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Renter’s Woe: The Nightmare of Tenant Eviction Litigation Lists

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Having just moved into a new apartment this weekend, I couldn’t help but think how many wonderful and interesting things there are to do in this world that beats the hell out of the mind-numbing mundanity of moving.  It sucks so much, in fact the only thing that sucks more than the process of moving is finding a place.  It’s a task that I’m sure takes its toll on everyone who has to do it, so I’m sure as heck glad that as far as I know, California doesn’t keep a list of renters involved in eviction litigation like New York.

Not that I’ve ever been sued in a landlord-tenant case before.  Seriously, I haven’t.  To all potential landlords out there who I may have to rent from one day, know that I’m not joking.  Because I don’t want to end up like James Whelan, the tenant who is suing in the link above.

This was news to me, but apparently in some states, like the aforementioned New York, the government keeps a running tally of all tenants that have been sued for eviction.  The list is open for viewing to the public and, in theory, may sound like a good idea.  Landlords are given notice of potentially bad tenants so that they can avoid renting to people who habitually cannot make their rent.  These “professional tenants” can often end up causing landlords to lose thousands of dollars in uncollectable rent.  The rub is that the list includes all tenants who have been sued for eviction, even the ones who won their eviction cases against their landlords.

You can probably see the problem here.  If a vindictive landlord wants a tenant out and wrongfully sues to evict him or her, the innocent tenant ends up on the list regardless of whether or not they were in the wrong.  Even if the tenant wins the case, chances are the landlord won’t be renewing the tenant’s lease and so when the tenant goes apartment hunting, he or she may find they’ve been blacklisted by landlords who see the tenant’s name on the list.  That’s the situation Whelan, a New York renter, was trying to avoid by preemptively suing to keep his name off the eviction litigation list.  Should he win his lawsuit, it would likely stop New York from continuing its practice of naming names.

But, for anyone renting in New York or any state with a similar practice, Whelan’s lawsuit probably does little to relieve your anxiety.  The fact of the matter is that the practice itself isn’t necessarily illegal or unconstitutional per se.  Every time anyone files any lawsuit in America, both parties’ names are listed for public viewing.  Such general docket information has always been public information and nowadays is even usually viewable online.  Certainly the details of people’s lawsuits can always be sealed with both parties and the court’s consent, but generally the names of the parties and indeed the existence of a lawsuit will still remain in public record.

However, this fact doesn’t make the tenant eviction litigation list from feeling any less sleazy and exploitative.  Most states that have such lists in place usually sell it to private companies who often resell it to members in the real estate industry who in turn use the list’s information for tenant screening purposes.  There’s definitely money to be made for states that have these tenant eviction litigation list, so it’s probably likely that the practice won’t be going away without a fight.

But for now, what can you do if you find yourself in an oh-so-precarious situation ala Whelan’s?  It’s sad to say, but short of trying to change the law like Whelan is doing, there’s probably not much you can do other than hope for the best and try to keep on your landlord’s good side.  It’s hard enough finding a good place to rent when you have good credit and a litigation-free record.  It took me a little over a month to finally find my new digs; I can only imagine how long it would’ve taken me if I had to deal with having to explain why my name was on a don’t-rent list (again, potential future landlords, please note I have a perfect credit rating and have never been evicted in my life).

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Can You Sue Over a Credit Card Fee?

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Over the last few years, the Supreme Court, under Chief Justice John Roberts has, without question, taken a hard turn to the right. This is not a condemnation or commendation; it’s simply a statement of fact. Whether you view this as a good or a bad thing depends largely on your political views.

However, critics of the current court have plenty to complain about lately, with some arguing that the Court is tripping over itself to make it as easy as possible for large corporations to ride roughshod over the rights of consumers. The court has held, in a few cases, that corporations can essentially contract themselves into immunity from certain consumer lawsuits, essentially by putting a provision saying “you can’t sue us” into their standard contracts or terms of use.

This case at issue involved a consumer lawsuit against a credit repair organization, which issued its customers a low-limit Visa card, as part of its strategy to help them rebuild a credit rating. However, the lawsuit alleged that the company charged hidden fees, which actually made their customers’ credit ratings worse than they were before, in some cases.

Under the terms of the 1996 Credit Repair Organizations Act, a federal law designed to protect consumers from fraud and/or exploitation by credit repair companies, consumers have a right to sue credit repair services that engage in deceptive practices. The law clearly states that the right to sue under those circumstances cannot be waived by the consumer, even if they sign an agreement purporting to waive that right.

