4 ms·

> The deal’s opponents were led by Ted Frank, director of litigation for the Competitive Enterprise Institute, a Washington-based conservative think tank. They

> The deal’s opponents were led by Ted Frank, director of litigation for the Competitive Enterprise Institute, a Washington-based conservative think tank. They said the deal violated procedural rules in U.S. law requiring settlements to be fair, reasonable and adequate. What's the Competitive Enterprise Institute's goal in this lawsuit? I once read an editorial once by a CEI guy that was very pro-forced-arbitration, a view which often goes hand-in-hand with an opposition to class action lawsuits. Is this lawsuit part of the legal campaign to to neuter class actions?

s73v3r_ 8y ago
If it is, did they really need to do that? Just about every service everywhere already has clauses banning users from joining them, requiring users to waive their Constitutional rights.
- olliej 8y ago
  I recall somes states are [going to?] simply making any forced arbitration clauses unenforceable (much like no compete clauses in California)
  - s73v3r_ 8y ago
    That would be a very, very good thing.
  - mark212 8y ago
    can't. There's a federal law from 1928 (I kid you not) that says no state can impair the ability of parties to agree to arbitration. The fiction is that clicking on a terms-of-service button is "consent" to all the terms therein, including arbitration and class action waivers. California for years said such things were unenforceable but the US Supreme Court in 2011 struck it down. (AT&T Mobility v. Concepcion, 563 U.S. 333 (2011))
    - Lionsion 8y ago
      > There's a federal law from 1928 (I kid you not) that says no state can impair the ability of parties to agree to arbitration. Do you have a citation for to the statute or the USC for that? This is something that I'd like to write my reps about.
      - mark212 8y ago
        I was wrong, it was passed in 1925. More here, including a link to the Concepcion decision by the USSC: https://en.wikipedia.org/wiki/Federal_Arbitration_Act https://en.wikipedia.org/wiki/Federal_Arbitration_Act
    - s73v3r_ 8y ago
      I believe there is an argument to make that banning forced arbitration is not impairing the ability of parties to agree to arbitration. All that would do is ensure that the parties are actually agreeing to it, instead of one party bullying the other into arbitration.
forapurpose 8y ago
I think this is the interesting question about the situation; what is the conservative movement's agenda here? I don't see a clear one. (Let me be clear: I'm not writing this to criticize or support the movement or its agenda in this case; I'm just wondering what the agenda is.) It's broader than the Competitive Enterprise Institute. For example, the U.S. Justice Department under Sessions instituted a policy banning (or reducing?) settlements with the Justice Department that paid money to 3rd parties. When the Sessions' Justice Department did it, I assumed they wanted to defund 'liberal' institutions (meaning, those not in the conservative ideological movement). As another example, there is also the effort to defund Planned Parenthood and the successful one to defund ACORN. Note that the Supreme Court case matches a modus operendi of the conservative movement: Change policy and law via the courts rather than through Congress. They develop legal strategies, find good test cases, get Federalist Society judges appointed (especially to the Supreme Court), and incrementally change law and cement policy changes that way. Other groups in other parts of the political spectrum adopt the same approach, of course; it's not just the conservative movement, but they have been particularly strategic. But why this issue? Perhaps someone in the conservative movement decided that these settlements are a valuable revenue stream for "liberal" groups. If someone read through the literature, I'd bet we could find the reasoning and the strategy. Perhaps someone here already has and will share with us?
- mark212 8y ago
  the pro-business agenda is to eliminate or reduce class actions as much as possible because they can be a huge cost of doing business. Litigation generally is how businesses are held accountable for their actions because in the US there tends to be very little governmental regulatory enforcement in most industries. Cy pres settlements are generally easy headlines: "Charities get $X million, lawyers get $Y million, regular folks get nothing." Which means it's easy to demagogue. The larger picture is that having to pay $8.5 million plus whatever O'Melveny & Meyers was charging for defense costs led Google to change its business practices. Where that money goes is largely beside the point, though plenty of free market legal scholars will note that large attorneys' fees encourage more such suits, which means more zealous enforcement of consumer protection laws.
- aerotwelve 8y ago

s73v3r_ 8y ago

If it is, did they really need to do that? Just about every service everywhere already has clauses banning users from joining them, requiring users to waive their Constitutional rights.

olliej 8y ago
I recall somes states are [going to?] simply making any forced arbitration clauses unenforceable (much like no compete clauses in California)
- s73v3r_ 8y ago
  That would be a very, very good thing.
- mark212 8y ago
  can't. There's a federal law from 1928 (I kid you not) that says no state can impair the ability of parties to agree to arbitration. The fiction is that clicking on a terms-of-service button is "consent" to all the terms therein, including arbitration and class action waivers. California for years said such things were unenforceable but the US Supreme Court in 2011 struck it down. (AT&T Mobility v. Concepcion, 563 U.S. 333 (2011))
  - Lionsion 8y ago
    > There's a federal law from 1928 (I kid you not) that says no state can impair the ability of parties to agree to arbitration. Do you have a citation for to the statute or the USC for that? This is something that I'd like to write my reps about.
    - mark212 8y ago
      I was wrong, it was passed in 1925. More here, including a link to the Concepcion decision by the USSC: https://en.wikipedia.org/wiki/Federal_Arbitration_Act https://en.wikipedia.org/wiki/Federal_Arbitration_Act
  - s73v3r_ 8y ago
    I believe there is an argument to make that banning forced arbitration is not impairing the ability of parties to agree to arbitration. All that would do is ensure that the parties are actually agreeing to it, instead of one party bullying the other into arbitration.

forapurpose 8y ago

I think this is the interesting question about the situation; what is the conservative movement's agenda here? I don't see a clear one. (Let me be clear: I'm not writing this to criticize or support the movement or its agenda in this case; I'm just wondering what the agenda is.) It's broader than the Competitive Enterprise Institute. For example, the U.S. Justice Department under Sessions instituted a policy banning (or reducing?) settlements with the Justice Department that paid money to 3rd parties. When the Sessions' Justice Department did it, I assumed they wanted to defund 'liberal' institutions (meaning, those not in the conservative ideological movement). As another example, there is also the effort to defund Planned Parenthood and the successful one to defund ACORN. Note that the Supreme Court case matches a modus operendi of the conservative movement: Change policy and law via the courts rather than through Congress. They develop legal strategies, find good test cases, get Federalist Society judges appointed (especially to the Supreme Court), and incrementally change law and cement policy changes that way. Other groups in other parts of the political spectrum adopt the same approach, of course; it's not just the conservative movement, but they have been particularly strategic. But why this issue? Perhaps someone in the conservative movement decided that these settlements are a valuable revenue stream for "liberal" groups. If someone read through the literature, I'd bet we could find the reasoning and the strategy. Perhaps someone here already has and will share with us?

mark212 8y ago
the pro-business agenda is to eliminate or reduce class actions as much as possible because they can be a huge cost of doing business. Litigation generally is how businesses are held accountable for their actions because in the US there tends to be very little governmental regulatory enforcement in most industries. Cy pres settlements are generally easy headlines: "Charities get $X million, lawyers get $Y million, regular folks get nothing." Which means it's easy to demagogue. The larger picture is that having to pay $8.5 million plus whatever O'Melveny & Meyers was charging for defense costs led Google to change its business practices. Where that money goes is largely beside the point, though plenty of free market legal scholars will note that large attorneys' fees encourage more such suits, which means more zealous enforcement of consumer protection laws.
aerotwelve 8y ago