Claims and Bad Faith Law Blog

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"THOSE WHO HAVE EARS TO HEAR, LET THEM HEAR."

In answer to two certified questions, the Supreme Court of Washington has unanimously given us enough material to fill books. This will be the second of two posted articles addressing these answers. The first article was posted here on Tuesday, December 3, 2019.

    In Peoples v. Utd. Serv's Auto. Ass'n, ___ Wash. 2d ___, ___ P.3d ___, No. 96931-1, 2019 WL 6336407 (Wash. Nov. 27, 2019), the Supreme Court of Washington was confronted with two questions. Both were certified by a U.S. District Court for answers under Washington State law.

    The two questions arose out of the claims of two of the plaintiffs in the District Court, one Krista Peoples and one Joel Stedman. Both of them were physically injured in a motor vehicle accident. Both claimed Personal Injury Protection or PIP benefits to pay for the bills of their medical providers. Both of them were denied PIP benefits.

    Besides this common core of facts, their claims presented the same broad question of whether the plaintiffs were injured in their business or property so that they could claim standing to sue under Washington State's Consumer Protection Act.

    That is where the questions posed by their separate claims diverged.  The first question, the one posed by the claims of Krista Peoples' class, were discussed here on Tuesday, December 3, 2019.

    Joel Stedman presented the second question.  He alleged that his insurance carrier, Progressive, impermissibly interjected a condition into the statutorily required availability of Personal Injury Protection (PIP) benefits.  This issue has reverberations beyond the boundaries of the State of Washington.

    In Washington State, as in most States, PIP benefits are required to be provided in policies like Stedman's.  The condition challenged in Stedman's action was Progressive's termination of required benefits whenever a claimant reached "Maximum Medical Improvement," or MMI, which it determined.  MMI is not a limitation authorized by the PIP Statute on the receipt or payment of PIP benefits.

    In Stedman's case, filed as a class action, Stedman alleged "that by terminating benefits on the basis of 'Maximum Medical Improvement,' Progressive routinely fails to pay all reasonable medical expenses for treating an insured’s injuries arising from a covered event, in violation of" Washington State Statutes.  Peoples, 2019 WL 6336407, at *1, ¶ 4.

    The Federal judge certified the question whether Progressive's reliance on MMI to terminate PIP benefits satisfied the Consumer Protection Act requirement of an injury to business or property, where an insured like Mr. Stedman was physically injured in a motor vehicle accident and whose PIP benefits were terminated.

    The Washington Supreme Court's short answer is "yes," such claims satisfy the requirement of an injury to business or property.  The Court's reasoning was applied both to the Joel Stedman class claims and to the Krista Peoples class claims discussed in this space on Tuesday, December 3, 2019:

[T]he plaintiffs here do not allege the defendants caused their personal injuries. Their CPA suits do not seek to vindicate their right to be free of bodily harm but, rather, their property interest in the benefits they bargained for in their insurance contracts. When parties enter an insurance contract, the insured obtains a legal right to benefits upon the happening of a particular event. [Citation omitted.]  An insurance contract also gives rise to a quasi-fiduciary relationship between the parties, which requires them to deal in good faith. [Citation omitted.]  An insured, therefore, has a legally protected property interest in benefits due under the contract and a related right to insurance dealings free from bad faith. Claims mishandling and wrongful denial of benefits invade this property interest, regardless of the type of event that triggers coverage.

Peoples, 2019 WL 6336407, at *4, ¶ 12.

    After placing its reasoning in a place where causation of the alleged Consumer Protection Act damages is not a part of the equation at hand, i.e., "regardless of the type of event that triggers coverage," the Court turned its attention to the question of recoverable damages for the alleged injury in fact.

    Stedman and his class sought "to recover excess premiums paid for the PIP coverage," together with "the costs of investigating the unfair acts, and/or the time lost complying with the insurer's unauthorized demands[.]"  Peoples, 2019 WL 6336407, at *2, ¶ 5.  The Washington Supreme Court unanimously spent very little time on the issue of damages recoverable by the Stedman class.

    To begin with, the Supreme Court declined to reach "the portion of the question that asks about excess premiums."  The Court devoted a footnote to Peoples' -- not Stedman's -- use of the phrase as "an alternative way of characterizing unpaid benefits."  Accordingly, in the Court's view, "it is unnecessary to address Peoples' alternative theory about 'excess premiums.'"  Peoples, 2019 WL 6336407, at *4, n.2.  What was good for the Peoples was good for Stedman, too, as the Court declined to address the issue of recovery of any "excess premiums" for unpaid PIP coverage.

    With respect to Stedman's remaining alleged damages, "the costs of investigating the unfair acts" and "the time lost complying with the insurer's unauthorized demands," the Supreme Court answered succinctly that "when a CPA claim is predicated on an insurer’s mishandling of a PIP claim, ordinary CPA principles govern whether investigation costs or time lost are injuries to business or property."   Peoples, 2019 WL 6336407, at *4, ¶ 14.  In answering the questions certified by the Federal court, the Washington State Supreme Court felt no compulsion to hold further whether the actual damages alleged by the Stedman class would if proven be recoverable under the Consumer Protection Act, but it did offer guidance from Washington State case law.

    The Court pointed to its own precedents to note that "we have we have continued to recognize that expenses incurred to investigate a deceptive act or practice are cognizable injuries and damages under the CPA."  Peoples, 2019 WL 6336407, at *4, ¶ 14.

    The Court then turned to precedent from the Washington lower courts concerning the allegation of lost time as a recoverable item of damage under the CPA.  "The Court of Appeals has also held that taking time away from business to respond to unfair practices may satisfy the injury requirement." Peoples, 2019 WL 6336407, at *4, ¶ 14.

    The Court was satisfied that this was all the guidance that litigants would need in cases like the present one:  "The principles articulated in these cases apply when a CPA claim is predicated on an insurer’s mishandling of a PIP claim." Peoples, 2019 WL 6336407, at *4, ¶ 14.

    To summarize what was summarized before, the key issue in the Peoples case was standing to sue.  The key to resolving the standing issue, in turn, was that the alleged 'injury to business or property' in both the Peoples' claims and the Stedman claims was "the deprivation of contracted-for insurance benefits." That was their injury. That conferred their standing to sue.

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"THOSE WHO HAVE EYES TO SEE, LET THEM SEE."

In answer to two certified questions, the Supreme Court of Washington has unanimously given us enough material to fill books.  This will be the first of two posted articles addressing these answers.  The second article will be posted here later.

    In Peoples v. Utd. Serv's Auto. Ass'n, ___ Wash. 2d ___, ___ P.3d ___, No. 96931-1, 2019 WL 6336407 (Wash. Nov. 27, 2019), the Supreme Court of Washington was confronted with two questions.  Both were certified by a U.S. District Court for answers under Washington State law.

    The two questions arose out of the claims of two of the plaintiffs in the District Court, one Krista Peoples and one Joel Stedman.  Both of them were physically injured in a motor vehicle accident.   Both claimed Personal Injury Protection or PIP benefits to pay for the bills of their medical providers.  Both of them were denied PIP benefits.

    Besides this common core of facts, their claims presented the same broad question of whether the plaintiffs were injured in their business or property so that they could claim standing to sue under Washington State's Consumer Protection Act.

    That is where the questions posed by their separate claims diverged.

    Krista Peoples presented the first question.  She alleged that USAA routinely denied PIP claims based on a "practice of algorithmic review[.]"  Peoples, 2019 WL 6336407, at *1, ¶ 3:

    Specifically, Peoples alleges that USAA refuses, without any individualized assessment, to pay medical provider bills whenever a computerized review process determines that the bill exceeds a predetermined limit. According to Peoples, USAA’s failure to investigate or make an individualized determination regarding the reasonableness or necessity of a provider’s charges before denying payment[.]

Peoples's claim was alleged as a class action.  But that was not important to the outcome of her question.  She and the class prayed for "actual damages, including unpaid medical bills and expenses incurred to investigate USAA's wrongful conduct." Peoples, 2019 WL 6336407, at *1, ¶ 3.

    But Peoples and the class emphatically did not sue for their personal injuries incurred in the accident.  Nor did they sue simply because the benefits for which they contracted related to payment of treatment for their personal injuries.

    Rather, they sued because they were deprived of contract benefits, the benefits of statutorily required PIP coverage.  That was their alleged injury to property or business, and that is what conferred standing upon them to sue under the Washington State Consumer Protection Act.

    Stripped to its simplest elements, their question was whether "the wrongful denial of PIP benefits is an injury to 'business or property' under" the CPA.  It bears repeating that "they seek to hold their insurance companies liable for benefits owed under contract. We conclude that the deprivation of contracted-for insurance benefits is an injury to 'business or property'” and that the type of contracted-for insurance benefits does not matter.  Peoples, 2019 WL 6336407, at *3, ¶ 9.

    Beyond contracted-for insurance benefits, the Court answered that policyholders also have "a related right to insurance dealings free from bad faith," that this "protected property interest" is invaded by "[c]laims handling and wrongful denial of benefits, ... regardless of the type of event that triggers coverage." Peoples, 2019 WL 6336407, at *4, ¶ 12.

    In other words, the "algorithmic review" challenged by Krista Peoples and her class may have been the alleged cause of contract benefits being denied here, but it was the wrongful denial of benefits that was important to the outcome.  What was important to the Supreme Court in this decision was the result and not the cause. 

    For all these reasons, the Washington Supreme Court's answer to the Krista Peoples's certified question was in the affirmative:

Therefore, to the extent proved, the plaintiffs may recover actual damages, including out-of-pocket medical expenses that should have been covered, and can seek injunctive relief to compel the payment of benefits to medical providers.

Peoples, 2019 WL 6336407, at *4, ¶ 13.

    To summarize, the key to alleged 'injury to business or property' in the Peoples' class claims was "the deprivation of contracted-for insurance benefits."  That was their injury.  That conferred their standing to sue.

In the next article arising from the Peoples case, the second certified question will be addressed along with the question of whether "injuries to business or property" can ever include "investigative costs or time lost."

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THE McGAHN DECISION: WHAT THE JUDGE ACTUALLY RULED.

    Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States.

COMMITTEE ON THE JUDICIARY, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff, v. DONALD F. MCGAHN II, Defendant, ___ F. Supp. 3d ___, 2019 WL 6312011, at *44 (DCDC Nov. 25, 2019).

    To make the point as plain as possible, it is clear to this Court for the reasons explained above that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist. Indeed, absolute testimonial immunity for senior-level White House aides appears to be a fiction that has been fastidiously maintained over time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.

