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I fought Equifax's lawyers in court and won: Part 2

333 points by evashang 9y ago

deleted 9y ago
[deleted]
iloveluce 9y ago
Here is the HN discussion to Part 1 https://news.ycombinator.com/item?id=16217241 https://news.ycombinator.com/item?id=16217241 Pretty surprised how much Equifax spent trying to win this case. I'm sure they're doing it to dissuade others from suing them as well but after reading this I really want to sue myself. I wonder if they'll appeal the verdict again.
- danielvf 9y ago
  The second judgement is final. No appeal.
  - razwall 9y ago
    Not through an ordinary appeal, but they could file for an extraordinary writ. Given the number of small claims cases that Equifax has been facing, it might be something they would consider.
  - anarazel 9y ago
    IANAL. It's not inconceivable they could make further trouble nevertheless: https://law.justia.com/cases/california/court-of-appeal/3d/102/164.html https://law.justia.com/cases/california/court-of-appeal/3d/1... The relevant part appears to be: "The Eloby court's dictum suggests that section 117.12 was designed to preclude only appeal, motions for new trial, and motions to vacate judgment. The court's initial issuance of the alternative writ further suggests that section 117.12 was not read as curtailing the ability of appellate courts to review important issues arising in small claim actions. Following the lead of the Eloby court, we read section 117.12 as not foreclosing appellate court review by extraordinary writ. Since statewide precedents can only be created by appellate courts, jurisdiction to decide appropriate small claims court issues must be retained by appellate courts in order to secure uniformity in the operations of the small claims courts and uniform interpretation of the statutes governing them. We do not believe that the Legislature intended to make all actions of the superior courts in such cases totally unreviewable or reviewable only on certification. (Code Civ.Proc., s 911; Cal.Rules of Court, rule 61(b).) " This seems a bit weird.
    - danielvf 9y ago
      Thanks!
- g051051 9y ago
  They probably don't care about the cost, it's the precedent they're trying to block or overturn. And I don't see how even the appeal can stand against further appeals (or whatever they do next to protest what they consider an invalid ruling).
  - DanBC 9y ago
    Do small claims cases create precedent?
    - g051051 9y ago
      IANAL, so it may not be "Precedent" with a capital P, but it is a court ruling and the guy put a huge amount of crazy stuff into it that other crazies can now point to and say "see, a judge agreed with all of this".
- ficklepickle 9y ago
  These scummy corps do it all the time. A critical illness insurance co. tried to not pay my mom because they had their own technical definition of a heart attack. She sold herself the policy, and didn't even know this. In fact, it was subsequently ruled illegal and new policies couldn't use this definition. But they flew in lawyers to her small town, so she had to go to small claims court while recovering from a heart attack. All to try and avoid paying about 20k. She settled for most of it, in the end.
AdamJacobMuller 9y ago
> prove that the increased number of the spam calls I was getting were a result of the breach. Damnit. I have to admit to not caring so much about the Equifax breach. I, personally, don't really care about that kind of data being public and I relentlessly monitor my credit report for changes, even if someone did abuse my data, I would know quickly and clean it up before it happened. But I've been getting a literally 100x-fold increase in spam calls in the past few months. I have gone from one every few days to, I kid you not, 20+/day sometimes. If this is even remotely related to the Equifax breach I legitimately want to sue them just for that.
furschtein 9y ago
This is amazing.
paultannenbaum 9y ago
For what it is worth to others thinking of doing the same thing, I too took Equifax to small claims court in Santa Barbara. They sent a lawyer from their legal team to the initial hearing. I presented a lot of the similar arguments that were presented here, but the judge denied my claim based on not being able to prove negligence on the part of Equifax.
- prklmn 9y ago
  Did you talk about them being a negligent steward of your data, and not patching a 2 month old bug? They admitted this https://arstechnica.com/information-technology/2017/09/massive-equifax-breach-caused-by-failure-to-patch-two-month-old-bug/ https://arstechnica.com/information-technology/2017/09/massi...
  - g051051 9y ago
    Negligence would be if they knew about the bug but ignored it, which per a later Bloomberg article isn't what happened. Instead, there was a process failure so that they thought the bug was patched, when it wasn't.
