Claims And Issues

WIND 2019: LET THE CONFERENCE BEGIN!

On its website, the Windstorm Insurance Network (WIND) describes itself as "the only member association to bring together both defense and policyholder professionals to connect, learn, and engage on important topics in the property/windstorm insurance claims industry."  I will be taking a look myself this week.

Starting tomorrow, Thursday the last day of January in 2019, and scheduled to continue on Friday, February 1, 2019, I will be attending the sessions I signed up for a couple of months ago.  They include catastrophe claims handling and Hurricane damages coverages.  I would like to meet up with many participants especially the defense and policyholder professionals that make up the announced membership of WIND, in other words, the people who represent the people who make and deny insurance claims every day but especially after Hurricanes and earthquakes and wildfires.

The 20th Annual Windstorm Insurance Conference is set for Jan. ​30 - Feb. 2, 2019 at the Walt Disney ​Dolphin Resort.  (I will not be staying there.  I will drive back and forth from my home in the Orlando area.  It's a lot less expensive.)

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

NEW COMMENTS DEADLINE ON SEX DISCRIMINATION IN EDUCATION! PLUS SUMMARY.

The Federal Government just extended its deadline for comments on its proposed Sex Harassment in Education regulations until January 30, 2019!  Take this as a good sign and leave your comments now at www.regulations.gov.  If the people speak, then even the current Administrative State has to listen by law.  Speak up, leave your comments on Sex Harassment in Education now!

We have been looking at comments since January 25, 2019 through articles posted from time to time since then down through today, January 28, 2019 on Claims and Issues Blog and on Claims and Bad Faith Law Blog.  To summarize them all for ease of reference, we have reviewed comments that:

1. The Department of Education does not have authority to change the statutes Congress voted into law which is what the Department proposes to do with these changes,
2. The proposed new standard of liability which would be imposed on a claimant in order to make a case for sex discrimination in education is so hard to meet that it is inconsistent with the Congressional prohibition in the first place,
3. Not only the Department of Education, but all Federal agencies need to have every tool in their toolkits that they have now in order to enforce the Congressional prohibition on sex discrimination, including in the rare case as it happens, of seeking damages from sexual harassers in education,
4. Keeping the law in place that concerns "religious organizations with contrary religious tenets" having to say how prohibiting sex discrimination is inconsistent with their "religious tenets," instead of letting them keep quiet about this including for example letting them keep quiet during the entire time that they are recruiting students and also not even requiring them to speak before they extend admissions offers, presumably until they get sued if they ever do, and
5. Last but certainly not least, a host of issues with the Department's newly invented Formal Grievance Procedures.

Parenthetically, what is with these people that they have to invent their own justice systems and not use the Courts?  President George W. Bush set up tribunals in Guantanamo from scratch, rather than try the inmates in Federal Courts in public.   Now the Department of Education wants to set up its own tribunals rather than have sexual harassment in education tried in the Courts.  Why don't they want the public to know what they are up to in these cases?  Oh, wait ....

So, make them make it public!  Take advantage of the extra time this extended deadline gives, and leave your comments on Docket ID ED-2018-OCR-0064 at www.regulations.gov.

If you don't do this, who will?

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

SEX HARASSMENT TRIALS IN EDUCATION ... WHY NOT IN FEDERAL COURTS?

The following article is a combination of comments I left on www.regulations.gov earlier today.  Leave your own comments too!  The Docket ID is on this article, immediately below, and GOOD NEWS!  The Federal Government has just extended the deadline for comments to January 30, 2019!   Take this as a good sign and leave your comments now!

 

January 28, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  Your stated authority for them is "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.  These particular comments address the Formal Grievance Procedure you have introduced in your new 34 C.F.R. § 106.45, published in 83 F.R. at 61497-99.  There are a number of problems with this new Formal Grievance Procedure.

Your new Section 106.45(a) provides that "[a] recipient's treatment of the respondent may also constitute discrimination on the basis of sex under Title IX."  83 F.R. at 61497.  However I am not aware of any Court that has ever declared that to be the correct interpretation of Title IX.  To the extent that you introduce this idea in your proposed new regulation, it is contrary to the expressed purpose of Title IX.  Section 1681 is the beginning section of Title 20, United States Code, otherwise known as Title IX.  Section 1681 sets the standard for discrimination in education on the basis of sex.  Subsection (a) could not be more clear:  "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"  This language clearly does not include your proposed education tribunals conducting your new Formal Grievance Procedures.  It is therefore contrary to the statute passed by Congress and, although the law can be changed by vote in Congress, this proposed rewrite of the law cannot be lawfully enacted by a mere administrative agency such as the Department of Education.  Your proposal in this regard is void and cannot be enacted.

You propose a new regulation that "credibility determinations may not be based on a person's status as a complainant, respondent, or witness" in 106.45(b)(1)(ii), published in 83 F.R. at 61497.  Credibility determinations, as you call them, are made all the time in Court by judges and juries based on the bias of the person presenting the evidence.  You did not provide any evidence to support this change.  This change is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It cannot lawfully be enacted and should be withdrawn.

Your proposed new 106.45(b)(iii) requires that certain personnel at academic institutions be given training in "how to conduct an investigation and grievance process, including hearings," among other things.  Yet you do not prescribe what the training will entail nor who is supposed to provide it.  For example, you do not state whether providers of this training will be required to have experience in presenting evidence or conducting hearings in other administrative proceedings.  This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It too cannot lawfully be enacted and should be withdrawn.

You propose a new regulatory requirement that academic institutions conducting a Formal Grievance Procedure must give the alleged sex perpetrator "sufficient time to prepare a response before any initial interview."  § 106.45(b)(2)(B), published in 83 F.R. at 61498 (emphasis added).  This is wrong (and unauthorized) policy-making and bad administrative procedure on your part.  As highlighted by the italicized language, your concern is not with the fundamental fairness of any required hearing, but instead you are fixated on the initial interview.  No person accused of misconduct in any other setting is given advance notice that they are going to be investigated for their alleged misconduct.  The alleged perpetrator may elect to be silent or to assert Constitutional rights of one kind or another, or anything in between, but no person accused of misconduct has ever been given rights to prepare for the initial interview of the investigation against her or him.  Your proposal to the contrary in this regard is not supported by any evidence in any case.  This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It cannot lawfully be enacted and should be withdrawn.

You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education.  § 106.45(b)(3)(vii), published in 83 F.R. at 61498.  Your proposal does not clarify to institutions of higher education what if any procedures they must provide in the course of their providing for the "live hearing" that your regulation would now require.  Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many.  This proposal is unauthorized, and it is contrary to law, and should not be enacted.  It should be withdrawn.

You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education.  § 106.45(b)(3)(vii), published in 83 F.R. at 61498.  Your proposal does not clarify to institutions of higher education what if any essential procedures they must follow in the course of their providing for the new "live hearing."  Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many.  This proposal is unauthorized, and it is contrary to law, and should not be enacted. 

Your proposals regarding new treatment of "evidence of the complainant's sexual behavior or predisposition," also published in § 107.45(b)(3)(vii), are unfounded, unsupported by evidence, and contrary to law.  In particular, "sexual predisposition" is not a valid category of evidence in any judicial or administrative proceedings at this time.  You do not present any evidence to support your rewrite of this category of evidence.  This is bad public policy because the law has always focused on whether an act has taken place and not on whether the person who allegedly committed the act was predisposed to commit it.  This particular proposal also suffers from inequality itself for you did not also make it apply to evidence of the alleged sex perpetrator's "sexual predisposition" to sexually harass other people.  Your proposals in this regard are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, and void.  They should not be enacted.

A judge does not have to explain the basis of her or his rulings on evidence, yet once again also in your new § 106.45(b)(3)(vii), you would require "[t]he decision-maker" at your live Formal Grievance Procedures hearing to "explain to the party's advisor asking cross-examination questions any decision to exclude questions as not relevant."   Your proposal in this regard is contrary to substantive law.  Further, you provide no evidence in support of your proposed change, which is in violation of the Administrative Procedures Act.  The change you propose in this regard is void and should not be enacted.

Your proposed change in the standard of evidence applicable to Title IX proceedings misses the mark completely.  The standard of evidence you propose should apply to Title IX proceedings to determine only whether a person is being excluded from participation in or being denied the benefits of or being subjected to discrimination under any education program or activity receiving Federal financial assistance, "on the basis of sex[.]"  20 U.S.C.A. § 1681(a).  You are not authorized to propose a shifting standard of evidence for determining Title IX claims based on whether the recipient uses the preponderance of the evidence standard, or not, "for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction."  That is however what you propose to do in your new 34 C.F.R. § 106.45(b)(4), 83 F.R. at 61499.  University "code violations" are simply not your concern.  Your concern is strictly with Title IX claims.  Your proposals in question are not authorized and contrary to law.  They should not be enacted.

Similarly, your proposed § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, would require the academic institution to make a written determination including findings of fact, and conclusions "regarding the application of the recipient's code of conduct to the facts[.]"  (Emphasis added.)  To say again, whether the recipient's code of conduct applies is not your concern.  To say it another way, you are not authorized to impose requirements on a recipient based on its own code of conduct.  Your authority is strictly restricted to the application of Title IX to the facts.  You recognized this yourself in your new 34 C.F.R. § 106.45(a) when you stated at the outset that you were addressing sexual harassment that "may constitute discrimination on the basis of sex under Title IX."  Your proposals that follow including in § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, are void, and should not be enacted. 

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

The Federal Government has just extended the comments deadline through January 30, 2019!  I urge you to leave your own comments on www.regulations.gov.  The Docket Number that the Government wants us to use is at the top of this post.  These comments will be made available today both to the readers of Claims and Issues Blog and to the readers of Claims and Bad Faith Law Blog.

