Vincent G. Rinn Law Library

Sunshine In Litigation Act Of 2011

When citizens think of the issue of openess in government, they usually thinks of the Executive Branch and FOIA requests to access information. But the fuctioning of the Judicial Branch also creates significant but often unacknowledged instances of lack of transparency that can significantly affect public health & safety.

One such area is court-approved secrecy in the form of protective orders and sealed documents as the outcome of federal civil cases, frequently in product liability cases. Plaintiffs  have sued for injuries sustained due to such issues as medical drugs and devices, defective car parts or dangerous cribs and playground equipment. Very frequently they have had to acquiesce to defendant company demands for secrecy, to ensure that they would be individually compensated. Few plainfiff's attorney are willing to risk challenging this demand for secrecy as it it might jeopardize their client's chances for a settlement.

Judges with heavy caseloads are concerned with achieving speedy and concrete resolutions to the cases. And so may all to often accede to the demands for secrecy.

While consumers may have reported their injuries to a government agency. Almost all the information that results from their court case becomes inaccessible after a settlement. This is information that  could be reported to alert other consumers of the hazards associated with a particular product.

This situation in our court system has been "under the radar" mostly due to the extemely restrictive confidentiality agreements that may only have the court docket showing that the action was dismissed by agreement between the parties. These practices virtually cloak the conduct of cases filed against product manufacturers, hiding the evidence of patterns of injuries that do not get disclosed to government or to the public.

"Under current law, there are no limitations on settlement agreements, reached privately or filed with the court, regarding the restriction of public health or safety information. As with protective orders, judges are free to consider public health and safety when reviewing other orders that restrict access to information, including settlement agreements, but no such consideration is required. "

An attempt by Congress to ameliorate this legal but obviously socially costly process, has taken the form of  bill S.623, "The Sunshine In Litigation Act Of 2011", reported by the Senate Judiciary Committee this past August. According to the report (Senate Report 112-045), the bill "...will not displace current practices under the Federal Rules of Civil Procedure or common law. Instead, it merely requires an additional step--consideration of public health and safety--before issuing protective orders, orders sealing court records, or settlement agreements in cases pleading facts relevant to public health and safety. "

It is hoped that if this bill becomes law, it will put a brake on the too easily granted confidentiality in these civil cases and bring to light issues that have for too long been effectively hidden from government agencies and the public.

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Addendum :

The federal courts themselves are addressing the issue of  the too easily granted sealing of records in federal civil cases, as evidenced by their own new guidance on the practice :

From "The Third Branch", September 2011

Judicial Conference Approves Standards & Procedures for Sealing Civil Cases

"At its September meeting, the Judicial Conference adopted a national policy that encourages federal courts to limit those instances in which they seal entire civil case files. The policy emphasizes that “an entire civil case file should only be sealed when . . . sealing . . . is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives, such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort.”

Any order sealing an entire civil case should contain findings justifying the sealing, and the seal should be lifted when the reason for sealing has ended, the policy says. The Conference also endorsed modifying the Judiciary’s Case Management/Electronic Case Files system to include a mechanism “that would remind judges to review cases under seal annually.”

 The wording of the guidance from the Judicial Conference, actually seems broader and more detailed than what the Sunshine In Litigation Act of 2011 proposes. Perhaps the Judiciary can require procedures that the legislature can only suggest to another branch of government. It may be beneficial to have both the judicial guidance and the possible requirements of legislation, to help change practices that have severely impaired the transparency of part of our judicail system.

 

 

Another Compulsory Arbitration Case Headed To Supreme Court

The ability of consumers and employees to enforce their rights and obtain a remedy when their rights are violated has been steadily eroded under recent Supreme Court decisions favoring arbitration.                     [ See Friedman , "Arbitration provisions: little darlings and little monsters" , 79 Fordham L. Rev. 2035 (2010-2011) ]

Just this past April, a US Supreme Court decision in AT&T MOBILITY LLC v. CONCEPCION ET UX. ruled that the Federal Arbitration Act (FAA) pre-empts state law that holds manditory arbitration contact clauses as unenforceable which would have allowed court suits for contract violations.