However, the contract that consumers entered with the credit repair organization stated that consumers could not sue in court, and that any disputes arising from the contract would be resolved in private arbitration. Arbitration is a process by which two parties to a dispute agree to have a private entity (usually a professional arbitrator) resolve their dispute, as opposed to taking it through the judicial system. Arbitration is sometimes cheaper and less time-consuming than litigation in the courts. However, arbitration agreements often call for arbitration in a location that’s likely to be very inconvenient for the weaker party (in this case, the consumer) to get to. For example, if most of a company’s customers are in big cities on the West and East coasts, it might set the location for arbitration somewhere in the Midwest.

Furthermore, there are some concerns that arbitrators might be biased against consumers.

In this case, the credit repair company argued before the Supreme Court that their arbitration clause satisfied consumers’ right to sue for deceptive practices.

Judging by the oral arguments (summarized and linked to in the HuffPo article linked above), and the questions that the Justices asked the attorneys, it appears that a majority have already made up their mind, and they’re going to come out the side of the company, not the consumers.

Justice Ginsburg, long known as one of the more liberal Justices on the current Supreme Court, seemed to be the only one who indicated any sympathy to the arguments of the lawyer representing the consumers.

Recently, I blogged about another recent Supreme Court decision that would also seem to limit the rights of consumers who think they’ve been wronged by corporations to seek redress. In that case, the Court held that companies, through so-called “adhesion contracts,” can draft their way out of a class action lawsuit.

“Adhesion contracts” are contracts, generally between large companies and individual consumers, which are drafted by the party with the most bargaining power (usually the company), and presented to the consumer on a take-it-or-leave-it basis, with no real opportunity to negotiate the terms. Contracts for cellphone coverage are a prime example. The court held that a provision in such a contract that bars consumers from suing the company in a class action lawsuit, and instead directs them to individual arbitration, which would be far more expensive for an individual consumer.

The Supreme Court held that these provisions are perfectly valid.

In all of these cases, the court was not involved in constitutional interpretation. Instead, it was interpreting statutes that were passed by Congress. This means that if Congress disagrees with these rulings, it could change the law. And if they’re not inclined to do so, we can elect members of Congress who are.

Of course, whether or not that will actually happen depends largely on the willingness of consumers to educate themselves about these issues, and form informed opinions about them.

Internet Anonymity and the First Amendment

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Computer typing with a bag on headFederal courts have repeatedly held, to the point that it can probably be considered settled law, that the First Amendment gives people commenting on the Internet the right, albeit a limited one, to anonymity. The reasoning is that anonymity allows a person to express views without fear of reprisals by people who disagree, and that for the government to compel an anonymous commenter would have a chilling effect on speech, thereby violating their First Amendment rights.

But what happens when an “anonymous” poster on the Internet says something that might be legally actionable, such as defamation or fraud? The issue of the constitutional right to Internet anonymity usually comes up when someone wants to sue an anonymous speaker for defamation.

Here’s how the procedure usually goes: on a website blog, or blog comment, an anonymous poster says something that might be grounds for a lawsuit – usually it’s something defamatory about someone else. The subject of that statement hears about it somehow, and decides they want to sue whoever wrote the comment. Of course, you can’t sue someone if you don’t know who they are. So, the plaintiff will file a lawsuit against the person who wrote the defamatory statement, naming the speaker as an anonymous or “Doe” defendant (the plaintiff will be identified as “John Doe” until their identity can be ascertained). Once the lawsuit is filed, they will then serve the relevant website or Internet service provider (ISP) with a subpoena, demanding that they reveal the identity of the person who made the anonymous post. At that point, the major constitutional issue is whether or not the court should enforce that subpoena.

The Electronic Frontier Foundation (via the Volokh Conspiracy) has a good analysis of the basics of this issue. Basically, if you want to sue an anonymous poster for defamation, you have a few initial hurdles you must first clear. The biggest one is convincing a court that your rights, which were allegedly violated by the speaker’s words, outweigh the speaker’s First Amendment right to speak anonymously.

However, a federal court has recently thrown something of a wrench into this doctrine, holding that the privacy protections that apply to defendants in cases brought by private litigants do not apply to lawsuits brought by the federal government. In this case, the SEC brought a lawsuit against the owner of an anonymous email address, which the government alleged was being used to promote certain stocks in an illegal “pump and dump” scheme.

While I certainly don’t condone fraudulent manipulation of stock prices, I find this ruling somewhat disturbing. Even if the result is appropriate, the means by which the court arrived at it are unsettling. In other words, I think that this person was engaging in illegal and immoral activities, and his identity should have been unmasked. However, I don’t think the court should have dispensed with the test that balances the interests of the parties.

