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OpenMarket: October 2012

  • Opening brief in Ninth Circuit MagSafe appeal

    October 29, 2012 11:14 AM

    In the In re Apple MagSafe Power Adapter Litigation, the attorneys walked away with $3.1 million, while the class got less than $1 million, and likely less than a quarter of what the attorneys got. The district court (Judge Ware in the N.D. Cal.) not only rubber-stamped the settlement while ignoring the Bluetooth precedent, but then issued an order to protect the illegitimate settlement, requiring a punitive appeal bond or the dismissal of any appeals. This deterred three of the five appellants, with a fourth being sanctioned for failing to dismiss his appeal. But Marie Newhouse, represented by me and attorneys with the Center for Class Action Fairness, held firm in her objection, and, after some delaying tactics by the plaintiffs, the opening brief was filed today, as we test whether the Bluetooth principles have teeth or can be ignored by district courts and trial lawyers with impunity. To this add another few questions: when is it permissible to have a "claims-made" settlement that pays the attorneys regardless of whether class members make claims or, as in this case, are deterred from making claims by artificial hoop-jumping requirements? Can class counsel take credit for "injunctive relief" that has the defendant doing what it was already doing before the complaint was filed? Is class counsel entitled to a commission on payments to the settlement administrator? Earlier: objection; appeal bond hypocrisy. The case is Kitagawa v. Apple, Inc., No. 12-15782 (9th Cir.).

  • Today's Links: October 26, 2012

    October 26, 2012 3:35 PM


    DEVIN LEONARD: "The Plot to Destroy America's Beer"
    "He examined the label. It said the beer was no longer brewed in Bremen. He looked more closely at the fine print: 'Product of the USA.' This was profoundly unsettling for a guy who had been a Beck’s drinker for more than half his life. He was also miffed to have paid the full import price for the 12-pack."

    HARDY GREEN: "Americans Misdirect Their Blame for Decline of Industry"
    "Coal miners lining up behind the Republican presidential nominee, Mitt Romney; auto workers praising President Barack Obama for saving the U.S. car industry. You don’t have to look far to see signs of Americans’ deep anxiety over deindustrialization, and of a profound nostalgia for a more toilsome past. Yet a closer look at bygone days shows that the decline of U.S. industry isn’t only the result of unfair Chinese trade practices or the low wages of Asian workers."

    RUSTY WEISS: "Drilling for Jobs? Yes We Can!"
    "These unconventional means require larger initial investments compared to their conventional counterparts, but the future payoffs are tremendous.  IHS estimates that $2.1 trillion in capital will be spent on unconventional oil and gas extraction in the U.S. by the year 2035.  That activity equates to 1.7 million jobs this year, 3 million by 2020, and 3.5 million by 2035."

  • Regulatory Delays May Be Responsible For Slightly Better GDP Growth

    October 26, 2012 3:23 PM

    This morning, data released by the Bureau of Economic Analysis showed third-quarter growth of gross domestic product (GDP) at 2 percent. This beat expectations slightly as, according to Bloomberg, "the median forecast of 86 economists surveyed by Bloomberg called for a 1.8 percent gain."

    No one was claiming this growth rate was spectacular. "Nobody expected gangbusters," conceded liberal economist Jared Bernstein, a former aide to Vice President Joe Biden, on CNBC this morning.

    The Associated Press piece noted that this "growth remains too weak to rapidly boost hiring, and the 1.74 percent rate for 2012 trails last year's 1.8 percent growth." The Weekly Standard, as well as Mitt Romney in a speech in Iowa today, noted that through 2011 the Obama administration predicted that GDP growth would be around 4 percent at this time.

    Still this growth was better-than expected. President Obama and his supporters can find other modest "green shoots" to point to such as housing starts and, until the disappointing earning reports of this week, stock market gains. And next week's jobs report for October may also be better than expected.

    No doubt the administration will seize on any slight economic improvement to claim its policies are working, and that the economy would be even better off if "gridlock" hadn't stopped his big spending plans. "We've come to far to turn back now," the president said in a weekly address and elsewhere.

