February 7, 2018
The Competitive Enterprise Institute filed a lawsuit against the U.S. Department of State to force it to comply with four Freedom of Information Act (FOIA) requests related to its work on the Paris Climate Agreement.
CEI’s FOIA requests seek to gain a better understanding of why the Paris Climate Agreement was not considered a “treaty” by the Obama Administration when it was signed in 2015, and of what steps the State Department took to orchestrate that signing. The requests seek information about the State Department's use of "validators" on this issue—outside experts and groups who agreed to provide commentary in support of the State Department’s agenda.
This information is important to the American public, as the Trump administration still needs to provide a plan and timeline for withdrawing the United States from the Paris Agreement. Information on the State Department’s use of validators will give Americans a better understanding of why certain claims were made by some experts and news organizations, and why these newsmakers supported the State Department’s claim that the Paris Agreement was not a treaty.
CEI is also seeking online communications such as the encrypted app WhatsApp that State Department officials use to communicate about the agreement.
The State Department had 20 working days to provide CEI with its estimate of the number of relevant documents and what it planned to withhold from disclosure. It failed to do so, and CEI is asking the court to order the production of the documents.
Read CEI’s complaint and the original FOIA requests below.
January 30, 2018
In Leung et al. v. XPO Logistics, Inc., CEI is objecting to a class action settlement fee request in a case involving an IKEA contractor’s alleged violation of the Telephone Consumer Protection Act (TCPA). The TCPA is a law that protects consumers from telephone solicitations, and the IKEA contractor allegedly violated the law by calling customer cell phones for them to take an automated survey about recent furniture delivery by the contractor.
CEI argues the plaintiffs’ attorneys are attempting to overpay themselves by taking over one-third of the net settlement fund, or $2.33 million, which is substantially more than the median fee award in similar cases. The settlement proposes to distribute checks from a $7 million fund—less attorneys’ fees and administration costs—to the fraction of 313,000 class members who file claims. In TCPA class actions settlements, the median fee recovery for lawyers is 25 percent of the net recovery. Applying a more appropriate 25 percent fee structure in this case would return over $600,000 to the class members.
Plaintiffs’ attorneys also failed to document the time they spent on the case. Based on past TCPA cases, it’s likely a $2.33 million fee award is five or ten times the base amount of hourly fees (called a “lodestar”) that the attorneys would normally receive. Therefore, even a 25% award likely overcompensates attorneys.
November 13, 2017
CEI v. State Department seeks records under two Freedom of Information Act requests for documents relating to the December 2015 Paris climate agreement, including regarding State’s arguments about Paris’s “legal form”. Requests were sent Oct. 6 and Oct. 10, 2017, for emails of Trigg Talley, presently in Bonn at the Paris treaty talks, and Alexandra Costello, a Hill liaison who, a previous FOIA productions shows, corresponded with aides including Senate FRC Chairman Corker’s lawyer, to calm concerns after the NYT reported in August 2014 that Obama would declare Paris was not a treaty. Corker’s lawyer objected to the “disturbing contempt” for the Senate’s constitutional treaty role. CEI seeks to educate the public on State’s efforts to avoid Senate scrutiny.
October 5, 2017
The Competitive Enterprise Institute sued the Department of Justice for emails from former Attorney General Loretta Lynch’s alias email address that used the name “Elizabeth Carlisle." In yet another example of a high ranking official in the Obama administration using an alias email address, CEI sought emails from the Carlisle account which were to or from Rhode Island Senator Sheldon Whitehouse. To date the DOJ has failed to provide any response to CEI’s August, 2017, Freedom of Information Act request for these emails, so CEI is suing the department. CEI noted in its original FOIA request, a colloquy between former Attorney General Lynch and Sen. Sheldon Whitehouse at a March 2016 hearing of the Senate Committee on the Judiciary addressing Justice Department Operations. Ms. Lynch, responding to Sen. Whitehouse’s question about using the Racketeer Influenced and Corrupt Organizations Act, or RICO, against political opponents of the ‘climate’ agenda, stated:
“This matter has been discussed. We have received information about it and have referred it to the FBI to consider whether or not it meets the criteria for which we could take action on”.
