Monthly Archives: April 2008

Credit card arbitration antitrust lawsuit revived

So you get yourself a credit card. Credit card companies being what they are, you soon encounter billing problems that can’t be worked out amicably. Feisty bastard that you are, you write them a letter saying they have one last chance to resolve the problem or you’ll file suit in your local small claims court.

Oops. No can do. Buried deep within the mountain of small-printed boilerplate that is your agreement with the issuing bank — an agreement you never saw until after you signed up for the card, by the way — is a provision requiring that all disputes be resolved via binding arbitration. In New York. On your dime. So yeah, you can pursue your $200 claim against CapitalOne, but you’ll have to get your ass to New York and present your case to the company’s hand-picked arbitrator. In the best case scenario, you recover spend a grand or so on travel, food, lodging and lost wages to get $200.

No big deal, though, right? The competition generated by the Holy Free Market means that you can walk right down the street and get a card from a different bank that doesn’t require binding arbitration!

Not so, at least according to the plaintiffs in Ross v. Bank of America, N.A. (USA) (pdf, 15 pages). There, seven named plaintiffs filed a putative class antitrust action in the U.S. District Court for the Southern District of New York in 2005 against nineteen credit card issuing banks. The plaintiffs alleged that the banks violated the Sherman Act by colluding to make mandatory binding arbitration an industry-wide practice, thus wrecking consumer choice and reducing the overall quality of credit card services.

The banks moved to dismiss the case for lack of jurisdiction, contending that the plaintiffs lacked both Article III standing, previously discussed here, and statutory standing as set forth in cases interpreting the Sherman Act.

In what must have been a delicious exercise in legal drafting for some malevolent defense attorney, the banks also moved to stay the lawsuit and compel arbitration.

The trial judge dismissed the case on subject matter jurisdiction grounds, holding that the plaintiffs lacked Article III standing. Today the U.S. Court of Appeals for the Second Circuit reversed that ruling and reinstated the case. (See pdf linked above.) The court of appeals found that “[t]he Complaint alleges that reduced choice and diminished quality in credit services result directly from the banks’ illegal collusion to constrict the options available to cardholders. These harms are sufficiently ‘actual or imminent,’ as well as ‘distinct and palpable,’ to constitute Article III injury in fact.”

This one has a long, long way to go. The banks will no doubt renew their statutory standing arguments in the trial court. If the plaintiffs jump that hurdle, the banks will once again demand that the trial court stay the lawsuit and compel arbitration. If that fails, the banks will claim that the case should be dismissed for failure to state a viable claim under the new Bell Atlantic pleading standard, previously discussed here and here. If the case is still breathing after all that, then the REAL fun begins: fighting over whether the court should certify the case as a class action.

So then, there’s no cause for a dancing-naked-round-the-fire type of celebration just yet, but the Second Circuit’s ruling was a necessary step in the right direction.

H/T – TortDeform

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We’re Number Nine!

Oh, glorious day! The “Institute for Legal Reform,” a charade generated by that whorishly greedy gaggle of shameless liars collectively known as the U.S. Chamber of Commerce, has published its annual Lawsuit Climate report for 2008.

Turns out that Colorado is the state with the ninth Mostest Fairest Litigation Climate in all the land, up from a dismal twenty-first place showing in 2007.

We have a way to go before overtaking states like Delaware and Indiana, where people injured through the negligence of others are staked to the ground and beaten vigorously about the crotch with canoe paddles preemptively before they can even think about making a claim, but we’re making progress, dammit.

After all, defense verdicts in injury cases arising from rear-end car crashes are running at about seventy percent in Colorado these days. That’s right: Seventy. Percent. And we’re not talking med mal here. We’re talking rear-end car crashes, the clearest of all clear liability cases.

Lesson: Colorado’s a magnificent place to live, but don’t ever, under any circumstances, get hurt here. If you do, you’re pretty much boned.

“No, Mr. [Friedman], I want you to [p]ie.”

I detest Thomas Friedman. Y’all know who I’m talking about. Friedman is the quasi-sentient blabbering head and “globalist” who authored the aggressively stupid The Lexus and the Olive Tree and The World is Flat.

Even the most fleeting thought of Friedman is enough to wreck an entire day for me. The only solace I have on such days is knowing that a talent-free sack of shit such as Friedman would be among the first to die if the global free market social Darwinist meritocracy he advocates ever comes to pass.

Well, that was my only solace. Now I also have this.

H/T – Wonkette

Gideons take another judicial whuppin’

The Gideon Society loves distributing Bibles in public schools. What’s more, all too many school boards love letting them do it.