darepublic 9y ago
Nice, but this needs to be scaled up (many more people need to do this, and a clear recipe provided)
- sverhagen 9y ago
  Isn't there a class action to that effect?
  - jjeaff 9y ago
    Literally millions of individual cases would be much better. It would overwhelm them and those suing would likely get way more money. Class actions never amount to much for anybody except the attorneys.
Meekro 9y ago
I'm as glad as anyone else to see Equifax getting what's due to them, but is anyone else bothered by the surreal quality to this story? It sounds like the rules and procedures being applied were vastly different than what Equifax's highly paid lawyer expected. Is their $1000-an-hour lawyer just incompetent, or is the pro tem judge here allowed to make up the rules as she goes along?
- plorkyeran 9y ago
  Hiring a $1000/hour lawyer for your small claims case is like hiring an airplane mechanic to work on your car. There's a pretty good chance that this is the first time Equifax's lawyer had ever been involved in a small claims case.
  - cweagans 9y ago
    Somebody didn't read the article ;)
  - Meekro 9y ago
    Any lawyer worth his salt would know that each court has its own particular rules of procedure. If your highly-paid lawyer comes into bankruptcy court and starts trying to invoke procedural rules from juvenile court, that would be pretty convincing evidence of incompetence. So did this lawyer take on a small claims case without realizing that they should probably read up on small claims rules? Or maybe the judge didn't know the rules either, and just sided with the sympathetic plaintiff?
    - onli 9y ago
      Since the lawyer did not seem to be aware of basic procedures (wanting to have things stricken from the record despite there not being a record) you can assume he just did not read up on the rules.
      - dawnerd 9y ago
        And likely didn't even expect to win since they're paid hourly regardless. Probably was just trying to stretch it out as much as they could. Easy money
bitmapbrother 9y ago
Imagine having to explain to Equifax how your high powered legal team lost a small claims court case to a guy with no law degree.
- deleted 9y ago
  [deleted]
- ipsum2 9y ago
  To be fair, he runs a legal startup (legalist) so he has more experience than the average Joe.
- IncRnd 9y ago
  Equifax already knows they were in the wrong and are just trying to stop the liability. The big wig lawyer vs yokel scenario doesn't really fit here.
BugsJustFindMe 9y ago
It would be nice if the author (or someone) made available a mostly-automated process for filing similar claims by people who aren't lawyers. The same successful arguments should work for any of us.
- chrischen 9y ago
  Isn’t the author’s company doing just that as a service?
  - BugsJustFindMe 9y ago
    I guess they were for some unknown period of time in the past, but not anymore according to https://www.legalist.com/equifax/ https://www.legalist.com/equifax/
- IncRnd 9y ago
  > It would be nice if the author (or someone) made available a mostly-automated process for filing similar claims by people who aren't lawyers. The same successful arguments should work for any of us. That's not correct. Outcomes will vary per jurisdiction, judge, and the actual case circumstances.
advisedwang 9y ago
I wonder how easy it is to collect the judgment against Equifax.
- DaiPlusPlus 9y ago
  Collecting against companies is far more easier than collecting from uncooperative private persons - assuming the company is "established" in some way. Given that Equifax is a very large company, collecting is easy: once you get your judgement, file for a Writ of Execution and have the sheriff in whatever CA county Equifax has an office in to visit them in-person and demand they cough up the money or they'll start literally seizing assets there-and-then. Failing that, you can also easily get a bank levy against whatever bank accounts Equifax has in your state - provided you can track-down their account details and financial institution: something you can do with an Examination of Assets hearing, which has an added bonus: if the company representative fails to appear they get a bench-warrant for their arrest which becomes a criminal matter. I'm surprised at how so many small-claim case victors sell their judgement to a collections firm for a fraction of its true value when collecting money is a lot easier and straight-forward than people imagine. You only need to go to a collections company if it isn't worth your time - not if the debtor isn't cooperative.
- ellisv 9y ago
  Reminds me of the guy who foreclosed on Wells Fargo. https://www.huffingtonpost.com/2011/02/17/patrick-rodgers-forecloses-on-wells-fargo_n_824765.html https://www.huffingtonpost.com/2011/02/17/patrick-rodgers-fo...