This sets what I believe to be a dangerous precedent, in which the government can unmask an anonymous writer without more than a suspicion that their writings might be unlawful. While the guy who was fraudulently manipulating stock prices certainly deserves whatever punishment he got, the next person subject to this power might not be so clearly guilty.

For example, what if the government wants to unmask the identity of someone who writes under a pseudonym, and touts extreme and unpopular political views, which the government believes might lead to violence, even though the speaker never advocates violence? While there may certainly be a governmental interest in keeping an eye on such a person, there is no question that they have a right to express their views, no matter how strange or extreme those views may be.

If speakers know that their identity can be easily unmasked, they may well decide that they shouldn’t take the risk of expressing their views online, which definitely isn’t what free speech is about.

This story is also an object lesson to ordinary internet users, and it’s something we’ve known since Al Gore invented the Internet: anonymity online is 100% illusory. There is basically no such thing as “anonymous” speech on the Internet. I’m not praising or criticizing that fact – I’m just saying that, by the Internet’s very nature and architecture, it’s impossible to be completely anonymous online.

So, if you are about to make a “brilliant” comment on a YouTube video, here’s some advice: before you click “post” ask yourself if you would want everyone in the world knowing the name of the person behind your online handle. If not, maybe it’s best to keep your thoughts to yourself. I’m not saying you shouldn’t express opinions. All I’m saying is that, in the modern world, you should never assume that you are truly anonymous, because you probably aren’t.

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Obvious Alert: Snooty GASP Clothing Chain Is Snooty, Rude, And Insulting

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I’m not the most fashion forward guy in the world.  Don’t get me wrong, I like to dress presentably and as cool-looking as my budget will allow, but I don’t spend all my money on clothes . . . anymore anyway.  Like most of the hobbies I have, I tend to grow out of them, just ask the cello, snowboarding pants, paint set, and golf clubs in my closet.  And don’t even get me started on that puppy.

Just kidding about that last one; I never got a dog and people shouldn’t ever get a pet unless they know they can raise it.  Anyway, fashion was one of the quickest interest casualties, and for good reason.  One, it’s absurd and obscene to spend that much money on how you look when for the most part no one can tell the difference as long as you look presentable and not, you know, not insane.  And secondly and most importantly, the fashion world is full prissy annoying divas that make you hate how into clothes you’ve become.  Don’t believe me?  Well that’s why stories like this exist to help drive that latter point home to you.

GASP, an Australian clothing retailer and an apparently very “fashion forward” one at that (according to one of its managers anyway), made headlines earlier in the month for belittling a customer for her weight and taste in clothing.  Keara O’Neil, the victim/customer, entered the store and was helped by “Chris,” an employee who showed her some of the company’s threads.  He started out nice, but when O’Neil decided she didn’t want to make a purchase, Chris turned high school drama queen on her and insulted her out the store, calling her fat, knocking her fashion sense, and directing her toward another local chain retailer.

It’s terrible behavior, not just for a store, but also for a person in general.  However, it’s apparently also in GASP’s customer service manual because when O’Neil emailed the store’s manager to complain, the manager continued the abuse instead of apologizing.  The manager praised Chris as a “retail superstar” and essentially gave O’Neil the finger, telling her she wasn’t welcome at GASP stores in the future.  And even after the story broke and the maelstrom of bad press, the higher-ups at GASP have yet to step forward to apologize or even say as much as a peep.  Apparently, GASP really wants to be known as the company to represent everything that is wrong in the world.

It’s when I read stories like this that I really wished there could be some kind of lawsuit here.  I’m not quite familiar with Australia’s legal system, but I know that at least in America, despite the disgust generated by O’Neil’s tale, there’s just no lawsuit, even in the vast open world of tort law and emotional distress.

Don’t get me wrong, I’m no fan of frivolous lawsuits, but GASP’s behavior is just . . . rude and wrong.  They remind me of that guy or gal everyone knows who hasn’t quite grown out of that juvenile “my-stuff-is-better-than-your-stuff” phase.  You just want to shake them and say, “Plan for your retirement!”

Though America’s tort law is pretty loose, even if O’Neil somehow had standing to bring this lawsuit to our shores, she’d be out of luck.  It’s a long established rule in American law that intentional infliction of emotional distress requires more than a mere insult, no matter how bad it may be.  The standard is extreme and outrageous behavior and O’Neil would’ve been nowhere near able to meet it.  Examples of this is usually when some purposefully and falsely claims you or your loved one is dying or does something else equally ludicrous like place a fake bomb next to you and say it’s going to explode.

The only exception to this rule is for common carriers, such as hotel innkeepers and those in the transport service, such as bus drivers.  They are liable for emotional distress caused by their gross insults, which are insults said with the intention of being really offensive to the targeted individual.  However, because the GASP employees aren’t common carriers, but rather clothing salespeople, O’Neil wouldn’t have a leg to stand on since she suffered no harm other than her verbal beating.