This exchange rightly generated numerous headlines questioning this use of DOJ resources. This lawsuit is a next step in CEI’s investigation into Sen. Whitehouse's call for federal racketeering investigations of opponents of the political agenda pushed in the name of climate change. In previous document productions under state open records requests, CEI encountered the Senator corresponding (via his Cox.net account) with a Senate aide, a Judiciary Committee lawyer and various college faculty activists. Subsequently, Sen. Whitehouse engaged in a colloquy at a Judiciary Committee hearing with then-AG Lynch about using the DOJ for this purpose. Lynch stated indeed it was a matter her Department had considered.
October 3, 2017
In September 2017, in response to mounting information about the role of outside influence in developing the controversial Paris climate treaty, CEI submitted a Freedom of Information Act (FOIA) request for records relating to three top former officials in the Obama administration State Department. These requests included correspondence pertaining to two officials' work with two named environmentalist pressure groups which, records show, the officials had particularly close relationships in developing the pact. The officials are former Special Envoy for Climate Change Todd Stern and former "climate change legal advisor" Sue Biniaz.
The requests also sought certain emails and attachments pertaining to Mr. Stern's and Ms. Biniaz's roles in developing the Paris treaty's "legal form", including State's Circular 175 process and memo. Circular 175 establishes a procedure for determining whether a proposed international agreement should be negotiated as a treaty requiring Senate advice and consent through the Article II, Section 2 of the U.S. Constitution.
Finally, the requests sought Stern and Biniaz correspondence with former State Department Director of Policy Planning Jake Sullivan.
To date, State has provided none of the required demonstration it is processing CEI's request. With the list of stonewalls, including but not limited to litigation, which the Trump administration has yet to address, CEI filed suit Monday, October 2, 2017 to seek prompt production of records that could prove critical in the ongoing fight to get President Trump to reverse his June 1, 2017 pledge to withdraw from Paris.
September 15, 2017
On November 12, 2015, the Center for Class Action Fairness (CCAF) at CEI filed an objection in the U.S. District Court for the Northern District of Ohio to class action settlements reached in a case alleging that polyurethane foam manufacturers and suppliers had violated antitrust laws.
The settlements were entered with nine defendants in the indirect purchaser class and created a settlement fund of $151,250,000. Upon entering the settlements, class counsel filed a fee request seeking 30% of the settlement fund, plus an additional $5.1 million in expenses. CCAF objected that the requested fee was excessive and would provide a windfall to the plaintiffs’ attorneys at the expense of class members. Due to economies of scale, “mega-fund” recoveries tend to be the result of class size rather than attorney skill and, thus, the percentage awarded should be in a lower range. CCAF further objected that the fee request overstated the value of the time that plaintiffs’ attorneys and their staff devoted to the case and should be reduced to reflect market rates. As a consequence, and to deter plaintiffs’ attorneys from submitting such overinflated fee requests in the future, CCAF argued that the fee award should be reduced further.
Under the settlement agreements, $10 million is not due for full payment until mid-2017, and another $9.25 million is contingent upon two of the defendants’ recovery in separate litigations against a third party. CCAF objected to any fee award that was based on those amounts before they were available for disbursement to the class. CCAF additionally objected to any allocation among the firms requesting fees that was not undertaken by the Court, in accordance with the federal rules, and, further, that the notice provided to class members was defective in that it failed to disclose information material to a class member’s decision to remain in the class or opt-out.
UPDATE: January 28, 2016:
September 15, 2017
CEI’s Center for Class Action Fairness objected to an unfair settlement deal resulting from the much-publicized 2013 data breach at retail giant Target Corporation. Forty-one million consumers had credit card information stolen and 60 million consumers had personal information stolen as a result of the data breach. But the subsequent settlement deal helped class attorneys far more than class members. The terms of the deal provided a $10 million fund to class members that, in reality, is unlikely to be exhausted, gave class counsel a disproportionate $6.75 million fee, and left a large subclass of class members with zero recovery.