Fortunately enough, courts haven’t been taking too kindly to such unconstitutional shenanigans. Here and here we discussed Doe v. South Iron R-1 School District. This week brings us Roe v. Tangipahoa Parish Sch. Bd. (pdf, 11 pages), decided on Tuesday by the U.S. District Court for the Eastern District of Louisiana.

Seems that the principal of a Louisiana public middle school, acting on instructions from the school board, allowed the Gideons to distribute Bibles to students outside his office. The principal advised all fifth grade teachers that the Gideons would be there on a particular day and instructed the teachers to tell students about the goings-on. The principal also told teachers to advise students that taking a Bible was entirely voluntary.

Judge Carl J. Barbier held that the Bible distribution violated not one, not two, but all three of the standards for determining whether a governmental entity has violated the Establishment Clause of the First Amendment: the tripartite test of Lemon v. Kurtzman, 403 U.S. 602 (1971); the coercion test of Lee v. Weisman, 505 U.S. 577 (1992); and the endorsement test of Allegheny County v. ACLU, 492 U.S. 573 (1989). The nominally voluntary nature of the event was, well, nominal, and did nothing to save it.

Soldiers in the Army of the Lord that they are, the school board members voted unanimously to appeal.

SCD hits the big time

Attorney Brooks Schuelke of the Austin, Texas law firm Perlmutter & Schuelke, LLP included a link to this Subject to Complete Defeasance entry regarding the Third Circuit’s recent Colacicco decision in his excellent Personal Injury Law Round-Up (#58 ).

Thanks much, Counselor. Keep fighting the good fight!

Get yer free creationist shlock right here!

Thanks to Troy over at Playing Chess with Pigeons for pointing me toward this place, where you can get your hands on all sorts of free stuff for promoting the “intelligent design” “movie” Expelled: No Intelligence Allowed, previously discussed here.

Actually, I don’t know whether to thank Troy or to say nasty shit about his momma. There’s some pretty heinous stuff available for download at that link.

Particularly odious is the gargantuan, thirteen-page, four-color brochure titled “Leader’s Guide.” I’ve read maybe two and a half pages and plan to continue as soon as my eyes stop bleeding. A critique of the “Leader’s Guide” is available here.

For now, suffice it to say that the political movement known as “intelligent design” trundles on as hamfistedly and disingenuously as ever.

Chalk one up for the poverty industry

The Denver Post reports that the sponsors of Colorado House Bill 1310, which would have limited the fees that payday lenders could charge and capped interest rates at 45%, are withdrawing the bill. Sen. Peter Groff (D-Denver), who sponsored the bill in the state senate, says that the bill in its current form only makes matters worse for consumers.

The problem stems from amendments added by Sen. Jennifer Veiga (D-Denver), who appears to be a poverty industry stooge:

The coalition’s analysis showed the effective annual percentage rate for a two-week, $100 loan, including a $20 fee, would be 566 percent under the amended bill compared with 521 percent currently. Since the fees for subsequent loans were halved to $10 the effective APR for borrowing $200 would be 436 percent under the amended bill compared to 521 percent under current law. Veiga didn’t dispute the figures.

The bill in its current form is worse than useless, so Sen. Groff will ask the Senate Appropriations Committee to euthanize the amended bill today.

This bill generated some interesting discussion when first introduced. The Democrats were running around quoting scripture to anyone who would listen and talking about how usury is an abomination unto the Lord. Conversely, members of the G[od’s]O[wn]P[arty] abandoned religious rhetoric in favor of standard “consumer choice” drivel.

Pa. Primary Round-Up

With the vast majority of the vote counted, Clinton has 55% of the popular vote and Obama has 45%. Clinton will get an additional 52 delegates to the national convention, while Obama will get 46.

A Democrat needs 2,025 delegate votes at the national convention to win the presidential nomination. CNN’s current delegate count looks like this:

Obama:

Pledged delegates – 1,484

Superdelegates – 230

Total – 1,714

Clinton:

Pledged delegates – 1,330

Superdelegates – 254

Total – 1,584

John Edwards, my choice prior to his dropping out, still has 18 pledged delegates.

Those numbers should, of course, be taken with a big ol’ grain of salt. I say that in large part because the pledged delegate totals appear to include Colorado delegates. Trouble is, there are no pledged delegates from Colorado and won’t be until next month’s State Party Convention and Congressional District Conventions.