hyperbole 9y ago
Equifax is yet another form of financial corruption. The charge/fee incurred in freezing your credit is so close to a shakedown - this is absurd. Credit ratings of the population are a product they sell to financial firms and then they charge (read shakedown) that population for pausing the sale of that data so you the consumer can prevent irreparable credit harm. Then when they screw up and allow a leak of your data which will eventually cause irreparable harm they have the audacity to bully those they've screwed over.
- losteric 9y ago
  It's even more ridiculous: The bank lets criminals walk out the door with money in our name. Equifax demands money to avoid punishing us when banks are defrauded through their own incompetence. This is worse, because Equifax aided the criminals, but we were always getting screwed over.
  - njarboe 9y ago
    Wonder why there aren't class action law suits against banks and other companies that lie to the credit bureaus about people defaulting on loans? It is not "identify theft" that is the problem, it is banks libeling people and the credit bureaus passing the libel along. You loaned money to someone and didn't even have their correct identifying information. Well that's a bit of a problem for you. You say that the fraudster used my name and other info to impersonate me. I can see you are in a bit of a pickle in how to get your money back. You are going to lie and say I defaulted on your loan to a credit bureau? Fuck you, asshole. I'm going to call the police and you are going to get a big fine and/or go to jail. One can dream, anyway.
    - drieddust 9y ago
      It is because these shenanigans are perfectly legitimatized. I recently read "A Man for All Markets" by Edward O. Thorp and it opened my eyes to the level of corruption practiced by Financial Institutions. I find India incredibly corrupt but now I think America is not far behind. Only reason financial crimes in America does not come to light is because they are legitimatized by completely twisting the Laws to favor the right set of people. Case in point is Mr. Trump who has declared bankruptcy multiple times without having any impact on his personal worth. This is just nuts.
bogomipz 9y ago
What a great and inspiring piece. I have a question - does this become part of caselaw then for this jurisdiction? Is this now precedent for others who want to sue Equifax for being victim of the same data breach?
- gnicholas 9y ago
  Undoubtedly not. This would be a non-precedential decision. You could mention it in another case but the judge would have no obligation to follow it. Also, your facts are going to be different, which further complicates things.
  - bogomipz 9y ago
    Could you elaborate? The author himself mention caselaw that he used as reference. If a resident from the same court jurisdiction with the same circumstances(Equifax data breach victim) why would the facts be different beside the identify of the plaintiff?
    - gnicholas 9y ago
      There is binding precedent (which must be followed), persuasive precedent (which a judge may choose to follow but need not), and non-precedential opinions (which are not supposed to be cited). Binding precedent typically comes from a court to which an appeal would lie. So if the US Supreme Court were to decide (for example) that Uber drivers are actually employees for the purpose of federal labor law and tax withholding, then that precedent would be binding on all Federal Circuit Courts of Appeal, and also all Federal District Courts. This same precedent would be only persuasive authority if cited in a state court proceeding regarding whether Uber drivers can claim state-mandated benefits conferred to employees (because the test for "what constitutes an employee" for the purpose of the state law could be different than the federal definition. But some opinions are designated as non-precedential or non-published. These are still "published" in the sense that you can find them in legal research databases, but they shouldn't typically be cited in future cases. I don't know the rules for the jurisdiction where this case took place, but I would be surprised if small claims cases decided by pro tem judges (who are neither appointed nor elected) were considered precedential. Of course, you could always mention this case if you're fighting a similar case in small claims court (where procedural rules are relaxed). But don't expect a judge to follow the prior decision, even if your facts are pretty close to his facts. > why would the facts be different beside the identify of the plaintiff? Because the number of phone calls and other facts would vary from person to person. The legal issues could be the same, but the facts would differ in every case. Background: I used to be a corporate lawyer, but I did not specialize in litigation.