McGahn, 2019 WL 6312011, at *45.

    Thus, for the myriad reasons laid out above as well as those that are articulated plainly in the prior precedents of the Supreme Court, the D.C. Circuit, and the U.S. District Court for the District of Columbia, this Court holds that individuals who have been subpoenaed for testimony by an authorized committee of Congress must appear for testimony in response to that subpoena—i.e., they cannot ignore or defy congressional compulsory process, by order of the President or otherwise. Notably, however, in the context of that appearance, such individuals are free to assert any legally applicable privilege in response to the questions asked of them, where appropriate.

McGahn, 2019 WL 6312011, at *45.

So, this is the law.  It has been the law.  It continues to be the law.

Until this case reaches the Supreme Court.  But until then, and at least for now, this continues to be the law.

And this is what the judge actually ruled.  Check out the newspaper accounts and see what the reporters got right.  See, e.g., David G. Savage, In Major Win for Congress, Judge Rules Trump Aides Must Testify, LOS ANGELES TIMES ONLINE (posted Nov. 25, 2019); Spencer S. Hsu and Ann E. Marimow, Former White House Counsel Donald McGahn Must Comply With House Subpoena, Judge Rules, WASHINGTON POST ONLINE (posted Nov. 26, 2019).

HAVE A JOYFUL AND HAPPY THANKSGIVING!  In the midst of it all, there is a lot to give thanks for!

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SOMETHINGS FISHY, DECIDED IN THE SOUTHERN DISTRICT OF FLORIDA.

In the case of Somethings Fishy Enter's, Inc. v. Atlantic Cas. Ins. Co., Case No. 18-23990-CIV-GOODMAN {CONSENT CASE], ___ F. Supp. 3d ___, 2019 WL 5866823 (S.D. Fla. Nov. 8, 2019) (Goodman, USMJ), a business insured made claims for Hurricane Irma damages under its commercial property insurance coverage and under its loss of business income coverage under a single policy with Atlantic Casualty.

The policy had a Windstorm Exclusion.  An independent adjuster hired by Atlantic Casualty "determined that all of the damage at the Property was the result of winds from Hurricane Irma and flooding."  Somethings Fishy, 2019 WL 5866823, at *1.  Atlantic Casualty denied all coverage on the basis of the IA's inspection and evaluation.

The Court determined two things at least.  The first thing the Court determined is that if the claimed damage was caused by Hurricane Irma, then the damage was not caused by a Covered Cause.  The policy expressly provided that coverage was provided for direct physical loss unless the claimed loss is excluded or limited.   Somethings Fishy, 2019 WL 5866823, at *4.  

Second, the policy's Windstorm Exclusion applied to exclude the claimed loss from Hurricane Irma.   Simply put, the Windstorm Exclusion barred coverage for loss or damage "'[c]aused directly or indirectly by Windstorm or Hail, regardless'" of any other concurring cause of loss. The policy's Windstorm Exclusion also provided that "hurricane loss is 'therefore not a Covered Cause of Loss.'" Somethings Fishy, 2019 WL 5866823, at *4 (emphasis in original material quoted by the Court).

The Court accordingly granted Atlantic Casualty's motion for a summary judgment of no coverage.  Although the Court did not delve into any other policy exclusions in its opinion, the Court still found space to declare them after the Court said that it did not have to declare them:

The Court need not consider if any additional exclusions apply under the Policy because the Windstorm Exclusion bars coverage as a whole. However, the Court finds that the following exclusions also apply: the Utility Services Exclusion, which bars any loss resulting from a power outage; the Water Exclusion, which bars coverage for loss caused by flooding; and the Limitation for loss of animals unless caused by a specified cause of loss (which does not include power outage or hurricane).

Somethings Fishy, 2019 WL 5866823, at *5.

Magistrate Jonathan Goodman decided this case.  A little "inside baseball":  He is almost a U.S. District Judge already.  The lawyers who practice regularly in the Southern District of Florida hold him in high regard, and for the most part they enjoy his cultural references to the lyrics of pop songs and such.  Keep an eye out for his continuing rise.

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'INDEPENDENTLY REPLACING SHINGLES DID NOT MEAN CARRIER SHOULD PAY.'

In Villas at Winding Ridge v. State Farm Fire & Cas. Co., No. 19-1731, 2019 WL 5853547 (7th Cir. Nov. 8, 2019) (case involved Indiana substantive law), a condominium association in Indiana sued for breach of contract and bad faith after an appraisal awarded 20% of the cost of hail damages on 13 buildings out of 33 at issue, and Winding Ridge's property carrier under a "Residential Community Association Policy," State Farm, paid that amount.

While the condominium's bad faith lawsuit was pending, it went ahead and paid $1.5 Million to have the roofs of all 33 buildings at issue repaired.  One of the condominium's arguments was that State Farm was in bad faith for not paying that amount. 

Not this time. "The fact that Winding Ridge independently replaced the shingles on all 33 buildings for $1.5 million while its claim was pending does not obligate State Farm under the policy or mean State Farm breached the policy."  Villas at Winding Ridge, 2019 WL 5853547, at *5.

Parenthetically, Winding Ridge also contended in this litigation that State Farm's appraisal provision was void for ambiguity, i.e., that State Farm's appraisal provision was ambiguous and unenforceable.  Winding Ridge was the one that demanded the appraisal in the first place, it will be recalled.  You might say that they were for it until after the appraisal award was rendered, when they apparently turned against it.  The Court held in this case that State Farm's appraisal provision was unambiguous and enforceable.

"Be sure you're right, then go ahead."  Baby boomers will recall with fondness, perhaps, that that was the motto of Davey Crockett.  Even after all these years, it is still a good motto to follow.

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COMPLETE MATERIAL DISCOVERY, THEN MAYBE NO GENUINE MATERIAL FACT ISSUES.

The Court in  Grey Oaks Country Club, Inc. v. Zurich Am. Ins. Co., No.:  2:18-cv-639-FtM-99NPM, 2019 WL 5802513 (M.D. Fla. Nov. 7, 2019) held that where discovery still remains on issues relevant to a pending motion for summary judgment, the motion for summary judgment would be denied as premature.  Grey Oaks Country Club, 2019 WL 5802513, at *4 ("The Court finds that the entry of summary judgment on damages is premature when the parties have not yet completed discovery that could have a bearing on the issue.")

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INJURY IN FACT AND INSURANCE BAD FAITH STATUTES.

       Cases and Constitutional interpretation have the potential to abolish statutory claims for insurance bad faith:

    In 2016, the Roberts Court grafted a requirement onto the U.S. Constitution which is not found in it—standing—but which is instead found in the Court's cases. Cases decided in lower courts since the Roberts Court raised standing to a constitutional prerogative are divided over whether Congress and State Legislatures can provide standing by providing remedies for statutory violations.

    In Spokeo, Inc. v. Robins,1 the Court raised the judge-made doctrine of standing to constitutional status. “Standing to sue,” the Court recognized, “is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law,” said the Court in Spokeo, Inc. v. Robins.2

    One of the elements of standing is “injury in fact,” which the Spokeo Court raised to “a constitutional requirement” which bars legislatures from conferring standing on people and organizations in most cases. To establish injury in fact, a person invoking a statutory remedy now must meet a newly-found constitutional requirement that she or he had a legally protected interest that is concrete and individualized to her or him, and that the harm is “actual” or “imminent,” not “conjectural” or “hypothetical.”3

 ***

If the idea of “injury in fact” has been elevated surreptitiously from standing to the U.S. Constitution, it can certainly have an effect on claims based on State statutes providing remedies to ‘private attorneys general’ that the States rely on to enforce the laws. Time will tell whether State Unfair Claim Handling Practices Acts and Penalties Statutes governing the business of insurance will feel the effects and, if so, how.

 

Footnotes
1
Spokeo, Inc. v. Robins, U.S. , 136 S. Ct. 1540 (2016).
2
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
3
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016).

The issues are fleshed out and the case law interpreting Spokeo are all addressed in Volume 1 of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:28.50 by Dennis J. Wall (THOMSON REUTERS WEST 3d ed. & 2019 Supplement).

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©2019 Donna Bruno and Dennis J. Wall.  Use of this Photo Courtesy of the Artist Donna Bruno.

EXPERT'S FAILURE TO "REFINE OPINIONS" TO LOCAL LAW EXCLUDES THEM.

In Hamilton v. Bayer Healthcare Pharm. Inc., No. CIV-18-1240-C, 2019 WL 5295201 (W.D. Okla. Oct. 18, 2019), nationally renowned insurance expert Allen Windt was not permitted to testify to opinions on Oklahoma insurance bad faith because his opinions were not tailored to the rulings of Oklahoma law.  The Court in this case granted the non-retaining party's motion to exclude his testimony because as a result, his testimony was not reliable.  Hamilton, 2019 WL 5295201, at *1.  This ruling came despite Mr. Windt's book on insurance which included Oklahoma law cases:

Mr. Windt relies on a book he authored as the legal basis for his opinions. To be sure, that book references Oklahoma law. However, it also references the law of other states and that law often conflicts with Oklahoma law. Mr. Windt makes no effort to refine his opinions so that they are based solely on the law applicable to this matter. Accordingly, Mr. Windt will not be permitted to offer expert testimony at trial.

Hamilton, 2019 WL 5295201, at *1.

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TRICK OR TREAT! ATTORNEY'S FEES FOR THE REST OF US.

The Uniform Mortgage Instruments written and distributed by Fannie Mae and Freddie Mac for almost all homes with a mortgage in the United States have provisions for attorney's fees for the mortgage lenders. These provisions are written for two purposes or at least with two results in mind. The first is to protect banks and mortgage companies from incurring attorney's fees in actions on the mortgage loans they make. The second is to make homeowners pay in actions on the mortgage loans they take.

Some States have tried to reach a better balance. Some State efforts apply generally to contracts which authorize attorney's fees for a large corporate party. They authorize attorney's fees for the other contracting parties as well whenever one party has written its contract to authorize it to collect attorney's fees when someone sues on that contract.

Parenthetically, in many or most such cases, it is the large corporate party that wrote the contract.

For example, Florida Statute Section 57.105(7) on its face applies to "contracts" which authorize attorney's fees for only one party to the contract:

(7) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.

Fla. Stat. § 57.105(7), brought forward without change to 2019.

In the case of Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017) & on rehearing (Fla. 5th DCA 2018) (Edwards, J.), there was a mortgage contract. That was not disputed. There was a dispute, of course, but it was about standing to bring the suit to enforce that contract.