The Federal Aritration Act allows for an exception to its mandate when, "...shall be valid, irrevocable,and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” One would think that provisions which the California court regarded as unconscionable under California law and unenforceable as a matter of public policy, would be within the considerations of equity for the parties involved.

Another case involving denial of access to the courts for consumers, is highlighted in a the October issue of AARP Bulletin, Greenwood v. CompuCredit Corp., Unlike the Concepcion case above, the law that the cardholders are relying on, is a federal law, the Credit Repair Organizations Act (CROA), not a state law.

This law actually includes an explicit provision that "You have the right to sue a credit repair organization that violates the Credit Repair Organizations Act." Can a business that is required by statute to provide consumers with a notice that provides “you have the right to sue” be permitted to require the consumer to arbitrate all disputes?  Will the Federal Arbitration Act be used to nullify the provision of an explicit right to sue, in a law enacted by Congress ?

As the AARP SCOTUS Preview points out "corporations will not be deterred from wrongdoing by the threat they will have to pay for it in the end. Less honorable businesses will gain a significant competitive advantage over those that do not cheat their customers." Also "...arbitration limits access to remedies and privatizes the law, because arbitration rarely results in a written decision. In addition, the cost of individual arbitration can be prohibitive compared to the limited amount of damages most consumers seek to recover."

It is ironic that the nation's highest court has become the vehicle for continuing to limit and sometimes eliminate the use of the courts to provide a hearing and effective remedies for the  grievances of everyday citizens. Instead of contesting matters on a somewhat level field, businesses are allowed to force their own rules on consumers and are insulated from the legal and financial accountability for their behavior that the courts could provide.

This situation makes the motto enscribed  on the front of the US Supreme Court Building, "Equal Justice Under Law", ring somewhat hollow. Oral argument was scheduled for Octover 11. We will have to wait to see whether the Supreme Court continues to close the door to the court house, for the avarage citizen.

 

 

40 Year Old NOLO Publisher Embarks On Legal Website Network

NOLO was established in 1971 as the first publisher of do-it-yourself legal books for consumers. Their bread & butter has been well-regarded, plain language legal guidance conveyed in affordable print publications. They also provided Online links to such reference information as State Laws & Info, Law Dictionary, Supreme Court Cases, Historic Documents and Law Blogs. Also available are  nearly a dozen NOLO-produced, Free Legal Books on consumer issues plus a host of short articles for various consumer legal topics.

This past Summer, NOLO unveiled their first "Nolo Network website", www.landlordtenantlawfirms.com. This is to be the first in a series of NOLO-produced websites covering specific legal areas. This online initiative is a result the acquisiton of NOLO by Internet Brands, a new media company which operates online media, community, and e-commerce websites. Internet Brands' online expertise will make the NOLO Network part of its own Experthub website. ( www.experthub.com )

It looks like the marketing model connects free online consumer and small business content, to for-sale NOLO print publications and to referrals to attorneys working in specific areas of law. The listed attorneys pay a fee to Experthub for the leads.

The acquition of NOLO seems like a synergistic one. NOLO will continue to publish it's very popular print books. But will now also be able to produce and market new online content as part of the Internet Brands family.

Jake Warner, executive chairman and co-founder of Nolo, stated that "Nolo has always advocated for a more accessible and affordable legal system while giving consumers the plain-English information they needed to tackle everyday legal tasks,"  "We're confident that Internet Brands' proven expertise in e-commerce, consumer-focused products, and online SMB marketing services will maximize Nolo's online presence."

 

 

Academic Libraries Getting Sued by Publishers & Authors

Madeline McIntosh president of sales, operations, and digital, Random House. is quoted in an interview by librarian Kate Sheehan in Library journal :

"I hope librarians and publishers can help each other continue to focus on what we're each great at. Libraries are both cultural institutions and businesses, in the best sense of both words. They buy a lot of books. They buy a lot of really wonderful books. And they help bang the drum for those books in their communities. That has tremendous value for us, and for the readers we both share and value." And "...The value of a library to us—and our authors—is inextricably linked to a library having a physical space, where people can come and discover books."