  • PolitiFact Fixes Two Of Its Three Errors Related To The Supreme Court's Ledbetter Decision

    October 25, 2012 4:25 PM

    PolitiFact just revised a webpage discussing the Supreme Court's Ledbetter decision that once contained an error that we discussed here and brought to PolitiFact's attention on October 17. The error was the false claim that the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. had declared that employees are barred from suing over pay discrimination even if they did not learn of the discrimination in time to sue, “making it impossible for employees who learned of such discrimination later to get relief, such as back pay.” Today, PolitiFact added a correction that reads:

    CORRECTION: A previous version of this item said the Supreme Court's Ledbetter decision made it "impossible for employees who learned of such discrimination later to get relief, such as back pay." In fact, the court declined to address the question of whether employees who learned of discrimination after the statute of limitations expired would be protected under Title VII of the Civil Rights Act of 1964.

  • Today's Links: October 25, 2012

    October 25, 2012 10:50 AM


    JAMES BENNET: "Interview with Michael Bloomberg on Everything From Campaign Money to Circumcision"
    "I think it's government's job not to ban things but to give you information and let you make the decision. So calorie counts would do that. Portion control is a graphical or physical way of giving you information in terms of how much sugar you're consuming, and whatever. Prohibiting you from smoking in places is information -- it also, unlike these other things, is required, if you're going to protect other people from the smoker's action."

    NICK GILLESPIE: "The Semantics of Benghazi Don't Matter: Obama's Foreign Policy is a Failure"
    "The large point of this all is that regardless of what Obama might have might have meant right after the attack (it's not clear that his "acts of terror" comment on September 12 was a specific reference to Benghazi), his adminstration royally screwed up in Libya. It's totally clear why the Obama administration would be slow to acknowledge the truth of the attack - it undercut what they saw as the success of their containment of al Qaeda - but it's just ridiculous for the larger media and voting public to play along with fixation on minor details."

    JASON BENDRICK: "Mr. President, Tuition Subsidies Are the Affordability Problem, Not the Solution"
    "It should come as no surprise that subsidies raise prices. Fortunately, there are now a growing number of innovative alternatives to traditional four-year colleges that have the potential to dramatically reduce costs while providing a quality education. Instead of subsidizing the expensive, inefficient and too-often ineffective status quo, government should just get out of the way."

  • Immigration Policy Should Strive For The "City On The Hill," Not The "Deserted Town"

    October 25, 2012 10:42 AM

    Opponents of human movement, also known as “immigration,” argue that if the U.S. government stops forcibly preventing foreign-born people from relocating to the United States, the wages of American workers will suffer dramatically. By appealing to economic terms -- prices, wages, supply and demand -- this argument maintains the illusion of intellectual credibility that merely shouting “they’re-taking-our-jobs” lacks.

    The reality is the restrictionist argument -- that more workers will mean lower wages -- never makes it past Econ 101, class 1. This is because the argument ignores the “ceteris paribus” disclaimer, which says if all other things were held constant, wages should fall. But things are never held constant in real life, least of all when dealing with people.  The economy is more dynamic than that -- people create, innovate, buy and sell.

    To take one example, consider Say’s Law. In his 1803 Treatise on Political Economy, Jean-Baptiste Say, a French economist and businessman, wrote that “a product is no sooner created, than it, from that instant, affords a market for other products to the full extent of its own value.” In other words, when a worker creates something of value, he can sell it (or the company for which he works can sell it and pay him). The money he receives for his efforts, either directly or in wages, creates a market for other goods and services. “Thus, the mere circumstance of the creation of one product immediately opens a vent for other products,” Say concludes.

  • CEI Podcast For October 25, 2012: The Changing Climate Debate

    October 25, 2012 9:00 AM

    Director of Energy and Global Warming Policy Myron Ebell discusses his recent PBS Frontline appearance, and how the debate over global warming has shifted in the last few years.

  • Today's Links: October 24, 2012

    October 24, 2012 10:29 AM


    MICHAEL C. OSBORNE: "Michael Shellenberger to climate activists: It’s not the end of the world"
    "At the core of the Breakthrough philosophy is the belief that human ingenuity will trump all of the doomsaying, allowing us to survive and adapt to a warmer world. [...] [I]t would be easy to characterize Shellenberger, Nordhaus, & Co. as climate skeptics or deniers — they are certainly quick to criticize those who predict imminent disaster. But to do so would be to oversimplify their arguments. Instead, they are trying to put climate change into a broader context — one that includes other challenges such as hunger, poverty, and access to clean energy, as well as a more realistic (in their opinion) sense of our abilities to innovate our way through sticky circumstances."