In a unanimous opinion in this case written by Judge James Edwards, Florida's Fifth District Court of Appeal applied the language of Section 57.105(7). "Section 57.105(7) transforms a unilateral right into a reciprocal right so that all parties to the contract are entitled to recover attorney’s fees upon prevailing." Madl, 244 So. 3d at 1138. The appellate panel awarded appellate attorney's fees to the homeowners who prevailed in this action to enforce the mortgage contract against them.

As the Fifth District itself pointed out, Madl, 244 So. 3d at 1139, there is authority from the Fourth District which appears to stand to the contrary.
It is not necessarily free from doubt whether the Fourth District in a proper case would deny outright the availability of Section 57.105(7) in mortgage cases. However, it can be said that the Fourth District cases seem to involve disputes about whether the parties before the court were all parties to the contract, or even whether the contracts at issue were proven to exist in the first place. In Madl, there was no dispute but that the appellants and the appellees were parties to the mortgage contract that existed in that case.

So, on this Halloween day, trick or treat! Thanks to Florida law (with the possible exception of the Fourth District), attorney's fees for the rest of us and not just for the ones who write the contracts.

On the attorney's fees provision in the Uniform Mortgage Instruments of Fannie Mae and Freddie Mac, and particularly on its lack of reciprocity absent another Statute, see DENNIS J. WALL, LENDER FORCE-PLACED INSURANCE PRACTICES § 4.4, Attorneys and Lender Force-Placed Insurance Practices (2015 American Bar Association Publishing). 

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PREMATURE FLORIDA STATUTORY BAD FAITH CLAIM? THIS TIME DISMISS, NOT ABATE.

The general rule in the Middle District of Florida, with some exceptions, has been that if a Florida statutory bad faith claim under Fla. Stat. § 624.155 is premature, the defendant's remedy is to have it abated rather than dismissed.

In Pranger v. Garrison Prop. & Cas. Ins. Co., No: 6:19-cv-1099-Orl-40EJK, 2019 WL 5448284 (M.D. Fla. Aug. 6, 2019), the Court addressed what it labeled a premature statutory bad faith claim in an Underinsured Motorist Case.  The District Judge in this Middle District of Florida case dismissed it and expressly declined to abate it.

Ruling as though this were the inevitable result and ignoring the clear Middle District of Florida precedent, the District Judge cited a pair of cases that ruled in favor of the exception of dismissal rather than abatement of a premature Florida statutory bad faith claim, and declined in the Court's "discretion" to abate it in this case:

    Defendant argues that Count II, which alleges a claim for bad faith pursuant to § 624.155 of the Florida Statutes, should be dismissed as premature. Plaintiff agrees that the claim is premature but argues that abatement, rather than dismissal, is proper. “[I]t is this Court’s position that until a bad-faith claim has a factual basis to support it—i.e., the plaintiff’s claim for [underinsured motorist] benefits has been resolved in the plaintiff’s favor—such claim is prematurely brought.”

Pranger, 2019 WL 5448284, at *1.  Sometimes exceptions swallow the rules, if we let them.

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RECOVERING POLICY LIMITS WITHOUT COVERAGE.

There are many things to say about the rulings in the Szafarowicz case.  Commerce Ins. Co. v. Szafarowicz, 131 N.E.3d 782 (Mass. October 1, 2019).  A special feature of the case was discussed in an article posted here on October 22, 2019, and the background of the case has been discussed with unique insight into Insurance Coverage Law in Massachusetts by Nina Kallen, Esquire in her blog of that name, most recently on October 23, 2019.

I have struggled with ways to organize my own remaining thoughts about the reported decision in this case.   Here is how I settled, for now, on organizing some of them.

1.  Recovery under a stipulated settlement or "Consent Judgment" in this case was limited to policy limits because that's what the insureds and the claimant agreed.

The insureds and the deceased claimant's estate stipulated to settlement of the estate's Wrongful Death Action against the insureds.  Although it appears not to be relevant to the stipulation, the fact that the settlement happened at all has everything to do with a couple of further facts by way of background here.  The insureds were being defended by Commerce at the time under a reservation of rights to deny all coverage.  Commerce also separately pursued a Declaratory Judgment Action before the underlying settlement was stipulated.  (Commerce objected to the settlement.)

As a part of their stipulated settlement, the insureds and the estate in the Wrongful Death Action stipulated that the estate's recovery if any would be limited to the insureds' Commerce policy limits and that they, the defendants-insureds, would not face any other risk of damages other than the Commerce policy limits.  Szafarowicz, 131 N.E.3d at 789.  Not only did the estate stipulate to limiting recovery to policy limits.  "The estate agreed that it would not seek to collect or enforce any judgment against the [insureds] beyond the amount payable under their insurance policy[.]" Szafarowicz, 131 N.E.3d at 789.  

That is why the estate's potential recovery against Commerce was limited to the policy limits by the Supreme Judicial Court of Massachusetts:  Anything else they could say would be dicta in the face of these facts.  The facts of this case determined the outcome.

2.    Recovery of policy limits was possible in this case even though there is no insurance coverage.

The Massachusetts Supreme Judicial Court allowed injured claimants, broadly speaking, to recover from defendants' liability insurance carriers so long as certain conditions were met.  Those conditions are discussed below.

However, in the Szafarowicz case, by the time the Supreme Judicial Court ruled there had already been a judicial determination that Commerce had no coverage under the "optional" bodily injury liability coverage under its policy. Szafarowicz, 131 N.E.3d at 790-91.

To recover policy limits, which the Szafarowicz Court said it would allow theoretically, means that the injured claimant would recover under the policy.  Yet in this case, there was already a determination that there was no coverage under the policy.  Still the Massachusetts HIgh Court remanded for a determination in the lower courts under its theoretical framework for recovery of Consent Judgments, as discussed below.

That framework simply does not include proving insurance coverage for the loss.  If it did, the Szafarowicz Court would not have remanded for a determination of anything in this case, where to say again there was already a judicial determination of no insurance coverage for the loss.

3.    "How many angels can dance on the head of a pin?"  Theoretically.  The elements of recovery under a Consent Judgment in Massachusetts today.

Well, there was still the matter of whether Commerce would be liable for post-judgment interest on any part of the underlying Consent Judgment.  So, the Massachusetts Supreme Judicial Court said that it was fashioning a rule to address that situation.  But that is not what they actually did.

In Szafarowicz, the Court fashioned a rule for recovery under Consent Judgments generally:

    Balancing these risks and benefits, we conclude that an insurer who defends a claim under a reservation of rights is bound by the amount of a judgment arising from a prejudgment settlement/assignment agreement where (1) the insurer is given notice of the settlement/assignment agreement and an opportunity to be heard by the court before judgment enters; (2) the insurer contests the judgment; and (3) the insured, after hearing, meets his or her burden of showing that the settlement is reasonable in amount.

Szafarowicz, 131 N.E.3d at 797.

The Court said, theoretically, that "the probability of a finding that the plaintiff's injuries were caused by an accident rather than intentional conduct ... may also be considered in determining the amount of a reasonable settlement." Szafarowicz, 131 N.E.3d at 798.

They said this despite the fact that, in this case, they previously said that on remand Commerce will not be bound here "to pay the damages determined at the assessment hearing, because it obtained a declaratory judgment that it was not obligated to pay these damages." Szafarowicz, 131 N.E.3d at 796.

In the final analysis, the Szafarowicz Court was against exposing carriers to recovery beyond policy limits even when Consent Judgments are successfully enforced against the carriers, at least in a case like this where the insureds and the injured claimant stipulated to that result.  Except that liability carriers can be exposed to paying Consent Judgments even when they have no coverage under their policies for the loss at issue unless they previously obtained a judicial declaration of no coverage for the loss at issue, as in this unique case.

Whew.  Complicated, isn't it?  Maybe it became more complicated in Szafarowicz than it had to be.  Who am I to judge?

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COURAGE, INSURANCE COVERAGE, AND STIPULATED SETTLEMENTS IN MASSACHUSETTS.

The Supreme Judicial Court of Massachusetts has rendered a decision that has many features, all of them interesting and some of them moving.

The complicated background of the decision in this case is thoroughly explored by Nina E. Kallen, Esquire in her blog article posted in Insurance Coverage Law in Massachusetts on Wednesday, October 16, 2019. I will also write another article this week about some of the other rulings in this important decision that I do not address here today.

In my judgment, one of the more important features of this decision is not readily apparent, however. I am going to ask Ms. Kallen for her comments on it by sending her a copy of this article with an email today. If we miss anything unique to this decision and Massachusetts law here, she is the right person to ask.

The decision came on October 1, 2019 in the case of Commerce Ins. Co. v. Szafarowicz, 131 N.E.3d 782 (Mass. 2019). It involves a couple of stipulated settlement agreements in a Wrongful Death Action. Commerce was defending its insured under a reservation of rights at the time, and Commerce was simultaneously pursuing a separate Declaratory Judgment Action of no coverage. Massachusetts, like most jurisdictions, permits the filing of a DJA while defending an insured under a reservation of rights to deny all coverage.

The insureds stipulated to settlement in the Wrongful Death Action before there was a determination in the Declaratory Judgment Action. The judge in the Wrongful Death Action (we are not told her or his name in the opinion) "ordered that judgment enter in favor of the [deceased claimant's] estate" far in excess of the policy limits. The policy limits were at most $500,000.00 and the original judgment was entered in the Wrongful Death Action in the amount of $5,617,510.00 (later increased to $7,669,254.41). Commerce, 131 N.E.3d at 789.
We do not know the date of the stipulated settlements because the Massachusetts Court does not tell us, but we know that "the judge ordered that judgment enter in favor of the estate" on December 28, 2016. Commerce, 131 N.E.3d at 789.

"[A]nother Superior Court judge resolved the declaratory judgment action" on February 21, 2019. The Declaratory Judgment judge (again, we are not told her or his name, only that this was a different judge from the Wrongful Death judge) held that there was no coverage for the policy's "optional bodily injury coverage of its automobile policy" because, the DJA judge found, the injuries in question "'did not arise out of an accident under the policy.'" Commerce, 131 N.E.3d at 790-91. Accordingly, said the Supreme Judicial Court in Commerce, "Commerce has no obligation to pay any amount of the $7.7 million judgment in the wrongful death action beyond the $20,000 it already paid under its compulsory bodily injury coverage." Commerce, 131 N.E.3d at 791 (emphasis by the Court).

