Dear Haggler please help!
* NB Effective until October 1, 2012
* § 109. Supplementary regulatory powers of the commission.
Notwithstanding any inconsistent provision of law, the commission
through its rules and regulations or in allotting dates for racing,
simulcasting or in licensing race meetings at which pari-mutuel betting
is permitted shall be authorized to:
1. permit racing at which pari-mutuel betting is conducted on any or
all dates from the first day of January through the thirty-first day of
December, inclusive of Sundays but exclusive of December twenty-fifth,
Palm Sunday and Easter Sunday; and
2. fix minimum and maximum charges for admission at any race meeting.
* NB Effective October 1, 2012The Haggler
A Rising Tide Against Class-Action Suits
By DAVID SEGAL
Published: May 5, 2012
IN 2007, Matthew Wolf returned his Nissan Infiniti about a year into his 39-month lease. For most people, that would mean a hit to the wallet, including the loss of the few hundred dollars he paid in advance to lower his monthly payment.
But Mr. Wolf was a captain in the Judge Advocate General Corps of the Army Reserves, and he had been called to active duty in Afghanistan. Under a provision of the Servicemembers Civil Relief Act, he was entitled to get back the $400 he’d paid toward future monthly installments.
That didn’t happen, and in 2010, his lawyer filed a lawsuit in Federal District Court in New Jersey on behalf of Mr. Wolf and any other service member with a similar claim against Nissan.
A year later, the lawsuit hit a brick wall. In April 2011, the Supreme Court ruled in AT&T Mobility v. Concepcion that corporations could write consumer contracts that blocked class-action lawsuits. To do so, the corporations need only draft a contract that a.) requires unhappy customers to settle disputes through arbitration, and b.) prohibits unhappy customers from arbitrating as a collective.
When the ruling was issued, Brian T. Fitzpatrick, a law professor at Vanderbilt University, described it to The New York Times as “one of the most important and favorable cases for businesses in a very long time.” He called it “a game changer.”
A year later, we’re starting to see how much the game has changed. On April 25, the consumer advocacy group Public Citizen released a report titled “Justice Denied” that said that since Concepcion, judges had cited the decision at least 76 times as a reason to prevent potential class-action lawsuits from moving ahead. In some of those cases, the judges made clear that they were ruling against the plaintiffs through gritted teeth, explaining that Concepcion basically made it impossible to come to any other decision.
Take Mr. Wolf’s case. The contract he signed with Nissan included a forced arbitration clause along with a class-action ban. His lawyer, Thomas T. Booth Jr., argued that the terms of the lease were “unconscionable,” which is legalese for “totally uncool, under the circumstances.” In his ruling, Judge Noel L. Hillman of Federal District Court in New Jersey said Mr. Wolf’s “argument and authority are persuasive,” but he ultimately tossed out the lawsuit, citing Concepcion. An appeal is pending.
Class-action lawsuits have been denounced by businesses for decades, and some of their arguments are compelling. We’ve all heard of settlements in which lawyers take home millions in fees and consumers wind up with piddling sums, often in the form of coupons. Recently, Ferrero U.S.A. settled lawsuits brought by two moms who said they were deceived by health claims made on jars of the chocolate hazelnut spread Nutella. Yes, if you bought Nutella thinking it was spinach in a jar — actually, even if you bought it because you find it delicious — you are a winner.
Is that really the most efficient way to deal with a reportedly misleading health claim? Maybe the Federal Trade Commission could have handled that one.
For other arguments against class actions, the Haggler spoke to a representative at the United States Chamber of Commerce’s Institute for Legal Reform, which is a big fan of the Concepcion decision. Matt Webb, a senior vice president of the organization, says the class-action system is flawed because it is designed by and for lawyers. Arbitration, he added, can work.
“If you have a $30 dispute and a good arbitration system in place, one that is administered fairly,” he said, “you have the ability to get a claim resolved without giving money to a lawyer.”
A co-author of the Public Citizen study, Taylor Lincoln, disputed that. Many well-known arbitration companies have a pro-business bias, he said, because corporations pay the arbiters. But the real agenda of Concepcion’s champions, he added, is to block collective legal action — the kind that gets a company’s attention by affecting the bottom line. Justice Stephen Breyer echoed that notion in his dissent in the Concepcion case — it split the Supreme Court 5 to 4 — when he quoted from a 2004 decision written by Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit: “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”
COULD this problem be solved by a scrupulously fair arbitration system to handle individual cases? In part. But without class actions, a lot of people eligible for some kind of redress won’t know it. Look again at Mr. Wolf’s case. He didn’t realize that Nissan was supposed to return his upfront lease money until a friend and fellow service member told him during his deployment to Afghanistan. Mr. Booth thinks there may be thousands of others who have yet to be enlightened, and he has filed similar lawsuits against Ford and BMW.
You’re unlikely to arbitrate a claim you don’t know you have. As silly as that Nutella example may sound, it made national news — two moms take on food company and win! — and there’s a Web site where anyone can find out if they’re entitled to a cut of the settlement and how to get it.
Mr. Wolf has since returned to New Jersey and his legal practice. He says he still half expects that one day he will open his mailbox and find a check from Nissan. “I figured the company would step up and refund me and other service members,” he said, “because there really is no question they owe us this money.”
A spokesman for Nissan declined to comment, citing the continuing litigation. To the Haggler’s ears, this sounds like Nissan telling Mr. Wolf, “Don’t hold your breath.”
No comments:
Post a Comment