January 2012

Meritless, Massive Class Action Lawsuit Against Wal-Mart Should Be Dismissed

by Hans Bader on March 31, 2011 · 2 comments

in Economy, Employment, Labor, Legal, Regulation

As a lawyer who used to bring class-action discrimination lawsuits for a living, I am puzzled by press sympathy for the massive, meritless class-action lawsuit against Wal-Mart. In it, six female employees are suing for billions of dollars in a San Francisco court in the name of at least 500,000 other female employees across the nation whom they have never met and share little in common with other than gender (many of whom are perfectly happy with Wal-Mart).

The Supreme Court heard arguments Tuesday in the case, expressing skepticism about whether the case should be litigated as a class-action, rather than in individual lawsuits by those workers who allege discrimination.

The Justices should be skeptical: the case is being brought as a class-action not because it needs to be brought as a class action to give workers a fair shot, but rather as an excuse to let a liberal San Francisco jury hold Wal-Mart liable for discrimination when most courts in America would dismiss the lawsuit as baseless (and even if they didn’t, a jury in most regions in America would probably rule in favor of Wal-Mart). This lawsuit was filed in San Francisco, which is widely understood to be one of the most anti-employer, anti-business areas of the country, where courts have found employers guilty of discrimination based on junk science.

Lawsuits over discrimination are usually brought on an individual basis, because even victims of discrimination at a big company often have little in common with each other. They work in different stores under different managers, and have different jobs and salaries. Even if one manager is racist or sexist, managers in different stores may be totally fair and unbiased. By contrast, class-actions are supposed to be brought on the basis of a company-wide policy, and the employees are supposed to have a lot in common with each other.

In the Wal-Mart case, there is no company-wide policy of discrimination. In fact, Wal-Mart has written policies against discrimination.

The lawyers for the employees suing Wal-Mart don’t deny that, but claim that it has a practice of giving “discretion” to individual managers about who to hire. But that’s just a fancy way of saying it doesn’t have a policy: that “discretion” is the result of an absence of a comprehensive company policy on how to hire and promote (other than to avoid discrimination).

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Gail Giggles at Consumer Choice in the NYT

by Fran Smith on March 31, 2011 · 1 comment

in Features, Nanny State, Personal Liberty, Regulation, Sanctimony

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Gail Collins has a truly inane opinion piece in the NYT today, in which she excoriates those people — Tea Partiers and libertarians —  who are opposed to the upcoming ban on incandescent light bulbs. She completely misses the argument for consumer choice, that is, some people may want to stick with the old-fashioned incandescent instead of the fluorescent bulbs for a variety of reasons — some real concerns (photosensitivity, mercury, melting plastic, fumes) and some aesthetic ones.

Instead, Collins does her usual cutesy, aren’t-I-clever dismissal of those who think consumers and not the government should be deciding what light bulbs to use in their homes. Rand Paul, who spoke eloquently against the ban, made that point about light bulbs and about low-flush toilets at a hearing on the issue, and he gets special mention from Collins.

Collins, in her own cockamamie analogy, equates the light bulb regulations with standards for scientific measures and for hospitals’ cleanliness and staffing.

“It’s a classic Tea Party herd of straw horses. Paul managed to lump the light bulb regulations with things his supporters hate (abortions/federal government telling me what to do) while ignoring the fact that the rules are much closer to things they like, such as standards that guarantee that if they go to a hospital or clinic, the place will be clean and staffed by qualified personnel.

Although the Rand Paul crowd is blaming the light bulb regulations on Obama, the rules were actually signed into law in 2007 by George W. Bush. And as Roger A. Pielke Jr., a professor at the University of Colorado, Boulder, wrote in a Times Op-Ed article recently, Washington has been in the standard-setting business since 1894, “when Congress standardized the meaning of what are today common scientific measures, including the ohm, the volt, the watt and the henry, in line with international metrics.”

You have to wonder if, back in 1894, there was a general outcry against the federal government trying to tell an American citizen how big his ohm should be.”

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Morning Media Summary

by Lee Doren on March 31, 2011

in Odds & Ends

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Tech:

Boston College Says Using WiFi is a Sign of Infringement:
“Boston College has a funny idea of what constitutes copyright infringement. It has a list of what might be called ‘you might be a copyright infringer if…’ with the sort of things you might expect, such as using file sharing programs or sending mp3s to friends. But some have noticed something odd. Included on the list is using a wireless router in your dorm. Yes, just using a wireless router. Not using it for anything. But just using such a router is considered a sign of infringement. Nice to see our top colleges and universities teaching students completely made up things.”