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

PUTTING "RELIGIOUS OBJECTIONS" TO SEXUAL HARASSMENT OUT IN THE OPEN.

I left the following comments on www.regulations.gov earlier today concerning the proposal of the Department of Education to enable sexual harassment in education without fear of the Department asking for damages to enforce the law.  You can leave your own comments at any time between now and the end of the deadline on Monday, January 28, 2019.  If you speak up and leave a comment, then by law even the current Federal administrative state is required to hear you.  I urge you to make your voice heard!

January 27, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

 

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.  This comment addresses in particular your proposal to delete existing subsection (b) from 34 C.F.R. § 106.12, published in 83 F.R. at 61496.

Although I have not found any reference to it in your proposed changes, the statute which authorizes religious organization exemptions is 20 U.S.C.A. § 1681(a)(3):

(3) Educational institutions of religious organizations with contrary religious tenets

this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;...

Although the statute does not speak to how the Department or any other Federal agency is to know in advance whether "the application of this subsection would not be consistent with the religious tenets" of any "educational institution which is controlled by a religious organization," the existing regulations do speak to that issue.  Advance knowledge of an organization's "religious tenets" claim can be determinative of whether Federal enforcers of Title IX's mandate will file or proceed with a Title IX enforcement action.

The regulation you want to eliminate is the regulation which provides that advance knowledge.  It is 34 C.F.R. § 106.12(b).  Subsection (b) provides in full as follows at the present time:

(b) Exemption. An educational institution which wishes to claim the exemption set forth in paragraph (a) of this section, shall do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization.

In contrast to the obviously desirable result of preventing unwarranted Title IX enforcement actions to be filed by a Federal agency, thus reducing the respondents' costs and time necessary to defend enforcement actions which might otherwise be unnecessary, you recite that the current regulation is "confusing or burdensome[.]"  83 F.R. at 61482.  This assertion is absurd, in the face of the obviously desirable results that are likely if not certain to follow from the current regulation.  No law should be made including regulatory law which leads to an absurd result.  For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Further, you do not support your proposed changes with evidence either that the current regulation "impose[s] confusing or burdensome requirements" or that your proposed elimination of the current regulation would eliminate those unevidenced "confusing or burdensome requirements[.]"  For that reason, i.e., your failure to comply with the Administrative Procedures Act in this regard, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Moreover, it does not seem on the face of it that a letter to the Assistant Secretary would ever justifiably be characterized as either "confusing" or "burdensome."  That outcome is inconceivable and, in any case, is not supported by facts.  For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Finally, you are mistaken in your seeming belief that the current regulation specifies when an organization needs to make a written statement of the organization's "religious tenets."  The existing regulation does not speak to when.  It speaks to how.  The claim must be "in writing."  For example, the claim cannot be made verbally.  The claim must be made in writing.

The written claim must also identify "a specific tenet of the religious organization."  For example, a written claim based on nothing more than a claim to religious liberty without identifying a specific tenet of the religious organization, would not seem to be nearly enough to assert the "religious tenets" claim.

Nothing about these current requirements of the existing regulation appear to be "confusing" as understood by reasonable persons.  Nothing about them reasonably appears to be "burdensome," either.

For all of these reasons, whether taken separately or together, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.  Copies of these comments are being published on Sunday, January 27, 2019 both on Claims and Issues Blog, and on Claims and Bad Faith Law Blog.

SEXUAL HARASSMENT SHOULD ALWAYS BEAR A PRICE, IF PERMITTED. PERIOD.

I left the following comment on www.regulations.gov earlier today concerning the proposal of the Department of Education to enable sexual harassment in education without fear of the Department asking for damages to enforce the law.  You can leave your own comment at any time between now and the end of the deadline on Monday, January 28, 2019.  If you speak up and leave a comment, then by law even the current Federal administrative state is required to hear you.  I urge you to make your voice heard!

January 27, 2019

Department of Education

www.regulations.gov

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at page 61495.  In particular, this comment addresses your proposed changes to Section 106.3 of the regulations, titled Available Remedies, also published in 83 F.R. at page 61495.

Your proposed changes to Section 106.3 of the regulations are not sustainable as a matter of law and as a matter of law applied to fact. 

First, your proposed changes to Section 106.3 would prohibit the "Assistant Secretary" of the Department of Education (i.e., "the Department") from seeking damages in any proceeding to enforce Title IX.  The purpose for which Congress enacted this statute is clear on its face. 

Section 1681, the beginning section of Title 20, sets the standard for discrimination in education on the basis of sex.  Subsection (a) of 20 U.S.C.A. § could not be more clear:  "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"

There is nothing in the language chosen by Congress to effectuate its purpose that leads to the conclusions you propose as law in your changed Section 106.3, including taking away one of the powers of the Federal Government agencies, which is to seek damages in an appropriate case in order to compel enforcement of the Congressional mandate.  For this reason, your proposed changes to Section 106.3 are not supported either by law or by the law applied to any facts, and they should not be enacted.

Second, as you are aware the Federal Courts are currently instructed to defer to the interpretation given by Federal agencies to the statutes they are called upon to administer.  Your recently suggested interpretation, that Title IX does not allow your Department to seek damages in any proceeding to enforce Title IX, is contrary to the interpretation taken by the Federal Government since Title IX was first enacted nearly 50 years ago.  The existing interpretation is like the statute itself:  If Congress has not affirmatively spoken, one way or the other, about the recovery of damages as a tool in the administrative process of enforcing the mandate of Title IX, then the Department should remain silent itself and not interfere with Congress's own interpretation.  In other words, it is a job for Congress and the Courts, not the Department of Education.

If anything, 50 years of existing interpretation should be given judicial deference over your opportunistically recent one.  For this reason, your proposals to change Section 106.3 of the regulations should be rejected.

Third, your proposals in all of these proposed regulation changes which you published in 83 F.R. from page 61462 through 61499 inclusive, are internally inconsistent.  Your proposed changes would change the standard of liability to "actual knowledge" coupled with "deliberate indifference" in any administrative action brought to enforce the law.   However at the same time you would purport to take away the Department's ability to seek damages.  This is internally inconsistent.  It is also inconsistent with and contrary to the purpose of Title IX, which is quoted above from the statute itself in 20 U.S.C.A. § 1681(a).  For this reason, your proposed changes, including your proposals to change Section 106.3 of the regulations should be rejected as contrary to law and as contrary to law applied to the facts.

For all of these reasons, whether taken separately or together, your proposed changes to Title IX and its existing attendant regulations should not be enacted.  They should each and all be withdrawn or, if not withdrawn, then they should each and all be rejected as contrary to the law and contrary to the law applied to facts.

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.  A version of this article was previously published at Claims and Bad Faith Law Blog.

HOW 5 JUSTICES KEPT BUSY DURING THE FEDERAL GOVERNMENT SHUTDOWN.

You may have heard.  The Federal Government shut down for the past 5 weeks.  During those 5 weeks, 800,000 workers faced callbacks to work without pay or layoffs (called "furloughs").  Many could not pay the bills.  Many took solace in foodbanks.

Others act like they have not heard.  During the shutdown 5 U.S. Supreme Court Justices voted against LGBT citizens serving their country in the Army, Marines, Air Force, Navy, or Coast Guard.  They did not vote against any other activity.  Only against serving their country.  See Adam Liptak, Supreme Court Revives Hurdle to the Military, New York Times, p. A1, Wednesday, January 23, 2019, online version at https://www.nytimes.com/2019/01/22/us/politics/transgender-ban-military-supreme-court.html (subscription may be required by the NYT).

Seriously?

Couldn't the 5 find something else to do with themselves during the shutdown, other than throw more pain into the situation?  Like maybe take some kind of positive action to ease the situation?  Even to delay decisions like this one until after the shutdown ended (as in, "timing is everything")?

Apparently not.

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

THE CURRENT ADMINISTRATIVE STATE CANNOT IMMUNIZE DISCRIMINATION.

This is my second comment on changes to Title IX proposed by the current Department of Education.  The deadline for leaving comments is this coming Monday, January 28, 2019.  You can leave comments 24/7 between now and the end of the deadline at www.regulations.gov.  I am.  You can too.

January 25, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

 

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.

There is nothing in Sections 1681 et seq. of Title 20 that authorizes any of these proposals.  To the contrary, they prohibit the standards you are proposing to govern every form of liability under Title IX.

Specifically, you would require liability for every claim of sexual harassment under any education program or activity receiving Federal financial assistance to depend only on the recipient's (shorthand for our purposes, the school's) "actual knowledge" and the school responded with deliberate indifference.   § 106.44(a), published in 83 F.R. at 61497 (emphasis added).

Your proposed changes would also add a definition of "actual knowledge" which would mean "notice of sexual harassment or allegations of sexual harassment" made "to a recipient's Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient," meaning on behalf of the school, in basic and simple terms.  Your proposed new definition is in your proposed Section 106.30.  It is published in 83 F.R. at 61496.

You say that your proposed changes track Federal case law.  See, e.g., 83 F.R. at 61466-67.  You also expressly make the claim that "[t]he Department's proposed regulations significantly reflect legal precedent[.]"  83 F.R. at 61466.  Yet this is not true.

The standard of liability you propose for all relief is the standard of liability limited by Federal Courts to the issue of liability for money damages.  When a claimant in a lawsuit seeks recovery of damages for a violation of Title IX, then the claimant must show that the recipient, i.e., school, had actual knowledge of the alleged sexual harassment and responded with deliberate indifference.  The Federal Courts do not follow that standard when the claim is for injunctive relief or otherwise to compel compliance with the law, in this case with Title IX.  Your suggestion that your proposed changes "significantly reflect legal precedent" is false and misleading.