So, to recap what happened on the facts here, the insureds stipulated to a settlement with the claimant's estate in the Wrongful Death Action for what became a judgment of $7.7 Million. That was years before the Declaratory Judgment was concluded. This means, of course, that everyone involved including Commerce, Commerce's lawyers, and the DJA judge knew that the estate was pursuing a damages determination of some 15 times what might be called the "full" policy limits of $20,000 for compulsory bodily injury coverage and $480,000 for optional bodily injury coverage.

To say again, because it bears repetition here, at the time that the DJA judge ruled in the liability insurance company's favor the insureds had already stipulated to damages far exceeding the potential policy limits. (The insureds also stipulated that their driver's negligence caused the accident which resulted in the claimant's death, a stipulation which would have triggered insurance coverage if that particular stipulation was determinative, which clearly it was not).

Nevertheless, Commerce persisted. That is clearly one way to put it. On a human level, of course the deceased claimant's loved ones are the first to command our empathy. Yet on a human level we cannot overlook the behavior of Commerce and its lawyers who for many years must have confronted the risk of losing many times, and for a lot of money, before they obtained a final Declaratory Judgment of no coverage.

That is likely to be the overlooked story of this case that I want to feature in this article today. Right or wrong, the people at the insurance company involved in this case and the lawyers who represented the insurance company in the DJA deserve to have their courage recognized, too.

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THE DISPARATE IMPACT OF INSURANCE COMPANIES ON THE HUD REGULATION.

I left the following Comments among others today on www.regulations.gov. You can too! Leave your own Comments, whatever they may be, on that website with the Docket Info and RIN below. Be heard!

Friday, October 18, 2019

TO: The Department of Housing and Urban Development
via https://www.regulations.gov/.
Re: Your proposed revisions to the Disparate Impact Rule.
Docket No.: FR-6111-P-02.
RIN: 2529-AA98.
Your proposed § 100.500(e) is arbitrary and capricious. Moreover it is a misguided attempt to "reverse preempt" current § 100.70(d)(4).

1. Your new paragraph (e) is arbitrary and capricious.

Your proposed new § 100.500(e) is arbitrary and capricious. You propose to proceed by case-by-case adjudication involving disparate-impact theories of liability concerning insurance, rather than rule-making. You have not provided a reasoned explanation for preferring case-by-case adjudication over rule-making which, after all, is the reason that HUD exists, i.e., to make rules. Under established law, as you know from a decision that you cite in your proposal, "[a]lthough HUD had discretion to decide whether to proceed by case-by-case adjudication or rule-making, it needs to provide a reasoned explanation for preferring case-by-case adjudication over rule-making. HUD's failure to do so was arbitrary and capricious." Prop. Cas. Ins. Ass'n of Am. v. Donovan, 66 F. Supp. 3d 1018, (N.D. Ill. 2014).
This holding was reached during judicial consideration of a previous version of this same regulation. So it is again regarding your current version: Your proposed, revised regulation is arbitrary and capricious with respect to the business of insurance as you have addressed it here, including by your proposed paragraph (e) and your proposed new section 100.500.

 

2. Your new paragraph (e) contravenes the Fair Housing Act's own statutory provisions, which supersede any conflicting proposed regulations of an administrative agency, as here. Further, it is an invalid and void attempt to "reverse preempt" insurance companies from disparate-impact liability for discrimination under the Fair Housing Act, and for these reasons it is unauthorized and unreasonable, as well as arbitrary and capricious.

The HUD Disparate Impact regulation already addresses the denial of "property or hazard insurance" in § 100.70(d)(4):

(d) Prohibited activities relating to dwellings under
                        paragraph (b) of this section include, but are not limited to:
* * *

(4) Refusing to provide municipal services or property or hazard insurance for dwellings or providing such services or insurance differently because of race, color, religion, sex, handicap, familial status, or national origin.

Because of § 100.70(d)(4), "denying 'property or hazard insurance' violates the FHA." Nat'l Fair Hous. Alliance v. Travelers Indem. Co., 261 F. Supp. 3d 20, 30 (D.D.C. 2017).

Your proposed addition of § 100.500(e) would risk immunizing insurance providers who otherwise violate the provisions of section 100.70(d)(4), quoted in full above:

(e) Business of insurance laws.
Nothing in this section is intended to invalidate, impair, or supersede any law enacted by any state for the purpose of regulating the business of insurance.

84 F.R. at 42863.

    The Fair Housing Act already contains a provision governing the effect on State laws including that the FHA shall not be construed to invalidate or limit any such conflicting law, with an exception that you do not recognize in your proposal. Under the FHA, Congress would invalidate any State or local law "that purports to require or permit any action that would be a discriminatory housing practice [under the FHA] shall to that extent be invalid." 42 U.S.C.A. § 3615. Your proposal is unreasonable in that it adds nothing to the law as it currently exists, in other words, there is simply no reason for your proposal. Further, your proposal conflicts with the Statute enacted by Congress on the same subject and your proposal is void as a result.

    The McCarran-Ferguson Act, for its part, famously leaves the regulation of insurance to the States. The Congressional deference to the States in this regard is so strong that the McCarran-Ferguson Act includes a "reverse preemption" provision by which conflicting federal laws are deemed preempted by State insurance laws in appropriate circumstances. See 15 U.S.C.A. § 1012. It has been said that "the key issue in analyzing whether the McCarran-Ferguson Act reverse-preempts this application of the FHA is the specific details of the state insurance law that supposedly contradicts the FHA." Nat'l Fair Hous. Alliance v. Travelers Indem. Co., 261 F. Supp. 3d 20, 34 n.4 (D.D.C. 2017) (italics in original; emphasis by the court). Here as well you have not identified any specific details of any state insurance law that supposedly contradicts the FHA. Your attempt at reverse preemption with the addition of new § 100.500(e) is as a result both invalid and void.

    Thank you for your consideration of these Comments. 

Sincerely Yours,
Dennis J. Wall

Download IMMUNIZING INSURANCE COMPANIES FROM HOUSING DISCRIMINATION.COMMENTS TO PROPOSED DISPARATE IMPACT RULE REVISIONS BY HUD. 3. 10.18.19.

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RESISTING UNAUTHORIZED BURDENS AND SPURIOUS DEFENSES.

I left the following Comments among others today on www.regulations.gov. You can too! Leave your own Comments, whatever they may be, on that website with the Docket Info and RIN below. Be heard!

Thursday, October 17, 2019

TO: The Department of Housing and Urban Development
via https://www.regulations.gov/.
Re: Your proposed revisions to the Disparate Impact Rule.
Docket No.: FR-6111-P-02.
RIN: 2529-AA98.
Your proposed revisions to the current Disparate Impact Rule are found at 84 F.R. 42854 -42863, with your Summary and your Supplementary Information.

The Comments below continue several comments on your proposed revisions.

Your proposed § 100.500(d) mis-states FHA law and would impose new, additional requirements not found either in the Fair Housing Act or in FHA law. You simply do not have the authority to rewrite any statutes nor any judicial decisions including ones that you do not like.

1. Your new paragraph (d)(1) incorrectly imposes burdens on persons pursuing discrimination claims on a disparate impact theory that the FHA and that FHA case law do not impose. It is not your place to impose them where Congress and the courts have refused to do so.

(i) The "elements in paragraphs (b)(2) through (5) of this section" as you call them are not proper elements of proof in the context of such claims.

Please see our earlier Comments concerning your new paragraphs (b)(2) through (5) of this section in particular, which are expressly incorporated herein by reference. A pdf copy will be appended to these Comments for this purpose and for your ease of reference.

(ii) This subparagraph (ii) in your new paragraph (d)(1) is an attempt on your part to introduce entirely new legal requirements in FHA law. You would effectively provide that even if an FHA plaintiff has proven the availability of less restrictive means for the defendant to pursue its policy objectives, then still the plaintiff must also prove yet another thing. You would require the FHA plaintiff at that point in a disparate impact discrimination liability case to also prove that the alternative means would not "impos[e] materially greater costs on, or creat[e] other material burdens for, the defendant." This requirement in your new subparagraph (ii) has no justification and no reason for existence.

By proposing your new requirements in subparagraph (ii), you would heap up burdens on FHA disparate treatment discrimination plaintiffs that never previously existed. This you may not do. You completely lack the authority to do so.

 

2. Your new paragraph (d)(2) incorrectly allows defenses to be raised by defendants in FHA discrimination claims that are based on a disparate impact theory, that the FHA and that FHA case law do not recognize.

(i) and (ii). What has been said above applies to these subparagraphs as well. The above Comments, and the Comments that were left previously to your § 100.500(b) (please see attached pdf, for example), are expressly incorporated herein by reference.

(iii). It bears repeating that your introduction of an unrecognized issue that a defendant in such an FHA discrimination case can escape liability by evidence that less restrictive alternatives to the defendant's discriminatory policies "would materially impose greater costs" or would "creat[e] other material burdens for the defendant," do not exist in the statutory language chosen by Congress or in the judicial opinions written by judges in the FHA case law. You do not have the authority to rewrite any of them.

Moreover, your statutory charge is to implement the FHA concerning the effects of discrimination.
Your duties are described in the Fair Housing Act. The Congressional statement of purpose is to facilitate relief from discrimination in the national housing market. Your duties do not include shielding defendants from "materially greater costs" or "other material burdens" as a consequence of their proven discrimination.

Thank you for your consideration of these Comments. As was noted from the beginning, more Comments will follow.
Sincerely Yours,
Dennis J. Wall

Download RESISTING UNAUTHORIZED BURDENS AND SPURIOUS DEFENSES.COMMENTS TO PROPOSED DISPARATE IMPACT RULE REVISIONS BY HUD. 2. 10.17.19.

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FIGHTING DISAPPEARING DISPARATE IMPACT DISCRIMINATION IN HOUSING.

I left the following Comments among others today on www.regulations.gov.  You can too!  Leave your own Comments, whatever they may be, on that website with the Docket Info and RIN below.  Be heard!