Creepy app warns of an end to privacy:
“Creepy is a software package for Linux or Windows – with a Mac OS X port in the works – that aims to gather public information on a targeted individual via social networking services in order to pinpoint their location. It’s remarkably efficient at its job, even in its current early form, and certainly lives up to its name when you see it in use for the first time.”

Google Will Face Privacy Audits For The Next 20 Years (GOOG):
“Google has reached a settlement with the Federal Trade Commission over Buzz, a social blogging service that the company introduced through Gmail last year.”

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Food Inflation is Here!

by Kathryn Ciano on March 30, 2011 · 2 comments

in Economy, Environment, Nanny State

Next time someone tells you that only the left side of the aisle cares about feeding hungry Americans, remind them that it’s green special interests and Michelle Obama’s size-awareness campaign that’s making it harder for Americans to feed their families.

Food inflation is here, folks. Food costs the same; there’s just less of it.

The New York Times ran an article this week complaining that consumers are up in arms because shrinking grocery packaging means they can’t feed their families. It’s a terrible thing that goods cost money; no question about it.

Yet if food manufacturers tried to fix the problem from the consumers’ side of the problem, we’d have a bail-out situation. Manufacturers would be losing money on under-priced, over-sized food packages. It would only be a matter of time before grocery suppliers go out of business.

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Rep. Levin Wants to Stall Trade Pact — Colombia Needs to Change its Laws, He Says

by Fran Smith on March 30, 2011

in International, Trade

Okay — another big roadblock for the U.S.-Colombia Free Trade Agreement, and not surprisingly, it’s coming from Rep. Sander Levin (D-Mich.), ranking member on the House Ways and Means Committee and longtime crony of the trade unions. In a talk yesterday at the Peterson Institute, Levin said that before the pending trade agreement is considered, Colombia has to change its laws. Yes, that’s right, he wants to tell another sovereign nation that its laws aren’t up to snuff with “international standards” relating to workers and unions and it has to change them before the U.S. will consider entering into a trade pact with Colombia.

For several years, we made clear to the Colombian government that changes to its laws needed to be made to bring them into compliance with international standards including the areas discussed above before the FTA could be considered. Unfortunately, little action was taken by the Colombians during these years.

He talks about “little action” during the previous administration of former President Uribe, but facts speak otherwise. In recent years, Colombia has passed new labor laws, put into effect a new judicial system, inaugurated a protection program for trade union leaders, and brought in a permanent representative of the International Labor Organization. Current President Juan Manuel Santos has already taken significant steps to further improve the judicial system.

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Stop the Sweet Deal for Sugar, Says Senator Lugar

by Fran Smith on March 30, 2011

in Agenda for Congress, Agriculture, International

There’s a great op-ed by Senator Richard Lugar (R-Ind.) in The Washington Times today telling how Big Sugar’s sweet deal harms consumers, leads to job losses, while benefitting a small group of sugar cane and sugar beet producers.  To address the egregious sugar program, Sen. Lugar is introducing a bill today – the Free Sugar Act of 2011 — that would repeal the Depression-era central planning system of allocating domestic supply, guaranteeing a minimum price for sugar, and restricting the import of less expensive sugar.  Sen. Lugar notes in his op-ed the command-and-control approach of the sugar program:

In sugar land, as in communist countries, prices are set by the government, not the market. Agriculture Department central planners determine “marketing allotments” to assure domestic producers at least 85 percent of the market. They limit imports to keep prices inflated far above world levels. The planners set the split between cane and beet sugar and mandate a sales limit for each processor and mill.

If prices fall below the official level, a price-support system of “loans” to processors ensures that Big Sugar gets its federal share. The recipients get their loans in taxpayer dollars, but can repay them in (what else?) sugar.

The U.S. historically is not self-sufficient in sugar and there’s usually plenty available on world markets. But American buyers can’t take advantage of lower-priced sugar thanks to strict import quotas, set individually for 40 different countries.

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Morning Media Summary

by Lee Doren on March 30, 2011

in Odds & Ends

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Tech:

Netflix Lowers Streaming Video Qualify To Cut Data Use:
“Online video rental company Netflix Inc has tweaked its Canadian streaming service to cut down on the amount of data it uses in a country where Internet usage is typically metered and capped.”