You do not have the authority to propose regulations that would not further the expressly announced purpose of Title IX which is to prohibit discrimination on the basis of sex in "any education program or activity receiving Federal assistance," purely and simply.  20 U.S.C.A. § 1681(a).  These words were chosen by Congress to express its intent in enacting Title IX.  You do not have the authority either to change the Congressional intent or to change the statute passed by the representatives of the people of the United States in their Congress.

For these reasons, whether taken separately or together, the administrative standards of liability you propose for any and all forms of liability under Title IX, including but not limited to liability under Title IX for any and all forms of non-monetary relief, are inconsistent with Title IX's mandate that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"  20 U.S.C.A. § 1681(a).

Your proposed standards of liability are therefore contrary to law.

Moreover, you lack the statutory authority to promulgate these standards in any rules or regulations.

As a result, your proposed standards are a nullity.  They should be withdrawn before they are overturned on judicial review.  See 20 U.S.C.A. § 1683.

Thank you for your consideration.

 

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

 

MAKING SEX DISCRIMINATION EASIER WITH YOUR MONEY AND MY MONEY.

This is my first comment against the current administrative state's proposals to immunize discrimination in education  programs and activities funded with money from Federal taxpayers.  You can leave your own comments on these proposals at any time, 24/7, between now and the deadline on Monday, January 28, 2019.  I encourage everyone to go to www.regulations.gov and leave your comments.

January 25, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

 

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.

There is nothing in Sections 1681 et seq. of Title 20 that authorizes these proposals.

Section 1681, the beginning section of Title 20, sets the standard for discrimination in education on the basis of sex.  Subsection (a) could not be more clear:  "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"  Section 1681 does not authorize your proposals.

Section 1682 provides that "[e]ach Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity ... is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders" that are "consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken."  Your proposals (1) are not based on any statute authorizing any financial assistance in education; (2) do not even mention any statute authorizing any financial assistance in education, and (3) are not consistent with the achievement of the objectives of any statute authorizing financial assistance in education.  Section 1681 and Title IX taken together is not a single "statute" and even if they were, they do not confer any authorization for any financial assistance in education or otherwise.  Therefore section 1682 is not a grant of authority to you for your proposals, either.

Section 1683 provides for judicial review.   There is no basis to mis-interpret it as a grant of authority to you to make these proposals.

Title 20 of the U.S. Code finishes with these sections: 
§ 1684. Blindness or visual impairment; prohibition against discrimination; § 1685. Authority under other laws unaffected; § 1686. Interpretation with respect to living facilities; § 1687. Interpretation of “program or activity,” and § 1688. Neutrality with respect to abortion.

None of these provisions are statutes that authorize any financial assistance in education or at all.  Section 1685 appears to come closest to conveying authority based on a quick mis-reading of its title, but upon examination what section 1685 actually says is that your authority under other laws is not affected by Title IX.  That clearly is not a grant of authority in and of itself in any way.  Moreover, you do not base your authority to make these proposals on any law other than Title IX.  To quote your proposals again, you base your authority to make these proposals only on "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.

To summarize, Congress has not given the Department of Education or any other administrative agency the authority to make the proposals to change the law of Title IX that were published at 83 F.R. 61462-61499.  Put another way, Congress did not confer the authority to the Department of Education or any other administrative agency to change the law of Title IX as these proposals would change it, not under "20 U.S.C. 1681 et seq.," and not under any other statute enacted by the representatives of the people of the United States in their Congress.

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

RESIST THE CURRENT ADMINISTRATIVE STATE. COMMENT AGAINST PROPOSALS THAT MAKE DISCRIMINATION EASIER.

They shouldn't be permitted to change laws when they don't have the votes in Congress or in the Courts.

The current administrative state is trying to change the law without Congress and without the Courts.  A good example is any and all of the Department of Education's current proposals to dismantle the law against discrimination in education programs or activities that receive assistance from your Federal tax dollars.

The law is Title IX.  The proposals are published at 83 Federal Register pages 61462-61499.  Monday, January 28, 2019 is the deadline to leave your comment opposing them.

Many people are intimidated when they think about leaving a comment on a Federal agency proposal.  I was intimidated myself before I left my first comment.  The thought of it can stop you from doing it.  Don't let it.

By law, even the current occupiers of the Federal administrative agencies are required to consider everybody's comments before they impose their rules and regulations in final form.  If they don't, then the Courts will make them, at least so far.

So, for these particular proposals here is some information to show you how simple it is to leave your comments:

1. The place to leave your comments electronically is at regulations.gov.
2. Somewhere on your comments refer to these numbers: Docket ID ED-2018-OCR-0064 and, just to be on the safe side, also refer to RIN 1870-AA14.
3. That's it. If they ignore you after that, they intend to.

I will post some of my own comments here so that you can have something to go by.  But do not let my comments get in your way, either.  Remember that my comments, for good or ill as they say, will be comments that are made by a lawyer for that is what I am.  It is enough to say that you are against certain proposals because for example they make it easier to discriminate in education programs that are paid for with your money.  To again be on the safe side, this time take the advice of the Federal Government and mention the specific section or sections of the proposed regulations that your comments address.  This particular proposal is published on the regulations.gov website and you can access it using the Docket ID above.  But if you don't refer to a specific section or sections in your comments, you know what?  The Federal Government is the one making the proposals in the first place, not you.  If the Feds can't figure it out, they shouldn't be proposing changes to the law.

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

THE FINAL INSTALLMENT: BANK DEREGULATION GROWS INTO MASSIVE "CROSS-SELLING."

This is the final installment of an article on the effects of secret financial and credit practices on us all.

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

 

Proposed secrecy orders in the 2015-2016 California lawsuit filed by the L.A. City Attorney.  Many of the changes made by the secrecy agreements in the California lawsuit were made earlier in previous lawsuits, as noted.  Other Rules changes in the agreements signed in this case have not often appeared in other cases, however.

There are three main ways in which the January secrecy agreement validated by the judge in February changes the Rules.  Each change protects the secrecy of just how big the catastrophe really is.  Even as these words are written in this book, it is uncertain whether the full extent of the man-made disaster of alleged cross-selling is known even now.

Again, the Rules were changed by agreement in this case to relieve the L.A. City Attorney's Office and Wells Fargo of any obligation to follow many Rules in this case which apply to other lawsuits.

 

1. The secrecy agreements and proposed orders define "confidential" to mean what the lawyers say it means.  One of the familiar features of secrecy agreements in private litigation is that the definition of exactly what is "confidential" is always what the lawyers say it is.  The agreements do not give much of a definition.

What guidance the agreements do give on what is going to be "confidential" in the present case is certainly not based on judges' decisions in past cases.  The agreements and proposed orders generally say that "confidential" means simply whatever evidence the lawyers choose to mark with the word, "confidential."  This includes documents and testimony in all such cases.

In the case of People of California v. Wells Fargo, a judge signed a proposed order which made this proposed agreement into the judge's ruling.  The February order validating the January secrecy agreement was likely written by the bank.  The judge did not rewrite it.  To the contrary, she took the proposed order, crossed out the word, "proposed," and signed it.  At that point, the stipulation that lawyers wrote became the judge's ruling. 

 The February order which validates the January secrecy stipulation in the People of California v. Wells Fargo case continues down the foggy road of secrecy by adding that "confidential" means any documents or testimony that a party (including its lawyers) "believes in good faith ... is entitled to confidential treatment under applicable law."^[1] 

This includes giving the bank and the L.A. City Attorney in that case "the right to designate as 'Confidential'" any "non-public information," including documents and testimony.^[2]

There is no such thing in the Rules as "non-public information."  The Rules do not even use that term.  Making "non-public information" mean the same thing as protected "confidential" evidence makes it clear that the parties in this case were rewriting the Rules for their own use and, intentionally or not, keeping the evidence away from the eyes of the public.

The people writing the secrecy stipulations in these cases removed any requirement that concealment depends on "good cause shown."  As we have previously discussed on this blog, participants in civil lawsuits in most courts in the United States, including in California,^[3] can ask a judge to protect them from such things as annoyance, embarrassment, oppression, or undue burden or expense.  However, they cannot ask a judge to protect them under any of the Rules from "non-public information" that may find its way into documents and testimony just because the "information" is "not public," as the participants in the People v. Wells Fargo lawsuit wrote here.

Rather, as we have already seen, the Rules generally governing civil litigation require a party withholding documents during discovery to show "good cause" not to disclose them.  Judges ordinarily rule that the party withholding evidence during litigation has to show that the evidence is privileged or protected from disclosure in some legally recognized way.  Trade secrets "or other confidential research, development, or commercial information"^[4] are examples.  "Non-public information" is not.

Over all, the stipulation adopted by a judge's order in February, 2016 in People v. Wells Fargo lines up behind many other secrecy stipulations and orders used in many other jurisdictions.  It restricts the use of any evidence marked "confidential," to the lawsuit in which the stipulation is filed.  It provides that such evidence may not be used for any other purpose "whatsoever."^[5]   This was pretty obviously intended to be taken literally.  It would mean that the only people who can use evidence marked "confidential" in the People of California v. Wells Fargo case in California are the people involved in that case.  No-one else can ever use it, or even see it. Even the people involved in the case named People of California v. Wells Fargo cannot use such "confidential" evidence anywhere else.

So, perhaps it is wrong, after all, to assume without evidence that the L.A. City Attorney's Office shared Wells Fargo's forbidden special interrogatory answers with the federal agencies, or with anyone else.  This is a much more certain way of keeping a secret than asking a judge to apply the law.

In the names of the Bank and of the People, the parties to this case made "competitively sensitive" documents, testimony, and information all secrets they could keep without admitting that any of it was really "competitively sensitive."^[6]   By grafting the concept of keeping "competitively sensitive" secrets to the overall idea of court protection, the parties rewrote the Rules to benefit themselves, or perhaps more accurately, one of them did and the other agreed to it.  The Rules say nothing about keeping evidence from the public because the evidence might be "competitively sensitive," of course. 