Thursday, October 17, 2019

TO: The Department of Housing and Urban Development
via https://www.regulations.gov/.
Re: Your proposed revisions to the Disparate Impact Rule.
Docket No.: FR-6111-P-02.
RIN: 2529-AA98.
Your proposed revisions to the current Disparate Impact Rule are found at 84 F.R. 42854 -42863, with your Summary and your Supplementary Information.
These are the first of several comments on your proposed revisions.
Your proposed new § 100.500(b) is unreasonable and invalid. You propose to revise existing law on when a plaintiff alleging discrimination under the Fair Housing Act has made a prima facie case under a theory of discrimination by disparate impact. Your proposed revision is not based on facts and it is not based on the law established under the Fair Housing Act you say that you are implementing. You do not have the authority to make new law especially when it is contrary to existing statutes and FHA case law. The entire proposed new section 100.500(b) is found in 84 F.R. at 42862.
The current HUD regulation, § 100.500 as it has existed from long before your proposed revision of it, has been justly described as "similar to the framework the Supreme Court ultimately adopted in Inclusive Communities, and indeed, some courts believe the Supreme Court implicitly adopted the HUD framework altogether." Reyes v. Waples Mobile Home Park Ltd. P'ship, 903 F.3d 415, 424 n.4 (4th Cir. 2018), cert. denied, ___ U.S. ___, 139 S. Ct. 2026 (2019). You of course claim in your proposal not only to have followed the Inclusive Communities decision but to credit that decision as the genesis of your proposal. Without deciding whether the Court followed the HUD regulation, the following Comments will address your proposed revision of the regulation.
(1) Your proposed § 100.500(b)(1) is contrary to the law established under the Fair Housing Act. Further, you have not shown any reason to undo and restate rules and regulations that were enacted by HUD when HUD had access to the relevant law that you rely on in your proposed revisions. This is not an attempt on your part to align the HUD regulation on Disparate Treatment with subsequent case law. as you say. Rather, this is an attempt on your part to re-align and rewrite HUD's previous regulation on Disparate Treatment because you do not approve of it.
You do a couple of things throughout your proposed revisions that are worth noting at the beginning here. You rely throughout your proposal on the 2015 decision by the U.S. Supreme Court in the case of Texas Dep't of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015). The requirements you propose under paragraph (b)(1) of your rewritten section 100.500 are not imposed by the Inclusive Communities decision, but are instead contrary to it. This will be discussed below as well.
Another thing that you do throughout your proposal is take words and phrases from judicial opinions and propose them as new law here. Picking out words and phrases does not equal the law. It does not represent the law any more than reading case headnotes does. Certainly your proposed paragraph (b)(1) does not represent FHA law, but rather is contrary to established law. In this regard, it should not have to be pointed out, but I will point it out for the record here, that HUD simply lacks the authority to invent the law let alone to disregard it. Further, any attempts by HUD to do so are unreasonable and invalid due to its lack of authority alone if for no other reason.
Your proposed revision is strikingly reminiscent of a recent federal appellate court's description of a lower court's erroneous view of causation in disparate impact claims brought under the Fair Housing Act. Like that district court, your view would erroneously "seem to require an intent to disparately impact a protected class in order to show robust causality, thereby collapsing the disparate-impact analysis into the disparate-treatment analysis. [Citation omitted.] This goes far beyond the 'robust causality' requirement the Supreme Court described." Reyes v. Waples Mobile Home Park Ltd. P'ship, 903 F.3d 415, 430 (4th Cir. 2018), cert. denied, ___ U.S. ___, 139 S. Ct. 2026 (2019) (italics in original; emphasis by the Fourth Circuit Court of Appeals). Or to put the same thing another way, "determining whether a plaintiff made a prima facie case of disparate-impact liability requires courts [and HUD] to look at whether a protected class is disproportionately affected by a challenged policy.... The extra step of determining whether such a practice that has a disparate impact on a protected class is justified is properly contained" within the defendant's burden of persuasion. See Reyes, 903 F.3d at 424, 430 (italics in original; emphasis by the Fourth Circuit Court of Appeals).

(2) Your proposed paragraph (b)(2) of your proposal to revise section 100.500 does not represent the law which has developed under the Fair Housing Act. Moreover, it would introduce ambiguity which would tend toward the denial of otherwise valid claims under the Act.
Your proposed paragraph (b)(2) is another time when you clearly cherry-picked language from the case law, this time seemingly from the Inclusive Communities decision itself. Yet while the majority opinion used the phrase "robust causal link" one time, Inclusive Communities, 135 S. Ct. at 2523, the Court's one-off use of that phrase was not an effort by the Court to re-define the law of proximate cause, as your proposed revision would do if it is implemented. Rather, the Court used that phrase as a shorthand way to describe the requirement that an FHA plaintiff relying on a theory of disparate impact to show discrimination must allege and prove causation. The Court did not attempt to define "robust causal link" in any way other than using it as a shorthand reference for the requirement in this context to prove causation.

(3) Your new, proposed § 100.500(b)(3) is again made unreasonable by your using an ambiguous, undefined phrase to require FHA plaintiffs to allege and prove "an adverse effect" if those plaintiffs are going to make a prima facie case of FHA violations under a disparate impact theory. This again is also contrary to law under the Fair Housing Act.
FHA law does not require proof of undefined "adverse effects." Other law may require and speak to such proofs, but not this one. The law under the Age Discrimination in Employment Act of 1967 or ADEA, for example, apparently does require proof that employment decisions "adversely affect" a person's employment status, but FHA law does not contain this requirement. You lack the authority to rewrite the statute you say that you are implementing. Only Congress has such authority; you do not.
You seem to want to introduce previously undefined concepts not addressed in the Fair Housing Act or in FHA case law, or in previous HUD rules and regulations. The use of undefined, previously unknown words and phrases in your proposed regulation greatly increases the risk of adverse decisions to FHA claimants, whether the increased risk is inadvertent or not.

(4) Your proposed new paragraph (b)(4) in your proposal to revise section 100.500 would impose a new requirement contrary to established law, and not found in the Fair Housing Act you say you are implementing, that a prima facie case of discrimination under a theory of disparate impact requires proof that the alleged disparity is "significant." To say again, that requirement is new. It is not imposed by the statute and it is contrary to settled law.
What the federal courts have required of disparate impact claims under the FHA is that the plaintiff show that the challenged practice have "a significantly disparate impact." This is not the same as your proposal to require proof of a "significant" disparity.
In addition, what you mean by "significant" is not clear from your proposed revisions. Once again, your proposals would introduce uncertainty and the attendant risk along with that uncertainty of legitimate claims being denied for no good reason.

(5) Your final new proposal to revise section 100.500 is to add a paragraph (b)(5) that would require something you call a "direct link" between impact and injury. Again, this new proposed requirement is not found in the Fair Housing Act and it is not found in the law surrounding the FHA. Rather, this new requirement you propose is another example of twisting words and phrases, like headnotes, in an attempt to re-write statutes and case law more to your liking. This is beyond your authority to do.
What has already been said above applies with equal force here as well: When courts have spoken of "direct" causal links, they were not trying to re-define the law of proximate cause, as your proposed revision would almost certainly do if it is implemented. Rather, the courts have sometimes used that phrase as a shorthand way to describe the requirement that an FHA plaintiff relying on a theory of disparate impact must show discrimination by alleging and proving causation as a part of her prima facie case.

Thank you for your consideration of these Comments. As was noted from the beginning, more Comments will follow.
Sincerely Yours,
Dennis J. Wall

Download FIGHTING DISAPPEARANCE OF ACTIONABLE DISPARATE IMPACT DISCRIMINATION. COMMENTS 1 TO HUD. 10.17.19.

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NO PENNSYLVANIA CGL DUTY TO DEFEND: NO "OCCURRENCE," NO "ACCIDENT."

The Third Circuit recently applied Pennsylvania law to hold that there is no duty to defend under a Commercial General Liability Policy where there is no "accident" and so there is no "occurrence."  Sapa Extrusions, Inc. f/k/a Alcoa Extrusions, Inc. v. Liberty Mut. Ins. Co., 939 F.3d 243 (3d Cir. 2019).

But the ruling involves much more than that truism.

The Third Circuit held, first, that the trial court was wrong to determine the question of whether there is a duty to defend by looking to the headings or titles used in the complaint to describe different counts alleged.  To the contrary, the duty to defend is determined under Pennsylvania law, as it is in most jurisdictions, by looking to the allegations of fact in the complaint and comparing those allegations to the CGL policy at bar.  This is the so-called "four corners rule."  Sapa Extrusions, Inc., 939 F.3d at heading III.A of the appellate court's opinlon (page numbers not available from Westlaw at the time this article is written).

Then and only then will courts applying Pennsylvania law determine whether there is a duty to defend.  In this case, the question of a defense arose under a CGL policy, as has been noted.  The specific claims against the insured in the complaint at issue there involved aluminum parts of windows and frames that allegedly corroded.  Tired of oxidized window and door frames, homeowners sued the insured.  See Sapa Extrusions, Inc., 939 F.3d at heading I.A of the appellate court's opinlon (page numbers not available from Westlaw at the time this article is written).  The issue then was whether there is a duty to defend that insured in those cases under the CGL policies at issue there.

The Third Circuit held that there is no duty to defend the insured in that case because the nature of the alleged defects could not be an "accident neither expected nor intended by the insured" there.  Where there was no "accident," there could be no covered "occurrence" under the CGL polices at issue.  Where there was no covered "occurrence," there is no duty to defend.  Sapa Extrusions, Inc., 939 F.3d at heading IV.C.1 of the appellate court's opinlon (page numbers not available from Westlaw at the time this article is written).

On all these issues, the Sapa decision is squarely in the mainstream of insurance coverage determinations.

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COMMENTS TO HUD PROPOSAL TO ELIMINATE DISPARATE IMPACT PROOF DUE FRIDAY 10.18.19.

Comments to the Department of Housing and Urban Development's proposal to eliminate proof of discrimination by proving disparate impact are due Friday, October 18, 2019.

The HUD proposal would effectively reduce all proof of discrimination to direct proof of intent, such as an admission by the perpetrators that they are guilty.

The proposed HUD rule would run contrary to a Supreme Court decision that is four years old.

Go to https://www.regulations.gov to leave your Comments, whatever your Comments may be.

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When Judges Say They're "Afraid of Being Fired" For Rulings: A Postscript.

This is a postscript to an article posted here on October 3, 2019.

"With every decision, the judge has to weigh the risk of being fired against the oath of office he or she has taken.  And we have already seen the impact of this travesty with the 'Stay in Mexico' or the MPP program, where judges have confided that they have made rulings out of fear of losing their jobs."  Hon. A. Ashley Tabaddor, Judge of the Immigration Court and President of the National Association of Immigration Judges, the union of Immigration Judges, quoted by Catherine E. Shoichet, Immigration Judges Accuse Justice Department of Unfair Labor Practices, CNN Politics, posted online on Tuesday, September 27, 2019.

The "administration's so-called Migrant Protection Protocols [MPP] program" is the one "which forces some asylum seekers to wait in Mexico while their cases make their way through the system[.]"  Id.