333 points by evashang 9y ago

deleted 9y ago

[deleted]

Here is the HN discussion to Part 1 https://news.ycombinator.com/item?id=16217241 https://news.ycombinator.com/item?id=16217241 Pretty surprised how much Equifax spent trying to win this case. I'm sure they're doing it to dissuade others from suing them as well but after reading this I really want to sue myself. I wonder if they'll appeal the verdict again.

danielvf 9y ago
The second judgement is final. No appeal.
- razwall 9y ago
  Not through an ordinary appeal, but they could file for an extraordinary writ. Given the number of small claims cases that Equifax has been facing, it might be something they would consider.
- anarazel 9y ago
  IANAL. It's not inconceivable they could make further trouble nevertheless: https://law.justia.com/cases/california/court-of-appeal/3d/102/164.html https://law.justia.com/cases/california/court-of-appeal/3d/1... The relevant part appears to be: "The Eloby court's dictum suggests that section 117.12 was designed to preclude only appeal, motions for new trial, and motions to vacate judgment. The court's initial issuance of the alternative writ further suggests that section 117.12 was not read as curtailing the ability of appellate courts to review important issues arising in small claim actions. Following the lead of the Eloby court, we read section 117.12 as not foreclosing appellate court review by extraordinary writ. Since statewide precedents can only be created by appellate courts, jurisdiction to decide appropriate small claims court issues must be retained by appellate courts in order to secure uniformity in the operations of the small claims courts and uniform interpretation of the statutes governing them. We do not believe that the Legislature intended to make all actions of the superior courts in such cases totally unreviewable or reviewable only on certification. (Code Civ.Proc., s 911; Cal.Rules of Court, rule 61(b).) " This seems a bit weird.
  - danielvf 9y ago
    Thanks!
g051051 9y ago
They probably don't care about the cost, it's the precedent they're trying to block or overturn. And I don't see how even the appeal can stand against further appeals (or whatever they do next to protest what they consider an invalid ruling).
- DanBC 9y ago
  Do small claims cases create precedent?
  - g051051 9y ago
    IANAL, so it may not be "Precedent" with a capital P, but it is a court ruling and the guy put a huge amount of crazy stuff into it that other crazies can now point to and say "see, a judge agreed with all of this".
ficklepickle 9y ago
These scummy corps do it all the time. A critical illness insurance co. tried to not pay my mom because they had their own technical definition of a heart attack. She sold herself the policy, and didn't even know this. In fact, it was subsequently ruled illegal and new policies couldn't use this definition. But they flew in lawyers to her small town, so she had to go to small claims court while recovering from a heart attack. All to try and avoid paying about 20k. She settled for most of it, in the end.

AdamJacobMuller 9y ago

> prove that the increased number of the spam calls I was getting were a result of the breach. Damnit. I have to admit to not caring so much about the Equifax breach. I, personally, don't really care about that kind of data being public and I relentlessly monitor my credit report for changes, even if someone did abuse my data, I would know quickly and clean it up before it happened. But I've been getting a literally 100x-fold increase in spam calls in the past few months. I have gone from one every few days to, I kid you not, 20+/day sometimes. If this is even remotely related to the Equifax breach I legitimately want to sue them just for that.

furschtein 9y ago

This is amazing.

paultannenbaum 9y ago

For what it is worth to others thinking of doing the same thing, I too took Equifax to small claims court in Santa Barbara. They sent a lawyer from their legal team to the initial hearing. I presented a lot of the similar arguments that were presented here, but the judge denied my claim based on not being able to prove negligence on the part of Equifax.

prklmn 9y ago
Did you talk about them being a negligent steward of your data, and not patching a 2 month old bug? They admitted this https://arstechnica.com/information-technology/2017/09/massive-equifax-breach-caused-by-failure-to-patch-two-month-old-bug/ https://arstechnica.com/information-technology/2017/09/massi...
- g051051 9y ago
  Negligence would be if they knew about the bug but ignored it, which per a later Bloomberg article isn't what happened. Instead, there was a process failure so that they thought the bug was patched, when it wasn't.

darepublic 9y ago

Nice, but this needs to be scaled up (many more people need to do this, and a clear recipe provided)

sverhagen 9y ago
Isn't there a class action to that effect?
- jjeaff 9y ago
  Literally millions of individual cases would be much better. It would overwhelm them and those suing would likely get way more money. Class actions never amount to much for anybody except the attorneys.

