The Worker Thread

[rstrong]

Er, never mind. They repealed it.

[Vrede too]

Nope. Been litigated.

BTW: Congratulations on the first state to adopt a "loser pays" system of civil litigation, breaking with almost 300 years of U.S. legal precedent, and joining the rest of the modern world.

Oklahoma.

By accident.

... That seems to be the case with the Oklahoma Legislature’s recent decision (if you can call it that) to break with almost 300 years of U.S. legal precedent and declare that in a civil case, the losing party has to pay both side’s legal fees. That was (and still is) the rule in Britain and most other countries, and many believe it’s the best rule because it tends to deter people from filing lawsuits....

I was once asked by an otherwise lefty UK shipmate why we are so lawsuit happy here. My reply was that regulation and its enforcement is more lax here, so we rely more on lawsuits to provide a deterrent to bad behavior.

[rstrong]

I watched a show (20/20?) a while back about a woman in California who had sued virtually every business in town and every household on her street. Being a lawyer, she didn't have to pay for one. The others did. So most people and businesses settled out of court, paying her a few $thousand. Fighting would cost far more, even if they won.

This is how patent trolls work, taking advantage of America's utterly incompetent patent office.

There are law firms that specialize in ADA (Americans with Disabilities Act) lawsuits. Not real ones, which would help the disabled. But shakedowns - much like IP law shakedowns - where they negotiate a pay-out to go away. Should the victim choose to fight back, they simply drop the case. None of the cases ever get litigated to a verdict.

Far from being a deterrent, the American system encourages bad behavior.

[Vrede too]

I'm not saying that I like the choice we've made, but it does make many that would otherwise do harm think twice. Maybe the only thing worse would be lax regulation and enforcement plus impediments to lawsuits like Oklahoma's "accident". The result of what we've got is that some will game the system at little risk to themselves.

[rstrong]

"Loser pays" does a far better job of ensuring that those who would do harm think twice. If someone is in the wrong, they're much more likely to have a larger legal bill. If someone is in the right, they can defend themselves with less risk of bankruptcy.

A lawsuit is more likely to be decided by who is right, rather than who has the larger war chest.

[Vrede too]

Your theory only works at the small war chest vs. small war chest level. Otherwise, in a relatively poorly regulated and enforced environment having a large war chest still means that you're still more likely to win and you're still making the financial decision whether the profit or other gain from causing harm outweighs the potential cost of doing so. All that loser pays accomplishes is to discourage those with few resources from suing, most of whom are not scammers.

[O Really]

While attorney fees are sometimes awarded, a system that is set up to always be "loser pays" is no longer litigation, but is simply gambling. Most issues litigated aren't that clear cut, or they would not be in court in the first place. So sure, a "loser pays" system would keep down litigation because only those who could afford to lose could afford to litigate, and Wal-Mart wins again. Not something I would vote for.

[Vrede too]

While attorney fees are sometimes awarded ....

Exactly, judges already have the ability to penalize frivolous, egregious and scamming litigants.

[O Really]

Yes, and from a practical standpoint, it's not always clear who the "loser" is since many cases have multiple issues. A person can win on part and lose on part of their case. Further, there are some minor-appearing issues for which there isn't any realistic alternative other than court. No offense, Vrede, but when was the last time a doctor just said "opps, sorry I mis-set your arm...I'll fix it for free under our service guarantee." Nope. No matter how minor the issue, you're going to have to sue to get any settlement. And the infamous McDonald's Coffee Burn issue got to where it did simply because McD wouldn't pay her initial medical expense. And it's Wal-Mart's policy to fight every claim and settle only when they are forced. Trump's too, apparently.

[Vrede too]

No offense taken, I don't play golf.

Aside: I and other staffers got called into a meeting with the hospital lawyer about a potential case where our department MAY have flubbed. It was mostly to tell us, "Don't talk about Fight Hospital Club." Every non-MD that had any contact with the patient was there. On reviewing the charting my part was accurate, professional and more thorough than almost all others would have done. Whew. Never heard about it again, so I suspect the case was never filed, dropped or, less likely, settled.

O Really, since you defend employers, what percentage of the cases brought against them would you estimate are the scammers that rstrong describes?

[rstrong]

Your theory only works at the small war chest vs. small war chest level. Otherwise, in a relatively poorly regulated and enforced environment having a large war chest still means that you're still more likely to win and you're still making the financial decision whether the profit or other gain from causing harm outweighs the potential cost of doing so.

Except that it rarely works that way. The American system favors the trolls. Even large targets with a large war chest often pay off the trolls, because in the end it costs less. An endless parade of these stories - just over intellectual property (IP) - get reported on Techdirt.

And if the target decides to fight back? The troll can simply drop the case and move on to the next target. There are companies that launch countless IP and ADA lawsuits, and never, ever litigated to a verdict.

In any case the trolls tend to avoid large companies. When they claim a patent on networked fax machines, they don't go after HP or Canon. They go after any small business using the fax machines. Eventually after building up a war chest from the settlements of all those small businesses, they'll go after larger ones.

All that loser pays accomplishes is to discourage those with few resources from suing, most of whom are not scammers.

Even those who are NOT scammers, are often told "you can win, but the fees will cost you far more than the settlement." "Loser pays" means that those who have a legitimate case can not only win a settlement, but they can have their court costs covered too.

While still protecting people from trolls who rely on "fight back and win, and you'll only be bankrupted anyway."

[Vrede too]

Except that it rarely works that way. The American system favors the trolls.

It favors whoever has more money, and still will with your Rx.

Even large targets with a large war chest often pay off the trolls, because in the end it costs less. An endless parade of these stories - just over intellectual property (IP) - get reported on Techdirt.