What evidence Wells Fargo may have had in the People of California v. Wells Fargo lawsuit is something we may never know.  Wells was granted the "right" in this case by this stipulated secrecy order to conceal whatever it knew.

When the judge signed this stipulation into an order, Wells Fargo's "right" became a ruling and not just an agreement.

2. Under Secrecy agreements and Secrecy orders like the ones in this case, what was marked "confidential" stays "confidential" even if it is put in front of the judge.  California Rules of Court 2.550 and 2.551 were written to cover the case of what evidence can be sealed and how someone can go about asking a judge to seal that evidence.  However, neither of these Rules applies to the evidence exchanged between the parties as a lawsuit goes forward, which again is called discovery.

Under the law of discovery, everybody else drops the argument that they have a "right" to conceal evidence, once they argue that previously concealed evidence is a part of their case.  This includes when they give the judge the evidence they previously marked "confidential" in an effort to get a favorable ruling from the judge on one of their motions. 

Secrecy agreements and their secrecy orders like the ones in this case make the exchange of evidence during litigation more of a joint exercise in concealment than a concerted effort at discovering the truth, or at least discovering evidence.   Using these agreements and orders, people can show concealed evidence to a judge, but not to the public, just by putting the evidence into an envelope marked "CONFIDENTIAL--FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER AND WITHOUT ANY FURTHER SEALING ORDER REQUIRED."^[7]  This simply could not be done without the secrecy agreements and their orders rewriting the Rules.

3. Keeping control over the evidence marked "confidential." The secrecy stipulations in this case, and the January, 2016 agreement in particular, were also written to keep control of the "confidential" evidence after the case was over.  The January stipulation provides that it shall always be "binding" unless the party that designated the evidence as confidential, or a judge, says otherwise.^[8]

It apparently was not enough to make the January stipulation in this case endless, however, even after it became a judge's order in February, 2016.  The agreement and its order also add a provision typically found in secrecy stipulations-turned-into-secrecy-orders in many other cases, to the effect that once the case ends, "confidential" evidence must either be returned to the party that designated it "confidential," or it must be destroyed.^[9]  In short, the people that possess the evidence marked confidential are required to give it up at the end of that case.  They cannot make the evidence public.  The evidence can only be used for that one case.  When that one case ends, then the way that the thinking goes behind the secrecy here, there is no longer any reason to hold onto the evidence.  The public has no interest in it, according to the lawyers who write these agreements, it seems, and the public seemingly has no dog in this fight either, according to the judges who enable this behavior by validating these secrecy agreements.

 

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[1] Stipulation and Protective Order ¶ 1.c., at page 1, entered and filed on February 2, 2016 in People v. Wells Fargo & Co., Case No. BC 580778 (Los Angeles County Superior Court).

 

[2] Id., ¶ 2, at page 2.

 

[3] The California Code of Civil Procedure regulates civil litigation in California courts.  California Code of Civil Procedure § 2031.060(b) provides in part here pertinent as follows in this regard:

(b) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

[Boldface added.]

 

[4] Federal Rule of Civil Procedure 26(c)(1)(G). 

 

[5] Stipulation and Protective Order ¶ 9, at page 6, entered and filed on February 2, 2016 in People v. Wells Fargo & Co., Case No. BC 580778 (Los Angeles County Superior Court).

 

[6] See id., ¶ 11.a, at p. 6.

 

[7] Id., ¶ 18, at p. 8.

 

[8] Id., ¶ 21, at p. 8.

 

[9] Id., ¶ 22, at p. 9.

 

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

 

THE NEXT INSTALLMENT: BANK DEREGULATION GROWS MASSIVE "CROSS-SELLING CLAIMS."

This is the second of three articles in a series revealing secret financial and credit practices that affect us all.

 

"Cross-selling" or selling new products to existing customers has been called "the core of modern-day banking[.]"  Wells Fargo in particular led the way in cross-selling "mortgages, credit cards and auto loans," thereby saving all the costs of acquiring new customers which would have to be incurred before the bank would even have the opportunity to sell them additional products.^[1]

  A reporter, E. Scott Reckard, broke the story of what went wrong when he reported in a newspaper article that in order to meet their sales quotas, Wells Fargo employees opened accounts and ordered credit cards for customers that the customers did not request, did not need, and did not even know about.^[2]

Mr. Reckard's reporting was based, as he himself wrote, on reviewing "internal bank documents and court records" and interviewing "28 former and seven current Wells Fargo employees who worked at bank branches in nine states, including California."  Even a casual reader would also have taken note that the article mentioned at least 10 lawsuits against Wells Fargo as a result of the "cross-selling" quotas Wells imposed on its employees and inflicted on its customers.^[3]

The complaint filed by the City Attorney's Office against Wells Fargo in May, 2015 alleged essentially the same things that were reported in the newspaper a year-and-a-half before.^[4]

Administrative actions opened by two federal agencies, the Consumer Financial Protection Bureau ("CFPB") and the Office of the Comptroller of the Currency ("OCC"), were similarly based on what was reported in the newspapers.^[5]

Both of these federal agencies opened their administrative actions with "Consent Orders" in which they announced their respective settlements with Wells Fargo.^[6] 

In the settlements in September 2016, Wells Fargo only put numbers on "unauthorized deposit accounts" and "unauthorized credit cards," however.  According to Wells Fargo in late 2016, 1,534,280 deposit accounts were opened at Wells Fargo in the names of Wells customers that had not authorized them, between May, 2011 and July, 2015.  The Wells Fargo customers had no idea that this was happening.  It was all done in secret.

Continuing to put numbers on some of these practices, Wells Fargo also told the regulators in September 2016 that "roughly 85,000 of those accounts incurred about $2 million in fees, which [Wells Fargo] is in the process of refunding."^[7]

Wells Fargo was to say later that even more of its customers may have been affected.  Wells wrote later that its internal investigation and reform of cross-selling practices "could lead to, among other things, an increase in the identified number of potentially impacted customers."^[8]

Second, Wells Fargo also informed the regulators that there were 565,443 credit card applications supposedly made by Wells Fargo customers.  Wells's customers did not actually authorize those credit card applications.  At the time the credit card applications were made, hardly any of Wells's customers knew what was going on.

Later, after the settlements of September 2016 with the regulators were all final, Wells announced that it had found another possibly 1 million to 1.5 million more fake accounts, for a total of approximately 3.5 million sham accounts, "a nearly 70 percent increase over the bank's initial estimate" which it had previously stated to the government agencies before it settled with them.^[9]

In September 2016, Wells Fargo agreed with the three government regulators -- the L.A. City Attorney's Office, the CFPB and the OCC -- to pay a total of $185 million in fines and penalties.  As one person described it:  "Wells is paying what amounts to a couple of parking tickets for each of the 1.5 million accounts."^[10]

In a somewhat unusual twist, the information available to the public about Wells Fargo's conduct in this matter was essentially what was reported in the newspapers in the first place.  Wells Fargo did not admit to any wrongdoing in any of its settlements.  Wells Fargo did not admit to any wrongdoing in its settlement with the Los Angeles City Attorney,^[11] or with the CFPB,^[12]  or with the OCC.^[13] 

The allegations that the government regulators made against Wells Fargo tell nothing apart from what was already in the newspapers.  The unusual fact of these settlements is that the alleged perpetrator admitted anything.

However, the City Attorney's Office, at least, had more evidence against Wells Fargo.  Presumably, the City Attorney's Office would have been willing to extend professional courtesy to the CFPB and OCC and share the evidence.  That would have given evidence against Wells Fargo to two federal agencies investigating Wells Fargo in this matter as well as the City Attorney.

We do not know for certain whether the City Attorney shared the evidence.  Nor do we know what the evidence was.  It was kept secret.  The City Attorney agreed with Wells Fargo to keep the evidence secret.  The City Attorney and Wells Fargo further agreed to ask a judge to approve their secrecy agreement.^[14]

The court's electronic docket is a record of everything that was filed in the case.  These events are all listed on that record, such as Wells Fargo's motion to keep its interrogatory responses (written questions with written answers) a secret in June, 2016.  On the other hand, none of the actual materials is publicly available from the court.  The author has sent EMails to the City Attorney's Office requesting copies.  As of the date of this publication, the author has received copies of two Stipulations and two Protective Orders approving them in the case.  One of the orders was entered on February 2, 2016,^[15] and the other order was entered on June 14, 2016.^[16]  Wells Fargo and the City wrote some of their own rules of procedure especially for themselves particularly on the subject of keeping evidence secret in this case.

It is reasonably certain that Wells Fargo was served with written questions to which it would ordinarily be required to respond.   In the Los Angeles City Attorney's case, the questions came in special interrogatories. 

No-one outside of the City Attorney's Office and Wells Fargo, perhaps, knows much about what was in the special questions that the City Attorney served on Wells Fargo in this case.  The City Attorney's special interrogatories must have been very "special."  These questions were specially crafted by the City Attorney's Office to serve on Wells Fargo in this particular case.

Both sides agreed on keeping much of the evidence a secret.  Both sides presented the proposed order to the judge.  Both sides asked the judge to sign it.

The City Attorney's Office and Wells Fargo agreed a second time on keeping the evidence secret.  It may be that Wells Fargo was not convinced that the February Secrecy Order went far enough to keep all of the evidence secret.  For whatever reason, both sides again agreed on keeping evidence a secret, both sides presented another proposed secrecy order to the judge, and both sides asked the judge to sign this one, too.  She did.  Again without changing anything that was proposed to her.