Meekro 9y ago

I'm as glad as anyone else to see Equifax getting what's due to them, but is anyone else bothered by the surreal quality to this story? It sounds like the rules and procedures being applied were vastly different than what Equifax's highly paid lawyer expected. Is their $1000-an-hour lawyer just incompetent, or is the pro tem judge here allowed to make up the rules as she goes along?

plorkyeran 9y ago
Hiring a $1000/hour lawyer for your small claims case is like hiring an airplane mechanic to work on your car. There's a pretty good chance that this is the first time Equifax's lawyer had ever been involved in a small claims case.
- cweagans 9y ago
  Somebody didn't read the article ;)
- Meekro 9y ago
  Any lawyer worth his salt would know that each court has its own particular rules of procedure. If your highly-paid lawyer comes into bankruptcy court and starts trying to invoke procedural rules from juvenile court, that would be pretty convincing evidence of incompetence. So did this lawyer take on a small claims case without realizing that they should probably read up on small claims rules? Or maybe the judge didn't know the rules either, and just sided with the sympathetic plaintiff?
  - onli 9y ago
    Since the lawyer did not seem to be aware of basic procedures (wanting to have things stricken from the record despite there not being a record) you can assume he just did not read up on the rules.
    - dawnerd 9y ago
      And likely didn't even expect to win since they're paid hourly regardless. Probably was just trying to stretch it out as much as they could. Easy money

bitmapbrother 9y ago

Imagine having to explain to Equifax how your high powered legal team lost a small claims court case to a guy with no law degree.

deleted 9y ago
[deleted]
ipsum2 9y ago
To be fair, he runs a legal startup (legalist) so he has more experience than the average Joe.
IncRnd 9y ago
Equifax already knows they were in the wrong and are just trying to stop the liability. The big wig lawyer vs yokel scenario doesn't really fit here.

BugsJustFindMe 9y ago

It would be nice if the author (or someone) made available a mostly-automated process for filing similar claims by people who aren't lawyers. The same successful arguments should work for any of us.

chrischen 9y ago
Isn’t the author’s company doing just that as a service?
- BugsJustFindMe 9y ago
  I guess they were for some unknown period of time in the past, but not anymore according to https://www.legalist.com/equifax/ https://www.legalist.com/equifax/
IncRnd 9y ago
> It would be nice if the author (or someone) made available a mostly-automated process for filing similar claims by people who aren't lawyers. The same successful arguments should work for any of us. That's not correct. Outcomes will vary per jurisdiction, judge, and the actual case circumstances.

advisedwang 9y ago

I wonder how easy it is to collect the judgment against Equifax.

DaiPlusPlus 9y ago
Collecting against companies is far more easier than collecting from uncooperative private persons - assuming the company is "established" in some way. Given that Equifax is a very large company, collecting is easy: once you get your judgement, file for a Writ of Execution and have the sheriff in whatever CA county Equifax has an office in to visit them in-person and demand they cough up the money or they'll start literally seizing assets there-and-then. Failing that, you can also easily get a bank levy against whatever bank accounts Equifax has in your state - provided you can track-down their account details and financial institution: something you can do with an Examination of Assets hearing, which has an added bonus: if the company representative fails to appear they get a bench-warrant for their arrest which becomes a criminal matter. I'm surprised at how so many small-claim case victors sell their judgement to a collections firm for a fraction of its true value when collecting money is a lot easier and straight-forward than people imagine. You only need to go to a collections company if it isn't worth your time - not if the debtor isn't cooperative.
ellisv 9y ago
Reminds me of the guy who foreclosed on Wells Fargo. https://www.huffingtonpost.com/2011/02/17/patrick-rodgers-forecloses-on-wells-fargo_n_824765.html https://www.huffingtonpost.com/2011/02/17/patrick-rodgers-fo...