    DAVID B. RIVKIN Jr. and ELIZABETH PRICE FOLEY: "Plenty of Debates, Not Much About States"
    "The idea that the Constitution grants only limited and enumerated powers and leaves the remainder to the states is foreign to those who believe that the national government should or even could address voters' every concern. But contrary to the view widely shared by the political class, Washington—in particular, Congress—does not have the power to pass any law it wants in the name of the 'general welfare.'"

    THE ORANGE COUNTY REGISTER: "San Bernardino halts pension fund payments"
    "The city of San Bernardino filed for bankruptcy protection three months ago, and shortly afterward was reported to be under investigation by the federal Securities and Exchange Commission, allegedly for hiding deficits by diverting money intended for sewers, roads and construction to pay ongoing bills instead. Now, the Wall Street Journal reports the Inland Empire city of about 210,000 residents ;has stopped making its regular payments to the California Public Employees Retirement System' and owes $5.3 million toward its employees' pensions."

  • No, Billboards Denouncing "Voter Fraud" Don't Violate Constitutional "Right To Vote"

    October 24, 2012 5:00 AM

    One of the most basic principles of constitutional law is that the Constitution only binds the government -- not private individuals -- so you can't accuse fellow citizens of violating your constitutional rights just because their actions discourage you from exercising your own constitutional rights (like someone kicking you out of a dinner party at their home because they don't like your viewpoint, which makes you more reluctant to express your views in the future). This is called the "state action" doctrine.

    But this basic principle of Constitutional Law 101 seems to have eluded groups like the United Steelworkers Union and Common Cause, which claim that Clear Channel billboards in Ohio and Wisconsin that declare that "Voter Fraud Is A Felony" are "voter intimidation" that violates the “right to vote” and federal voting-rights laws. (Under pressure from these groups, Clear Channel took down the billboards, which had been paid for by an anonymous foundation.)

    Even assuming that these billboards (which are factually correct statements of the law) were somehow objectionable, and that they somehow discouraged people from voting, they would still be protected political speech. A billboard that discourages you from voting is protected speech unless it contains "true threats." And no federal "voting rights" laws can reach such protected speech without both violating the First Amendment, and exceeding Congress's enumerated powers. The Fifteenth Amendment, which protects voting rights against state action, does not change this. Section 2 of the Fifteenth Amendment, authorizing Congress to pass legislation protecting voting rights, does not authorize Congress to regulate private conduct, as opposed to governmental conduct. (See James v. Bowman (1903), involving the 15th Amendment, and United States v. Morrison (2000), involving similar enforcement provisions in Section 5 of the Fourteenth Amendment.)

  • Pepco Caves On Contract Dispute To Avoid Union Strike

    October 23, 2012 5:28 PM

    Talk about having your negotiating adversary over the barrel.

    Pepco and the International Brotherhood of Electric Workers' Maryland-based Local 1900 had been in contract gridlock for months. With the old contract set to expire in May, just as the summer storm season would be heating up, the company had to find a way out.

    But after they voted down a collective bargaining contract Pepco called its “last, best and final offer" in September, members approved a four-year pact on Oct. 18 that provides wage increases of 2.25 percent the first year and 2.5 percent the next three. The union has received salary increases of at least 2 percent every year since 1999. The union agreed to forego retractive pension and salary increases but members will receive a lump sum payment to cover some of the increase.

    James A. Griffin, president of IBEW Local 1900, said the union’s unease with the “last, best and final offer” wasn’t over money but rather changes Pepco sought to make to members' health and welfare package in exchange for a different appeals process. the union’s ability to enact changes to health and welfare plans that Pepco was seeking to eliminate in exchange for a different appeal process.

    The quarrel involved Pepco employees who are crucial to restoring service in outages, a fact the union used to its advantage in negotiations. Pepco has been under fire for years for its poor response to storms, particularly the powerful derecho that hit the area last June. It had little choice but to find a way to settle.

    In a letter to IBEW members, the negotiation committee boasted about its contract victory:


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