The background behind the headline of this report, that the Immigration Judges are accusing the justice department of Unfair Labor Practices, includes a few things.  For one, the department has called for the judges' union to be terminated.

The justice department has sent the judges anti-Semitic stories as a part of the briefing they send to these judges.

The department has also imposed "case competition quotas and the removal of [immigration judges'] power to administratively close cases."  Id.

When judges are afraid that their rulings will get them fired then perhaps unfair labor practices, while real issues, are the tips of a much larger iceberg.

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TOO MUCH SECRECY MAKES FALWELLS OF US ALL.

Jerry Falwell, Jr. and his wife were sued by a pool boy over their  investment in a gay youth hostel in Miami.  The pool boy complained that he was denied an "ownership stake" in the investment.  The incident was infamous.  There are more nefarious people involved than in any other incident this side of Washington, D.C.

There were reportedly arrangements for payments by Michael Cohen for "sexually compromising photographs involving the Falwells that could have been used as leverage against them."  Patricia Mazzei, Falwells Settle Court Case Over Florida Business Deal, THE NEW YORK TIMES, Tuesday, October 8, 2019, p. A15 (online here; the New York Times may charge for online access).

According to the linked reporting, Mr. Cohen denied making the payments.  The Falwells denied the business investment in which a pool boy would get a cut of the proceeds from a gay youth hostel.  Tom Arnold, estranged (or is it divorced?) husband of a well-known comedienne, reportedly made a "secret recording."

The pool boy sued the Falwells in Florida Circuit Court.  The Falwells removed that case to Federal District Court in the Southern District of Florida.  That was in the middle of September 2019.

Now, less than a month after that, Jerry Falwell, Jr. -- not the preacher, because this one is not ordained -- and his wife settled the pool boy's lawsuit.  Apparently the settlement agreement is totally under seal because the entire docket on the Southern District of Florida's website is literally blacked out, at least in response to repeated attempts to search it this morning on the Public Access to [Federal] Court Electronic Records or "PACER."

Repeated attempts to search the case on PACER this morning as well, yielded only the message:  "No records found."

There is no Order of Court on the docket sealing the contents.  So let's put this in a little context here.

Jerry Falwell, Jr. "is the chancellor of one of the nation's largest Christian colleges, Liberty University," id., and on behalf of Liberty he asks for donations and tuition money.

Mr. Falwell and his wife are clearly paying money in this settlement, or their insurance company is paying money in this settlement on their behalf, regardless of their denial of the pool boy's gay hostel investment allegations.

So why on earth can we not see the terms of this settlement agreement since Mr. Falwell is both asking for and apparently spending our money?  Why can we not see where our money is going, or even if our money is involved if we donate it to Mr. Falwell  or his Liberty?

Beyond those questions that arise because of Mr. Falwell's real involvements with money -- and not necessarily because of his denial of allegations of his other involvements with money -- there are very real questions of why and how his settlement apparently got sealed and blacked out under the Federal Rules of Civil Procedure and the Southern District's Local Rules?

And without even a record on the docket that a Federal Judge ordered the case sealed?   What is going on with the Southern District of Florida?

The case is Bello v. Falwell (Southern District of Florida Case No. 1:19-cv-23825-UU).

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When Judges Say "Afraid of Being Fired" For Their Rulings.

When people involved in lawsuits, including large corporations and individuals and children, cannot depend on getting a fair shake because the judge is afraid of ruling in their favor, that is the essence of bad faith.

There are reports right now that this is exactly what is happening in the current administration's immigration courts.

More than Sad. 

Bad Faith.

See Some Immigration Judges Say They Rule a Certain Way to Avoid Firing, by Mark Pattison, posted on CatholicPhilly.com on Monday, September 30, 2019.

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BAD FAITH IN PENNSYLVANIA MORTGAGE INSURANCE: 5,246 TIMES.

Nationstar Mortgage LLC sued Radian Guaranty Inc. Nationstar alleged claims "for breach of contract, unjust enrichment, conversion and bad faith." The factual basis of these claims is succinctly stated at the beginning of the Court's opinion:

Nationstar contends that Radian denied, rescinded and curtailed mortgage insurance coverage and refused to reimburse Nationstar for premium overpayments on 5,246 residential home mortgage loans.

Nationstar Mort. LLC v. Radian Guar. Inc., No. 18-03798, 2019 WL 1318541, at *1 (E.D. Pa. March 22, 2019).

Radian challenged all of Nationstar's claims with a motion to dismiss. With respect to the alleged bad faith claim, the Pennsylvania federal court denied the motion to dismiss because the plaintiff alleged three groups of core facts to bring its claim within the Pennsylvania bad faith statute in this case:

    Nationstar contends that Radian acted in bad faith when it denied, rescinded, and curtailed coverage for valid claims and refused to reimburse Nationstar for premium overpayments.... Nationstar alleges that Radian knew and understood that if it wrongfully rescinded, denied and/or curtailed claims that third parties would seek to have Nationstar repurchase these loans..... Moreover, Nationstar’s Complaint is replete with allegations arguing that Radian lacked a reasonable basis for its coverage decisions.

Nationstar Mortgage LLC v. Radian Guaranty Inc., 2019 WL 1318541, at *6. To regroup the core facts alleged by Nationstar Mortgage against Radian Guaranty in this case, first, Radian allegedly "denied, rescinded and curtailed" insurance coverage; second, Radian allegedly "refused to reimburse Nationstar for premium overpayments[,]" and third, Radian allegedly "knew and understood" that its actions disclaiming and discouraging coverage claims would have the effect of discouraging "third parties [who otherwise] would seek to have Nationstar repurchase these loans." On the basis of these alleged facts the Pennsylvania federal court refused to dismiss Nationstar Mortgage's bad faith claim against Radian Guaranty.

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EXHAUSTING ADMINISTRATIVE REMEDIES REQUIRED TO CHALLENGE FLORIDA INSURANCE RATE.

In People's Trust MGA, LLC v. Pesta, ___ So. 3d ___, 2019 WL 4458813 (Fla. 4th DCA September 28, 2019), one of Florida's District Courts of Appeal held that failure to challenge rates or rating plans through the Florida Office of Insurance Regulation is jurisdictional.  In Florida, statutes exist which afford opportunities to challenge insurance rates that the Florida OIR is empowered to approve.

Failure to exhaust these administrative remedies deprives Florida trial courts of jurisdiction to entertain lawsuits which challenge insurance rates in Florida.   There was no need to address the federal filed rate doctrine in this Florida insurance case and so the Florida appellate court did not do so.

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FOOD STAMP PROGRAM IS ABOUT WHETHER PEOPLE HAVE ENOUGH TO EAT, ...

NOT WHETHER THEY WORK OR ARE CAPABLE OF WORKING.  OTHER PROGRAMS FOCUS ON THAT.  NOT THIS ONE.

Bad faith breach of fiduciary obligations occurs in many fields besides insurance.  Bad faith appears whenever individuals or organizations benefit themselves at the expense of others with powers delegated to the individual or organization in power for the benefit of others.  The proposed rules changes to the Food Stamp Program, now called "SNAP," are many things.  You can bet your summary judgment that there is no genuine issue but that these proposed rules changes are in bad faith.

Yesterday I sent the following Comments to the Secretary of Agriculture and a division of the U.S. Department of Agriculture that is ironically called the "Food and Nutrition Service." 

COMMENTS TO PROPOSED SNAP RULE REVISIONS.

Monday, September 23, 2019.

You published your Proposed SNAP rule revisions along with your commentary in the Federal Register, 84 F.R. 35570 - 33581. You wrote that you propose to redefine "benefits" from the Food and Nutrition Act written by Congress, and that you propose "to limit the types of non-cash TANF benefits conferring categorical eligibility to those that focus on subsidized employment, work supports and childcare." 84 F.R. at 35570.

 

1. Your first proposed change is to redefine "benefits" in the Food and Nutrition Act written by Congress.

You wrote that you wanted to redefine "benefits" for purposes of "categorical eligibility to mean ongoing and substantial benefits[.}" 84 F.R. at 35570. Your redefinition of "benefits" in your proposed rule change is invalid and unauthorized, and it is preempted by statutes enacted by Congress because it directly conflicts with the Food and Nutrition Act and the statutory provisions enacting the Supplemental Nutrition Assistance Program (SNAP) written by Congress.

    "Benefit" for purposes of the Supplemental Nutrition Assistance Program "means the value of supplemental nutrition assistance provided to a household by means of" various sources described in 7 USCA § 2012 (d). There is no room in the statutory definition to add your alien concept of "ongoing and substantial benefits." If the statute needs amending, it is up to Congress to amend it, not you.

    You have no authority to redefine the "benefit" which Congress intended to address. Requiring the provision or receipt of "ongoing and substantial benefits" is simply not "other means of providing assistance, as determined by the Secretary," which is the only discretion you have been given in the Congressional definition of "benefit" in 7 USCA § 2012(d)(2).

    For all these reasons, your proposed rule is unreasonable.

    Your proposed rule is also unreasonable because it does not address the problem you lay out for your proposed rule in 84 F.R. at 35570, which you say is that "categorical eligibility for SNAP [can] be conferred on households based on receipt of minimal benefits issued by TANF-funded programs ...." If that is true and if that is your problem, then the "TANF-funded programs" of which you speak are the programs to be addressed, not the statutory definition of SNAP "benefits."

    Your proposed rule, again, is unreasonable because it does not address your problem with "TANF-funded programs which may not conduct a robust eligibility determination and do not meaningfully move families toward self-sufficiency." 84 F.R. at 35570. Your proposed rule does not even address any such "TANF-funded programs," even assuming that such programs may exist. Even if such programs exist, that they "may not conduct a robust eligibility determination" is not addressed by your proposed rule here.

    You do not provide any evidence at all -- and I am not aware that any evidence exists but it is not my burden to produce such evidence, the burden is yours and you have not met it -- that your proposed rule will somehow "ensure that TANF-funded programs conferring categorical eligibility align more closely with SNAP eligibility standards outlined in the Food and Nutrition Act." 84 F.R. at 35572.

    Further, whether such programs may or may not "conduct a robust eligibility determination," back to 84 F.R. at 35570, is a policy consideration that was already addressed by Congress when it implemented SNAP as a program of block grants to the States. If you are unhappy with how the States are directing their grant money under this program, you should address them and not redefine "benefits" instead. Parenthetically, your stated "determination" that your proposed rule "does not have federalism implications" is obviously hooey, in other words, it is false.