The agreements and the secrecy orders are not available in the Court file.  The author received copies only because the City Attorney's Office provided me with copies of the orders, which no-one can make sense of without having the stipulations too, since the orders did nothing more than approve the stipulations and make them the judge's rulings.

In fact, nothing in the Court file is available that was filed after August, 2015.  It is a fact nonetheless that various documents were filed with the Court in that case from August, 2015 until the case was closed thirteen months later with a judgment agreed upon by the parties.^[17] 

We do not know what Wells Fargo said or how Wells Fargo answered the questions.  Instead, first Wells Fargo asked for confidentiality of its answers and then the City Attorney stipulated to keep this evidence a secret.

The author could not access the motion on the Court's electronic docket, as noted.  The City Attorney's Office sent me copies of the orders and stipulations, but they did not send me copies of Wells Fargo's motion or of Wells Fargo's answers to the special interrogatories, either.  They believed that they could not make Wells's motion publicly available since it might be different from the copy that Wells filed in the Court file.  This is certainly a pickle, to say the least.  Needless to say, perhaps, but the L.A. City Attorney's Office also refused to make Wells Fargo's answers publicly available including to the author.

 

To be continued later this week with THE FINAL INSTALLMENT:  BANK DEREGULATION GROWING MASSIVE "CROSS-SELLING CLAIMS."

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

 

[1] See Michael Corkery, "DealBook / Wells Fargo Fined $185 Million for Fraudulently Opening Accounts" (New York Times Online posted September 8, 2016).

 

[2] Id.

 

[3] Id. 

[4] "In May, 2015, following an extensive investigation precipitated by this [December, 2013] report in the Los Angeles Times, the Office of City Attorney Mike Feuer sued Wells Fargo over allegations of opening unauthorized accounts."  Press Release by Mike Feuer, Los Angeles City Attorney, "Protecting Consumers" (undated), available online at http://www.lacityattorney.org/allegations-against-wells-fargo.

 

[5] There were a few scattered news reports that the OCC was investigating Wells Fargo, along with the Federal Reserve, another agency of the federal government.  There was also rank speculation that if other federal agencies were investigating Wells Fargo, then the CFPB might also be investigating Wells Fargo.  There were no details offered in any of these news reports.  See, e.g., Dan Freed, "U.S. Regulators Probe Wells Fargo Sales Practices - WSJ" (Reuters Online, posted at www.reuters.com on Monday, November 30, 2015); Catherine Phillips, "Wells Fargo Faces Federal Investigation Over Sales Tactics" (posted in the "Northern Californian," posted on Tuesday, December 1, 2015 at www.northerncalifornian.com/local/california); "Wells Fargo's Sales Tactics Are Reportedly Under Investigation" (posted by Bay Area News Group online at www.bayareanewsgroup.com, on Tuesday, December 1, 2015).

 

[6] See the OCC's "Statement Regarding Revocation of Relief to Wells Fargo Bank, N.A., from Certain Regulatory Consequences of Enforcement Actions," dated November 18, 2016, posted online at www.occ.gov/topics/laws-regulations/enforcement-actions/statement-wellsfargo-111816.pdf.  This "Statement" was not easy to find and, to the author's knowledge, it will not be found anywhere else, other than online on the OCC's website. 

 

[7] Consent Order signed September 4, 2016, filed September 8, 2016, in In re Wells Fargo Bank, N.A. (United States of America Consumer Financial Protection Bureau Administrative Proceeding No. 2016-CFPB-0015, paragraph 16 on page 5.  The Consent Order is available online at http://files.consumerfinance.gov/f/documents/092016_cfpb_WFBconsentorder.pdf .

 

[8] Laura J. Keller, "Wells Fargo Warns it May Find More Clients Bilked" (Bloomberg News posted on March 2, 2017), quoting an unidentified Wells Fargo "annual regulatory filing."

 

[9]  Stacey Cowley, "DealBook / Wells Fargo Review Finds 1.4 Million More Suspect Accounts" (New York Times Online, August 31, 2017).  In addition, see, e.g., James Rufus Koren, "Wells Fargo May Have Created 1.4 Million More Unauthorized Accounts Than We Thought, Attorneys Say" (Los Angeles Times Online, May 12, 2017); Kartikay Mehrotra and Laura J. Keller, "Wells Fargo's Fake Accounts Grow to 3.5 Million in Suit" (Bloomberg.com, May 12, 2017); Brian Tayan, "The Wells Fargo Cross-Selling Scandal" (Harvard Law School Forum on Corporate Governance and Financial Regulation, posted on December 19, 2016), available at https://corpgov.law.harvard.edu/2016/12/19/the-wells-fargo-cross-selling-scandal.

 

[10] The author takes sole responsibility for the calculations in the text; they are his alone.  The quote is from Cornell Law School Professor Robert Hockett, quoted by Michael Corkery, "DealBook / Wells Fargo Offers Regrets, But Doesn't Admit Misconduct" (New York Times Online, posted on September 9, 2016).

 

[11] [Proposed] Stipulated Final Judgment signed by the City Attorney and by Wells Fargo on September 1, 2016 in People v. Wells Fargo & Co., Case No. BC 580778 (Los Angeles County Superior Court), at ¶ 5 on page 3, & ¶ 49 on page 13.

 

[12] Stipulation and Consent to the Issuance of a Consent Order, filed on September 8, 2016 in In re Wells Fargo Bank, N.A. (United States of America Consumer Financial Protection Bureau Administrative Proceeding No. 2016-CFPB-0015), ¶ 2, on page 2. 

    

[13] September 6, 2016 Consent Order for a Civil Money Penalty in In re Wells Fargo Bank, N.A., OCC #2016-079, at 1; Stipulation and Consent to the Issuance of a Consent Order in OCC No. AA-EC-2016-66, signed by the Wells Fargo Board of Directors and dated September 1, 2016, but signed by the OCC on September 6, 2016, "Article II / Consent," ¶ (1) at p. 2.

 

[14] The Los Angeles County Superior Court's Online Docket shows the following entry for June 14, 2016:

06/14/2016 Stipulation and Order (REGARDING DEFENDANTS' MOTION TO PRESERVE CONFIDENTIALITY DESIGNATION OF SPECIAL INTERROGATORY RESPONSES (FIRST SET)

Filed by Attorney for Plaintiff/Petitioner[.]

 

[15] Stipulation and Protective Order entered and filed on February 2, 2016 in People v. Wells Fargo & Co., Case No. BC 580778 (Los Angeles County Superior Court).

 

[16] Stipulation signed May 26, 2016 with Order entered on June 14, 2016, filed together on June 14, 2016 in the same case.

 

[17] See EMail from the Los Angeles City Attorney's Office to the author, Wednesday, March 1, 2017, on file with the author.

 

To be continued later this week with THE FINAL INSTALLMENT:  BANK DEREGULATION GROWING MASSIVE "CROSS-SELLING CLAIMS."

 

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

WITH THIS FEDERAL GOVERNMENT, IS IT always WHO YOU KNOW?

"There is supposed to be a principle that agencies are shut, with the exception of essential personnel there for public safety.

When that bright line disappears, you get inequities across agencies, and that feels like where we are."

Douglas Holtz-Eakin, quoted by Lisa Rein, Juliet Eilperin, and Jeff Stein, in

"We're Left in The Dark":  As Many Industries Get Shutdown Relief,

Those Without Political Clout Feel Left Behind,

Washington Post Online, January 19, 2019, who describe

Mr. Holtz-Eakin as "an economic policy expert and president of

the American Action Forum, a conservative think tank."

 

When the Federal Government shut down in the past, whatever the sins of a shutdown it seemed like at least the burdens fell more or less equally on us all.

The current Federal Government shutdown is setting records, and not only for the long time that it has lasted.  It is setting records for proving that you have to have political power in Washington these days or you lose completely and totally.  They are making it increasingly clear by the day that you stand to be hurt badly if, heaven help you, you are not on their team.

The linked report from the Washington Post this weekend put it this way:  "The haphazard aspect of what services are getting restored has fueled a sense that the shutdown, in many cases, has been more painful for those without political power, critics said."  Washington Post, supra.

See also MORTGAGE FRAUD CONTINUES.  OTHERWISE FEDERAL LAYOFFS CONTINUE TOO.  SOMETIMES, published on Claims and Bad Faith Law Blog, January 15, 2019.  In that blog article, possible solutions to the shutdown were suggested including for a mandatory injunction and equal protection.  As these suggestions stated, the idea is to pay all people called back to work by the current Federal Government, not just some.

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

REPORTING CONTRADICTED BY FACTS ON THE GROUND: WOMEN'S MARCH 2019.

I watched and listened to the Women's March yesterday on YouTube.  As these words are written, yesterday was Saturday, January 19, 2019.

I am glad that I watched the Women's March on YouTube.  As far as my untrained eye could see, it was a big success and there were lots of people marching.

I could see and hear for myself what went on, or at least what was uploaded and televised.  On the other hand, if I had waited for the corporate media accounts, I would not know much at all.  To read the reporting is the opposite of the photographs of the attendance at the Women's March this year, sort of the opposite of hearing certain huge crowd estimates of the inauguration the day before the first Women's March and comparing those estimates to the actual photographs.

The marchers and the speakers that I saw and heard embraced everyone:  Jews, Christians, atheists, agnostics, Black, White, Hispanic, straight people, gay people  -- everyone.  They were united in their affirmation of democracy and their rejection of autocracy for all people.

They overcame their differences at the Women's March in 2019.  Just as they overcame all their differences in 2017 and in 2018.

The corporate media did not overcome their differences, though.  They refused to admit their own shortcomings as usual.  This year, they buried their accounts deep in their reporting which mostly confirmed their tired and untrue storylines, repeated without a lot of evidence once again.  In fact, much of the reporting published after the March looks like it was written before the March.

