S. Consumer Financial Protection Bureau’s (CFPB) proposed rule to restrict forced arbitration – a tactic banks and lenders use to block consumers from challenging illegal behavior in court – has been met with widespread support. Below are selected highlights of comments from individual consumers, elected officials, advocacy groups and newspaper editorial boards who weighed in during the public comment period, which ended on Aug. 22, 2016.

 More Than 100,000 Consumers Across the Country Support the Rule

Between the proposed rule’s announcement on May 5, and the close of the comment period on Aug. 22, at least 100,000 individual consumers across the country submitted comments or signed petitions urging the CFPB to restrict forced arbitration in consumer finance. On the other side, FreedomWorks – a conservative political group affiliated with the Tea Party – claims it “generated nearly 15,000 responses opposed to the rule.”

Of the 100,000-plus positive comments, 69 percent of consumers voiced general support for the proposed rule, emphasizing that “[b]arring consumers from joining class actions directly opposes the public interest.” Another 31 percent pushed the CFPB to expand the rule’s coverage and “take the extra step to prohibit individual arbitration in the final rule.”comment chart
This overwhelming support for action against forced arbitration echoes a recent national poll, which found that, by a margin of 3 to 1, voters in both parties support restoring consumers’ right to bring class action lawsuits against banks and lenders.
Key Statements of Support

38 U.S. Senators commend CFPB for proposed rule

“Recognizing the urgent need to address these troubling practices, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010 to improve accountability, strengthen the financial system and establish the CFPB. Dodd-Frank included several restrictions on the use of forced arbitration, including a mandate for the CFPB to take action on arbitration. Congress specifically directed the CFPB to study the use of forced arbitration in connection with the offering of consumer financial products and services, and authorized it to ‘prohibit or impose conditions or limitations on the use of’ such agreements based on the study results.”

65 members of the U.S. House of Representatives praise the rule

“Consistent with the bureau’s exhaustive study on forced arbitration, which found that forced arbitration restricts consumers’ access to relief in disputes with financial service providers by limiting class actions, the proposed rule is a critical step to protect the public interest by ensuring that consumers receive redress for systemic unlawful conduct… There is overwhelming evidence that class-action waivers in financial products and services agreements undermine the public interest.”

18 state attorneys general want to extend the reach of state enforcement efforts

“Although we believe consumers will be best served by the total prohibition of mandatory, pre-dispute clauses in consumer financial contracts and we encourage the bureau to consider regulations to that effect, the proposed rules provide a substantial benefit to consumers by restoring their fundamental right to join together to be heard in court when common disputes arise in the commercial marketplace. Many of our respective consumer protection laws include private right of action provisions, the purpose of which is to complement and extend the reach of our state enforcement efforts.”

State legislators from 14 states say the rule is “critical to restoring a healthy and vibrant federalism”

“Because of these resource limitations, states rely on the private cause of action to give effect to their consumer protection laws. Arbitration agreements that undermine the effectiveness of the private cause of action undermine the force and effectiveness of state consumer protection law too… States often serve as the ‘laboratories of democracy’ that allow for experimentation with consumer protection regulation. This experimentation is critical to the calibration of a regulatory scheme that allows for easy access to safe and affordable credit. When consumers cannot enforce state consumer protection laws, lawmakers like us cannot measure the efficacy of those laws and cannot observe the effects of those laws as they evolve through litigation. That stifles the healthy development of consumer protection laws nationwide.”

The Military Coalition, representing 5.5 million servicemembers, applauds the rule

“[Class action bans] are particularly abusive when enforced against service members, who may not be in a position to individually challenge a financial institution’s illegal or unfair practices because of limited resources or frequent relocations or deployment… Our nation’s veterans should not be deprived of the constitutional rights and freedoms that they put their lives on the line to protect, including the right to have their claims heard in a trial by a jury when their rights are violated. The catastrophic consequences these clauses pose for our all-voluntary military fighting force’s morale and our national security are vital reasons for the CFPB to act quickly to finalize the regulations.”

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