 

2. Your proposed rule would increase hunger and poverty in the United States "because," as you say, "more elderly individuals may not otherwise meet the SNAP eligibility requirements." 84 F.R. at 35576. For those additional reasons, your proposed rule is not reasonable.

The Supplemental Nutrition Assistance Program is about whether people have enough to eat, not whether they are working or capable of working. Congress set out the purpose of SNAP in 7 USCA § 2013(a). Under that statute, the Secretary is authorized by Congress to run "a supplemental assistance program under which, at the request of the State agency, eligible households within the State shall be provided an opportunity to obtain a more nutritious diet through the issuance to them of an allotment[.]"

    Your second announced proposed rule change, which is "to limit the types of non-cash TANF benefits conferring categorical eligibility to those that focus on subsidized employment, work supports and childcare" 84 F.R. at 35570, is unreasonable under SNAP for many reasons.

    Eligibility for SNAP has never involved "subsidized employment, work supports and childcare" so that people including parents can work. Other federal programs and other federal statutes and, yes, rules address your expressed concerns with "subsidized employment, work supports and childcare." Your proposed rule is not authorized by SNAP, and once again your proposed rule is also contrary to the Congressional purpose and statutes.    

    Your commentary in the Federal Register is replete with seemingly uncountable references to people who receive SNAP going out and getting a job -- regardless of whether the people who apply for SNAP are too old or too infirm to be capable of working. Those sentiments are inconsistent with the purpose of SNAP which, to say again, is about whether people have enough to eat. It was not the purpose of Congress in enacting SNAP to focus on whether people are working or capable of work because other statutes deal with work requirements while this statute focuses on the issue of people getting enough to eat.

    Your concern in the end with jobs and work supports "that support family self-sufficiency" 84 F.R. at 35572, and "that support meaningful work opportunities ... that help move families from welfare to self-sufficiency" 84 F.R. at 35573 and see 84 F.R. at 35574, is not the concern of SNAP. Your concerns are better expressed in the context of TANF, then, and should be directed there if at all. Your proposed rule is unreasonable under SNAP.

    And your proposed rule is discriminatory against the elderly. You admit as much when you write "that there is a potential for civil rights impacts to result" if your proposed rule is implemented "because more elderly individuals may not otherwise meet the SNAP eligibility requirements." 84 F.R. at 355776.

    Discrimination is not a reasonable result.

    Parenthetically, did you mean that "more" elderly people will be affected than not, or that "more" elderly people will not be able to receive SNAP allotments because of the new SNAP eligibility requirements under your proposed rule and, if that is what you meant, then what other rules exist, aside from your proposed rule, which in your mind would also prevent elderly people from receiving SNAP allotments? You can see that your language is confusing and it is hard to argue that confusing language leads to reasonable results in any case.

3. SNAP is a program of block grants from your Federal government to the States, as previously noted. The additional requirements which your proposed rule would impose upon the States are unreasonable and in any event you are not authorized to be the one to impose new requirements upon the States.

You admit that "[u]nder the proposed rule, a State would be required to inform FNS [the USDA Food and Nutrition Service] of all non-cash TANF benefits that confer categorical eligibility." 84 F.R. at 35574 - 35575. You call this new requirement that you impose a "notification requirement," and you say that it "would not unduly burden most State agencies," which makes it okay, you say. 84 F.R. at 35575.

    Yet, you claim that you "considered" whether your proposed rule has federalism implications and you also claim that you "determined" that there are no federalism implications here. To use a good old word that completely describes what you are saying, that's hooey, in other words, that's false. And unreasonable.

 

4. Conclusion.

For all these reasons, whether taken separately or together, your proposed rule is unreasonable under the Supplemental Nutrition Assistance Program statutes enacted by Congress. Your proposed rule should be withdrawn and rewritten before it is implemented, if ever. If it is implemented it should be struck down.

    Thank you for your consideration.

Download COMMENTS TO PROPOSED SNAP RULE REVISIONS. 092319.  

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REPORTS OF THE DEATH OF CALIFORNIA EMISSIONS STANDARDS ARE PREMATURE.

Newspaper reporters write that the people currently in charge of the federal government are also in charge of California, at least when it comes to automobile pollution. Newspaper headlines blare that the current regime is going to "scrap" or "revoke" (New York Times, which may charge for online access) or "pull" or "end" (Associated Press) California's regulations related to car emissions.

This did not seem right. So I checked it out. I originally began with the concept that perhaps granting waivers from federal pollution standards might be discretionary with the EPA Administrator.

That could have explained these stories and these headlines. Discretion must ordinarily be exercised in good faith so it seemed that this issue may be a good fit with this blog which is about bad faith and good faith. What I found in 45 minutes of research was enlightening. And reassuring.

The Federal Clean Air Act is a statute. Statutes can be changed only by Congress.

So that puts the idea to rest right away of any federal government agencies trying to "scrap" and "pull" any State's laws or regulations. To my knowledge, Congress has not acted to change the Clean Air Act to bar California or any other State from writing regulations that require more protections on automobile emission levels than those who currently occupy the federal government would require.

The Administrator of the Federal Environmental Agency cannot act on her or his own to "scrap" or "pull" California laws or regulations. The EPA Administrator is statutorily authorized to prescribe regulations and standards for automobile emissions. 42 USCA § 7521(a)(2). But the statute allows for differences in regulations and standards. For example, even a motor vehicle manufacturer -- not just a State -- can certify that changes to vehicles will not result in failure to comply with standards promulgated by the EPA Administrator. 42 USCA § 7541(a)(2).

More important, the Administrator "shall" grant a waiver of the federal standards "if the State determines" that the State standards will be "at least as protective of public health and welfare as applicable federal standards." 42 USCA § 7543(b)(1) (emphasis added).

This is mandatory language. It directs the EPA Administrator when and where to grant waivers under the Clean Air Act. It leaves it to the States to determine whether State standards comply and, once that determination is made by the State then the federal official -- the EPA Administrator -- has no discretion but to grant the waiver. The Administrator shall grant a waiver of the federal standards if the State determines that the State standards comply with the Clean Air Act. If the EPA Administrator has no discretion to deny waivers, then the EPA Administrator has no discretion to rescind waivers that have already been given.

Case closed as they say.

Yet there's more. Other States that adopt emissions standards that follow California emissions standards for which a waiver has been granted are automatically qualified for waiver status under the Clean Air Act. 42 USCA § 7507.

Moreover, any person can file a civil action against the Administrator "where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary," 42 USCA § 7604(a)(2) (emphasis added), so that it seems clear that not only does the EPA Administrator not have any discretion to decline -- or rescind -- any waivers but anyone in America can sue if the Administrator fails to grant or uphold waivers for State standards that are at least as stringent as the Clean Air Act would require.

To rephrase a quote from Mark Twain, the reports of the death of California's emission standards are premature.

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FACEBOOK, MEET THY CAMBRIDGE ANALYTICA MATCH. Part Two.

The first of two articles about the same case discussed below, was posted here on September 12, 2019. This is the second article on the subject of the invasion of privacy Multi-District Litigation against Facebook pending in the Northern District of California at this time.

In what appears to be a direct rebuke of one of the Roberts Court's decisions, a Federal District Judge ruled that a class of plaintiffs can sue a company for invasion of privacy because invasion of privacy is both "concrete" and "particularized" enough to sustain a claim. This ruling came despite the District Judge's recognition that the claims alleged against Facebook in this federal lawsuit involve "an intangible privacy injury[.]" In re: Facebook, Inc., Consumer Privacy User Profile Litig., ___ F. Supp. 3d ___, MDL No. 2843, No. 18-md-02843-VC, 2019 WL 4261048, at *9 (N.D. Cal. September 9, 2019) (Chhabria, USDJ).

"This lawsuit, which stems from the Cambridge Analytica scandal, is about Facebook's practice of sharing its users' personal information with third parties." In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *1.

It will be useful to recall the specific allegations in the operative complaint.  Although they were detailed in the first article posted here about this case, for readers' convenience and at risk of seeming repetitive, the specific allegations against Facebook in this case will be repeated in the present article. The plaintiffs alleged four categories of actionable conduct:

The plaintiffs allege that Facebook violated their privacy rights (and other rights) because: (i) they engaged in sensitive communications that included photographs, videos they made, videos they watched, Facebook posts, likes, and private one-on-one messages; (ii) they intended to share these communications only with a particular person or a group of people; (iii) Facebook made those communications widely available to third parties in a variety of ways; and (iv) as a result, third parties were able to develop detailed dossiers on the plaintiffs including information about their locations, their religious and political preferences, their video-watching habits, and other sensitive matters.

In re Facebook Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *9.

In the face of these allegations, Facebook filed a motion to dismiss based on several grounds, one of which we will address in the present article. Facebook advocated that the invasion of privacy lawsuit against it should be dismissed by this federal court because, Facebook argued, "that even if its users had a privacy interest in the information they made available only to friends, there is no standing to sue in federal court because there were no tangible negative consequences from the dissemination of this information."

In this case, the District Court denied Facebook's motion to dismiss and rejected Facebook's standing argument in particular: "That too is wrong." The Federal District Judge explained that "the law has long recognized that a privacy invasion is itself the kind of injury that can be redressed in federal court, even if the invasion does not lead to some secondary economic injury like identity theft." In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *1.

The ruling in this case began with the U.S. Supreme Court's standing requirements, which have come to be known as the Spokeo "injury in fact" requirement. Simply put, the Spokeo decision found a requirement in the U.S. Constitution that a plaintiff in a lawsuit in federal court must allege an actual or concrete injury in order to have a constitutionally required "case or controversy" that a federal court can adjudicate.

The ruling began by pronouncing Spokeo to be "black-letter law[.]" After bowing to the supremacy of the Supreme Court, the District Court proceeded to quote the Supreme Court's Spokeo decision to reject the argument in this particular case that an injury must not only be "concrete" and "particularized," but the alleged injury must always be "tangible," too:

But it’s black-letter law that an injury need not be “tangible” to be cognizable in federal court. Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1549, 194 L.Ed.2d 635 (2016) (“Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.”). And courts have often held that this particular type of intangible injury – disclosure of sensitive private information, even without further consequence – gives rise to Article III standing.

In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *8.

After establishing that at least some so-called intangible injuries can constitutionally be redressed in federal courts, the District Court addressed the twin Spokeo requirements that the alleged injuries be both "concrete" and "particularized."