At the Super Tuesday caucuses we elected delegates to our county party conventions. At the county conventions we elected delegates to the state and congressional district conventions. At the state and CD conventions we’ll elect delegates to the national convention. So, at the moment, we don’t yet know how many Colorado delegates each candidate has. We can only wonder how many similar screw-ups are factored into CNN’s tabulation.

If I’m doing the math correctly, there 408 delegates up for grabs in nine remaining Democratic primaries. If that’s right, it’s mathematically impossible for Clinton to win the nomination on pledged delegates, and Obama’s chances of doing so are pretty much nil. It’ll all come down to the just over 300 superdelegates who haven’t announced a preference, and maybe the Florida and Michigan delegations that the Democratic National Committee says (at least for now) are excluded from the national convention.

In other news, Bill Clinton is still a big fat liar.

“No Intelligence Allowed,” but copyright infringement is just fine

You’ve all no doubt heard of the “intelligent design” movement, an amalgam created by cobbling together bits and pieces of the long-refuted teleological argument for the existence of God, what used to be called “creation science” and a bunch of sciency-sounding words. At bottom, ID is a political strategy designed reintroduce the teaching of religion in public schools.

You’ve also likely heard of the movie Expelled: No Intelligence Allowed, which is scheduled for release this Friday. The film, which stars teevee douchebag and former Nixon speechwriter Ben Stein, portrays ID as legitimate science that the evil atheist academic establishment is desperately trying to suppress. The filmakers also claim that “Darwinism” is responsible for every abomination from the Holocaust to Lunchables.

The film’s producer is an outfit called Premise Media. Premise’s CoB is A. Logan Craft, an Episcopal preacher from New Mexico whose previous media endeavors included a television program called Church and State TV.

The film is unadulterated bullshit, as the National Center for Science Education reveals in great detail at its website Expelled Exposed. The reviews thus far have been less than complimentary. Fox News reviewer Roger Friedman wrote:

“Expelled” is a sloppy, all-over-the-place, poorly made (and not just a little boring) “expose” of the scientific community. It’s not very exciting. But it does show that Stein, who’s carved out a career selling eye drops in commercials and amusing us on sitcoms, is either completely nuts or so avaricious that he’s abandoned all good sense to make a buck.

Scientific American’s commentary is available here.

A company called XVIVO, LLC owns the copyright on a scientific animation video called The Inner Life of a Cell. XVIVO recently sent Premise Media a letter (pdf, 1 page) complaining that Premise essentially stole a clip from Inner Life and used it without permission in Expelled. That’s copyright infringement, and XVIVO advised in the letter that it would “vigorously and promptly pursue its legal remedies” unless the producers excised the stolen material from Expelled before its release.

Premise Media responded with this gibbering, drooling, bedwetting train wreck of a press release. Premise says that it’s filed a declaratory judgment action in a Texas federal court seeking a declaration that no copyright infringement occurred.

Biology professor and blogosphere legend P.Z. Myers discusses Expelled’s use of the film clip here. P.Z. notes that the surest proof of outright theft in this regard is reproduction of mistakes as well as accuracies. The original Inner Life video contains an error that’s reproduced in the clip from Expelled, indicating that the movie’s producers “brainlessly cop[ied] what they saw in the original.”

True Believers(tm) know that a lie in the service of the Lord is no lie at all. Apparently, the same rule applies to copyright infringement.

Proponent of “fertilized eggs are people too” amendment goes all B.A. Baracus on fellow conservatives

Colorado Confidential brings us this update on the efforts of 20-year-old correspondence school law student Kristi Burton’s efforts to amend the Colorado Constitution by defining “person” to include anything from a fertilized human egg on up. My previous entry on the ballot initiative is available here.

As the video in the CC article shows, Ms. Burton is none too pleased with her conservative brethren. The male buffoon in the video, American Life League spokesmodel Michael Hichborn, gets pretty worked up as well:

“Now, amazingly there are those that claim that now is not the right time for a personhood amendment. The old saying attributed to Edmund Burke ‘All that is necessary for the triumph of evil is that good men do nothing’ is well applied to those standing on the sidelines because they decided to do just what Burke warned against. They’re simply doing nothing. And while they sit on their hands waiting — organizations like NARAL, Planned Parenthood and NOW are working to ensure another 35 years of killing babies.”

CC reports that Ms. Burton has about 60,000 of the approximately 76,000 signatures needed to get the initiative on the ballot. The deadline is May 14. Whether she’ll get the necessary signatures, together with a sufficient cushion of excess signatures to make up for the inevitable thousands of signatures that end up being invalidated, remains to be seen.