hyperbole 9y ago

Equifax is yet another form of financial corruption. The charge/fee incurred in freezing your credit is so close to a shakedown - this is absurd. Credit ratings of the population are a product they sell to financial firms and then they charge (read shakedown) that population for pausing the sale of that data so you the consumer can prevent irreparable credit harm. Then when they screw up and allow a leak of your data which will eventually cause irreparable harm they have the audacity to bully those they've screwed over.

losteric 9y ago
It's even more ridiculous: The bank lets criminals walk out the door with money in our name. Equifax demands money to avoid punishing us when banks are defrauded through their own incompetence. This is worse, because Equifax aided the criminals, but we were always getting screwed over.
- njarboe 9y ago
  Wonder why there aren't class action law suits against banks and other companies that lie to the credit bureaus about people defaulting on loans? It is not "identify theft" that is the problem, it is banks libeling people and the credit bureaus passing the libel along. You loaned money to someone and didn't even have their correct identifying information. Well that's a bit of a problem for you. You say that the fraudster used my name and other info to impersonate me. I can see you are in a bit of a pickle in how to get your money back. You are going to lie and say I defaulted on your loan to a credit bureau? Fuck you, asshole. I'm going to call the police and you are going to get a big fine and/or go to jail. One can dream, anyway.
  - drieddust 9y ago
    It is because these shenanigans are perfectly legitimatized. I recently read "A Man for All Markets" by Edward O. Thorp and it opened my eyes to the level of corruption practiced by Financial Institutions. I find India incredibly corrupt but now I think America is not far behind. Only reason financial crimes in America does not come to light is because they are legitimatized by completely twisting the Laws to favor the right set of people. Case in point is Mr. Trump who has declared bankruptcy multiple times without having any impact on his personal worth. This is just nuts.

bogomipz 9y ago

What a great and inspiring piece. I have a question - does this become part of caselaw then for this jurisdiction? Is this now precedent for others who want to sue Equifax for being victim of the same data breach?

gnicholas 9y ago
Undoubtedly not. This would be a non-precedential decision. You could mention it in another case but the judge would have no obligation to follow it. Also, your facts are going to be different, which further complicates things.
- bogomipz 9y ago
  Could you elaborate? The author himself mention caselaw that he used as reference. If a resident from the same court jurisdiction with the same circumstances(Equifax data breach victim) why would the facts be different beside the identify of the plaintiff?
  - gnicholas 9y ago
    There is binding precedent (which must be followed), persuasive precedent (which a judge may choose to follow but need not), and non-precedential opinions (which are not supposed to be cited). Binding precedent typically comes from a court to which an appeal would lie. So if the US Supreme Court were to decide (for example) that Uber drivers are actually employees for the purpose of federal labor law and tax withholding, then that precedent would be binding on all Federal Circuit Courts of Appeal, and also all Federal District Courts. This same precedent would be only persuasive authority if cited in a state court proceeding regarding whether Uber drivers can claim state-mandated benefits conferred to employees (because the test for "what constitutes an employee" for the purpose of the state law could be different than the federal definition. But some opinions are designated as non-precedential or non-published. These are still "published" in the sense that you can find them in legal research databases, but they shouldn't typically be cited in future cases. I don't know the rules for the jurisdiction where this case took place, but I would be surprised if small claims cases decided by pro tem judges (who are neither appointed nor elected) were considered precedential. Of course, you could always mention this case if you're fighting a similar case in small claims court (where procedural rules are relaxed). But don't expect a judge to follow the prior decision, even if your facts are pretty close to his facts. > why would the facts be different beside the identify of the plaintiff? Because the number of phone calls and other facts would vary from person to person. The legal issues could be the same, but the facts would differ in every case. Background: I used to be a corporate lawyer, but I did not specialize in litigation.