A Washington Post report estimated the crowd size at 100,000 in the cold and in the shutdown which meant that snow was still on the ground because there were no snowplows to remove it.  Supporting marches in dozens of other U.S. cities were called "parallel marches."  See Ashraf Khalil, Associated Press / A Scaled-Down, But Still Angry, Women’s March Returns, published in The Washington Post Online, January 19, 2019.

Jose Luis Magana / Associated Press

For an alternative example, The New York Times report repeated its previous storylines and led with a new claim, which was that crowds appeared to be smaller than at the first March in 2017.  However, the Times avoided reporting any crowd estimates.  At least the NYT report noted that turnout increased as the morning went on.  Supporting marches in other U.S. cities were reported as "rival marches."   See Michael Wines and Farah Stockman, Smaller Crowds Turn Out for Third Annual Women’s March Events, New York Times Online, January 19, 2019.

Sarah Silbiger / New York Times

 

Thank the good Lord for the evidence of our own senses.  Thank the good Lord for the Women's March for democracy for all of our country's people.

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

BANK DEREGULATION BREAKING INTO MASSIVE "CROSS-SELLING" CLAIMS.

This is the first of three installments of an article on the effects of how secret financial and credit  practices affect us all.

We begin this article with a recent and notorious example, the well-publicized settlements of "cross-selling" accusations against a bank in September 2016.  Other accusations have surfaced since, against the same bank and others.  A major difference between the accusations involving Wells Fargo's sales practices, and the sales practices employed at other banks, incredibly enough, is that more is known about the accusations involving Wells Fargo's sales practices than about other banks' sales practices because in June 2018 the Federal Government kept the other banks' sales practices secret.[1] So far these are only accusations mixed with some admissions, as will be explained further below.  Reported accusations include Wells Fargo's alleged practices of:

• Denying student loans to immigrants.
• Imposing unnecessary automobile insurance premiums on auto loans, a program which the bank reportedly discontinued at about the same time as it settled regulators' cross-selling accusations in September 2016.
• Requiring customers to purchase an additional kind of insurance to protect the bank from the consequences of making loans to buy automobiles, called "guaranteed auto protection insurance," and
• Marketing life insurance policies for Prudential Insurance Company and perhaps other insurance companies by withdrawing premiums from customers' bank accounts without the customers' knowledge or consent.^[2]

These business practices accusations have understandably been observed by other businesses.  In mid-January 2019, the Bureau of Consumer Financial Protection and the State of New York sued a corporation that "operates roughly 1,500 jewelry stores in malls and off-mall locations in all 50 states," doing business under many names including Kay Jewelers and Jared.

The regulators' lawsuit alleged:

• Sterling tied bonuses to the numbers of customers who applied for credit cards, allegedly resulting in "over one million Sterling credit-card accounts" from 2013 through 2017 which were never used by customers, and
• Sterling also allegedly tied insurance premiums to customers' credit cards. Sterling allegedly required its employees to charge credit customers for "Payment Protection Plan (PPP) insurance" in 33 states, generating "more than $60 million in revenues" in one year alone.  PPP was insurance to protect Sterling in the event that customers did not make their credit-card payments under certain circumstances.  It was added to many customers' bills without the customers' knowledge or consent.  "In states where PPP insurance was offered, Sterling's employees were required to enroll customers in it to meet company performance standards."[3]
• The regulators proposed an (unsigned) Stipulated Final Judgment and Order on the same day that they filed their complaint regarding these alleged practices. In the proposed stipulation, before offsets or reductions, if any, Sterling would pay "a civil monetary penalty of $10 million to the Bureau" and "a civil monetary penalty of $1 million to the State of New York."  Sterling would "neither admit nor deny" these allegations and the stipulation would be "without adjudication of any issue of fact or law[.]"[4]

In this section, however, we will concentrate on one bank's settlements with regulators of "cross-selling" accusations in September 2016.  The bank in question is Wells Fargo.

Further, as the current article focuses on regulators' settlements of cross-selling accusations, a separate class action was also settled in the Summer of 2017 with Wells Fargo over substantially the same class of allegations and claims.  In that class-action settlement, Wells reportedly paid $142 Million in addition to the $185 Million supposedly paid to regulators in Wells's settlements of basically the same allegations.^[5]   To say again, the allegations brought by the regulators and the ways in which Wells settled the regulators' accusations are the focus of this article to the extent of focusing a spotlight on the many ways that regulatory actions in particular are kept away from the eyes of the taxpayers that pay for them.

In all these examples, there is one main question common to them all.  Public funds pay for all courts' budgets.  Private parties do not fund the budgets of any of our courts, State or Federal.  So, one of the central issues, perhaps the one central issue of secrecy in litigation in particular, is to ask in each case why should any party's privacy be protected at public expense?

In each case, the evidence against the defendants-respondents was also kept a secret.  The settlement papers required that the evidence be kept secret.  Since secrecy was imposed by stipulation, meaning that it was imposed by agreement, there was ordinarily no-one who was in a position to ask any other court to take a look at the secrecy rules they wrote.  Since they re-wrote the rules on secrecy in an agreement everyone signed, no-one was left to appeal.

In each case, the result is the thing that tells the tale of why secrecy was so cherished in these cases.  In each case, a secrecy agreement or stipulation came first, then came a settlement agreement.  There would never be a trial in any of these cases.  No-one would ever hear the testimony or see the evidence who did not sign an agreement to keep that testimony and the other evidence a secret.

  The defendants or respondents in all of the settlements discussed in the remainder of this article happen to be banks.  That may be a coincidence in one sense, because many other large corporations and wealthy individuals settle for secrecy, and many of those settlements are discussed in other sections of this book.

If anything, most of the recent settlements discussed in this article generally follow the lead of other persons in other cases who settled with secrecy in order to get the immunity that settlements can give.

To be continued later this week ....

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[1] See, e.g., David Dayen, For Big Banks, Breaking the Rules is a Trade Secret, Los Angeles Times Online, June 18, 2018, available at http://www.latimes.com/opinion/op-ed/la-oe-dayen-banks-regulation-20180618-story.html; Kevin Wack, Wells Fargo Not Alone:  OCC Finds Sales Abuses at Other Banks, American Banker, June 5, 2018, available at https://www.americanbanker.com/news/not-just-wells-fargo-occ-finds-sales-practice-abuses-at-other-banks

(subscription may be required).

 

[2] Denying student loans to immigrants:  See "Lawsuit Accuses Wells Fargo of Denying Student Loans to Young Immigrants" (Associated Press copyrighted story published in the Los Angeles Times Online on January 30, 2017).

Unnecessary automobile insurance:  See, e.g., Kristin Broughton, "Do Problems With Lender-Placed Auto Insurance Go Beyond Wells?" (American Banker Online, published August 8, 2017); Alexa D'Angelo and James Rufus Koren, "Wells Fargo Charged Customers for Unneeded Auto Insurance -- Then Repossessed Their Cars" (Los Angeles Times Online, July 28, 2017); Gretchen Morgenson, "Business Day / Regulator Blasts Wells Fargo for Deceptive Auto Insurance Program" (New York Times Online, October 20, 2017), available at https://nyti.ms/212UlaT; Gretchen Morgenson, "Business Day / Fair Game / Wells Fargo Borrower Go Unneeded Insurance, and Ruined Credit" (New York Times Online, August 18, 2017);  Gretchen Morgenson, "Business Day / Wells Fargo Forced Unwanted Auto Insurance on Borrowers" (New York Times Online, July 27, 2017); Dennis J. Wall, "Auto-Lender Force-Placed Insurance?  Shh ... It's a Secret" published on Claims and Issues Blog on July 31, 2017, available at https://claimsissues.typepad.com/insurance_claims_and_issu/2017/07/auto-lender-force-placed-insurance-shh-its-a-secret.html.

Wells Fargo discontinued its auto insurance program in September 2016:   "Wells Fargo Customers Sue Claiming Insurance Scheme Was Scam" (American Banker Online, July 31, 2017).

Wells's sale of guaranteed auto protection insurance or "GAP"; Gretchen Morgenson, "Business Day / Wells Fargo, Awash in Scandal, Faces Violations Over Car Insurance Proceeds" (New York Times Online, August 7, 2017), available at https://nyti.ms/2uARoTl.

Wells's sale of Prudential life insurance policies:  Stacy Cowley, "DealBook / Prudential Suspends Sales of its Life Insurance Policies by Wells Fargo" (New York Times Online, December 12, 2016), available at http://nyti.ms/2gyWE8w (subscription may be required); Stacy Cowley and Matthew Goldstein, "DealBook / Accusations of Fraud at Wells Fargo Spread to Sham Insurance Policies" (New York Times Online, December 9, 2016), available at http://nyti.ms/2h7JY7i (subscription may be required); James Rufus Koren, "California to Investigate Prudential Insurance Policies Sold Through Wells Fargo" (Los Angeles Times Online, December 12, 2016); Dennis J. Wall, "Postscript to Prudential Investigated Wells Fargo's 'ROI' Policies.  Guess What They Found?" published on Claims and Issues Blog on December 14, 2016, available at http://claimsissues.typepad.com/insurance_claims_and_issu/2016/12/postscript-to-prudential-investigated-wells-fargos-roi-policies-guess-what-they-found-in-a-somewhat-belated-reaction-prud.html.

           

[3] Bureau of Consumer Financial Protection and the People of the State of New York v. Sterling Jewelers, Inc., Complaint, Doc. No. 1, filed January 16, 2019 (S.D.N.Y. Case No. 1:19-cv-00448-LGS).  Particular sources within the complaint for the allegations and other references in the text, above, are as follows.

 

Sterling operates roughly 1,500 jewelry stores in all 50 states including Kay Jewelers and Jared: Id., ¶ 1, at p. 1.