Microsoft denies intentionally shutting off Hotmail encryption in Arab countries:
“Microsoft says it did not “intentionally limit” access to Hotmail’s HTTPS encryption service in foreign countries where freedom of expression is under attack.”

Restaurant Chain is First Fined Under Massachusetts Data Breach Law:
“A Massachusetts restaurant chain was the first company fined under the state’s toughest in the nation data breach law and will have to pay $110,000 in penalties, according to a statement by the Massachusetts Attorney General. The Briar Group LLC entered into a settlement with Massachsuetts Attorney General Martha Coakley over allegations that the chain failed to protect patrons’ personal information. The case stemmed from an April, 2009 incident in which a malicious program installed on Briar’s computer systems allowed unknown hackers to access customers’ credit and debit card information. That malicious code wasn’t detected and removed until December, 2009, according to a statement from the Attorney General.”

Facebook drops uprising page after Israel protest:
“A Facebook page calling on Palestinians to take up arms against Israel has been removed from the social-networking site after a high-profile Israeli appeal.”

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Six Pages of Legislation, 1,000 Pages of Regulation

by Ryan Young on March 30, 2011

in Healthcare, Regulation

HHS is about to issue over 1,000 pages of new regulations stemming from last year’s health care bill. That’s not a huge surprise, considering the bill is about 2,000 pages long.

But these regulations all come from a six-page section covering accountable care organizations, or ACOs.

According to Politico, John Gorman, who runs a health care consulting firm, “expects a 1,000-page rule to come out on Thursday, March 31 — because he doesn’t think HHS will want to deal with releasing the regulations on April Fool’s Day.”

Virginia Sells Naming Rights to Highway Rest Stops

by Kathryn Ciano on March 29, 2011

in Mobility

Faced with budget shortfalls and a steep $20 million annual operating cost, this week Virginia decided to sell naming rights to its 42 highway rest stops.

While I’ve argued against WMATA’s proposal to sell naming rights to Metrorail stations, sponsorship of highway rest stops presents more opportunities for semi-private proprietorship. This could benefit both the commonwealth and travelers.

I defend Virginia’s decision in The Examiner:

Tacking business names onto rest stops — “Aflac Travel Plaza,” for instance — would allow businesses to target a clear but diverse audience: drivers.  And not just any drivers; rest stop users are not commuters, but travelers.  Marketing to this group has long relied on radio ads and billboards; sponsored rest stops (especially with corporate partnerships!) represents a whole new approach to grabbing roadtrippers’ eyeballs.

Rest stops will bear corporate names, so companies will have a sense of proprietorship over the areas.  Insurers like Aflac don’t want those eyeballs to fall on messy or poorly-stocked pitstops (or, for that matter, “culturally insensitive” remarks from its duck-voiced mascot).  Sponsoring businesses will be incentivized to keep the soda machines stocked and the restrooms clean.

Rest stop users occupy a different “traveler” demographic space from, say, high speed rail aficionados.  Products that naturally appeal more to highway users than to urbanites (like beef jerky manufacturers) can tap the surge in ad response that has lately belonged primarily to urban coupons.

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Alcohol Regulation Roundup: March 29, 2011

by Michelle Minton on March 29, 2011

in Features, Odds & Ends

Post image for Alcohol Regulation Roundup: March 29, 2011

With April Fool’s Day just around the corner, you might think that I’m pulling one over on my readers with the some of the laws below… unfortunately, the following roundup contains a number of outdated, silly, and useless regulations that are actually in place or under consideration:

Nation: Small brewers are cheering the “BEER Act,” the Brewer’s Employment and Excise Relief Act, which would cut excise taxes for craft brewers, was introduced this month by Sens. John Kerry and Mike Crapo. Currently, brewers pay $7 per barrel in excise taxes on their first 60,000 barrels and $18 per barrel between 60,000 and 2 million barrels. The act would cut the excise tax in half for the first 60,0000 barrels, reduce the taxes on the subsequent barrels, and redefine “small brewer” from its current definition (producing under 2 million barrels per year) to a brewery making less than 6 million barrels of beer per year.

Colorado: The Hick is in hot water again. The Denver Post reports that they have obtained hundreds of documents and e-mails that show brewers’ influence over Governor Hickenlooper from the first hours of his administration. The report comes at a tenuous time as committees look into Hickenlooper’s recent “heavy handed” interference in alcohol regulation. Last month, his office directed revenue officials to overturn a rule requiring alcohol testing (a rule that was passed last year to combat the disallowance of grocery/convenience stores to sell full-strength beer).

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