Let’s just hope that GASP and any other company that pulls this stuff goes the way of United Airlines and loses $180 million off its share prices for being such jerks.  Because in the world of jerks, only money seems to make them ever want to change.

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Cantaloupe + Listeria Outbreak + Recall = A Whole Lotta Lawsuits

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Despite my mom’s protest for me to do the contrary, I’m not the biggest consumer of fruits and vegetables.  Though I’ve been told numerous time by modern medical science, television shows, books, and my parents that eating a balanced diet is good for my health and well-being, take one look at my fridge and the dozens of frozen burritos that currently inhabit it and you’ll know how serious I take this fruits and vegetables stuff.  There are few fruits that I actually enjoy, but the ones I actually like, I buy and eat on a regular basis.  That’s why it’s really annoying to see when one of them has to go on the do-not-eat list for a while.  It’s at times like this where I wonder why I seem to have so few things left to enjoy in the world and why they all must be systematically taken away from me.

If you have hypochondriac tendencies like me, then you’ve no doubt already heard that between 1.5 million to 4.5 million cantaloupes, the most delicious orange fruit in the world, have been recalled because they may be linked to a deadly outbreak of listeria.  The outbreaks has already resulted in the deaths of at least 16 people in over 18 states and over 70 reported cases of illnesses related to the bacteria.  The company responsible for the tainted fruit is Jensen Farms, a producer and wholesaler of cantaloupe and other produce. The Centers for Disease Control expects more reports of deaths and illnesses related to listeria to come as the days go on since Jensen Farms apparently has no idea how much of their tainted fruit is out on the market since the company claims its fruit often gets resold and repackaged many times over, which I know is great news for all you cantaloupe lovers out there.  And the best part is that according to the CDC, if you can’t figure out where your cantaloupe comes from, you shouldn’t eat it.  This is wonderful because now I get to throw out twenty dollars worth of possibly poison fruit (I hope my sarcasm is conveying nicely to you).

But what is liseria?  A freaking terrible bacterial infection, that’s what.  Also known as listeriosis, the infection is caused by a bacterium called Listeria monocytogenes and is usually spread through infected soil, water and animals.  Like most bacteria, heat and pasteurization kills it, but unlike most bacteria, listeria can continue to grow and multiply at room temperature and even in the cold of your refrigerator.  According to the CDC, it can live on any household surfaces it touches so cleaning anywhere a tainted cantaloupe touches is essential.  Though listeria is usually only fatal in those with weaker immune systems like young children and the elderly, pregnant women can transmit the infection to their unborn children.  And even if you don’t die from it, you can still get one of the nastiest cases of stomach flu you’ve ever had in your whole life from it.  Fortunately though, it appears most healthy adults are immune from listeria’s effects (which means I’m probably out).

There isn’t much good that we can take from this cantaloupe recall.  But if you’re like me and see the glass as half full, you may be able to take this recent food bacteria outbreak as a reason why naysayers of chain of distribution-based product liability should shut up and thank the stars that the law is still in practice.  Because without it, many injured consumers of cantaloupes in this case could’ve been without a leg to stand on.

Product liability is a legal term we’ve all heard before.  It basically allows us consumers to sue manufacturers for any harm we’ve suffered as a result of their defective products being released on the market.  However, what some people may not realize though is that product liability law extends beyond just the maker of the bad product, but also to those who buy and resell said products.  Meaning, that if you buy a tainted Jensen Farms cantaloupe that has been repackaged and sold as X brand cantaloupe from Y supermarket, you’d be able to recover from X and Y along with Jensen Farms.

Why is this good?  Though it sounds needlessly duplicative, in situations like this cantaloupe debacle where the harm and damage payout may be huge, as in possibly big enough to bankrupt a company, there may not be enough money to go around to all the victims if only the original manufacturer had to foot the bill for their initial mistake.  This could potentially leave many injured parties without much compensation or a much longer time until they get their due.  However, with chain of distribution product liability, each reseller also becomes responsible for paying out their fair share of the blame, so to speak.  In this case and any others like it, this ensures that anyone who becomes sick from the tainted produce can recover for their harm.

So, if you’ve become sick or worse from one of the tainted cantaloupes, rest assured that you have some legal footing to stand on.  And if you haven’t been affected by this outbreak, take this as a lesson as why you shouldn’t eat fruit.

Just joking about that last one.  My mom would slap me in the face if I didn’t clarify to everyone that it was a joke.  Fruit and vegetables are still our friends, alright mom??

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