Reported by defendants. It's not like plaintiffs and truly culpable defendants are running to Techdirt to gripe. Your "endless" stat is meaningless absent comparison to the numbers of actual intellectual property infringements plus the cases that O Really dscribes that are murky and need to be settled by a court.

And if the target decides to fight back? The troll can simply drop the case and move on to the next target. There are companies that launch countless IP and ADA lawsuits, and never, ever litigated to a verdict.

That doesn't quite make logical sense. If they are trolls and it's that easy to get them to drop the case and move on to the next target, there's no financial benefit to settling.

In any case the trolls tend to avoid large companies. When they claim a patent on networked fax machines, they don't go after HP or Canon. They go after any small business using the fax machines. Eventually after building up a war chest from the settlements of all those small businesses, they'll go after larger ones.

Again, judges already have the ability to penalize frivolous, egregious and scamming litigants by awarding attorney fees. You want sincere but erroneous plaintiffs to be heavily penalized, too.

Even those who are NOT scammers, are often told "you can win, but the fees will cost you far more than the settlement." "Loser pays" means that those who have a legitimate case can not only win a settlement, but they can have their court costs covered too.

While still protecting people from trolls who rely on "fight back and win, and you'll only be bankrupted anyway."

That's not how it works here. With our contingency system, small potential damage claims are already weeded out since lawyers won't take the case. I have personal experience with that. Under your Rx, people that suffered real harm but with iffy legal claims that can only be settled with a judge sorting out the complexities will forego suing out of fear despite the fact that they would have won.

We agree that our system sucks, but the fix has to include enhanced regulation and enforcement. If companies were less able to do harm in the first place and actual victims were more able to seek redress through government agency action, there would automatically be fewer lawsuits. Without that, you're just handing a huge advantage to those doing the harm.

Here's one example - As we know, zero Canadian banks had to be bailed out as a consequence of the Shrubcession thanks to superior Canadian regulation. It's a guess, but I assume that also means that far fewer people were people were hurt by Canadian banker greed, negligence and criminality. Why should US victims have a higher hurdle to get redress from our banks that did all those things?

[billy.pilgrim]

Or we could just continue as always by letting the corporations write the regulations

That way it's really not a lie to blame the regulations

[O Really]

O Really, since you defend employers, what percentage of the cases brought against them would you estimate are the scammers that rstrong describes?

Rstrong seems to be speaking mainly of intellectual property/patent type cases, of which I am woefully ignorant. But in Labor/Employment, most of the scammers get weeded out early in the process. A plaintiff attorney has to either work on a contingency basis or has to be reasonably sure s/he'll get some win (in wage-hour) so as to get paid. Not many employment attorneys are willing to chase windmills. You do get some questionable cases in workers' comp because again if the plaintiff finds anything - anything - wrong, the lawyer's going to get paid. Probably about 2% of the cases are actually fraudulent.

[Vrede too]

... This is how patent trolls work, taking advantage of America's utterly incompetent patent office....

While attorney fees are sometimes awarded ....

Exactly, judges already have the ability to penalize frivolous, egregious and scamming litigants.

Federal Circuit Hits Stupid Patent Owner With Fee Award

[Vrede too]

By rescinding the persuader rule, Trump is once again siding with corporate interests over working people

In virtually unprecedented move, Trump Solicitor General switches sides in Murphy Oil case

Policy Watch: Trump and Congress diligently work to strip working people of hard-fought rights

[O Really]

" It is the clearest indication yet of where the Trump administration stands: with corporate interests and against working people."
Wait, was this ever in any doubt? Where has this author been for the past couple of years? I think I might have said, "latest in an uninterrupted decades long pattern of shafting working people..."

[Vrede too]

" It is the clearest indication yet of where the Trump administration stands: with corporate interests and against working people."
Wait, was this ever in any doubt? Where has this author been for the past couple of years? I think I might have said, "latest in an uninterrupted decades long pattern of shafting working people..."

That's from my 2nd link, if anyone cares.

Yeah, a bit hyperbolic. In fact, there are other issues that EPI writes about that could be called just as clear indications. To be fair, though, a Solicitor General's office flip-flop is very rare and the author does say "Trump administration". What Dolt .45 has said and done prior to being POTUS doesn't necessarily translate to policy. For example, he hasn't made any moves to legalize nonconsensual pussy grabbing . . . yet.

Celine McNicholas, Labor Counsel

Kind of a female O Really, but playing for the other team.

Since you're the expert, any further thoughts on the contents of the articles?

[O Really]

I support the "persuader rule" but I don't think overall it's all that important. The article says, "Rescinding the persuader rule is a huge blow to workers’ abilities to negotiate for better treatment on the job by joining a union, and a huge blow to the democratic values of transparency in elections in America’s workplaces." The article does note that companies have employed "union busting" consultants for many years, which they have. It doesn't really make any difference in a campaign whether the employer-side propaganda is actually created by the employer or created by a paid consultant. The unions - and thus most employees - are well aware they're being fed mostly bullshit anyway.

It would be a much better help for employees attempting unionization if they made it easier to hold elections and increased enforcement of anti-retaliation law and stiffened penalties for unfair labor practices. As if, in this Administration.

[O Really]

Kind of a female O Really, but playing for the other team.

As a side note, our firm does represent employers, but overall we're not anti-union. A large part of our revenue is in contract negotiation and management of the union relationship. We do also do some union avoidance work, but I don't know of anybody who's run a campaign for years, not that I know everybody, but still. Main reason for that, of course, is that there aren't many campaigns run and the percent of unionized employees in the private sector is down to around 10% or - from nearly half back in the 50's. And part of the reason for that is that a lot of unions haven't kept up with the changing workforce and are selling the wrong service.