That is the "big picture view" that says that publishers, authors and libraries are all part of the same economic eco-system. So we should work together to grow the markets for content & reading.

But some of the innovations and changes made possible by new technologies in such areas as digital course packs for students, e-books that are rented rather than owned, massive scanning projects of print collections, have lead to accademic libraries being sued by their erstwhile partners in that eco-system.

GEORGIA STATE UNIVERSITY LITIGATION

The suit against Georgia State University (GSU)  was filed in April 2008 when Cambridge University Press, Oxford University Press, and Sage Publications entered their complaint that GSU  e-reserves consitutued unauthorized copying and distribution of their copyrighted materials. During the course of the litigation GSU had developed extensive checklist that faculty were to use to decide when materials could be used under the doctrine of "fair use" or not.

The publishers were never satified with this. They propose almost absolute constraint on the school from using any  of the copyrighted content without permission. Not aknowledging any "fair use" at all.

"WHEREFORE, Plaintiffs pray:

1. That this Court enter an order pursuant to 17 U.S.C. § 502 and 28 U.S.C. § 2201 declaring that Defendants’ actions as complained of herein constitute copyright infringement, and granting permanent injunctive relief enjoining Defendants or any individuals in their employ or control, now or in the future, without seeking the appropriate authorization from Plaintiffs, from copying, displaying or distributing electronic copies of any of Plaintiffs’ copyrighted works to Georgia State students or anyone else, or from facilitating or encouraging others to do so, in the manner described above — namely, via the collection and assembly of course reading materials for offer to students through an e-reserves system, a course management system, a course web page, or any similar electronic distribution method;..."

The author of the Law Library Journal article. The GSU Lawsuit: Don't Know How Lucky You Are", finds such a position to belie statements of  such publishers  that their mission is “to further the University’s objective of advancing knowledge, education, learning, and research.”

It appears that these academic publishers have chosen to forget that much of the content they have to sell comes from many of the same faculty & researchers at the institutions whose libraries, they sell to. One result of these policies, has been more faculty  participating in new methods for sharing scholarly research, easily and affordably, such as The Public Library of Science, Multimedia Educational Resource for Learning and Online Teaching (MERLOT), MIT’s Open CourseWare initiative, Wikibooks.

 

AUTHORS GUILD SUIT

Another area where academic libraries are targets of lawsuits involves their role in the huge Google library scanning project. While several major US universities had allowed Google to scan and digitize major portions of their print collections, up until now the legal challenges had been directed at Google itself. But recently, as the publishers in that suit seemed to be trying to work out issues to deal with the court's rejection of their settlement, the Authors Guild decided to sue the participating libraries themselves.

It appears that what may have triggered this move against the libraries was the initiative by these libraries to actually host a significant portion of the scanned works themselves and make it avaialble to their faculty & students. The schools would work cooperatively to identify those works considered "orphan works" that may not have an identifiable author who could provide permission to use their works. Some experts say that even with no identifiable author, the use of an entire work is probably beyond "fair use".

However, even given that consideration, and that in this case, the content is created by authors themselves, what the Authors' organizations are seeking in court, also seems to exhibits an absolutist need for complete control :

From the complaint, Demand for Relief :

"(c) Pursuant to 17 U.S.C. § 503, this Court order the impoundment of all unauthorized digitai copies of works protected by copyright within Defendants’ possession, custody or control, including works whose copyrights are held by Plaintiffs, to be held in escrow under commercial grade security, with any computer system storing the digital copies powered down and disconnected from any network, pending an appropriate act of Congress."

While the authors do seem to have several provisions of existing copyright law to support their suit, what needs to change is that very law. There  have been at least two major legislative attempts to deal with some of these very issues of contention in this law suit."Orphan Book" bills were proposed in 2006 & 2008 but were never enacted.

We need to ask the authors' groups whether sueing these libraries, can help bring about the needed legislation from Congress. Or does it just set the stage for more protracted litigation that may become a stumbling block to getting Congress to finally act ?

To restore the mutual synergy among authors, publishers and libraries, referred to in the opening quote, the participants need to return to the "big picture" of the "Public Square" in which the collective, interdependent and continuing nature of creativity is recognized.