The injury alleged in this case "is 'concrete' largely for the reasons already discussed," namely, if you use a company's social media platform to share your sensitive information only with your friends, "then you suffer a concrete injury when the company disseminates that information widely."

The alleged injury was "particularized, at least for some of the plaintiffs," because it was allegedly suffered "directly by the individual plaintiff" and was different from the generalized injury "that members of the public at large might have to a defendant's unlawful conduct." In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *9.

"Accordingly, for all the claims addressed by this ruling, Facebook cannot obtain dismissal for lack of Article III standing." In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *10.

Whether and for how long this ruling will survive scrutiny by the Spokeo Court, remains to be seen. For now, this wise ruling is the law that governs at least one company.

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FACEBOOK, MEET THY CAMBRIDGE ANALYTICA MATCH. Part One.

Facebook has been sued for invasion of privacy.  The plaintiffs' allegations "stem[] from the Cambridge Analytica scandal," and their alleged class action "is about Facebook's practice of sharing its users' personal information with third parties."  In re:  Facebook, Inc., Consumer Privacy User Profile Litig., ___ F. Supp. 3d ___, MDL No. 2843, No. 18-md-02843-VC, 2019 WL 4261048, at *1 (N.D. Cal. September 9, 2019) (Chhabria, USDJ).

In particular, the plaintiffs suing Facebook over the infamous Cambridge Analytica scandal and asserting claims over Facebook's reported business model of selling its customers' personal information to third parties, allege four groups of actionable conduct:

The plaintiffs allege that Facebook violated their privacy rights (and other rights) because: (i) they engaged in sensitive communications that included photographs, videos they made, videos they watched, Facebook posts, likes, and private one-on-one messages; (ii) they intended to share these communications only with a particular person or a group of people; (iii) Facebook made those communications widely available to third parties in a variety of ways; and (iv) as a result, third parties were able to develop detailed dossiers on the plaintiffs including information about their locations, their religious and political preferences, their video-watching habits, and other sensitive matters.

In re Facebook Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *9.

In the face of these allegations, Facebook filed a motion to dismiss based on three grounds.  We discuss the first of those grounds here. "First, Facebook argues that people have no legitimate privacy interest in any information they make available to their friends on social media."   In re Facebook Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *1.

Facebook's first argument is simply that they cannot be sued here.  Facebook filed a motion to dismiss the lawsuit -- a lawsuit, recall, that was a result of the Cambridge Analytica revelations about Facebook's reported business practices of selling sensitive information of their customers -- by saying that they, Facebook, simply cannot be sued for what they allegedly did.

The Court's concise rejection of this first Facebook argument is already well-known, that "Facebook's argument could not be more wrong."  

The Court explained why at the outset of its opinion, in a concise and compelling summary followed by the written opinion in this ruling:

When you share sensitive information with a limited audience (especially when you’ve made clear that you intend your audience to be limited), you retain privacy rights and can sue someone for violating them.

In re Facebook Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *1.

Facebook's second argument that it should not be sued in this case is that the plaintiffs did not allege any "concrete" and "particularized" injury, so that even if the plaintiffs suffered an injury otherwise recognized by the law, still they could not sue here in this federal court case because they arguably lacked standing to sue Facebook.  In the next article, we will address that argument and the Court's disposition of it.

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STATE FILED RATE DOCTRINES BELONG TO THE STATES, NOT FEDS.

In Castillo v. Johnson, No. CV-17-04688-PHX-DRY, 2019 WL 4222289, at *1 (D. Ariz. September 5, 2019), a group that the federal judge called "the Bribery Defendants" were sued for racketeering, unjust enrichment, and "conspiring to unlawfully raise utility rates through racketeering, wire fraud, and bribery of a public servant."

In response to these claims, the Bribery Defendants actually alleged that bribing them was immunized by the Filed Rate Doctrine! In other words, the utility rates in question were allegedly subject to approval by an authorized administrative agency, they argued. That meant, according to them, that there could be no claim against them even if they took bribes to charge the approved utility rates.

Well, the long and the short of it is that the federal judge rejected the Bribery Defendants' argument in this case. First, the Federal Filed Rate Doctrine just could not apply in this case. "Because no federal rate is implicated here, the federal filed rate doctrine is inapplicable." Castillo, 2019 WL 4222289, at *3.

Second, whether or not Arizona has its own filed rate doctrine, and whether or not it would apply here anyway, the relevant Arizona administrative authority had already expressly rejected the idea that utility rates in Arizona can be obtained by bribery:

The Court is unpersuaded that Arizona has adopted a version of the filed rate doctrine. Nor is the Court persuaded that the doctrine, assuming one has been adopted, would apply to the type of conduct at issue here. Nevertheless, even assuming that Arizona has adopted a filed rate doctrine and that it applies under these circumstances, the doctrine does not bar Plaintiffs’ claims because the [Arizona Corporation] Commission repudiated the doctrine in this instance. The Court therefore denies the Bribery Defendants’ motion to dismiss.

Castillo, 2019 WL 4222289, at *8. The federal court's three-part analysis of state filed rate doctrine is instructive. First, the court looked to whether the forum state has adopted a version of the filed rate doctrine. In the course of its opinion, the federal court cautioned that this first question cannot be answered simply by resorting to federal filed rate precepts.

Second, the federal court looked to see whether a state filed rate doctrine could be applied on the merits. Even assuming that a state filed rate doctrine could apply to these facts -- after showing that the facts of this case could not support any filed rate doctrine here -- the federal court turned to the last of the trio of questions.

Third and finally, the relevant state administrative agency had already taken action that "repudiated the doctrine in this instance." Simply put, no filed rate doctrine can ever be applied in the face of state administrative agency action that repudiates it in the case at bar.

Those federal litigants and judges who have ears to hear, including in other Circuits that have ruled to the contrary based upon federal and not state filed rate doctrine rules, let them hear the voices of the states about their own filed rate doctrines.

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"IT'S THE QUOTA, STUPID."

Some policies of U.S. Citizenship and Immigration Services (USCIS) may appear to be puzzling at first glance, until you suspect the common denominator hidden among them.  These puzzling policies include denying automatic citizenship to the children of soldiers, sailors, marines and fliers "born abroad to active service members[.]"  Until recently, it was the policy of the United States government that the children of active military personnel serving outside of the United States were automatically citizens of the U.S.A.  They were automatically U.S. citizens every bit as much as if they had been born within the U.S. borders.  However the latest Acting Director of the USCIS, Mr. Kenneth Cuccinelli, backed out of that policy.  See Zolan Kanno-Youngs, Scrutiny Over Scope, and Purpose, of Citizenship Policy, NEW YORK TIMES, Friday, August 30, 2019, p. A18 (the New York Times may charge for online access).

Those puzzling policies also include suddenly refusing permission for children already permitted to receive medical care in the United States, because they are in danger of death without it, to remain in the United States.  Even though deporting them means sending them to their deaths.  See Miriam Jordan and Caitlin Dickerson, Sick Migrants Undergoing Lifesaving Care Can Now Be Deported, NEW YORK TIMES, Friday, August 30, 2019, p. A19.  This too is a change in policy instituted by Mr. Cuccinelli (a/k/a "the Cooch") (it bears repeating:  the New York Times may charge for online access).

But the motivation behind all these policy changes ordered by Kenneth Cuccinelli is almost certainly the same:  A quota.  A quota like the quota supposedly imposed on police officers to hand out tickets.  Whether true or not, that quota always surfaces about police officers (and police officers almost always deny it).  Except in this case it's a quota of reducing the number of people who are in the United States -- or who would be, absent these changes in policy -- other than people who were born here.

So, reporters and journalists trying to cover this story, look for tell-tale signs of quota enforcement:  things like bonuses, promotions, salary increases, and gifts like trips and such, provided by USCIS or any other agency of the current regime to any federal employee who reduces the number of people in the United States who were not born here in the first place.

That may be only the beginning.

P.S. on Tuesday, September 3, 2019:

After reports like the ones linked above were published, USCIS enigmatically announced that they "may" be looking at their deferred medical exemptions policy changes.  Nobody can tell what that means.  See for yourself:  See, e.g., Miriam Jordan, Administration to Reconsider Deportation of Seriously Ill / Program Allowing Care Had Been Eliminated, NEW YORK TIMES, Tuesday, September 3, 2019 (readers be aware:  the New York Times may charge for online access); Priscilla Alvarez, Immigration Agency to Re-Open Some Requests to Defer Deportation, CNN.com posted Monday, September 2, 2019.   Still no word, unfortunately, about the current regime's quota system.  And no word, either, in these articles about Mr. Ken Cuccinelli's hand in these changes in U.S. government policy.

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This article was written before Hurricane Dorian could inflict damage including to the power supply. It has been previously posted for today.

Pre-Dorian Damage Report: FLORIDA "DISINTERESTED APPRAISER."

It has been held that in Florida a "disinterested appraiser" under an insurance contract using that term does not include either "the insureds' agent/public adjuster." See State Farm Fla. Ins. Co. v. Sanders, No. 3D19-927, 2019 WL 3309217, at *1 (Fla. 3d DCA July 24, 2019).

The Florida appellate court actually had to quash a Florida trial judge's order in this case "allowing the insureds' agent/public adjuster to act as their 'disinterested' appraiser." Sanders, 2019 WL 3309217, at *1. Florida is one of the few jurisdictions where there could have been any doubt about that.

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This article was written for posting at this time before Hurricane Dorian inflicted any damage on Florida.

CHALLENGING CFPB's PROPOSED NEW RULE 11.

The Consumer Financial Protection Bureau has proposed a new "Rule 11," in its proposed new rule at 12 CFR 100618(g).  Supposedly the new rule is intended to affect debt collectors under the Fair Debt Collection Practices Act (FDCPA).

CFPB's proposed new rule is not authorized by the Fair Debt Collection Practices Act or otherwise. The proposed new Section 100618(g) regulates attorneys and not debt collectors.

The proposed rule provides immunity to debt collection attorneys, which the CFPB is not authorized to do. It does not "prescribe rules with respect to the collection of debts by debt collectors, as defined[.]" The proposed new rule relies on defining "meaningful attorney involvement case law," but that interpretation is up to judges to decide, and not to the CFPB.

Further, the CFPB's proposed new "Rule 11" in new 12 CFR 100618(g) omits relevant and important safeguards on attorney conduct prescribed by Rule 11 for all forms of attorney conduct in litigation of any kind in federal courts.

These are just some of the problems raised by this new "Rule 11."

Download CHALLENGING CFPB PROPOSED RULE 11 NEW CFR 100618(g).08.19.19.

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