Monthly Archive for October, 2011Page 2 of 4

Can You Sue Over a Credit Card Fee?

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.

Friend or Foe: Superhero Crime Fighter Phoenix Jones

You know what’s an odd feeling?  Looking back to when you were a kid and remembering all the ridiculous and impossible things you wanted to be when you grew up.  You know what’s an even stranger feeling?  Realizing later that maybe some of those seemingly impossible occupations weren’t quite as far-fetched as you originally believed them to be.

Hmmm . . . Maybe I shouldn’t have hung up my leather mech-piloting gloves just yet.

Anywho, for those of you as enthralled by the tale of Phoenix Jones as I am, you’ll know that earlier in the month the would-be Seattle ‘superhero’ was arrested and accused with assaulting a group of party-goers.  And for those of you who have no idea what I’m talking, no I haven’t gone insane – but arguably maybe some of these people have.

Phoenix Jones, whose real name is Benjamin Fodor, a 23-year-old mixed-martial arts fighter, made headlines as one of the people responsible for kick-starting the real-life superhero movement.  As the name suggest, these are people who dress up in costumes to fight and prevent crime, doing everything from patrolling the streets and making calls to 911 for police intervention to actually stepping in and, you know, fighting people.

Fodor is the leader of the 10-person Rain City Super Heroes group in Seattle.  He carries a stun gun baton and pepper spray as his main weapons and has been donning his mask since the beginning of this year.  Since that time, Fodor has suffered a multitude of injuries from his excursions.  However, last week was his first arrest.  Fodor claims he was simply breaking up a fight among partiers when he pepper-sprayed a group of people on the street.  But the people state otherwise and say that Fodor attacked them.  However, judging from the looks of the video, it does appear as if Fodor was breaking up a fight in progress.  In any case, Fodor has since been released from custody and prosecutors say they aren’t planning to press any charges, which means Seattle gets to have its self-proclaimed guardian back.

Now don’t get me wrong.  I like the idea of real-life superheroes and the fact that these guys are out there trying to be good Samaritans by stopping crime.  And I certainly wouldn’t mind if some of them started popping up in the Bay Area, because I’m sure there probably won’t be any complaints.  But what surprises me most about Fodor’s arrest is how it didn’t happen sooner.  I mean, he’s essentially a masked man in a rubber muscled suit who can and has assaulted people in the name of preventing crime.  If that doesn’t scream criminal charges to you, then I would think that it at least yells civil lawsuit.

Just to review, battery is when someone makes actual and offensive unwanted physical contact with another person.  Assault is when a person puts another in fear of imminent offensive physical contact without actually touching the victim.  Fodor carries around pepper spray and a stun gun baton.  Fodor uses these things along with his body parts to disable people he believes are about to commit a crime and he’s been doing this for at least the past 10 months.  Many of his adventures are video-recorded and released on the internet.  I don’t know how much clearer of a lawsuit you can get from these set of facts without . . . yeah, it can’t be clearer.

And yes, I’m aware that certainly Fodor has a viable defense of others defense based on his observations.  People are allowed to step in and protect others using proportionate force.  But my point is that the odds of Fodor never being arrested before this incident, even with this legal defense, are simply mind-blowing and frankly a little annoying.  I accidentally park a minute too long in front of an expired meter and I get a ticket.  This guy gets to beat up on people and he’s only now having charges filed against him?  Talk about unfair.

Aside from his amazing luck with the law so far, I’ve got no beef with Fodor and others like him.  Having more eyes on the street protecting people is never bad in my book.  But I can also understand why the Seattle police department has started to look less kindly on him.  There’s always a chance that Fodor’s action could inspire others to take more extreme and less law-abiding measures to stem crime.  Even worst, it could inspire super villains to start popping up all over the place and the last thing anyone wants is a Batman and Joker situation.

How to Prepare for a Meeting with Your Family Lawyer

Meetings- oh, how we all dread them.  Those time consuming and distracting gatherings somehow have the knack of making the day go by slower and adding to our work pile.  Some people seem to be naturally allergic to them and will do their best to avoid meetings like the plague.

On the other hand, some types of meetings are absolutely necessary in our lives.  For example, your first meeting with a family lawyer is something that you definitely don’t want to avoid.  The importance of that first meeting cannot be understated- it will set the tone for the entire case, and many significant issues will be addressed during the first meeting.

The problem is, even though family law issues are all over the news, many people feel clueless about how to prepare for a meeting with their family lawyer.  So, here are a few pointers on what to do and (probably more importantly) what not to do when meeting with your family lawyer for the first time:

Attorney meeting with client1) Research Legal Issues and Document Facts

Don’t assume that your family lawyer will do all the work during the first meeting.  You will need to prepare yourself by going over the legal issues that you think you are involved in.  For example, if you are dealing with a divorce, you’ll need to review the grounds for divorce (if any) and any other issues that might be important, like property distributions.  It helps to make a list of any facts that you think might be important for your case.

You may even wish to do some background legal research, just so you have a general idea of the laws surrounding your family law issue.  Try and gather whatever documents that you think might be used in your case.  Also, you should know that all lawyers are bound to perform their services according to Model Rules of Professional Conduct.  You may wish to review these rules, as they dictate the standards that your lawyer must abide by (such as due diligence, fees, competence, attorney-client confidentiality, etc.)

You don’t, however, need to go all out and risk your hand at law school– just the basics will do.

2) Keep your Emotions under Control

Family law is often considered one of the toughest areas of law to practice in.  This is not because it is technical or overly complicated, but because it often involves very sensitive, highly personal issues.  Understandably, you may be facing some very tough issues like child custody or property distributions.

But, it will work in your favor if you’re able to keep your cool during initial meetings with your lawyer.  Communication will run more smoothly, and you’ll be able to make decisions with a straight head.  Unless emotional factors are intertwined with the legal issues (such as when claiming emotional distress), you should avoid giving center stage to your emotions.

3) Cooperate with your Counsel

In the midst of your legal issues, the last thing you want to do is create a conflict with your attorney.  You should cooperate fully with any requests and inquiries that your lawyer may have.  For instance, your lawyer may ask you to provide certain documents that might be used as evidence.  Don’t be stingy if your lawyer asks you for something- your lawyer may already be having a heck of a time dealing with the opposing parties.

Also, don’t try to prod your lawyer into an all-out battle.  While the legal system is adversarial in nature, both you and your lawyer can get into trouble for creating unnecessary conflicts with each other or with the other side.  Professional Rules already require your lawyer to pursue your claim with zeal and fervor.   You should, however, alert your attorney to any conflicts that could arise during the course of litigation.

4) Keep the Results of the Meeting Confidential

Ok, this one seems pretty obvious.  But, you’d be surprised at how many cases get blown due to a client leaking out confidential information.  Always remember that any communications made between you and your attorney in preparation for trial is subject to the attorney-client privilege.  This means that such communications are private and may not be accessed by the opposing counsel.

Lastly, and most obviously, don’t go blasting out the results of your meeting on Twitter or Facebook.  Sure, you might have found an excellent piece of evidence for your case. But that doesn’t mean you should change your status update to “Oooh my ex is going to get it in court!”  Your internet activity can be used against you during hearings; this includes your activity on social networks.  Best thing to do?  Simply avoid all mention of and references to your legal issues.


Let’s face it- most people really don’t enjoy having to attend a meeting.  After all, by definition a meeting is not part of the everyday routine.  But with a little preparation and some sound thinking, your initial lawyer meeting can do wonders for the outcome of your case.  And now, back to that pile of work…

Internet Anonymity and the First Amendment

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.

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

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.