 

            Bonuses were tied to credit card applications and over one million Sterling credit-card accounts were opened between 2013 and 2017 and never used by customers:  Id., ¶¶ 31 and 32, at p. 7.

 

            Payment Protection Plan insurance allegations including "$60 million in revenues' in a single year:  Id., ¶¶ 40-42, at pp. 8-9.

 

            "In states where PPP insurance was offered, Sterling's employees were required to enroll customers in it to meet company performance standards.":  Id., ¶ 44, at p. 9.

 

            In many instances, PPP was billed to customers without their knowledge or consent:  Id., ¶ 48, at p. 10.

 

 

[4] Bureau of Consumer Financial Protection and the People of the State of New York v. Sterling Jewelers, Inc., Proposed Stipulated Final Judgment and Order, Doc. No. 3, filed January 16, 2019 (S.D.N.Y. Case No. 1:19-cv-00448-LGS).

 

            Without adjudication of any issue of fact or law:  Unnumbered paragraph on p.1.

 

            Sterling neither admits nor denies:  "FINDINGS," ¶ 4, at p.2.

 

            $10 million "civil money penalty" payable "to the Bureau":  ¶ 12, at p. 7.

 

            $1 million "civil money penalty payable to "the State of New York":  ¶ 16, at p. 8.

 

This action, if it remains viable as it probably will, is best summarized in the unnumbered opening paragraph on the first page of this Proposed Stipulated Final Judgment and Order.  This summary reveals the extreme similarities with the bank's alleged business practices which are noted in the text.

The proposed final judgment in question recites that this is an action concerning, in pertinent part, "submitting credit applications for consumers and causing credit cards to be issued without consumers' knowledge or consent," and "enrolling consumers in payment-protection insurance without their knowledge or consent."  The Public Access to [Federal] Court Electronic Records portal lists many issues on the electronic docket of this matter concerning the viability of this action, including whether the filing attorney will be admitted pro hac vice, but these issues will probably all be resolved and the action will likely proceed to its stipulated conclusion.

             

[5] See, e.g., Martin Crutsinger, "Federal Reserve Imposes New Penalties on Wells Fargo" (Associated Press copyrighted story published in The Boston Globe Online, February 2, 2018); James Rufus Koren, "Wells Fargo Guarantees Settlement Will Repay All Customers Hurt by Unauthorized Accounts" (Los Angeles Times Online, June 14, 2017), available at  http://www.latimes.com/business/la-fi-wells-fargo-guarantee-20170613-story.html; James Rufus Koren, "Judge Questions Wells Fargo's $142-Million Class-Action Settlement Over Sham Accounts" (Los Angeles Times Online, May 17, 2017), available at http://www.latimes.com/business/la-fi-wells-fargo-settlement-20170517-story.html; David Ng, "Judge Approves $142-Million Class-Action Settlement in Wells Fargo Sham Accounts Scandal" (Los Angeles Times Online, July 9, 2017).

To be continued ....

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WHY DO MISOGYNISTS TELL ANTI-SEMITIC STORIES ABOUT THE WOMEN'S MARCH?

BECAUSE THE MOVEMENT IS SO SUCCESSFUL THEY CAN'T STAND IT.

  The 2019 Women's March is scheduled for Saturday, January 19th.

Women's March in Washington, D.C. 2017.  Photograph via Wikipedia.

Headlines in the corporate media spread the lie that the Women's March is Anti-Semitic.  The headlines all seem to come from the same story from one person.  It appears that one person was sidelined from the leadership of the Women's March.

That one person happens to be Jewish.

Remarks were made.  Tempers flared.  That one person was sidelined.

Well, according to the reports of that one person, the story has spread without much inspection that the Women's March must be Anti-Semitic because she herself is Jewish and she herself is not included.  So far as I have seen, there are no other witnesses to testify against the Women's March.

The truth has been and continues to be that the Women's March has been a wildly successful, bipartisan sign of resistance to authoritarians and other misogynists.  A sign of resistance by Jews and by everyone else, all alike, all marching together.

What do you expect but that misogynists would now spread stories about the resistance in general and about the Women's March in particular?

Check the stories out.  Find out the facts behind the stories. 

And then for the sake of this nation -- all of this nation -- continue to March.

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IT'S CLEAR THAT THIS PERSON HAS NEVER BEEN A PARENT.

The Current Head of Homeland Security at the border with unknown others.

  Photo by Chris Stone.

It is clear that the current head of Homeland Security has never been a parent.

When two children died in DHS custody in December, she blamed the children and their parents.

When Border Patrol agents under DHS tear-gassed mothers and children in December, DHS blamed the parents again, this time for throwing their children over a border wall that actually is in place and throwing rocks -- all apparently just out of camera range because there have never been any photographs of this conduct that I have seen, photographs of children or rocks being thrown I mean, although I have seen photographs of the Border Patrol tear-gassing mothers and their children.

Finally, for months the head of DHS has bemoaned the "crisis" at the U.S. border with Mexico, a crisis she says is caused by the parents and their children who want to leave violence and death behind for a better future.

To say again, it is clear that the current head of Homeland Security has never been a parent.

See also Miriam Jordan, Detaining Migrant Children, With No Oversight, New York Times Online, Wednesday, January 16, 2019, posted online with the title, Trump Administration to Nearly Double Size of Detention Center for Migrant Teenagers.

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COURT WON'T STOP FEDS FORCING WORK WITHOUT PAY. FEDS LISTENED.

On January 15, 2019 a federal judge refused to stop the Federal Government from making federal workers work without a paycheck.  The ruling came on a request for a temporary injunction so it is not the best precedent for anything, but still the Feds listened.

Later the same day the current Federal Government mandated thousands of federal workers to return to work without pay.  Why?  To soften the political effects for their decision to shut down the Federal Government.

Mr. Dooley famously said that the supreme court pays attention to the election returns.  Now we have a Federal Government that runs only when media reports are favorable to them.

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USA NEEDS AN ALTERNATIVE FOX THAT SPEAKS TRUTH.

Photograph / NASA.

We have a truth gap.

The people who say things in public say them so fast that sometimes it seems that their lives depend on it.  (Maybe their lives or at least their current gigs do depend on it.  We will have to see, as they say.)

They have no opposition.  No-one talks back right away.   Responses are usually so-called fact-checking, which is another way of saying that hardly anybody pays attention to them.  The responses do not come out until later anyway.  Sometimes not until much later.

MSNBC is fine in its own way, but we do not need opinions as much as we need reporting of the truth.  There are many positive things to report and many truthful things to say about a lot of subjects.  What we need is more like Rachel Maddow when she is in her reporting mode, than any of the 'shows' that are shown on her network on any given weeknight before her show airs.

To say again, we have a truth gap.  Without truth, lies fill the airwaves and the air.  That is a truth gap.

There are reportedly billionaires ready to spend lots of money on progressive agendas.  Unfortunately, the agendas seem to be mostly their own, whether it's Tom Steyer or George Soros or whoever.

Suggestion:  Whattabout an alternative Fox network?  (They love "whattabouts," as in "whattabout" this, and "whattabout" that.)  An alternative that speaks truth.

Have it ready to release prepared videos at crucial moments.  Such as after the usual early morning tweet storms and friends on Fox.  Respond to every single one of them.

Take a hard-earned lesson from the Obama campaigns.  Respond immediately to everything.  Don't let the other side fill either the air or the airwaves.  If people are going to repeat what the other side says, make your own story available right away so that by the time people are talking about it, they have to talk about what you said too.

Program the network the rest of the time with positive, family friendly shows, and be prepared at all times for "breaking news" which would actually be breaking news and not just the little chyrons (if that's what you call them) that roll across the bottom of our TV screens to tell us so often and so frequently about things that are neither breaking nor news.

You can do it, people.

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IN THE MEANTIME, THE NEW "POLICE" ARE DOING THIS WITHOUT PAY.

Though not for free exactly.

Two class actions lawsuits have been filed against the current regime asking that federal judges declare that the plaintiffs, who are federal employees, should be paid.   See Deanna Paul, Border Protection Officers Sue Trump Administration Over Pay Missed During Shutdown, Washington Post Online, Thursday, January 10, 2019.

In the latest lawsuit, the plaintiffs are U.S. Customs and Border Protection officers.  See id.  The earlier class action was filed by other federal workers who are not being paid, but unlike the Customs and Border Protection officers, the plaintiffs in the earlier case belong to the American Federation of Government Employees.

Here is what Customs and Border Protection officers are doing in the meantime, without being paid for it:

Download AFP. Getty Images

AFP/Getty Images

 

None dare cry "POLICE."

Unless they themselves are willing to legally pay for it.

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MORE OF YOUR FEDERAL AGENTS AT THE BORDER. CRY "POLICE"!

                            Doug Mills/The New York Times

                At the border with Mexico on Thursday, January 10, 2019.

 

Say "hello" again to your federal agents.  These are your "POLICE" now.

 

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WHEN JUDGES AND LAWYERS KEEP SECRETS FROM ... YOU continued.

Continued from Monday, January 7, 2019.

How proposed orders are now used to keep evidence concealed in many cases. There was a January secrecy agreement and a proposed order in it that Wells Fargo and the City of Los Angeles filed together in the lawsuit.  It runs on the same tracks as many relatively "new" but increasing practices over the past 25 or 30 years.

    Modern cases routinely involve secrecy agreements written by large corporate defendants such as banks or products manufacturers.  Their agreements or, as lawyers call them, stipulations, are proposed with the agreement of the lawyers who represent the individuals suing these "Goliaths."  The defendants involved have huge financial resources and large law firms at their disposal, whereas the individuals suing them mostly do not.