Representing class member Leif Olson, CEI attorneys argued that the class action could not be certified because it froze out millions of class members, releasing their claims for no recovery, without separate representation. CEI further objected to the excessive fee request and the inclusion of a "kicker" clause, whereby any decrease in the fee request would revert to the defendant (Target).
Nonetheless, the United States District Court for the District Of Minnesota approved the settlement deal, and in 2016, CEI appealed the case to the United States Court of Appeals for the Eighth Circuit. The appeal challenged both the district court’s error that class certification could not be revisited once granted and the violation of a federal rule requiring attorneys who represent a class to fairly and adequately protect the interests of the class.
In February, 2017, CEI received an important ruling on its appeal. The Eighth Circuit remanded the case back to the district court, finding that the lower court abandoned its ongoing duty to ensure class certification was proper when the court had failed to consider CEI’s objections. Additionally, the judge reversed the lower court’s ruling for an unlawful appeal bond, resulting in $46,872 being returned to CEI.
August 30, 2017
The Competitive Enterprise Institute (CEI) sued the Department of Justice (DOJ) under the Freedom of Information Act (FOIA) on August 30, 2017, seeking documents behind a controversial take-down of thousands of university videos last spring. In March, 2017, the University of California at Berkeley removed over 20,000 online educational videos after DOJ claimed that they violated the Americans with Disabilities Act (ADA) due to allegedly inadequate captions.
In a FOIA request filed shortly after the take-down, CEI asked for documents relating to this and similar DOJ investigations. DOJ essentially denied the request, and CEI’s lawsuit challenges that denial.
August 25, 2017
In a victory for consumers, CEI’s Center for Class Action Fairness successfully objected to an abusive class action settlement in a case about the length of Subway’s “footlong” sandwiches. The proposed settlement benefitted only nine people in the class but awarded more than half a million dollars to the class attorneys. CEI argued this gross disparity was a flagrant violation of rules meant to protect class members.
The original class action lawsuit alleged that sandwiches sold by the Subway restaurant franchise sometimes fell short of the chain’s "footlong” marketing claims. But there was no dispute that the actual weight of the dough and the amount of ingredients was, in fact, uniform for each sandwich; and even the named plaintiffs in the lawsuit conceded that the exact length of the sandwiches didn’t affect their purchases or change their future plans to eat at Subway. In addition, prior to the litigation, the company had already taken steps to reduce the minor disparities that occasionally occurred in the length of its bread rolls during baking.
The U.S. District Court for the Eastern District of Wisconsin approved the settlement in February 2016, and CCAF appealed the decision to the U.S. Court of Appeals for the Seventh Circuit. CCAF argued the lower court’s approval of the award was contrary to case law, which establishes that class actions should not be allowed to proceed when their only effect is to enrich the lawyers for the class while producing no relief for the class members themselves. Oral argument was heard on September 8, 2016, and Judge Diane Sykes suggested that the underlying lawsuit “was opportunistic entirely.”
On August 25, 2017, the Seventh Circuit's ruling agreed with CCAF and rejected the settlement in the Subway case that would have paid plaintiffs’ attorneys $525,000 and left the class with nothing.
August 22, 2017
In this class action, plaintiffs allege that Art.com violated consumer protection laws and committed unlawful business practices by offering items on "sale" but at prices it ordinarily offers to consumers in the regular course of its business.
Under the settlement, class members will receive $10 vouchers for use on Art.com's ecommerce sites. The settlement has hallmarks of the coupon-settlement abuse that Congress targeted with the Class Action Fairness Act of 2005: Class members were not able to choose cash in place of a voucher, the vouchers expire in 18 months, and they can be used only for the narrow range of products available on those websites, where the average purchase price is almost twice as much as the voucher. Art.com also agreed to comply with the law going forward and to undertake a compliance program -- illusory relief that will not benefit the class of past-purchasing class members. Meanwhile, class counsel is seeking $745,000 in fees and expenses, unopposed by Art.com, despite notoriously low coupon redemption rates and, thus, minimal class benefit, in low-value consumer settlements such as this.
On August 22, 2017, the court issued a ruling finding the vouchers are coupons, approving the settlement, and deferring the issue of attorneys' fees until the coupon redemption rate is known. We will now await the coupon redemption information and further word from the court.