    These secrecy agreements all have proposed secrecy orders written into them.  Individuals and their lawyers participate in these secrecy stipulations for more than one reason, of course.  Chief among the reasons is their comparative disadvantage in contesting every single piece of evidence, one piece at a time, or alternatively marking categories of evidence which is alike because the things in those categories arguably contain good cause to keep them secret.  Good cause.  Shown to the judge.  This much is what the law calls for in just about every kind of case -- unless there is a secrecy agreement with a proposed order written into it that does not require a showing of good cause other than a lawyer's say-so.

    Every adversary of large businesses and wealthy individuals in litigation has an incentive not to spend too much time and money arguing about them.  Large businesses like banks and insurance companies almost always have larger budgets for litigation than the individuals opposing them.  Wealthy individuals involved in litigation similarly tend to have big litigation budgets.  

    In some cases it is pretty clear to experienced observers that the plan at work is correctly called "litigation by attrition":  The plan in those cases is to wear adversaries down especially to achieve goals in the lawsuit.  I have not personally seen nor am I otherwise aware by any means that all large businesses and wealthy individuals follow litigation plans like this.

    However I have personally seen and I am otherwise aware that many do.  When they do, they are not shy about letting their adversaries know it.   Whether you like it or not, that is how lawsuits are tried now and how they have been tried for decades.

    The cure is close at hand.  It is for judges and lawyers to follow the law as it exists right now.  The law requires that good cause must be shown in order to keep information in court files secret.  The law should be applied in every case -- regardless of lawyers and their clients agreeing to choose their own substitute law.

    Judges and lawyers would profit from the results.  So would the public.

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NCIS INVESTIGATES ANOTHER UNSCRIPTED MURDER.

Going off script, yet another team of "special ops" people are accused of yet another murder.  NCIS is investigating.

This comes on top of an alleged murder by other "special ops" teams of a Green Beret, and "crimes in Iraq, Afghanistan and the United States".  Thomas Gibbons-Neff, Two Marines And Navy Sailor Are Investigated in Contractor's Death, New York Times, p. A6, Tuesday, January 8, 2019.

Not every soldier, marine, sailor or air guard commits crimes.  Not every special ops team commits murder.

But this is no defense to even one murder by the comparative few who are accused of murders.

Let alone as many as there have been recently.

What will these individuals who commit crimes without orders do if they are actually ordered to commit crimes?

Is that really a question?

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WHEN JUDGES AND LAWYERS AGREE TO KEEP SECRETS FROM ... YOU.

Proposing orders to judges took on a different look sometime not so long ago.  Instead of saying what the judge has already ruled, as they were meant to do, proposed orders now provide an excuse for secrecy intentionally or unintentionally approved by a judge.

    Often, allegedly harmful conduct that was secret will remain secret even when a lawsuit is filed or an administrative agency action is brought.  Often, allegedly harmful secret conduct will remain secret with a judge's approval.

    This was the case in the People of California v. Wells Fargo lawsuit filed by the City Attorney of Los Angeles.  That lawsuit involved allegations that Wells secretly stuck its customers with fees for accounts that the customers did not want or that Wells sold its customers on accounts the customers just did not need.  These sales tactics were called "cross-selling" because different kinds of accounts were sold to customers who held other kinds of accounts 'across' the bank.

    There was little if any proof in the Court file of the California v. Wells Fargo lawsuit that Wells did these things, and certainly there was no proof introduced into evidence at trial in that case because there was no trial in that case.  It was settled before it went to trial.

    It is also the case in two enforcement actions brought by two federal agencies, the Consumer Financial Protection Bureau and the Office of the Comptroller of the Currency.  All three of these proceedings -- one lawsuit and two agency actions -- ended with a settlement with Wells Fargo in which its allegedly bad secret conduct remained a secret anyway.  Far more often than not, the defendant or respondent accused of secret harmful conduct will settle and the evidence of its conduct will be kept secret.  Generally, the most that the public knows in that event are just the accusations.

    That is how a proposed protective order works.  It is nothing but an order to protect evidence by concealing it, that the lawyers all agree on, before they submit it to the judge to sign.  These stipulated protective orders are written for secrecy, and they often succeed.

    That is not how proposed orders were ever meant to work.

To be continued....

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THESE ARE YOUR "POLICE" NOW.

                            Evan Vucci/AP.

 

Between the testimony of the President of the United States and newspaper reports, the skinhead men in this photograph have been identified as belonging to the United States Border Patrol and the United States Immigration and Customs Enforcement Service or "ICE."  Both of these organizations of course insist on the right to wear the word "POLICE" on their uniforms, having sued in courts for that right.

The unhappy-looking woman in this photograph has not yet been identified.

Here is another photograph of the same President with the same skinhead men, taken by the same photographer on January 3, 2019 in the White House Briefing Room:

                                Evan Vucci/AP.

Say "hello" to your Federal Agents.  These are your police now. 

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BURIED IN THE NEWSPAPERS.

If they even report on it.

Agents of the United States have again tear gassed civilians in a foreign country.  The civilians were immigrants in Mexico.

This is apparently no longer news for the corporate media.  The New York Times buried a report on it on page A7.  See Alan Yuhas, U.S. Agents Send Tear Gas Across Border, New York Times, p. A7, Wednesday, January 2, 2019, published online with a slightly different headline, U.S. Agents Fire Tear Gas Across Mexican Border.  (The A section of today's Times has 20 pages.  We're over 1/3 of the way to the end of the A section with this news.)

That is better than the Orlando Sentinel this morning.  And I suspect, better than many other newspapers that passed on the story.  The incident on the border this time did not make news big enough to report in this morning's paper at all.  (To its credit, though, the Sentinel did publish an Associated Press article on the front page, titled ICE Draws Mounting Scrutiny, Criticism, Orlando Sentinel, p. A1, Wednesday, January 2, 2019.  I would link to the online version here but the Orlando Sentinel makes that too darn hard.)

Almost all of the information in what actually has been published comes from the same Federal agency that gassed the people, such as that the immigrants threw rocks at Border Patrol agents who had weapons, that the immigrants endangered tiny children by hoisting them over fences at the border, and that none of the Federal agents said that they saw any migrants or children "experiencing effects of the chemical agents," even though they fired three volleys of the stuff at them.

Parenthetically, the information that the Feds fired three volleys of "chemical agents" a/k/a tear gas comes from an Associated Press report briefly cited in the Times article.  A question not raised in any article so far, however, is why do the agents fire tear gas at all if it has no effect?

Curiously, the Federal Government provided photos for the newspapers to publish but not one of the photos displays anyone throwing rocks, or shows anyone in the act of hoisting children large or small over any fences.  The Feds do have photos of lots of other things, however.

How come the Feds have no photos of the supposed rock throwers who caused the Feds to tear gas civilians?

Why is it that the Federal agents do not have any pictures of children, whether or not the children were scaling walls or being thrown over fences?

How has it come to be that the corporate media prints these stories and no longer actually reports them?

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"HARASSMENT BY JUDGES MUST STOP, ROBERTS SAYS."

The title of this article is the same as the title of the column by Adam Liptak, Harassment by Judges Must Stop, Roberts Says, New York Times, p. A12, Tuesday, January 1, 2019, published online with a different title, Chief Justice Pushes for Tougher Measures to Shield Court Workers From Harassment.  Similar reporting has been published in other newspapers, e.g., Robert Barnes, Courts & Law / Chief Justice Roberts Notes Progress in Protecting Judicial Employees From Misconduct, Washington Post Online, December 31, 2018.

These articles address a report given on Monday by Chief Justice John G. Roberts, Jr. about sexual harassment by judges.  It's not a big problem, the Chief Justice says.

His report did not mention Brett Kavanaugh.

However, the reports published in the newspapers all found space to mention Brett Kavanaugh by name along with other federal judges.

Curioser and curioser, wrote Lewis Carroll about a similar occurrence.

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COMPUTER HACKERS STOP THE PRESSES, NOTHING TO SEE HERE! RIGHT.

An attack on newspaper computers over this past weekend stopped the presses at some newspapers and disrupted delivery of many of them.  But that's all, the newspapers would have us believe.  No damage to them otherwise.  On the other hand, the attack "originated from outside the United States[.]"  See Tonby Barboza, Meg James, and Emily Alpert Reyes, Malware Attack Disrupts Delivery of L.A. Times and Tribune Papers Across the U.S., Los Angeles Times Online, posted December 29, 2018.

Right.

Foreign hackers went to the trouble of accessing the Tribune papers' combined computer system that serves the entire United States just to interrupt deliveries?

It is to be doubted.

What's next?

Until the next hack attack, have a safe and Happy New Year!

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THREE THOUGHTS ABOUT THE 2018 COTTON BOWL, CLEMSON v. NOTRE DAME.

First, since Brian Kelly came to Notre Dame has he ever won a game against a team ranked in the top 15 at the end of a season?  Let alone has he ever won under the pressure of a championship?  See Barry Svrluga, In 238 Seconds, Clemson Dropped Notre Dame And Flexed on College Football, Washington Post Online, posted December 29, 2018.

You could look it up.  The answer to both questions after my own internet searches is "no."

That he is what he is, do not blame Notre Dame.

Second, on national television a Notre Dame defensive tackle tried to help his team win by the only way he clearly thought they could win, by hurting the opposing quarterback and taking him out of the game.  It was the only chance that Notre Dame had, he apparently thought.  So he roughed the passer on national television, got caught, and predictably added to the yardage of a very big Clemson gain on the play.  See Marc Tracy, Clemson 30, Notre Dame 3 / Clemson Crushes Notre Dame to Reach Its 3rd National Title Game in 4 Seasons, New York Times Online, posted December 29, 2018.

What does it profit a university to gain the whole world but lose its own soul?

Third, if Notre Dame had complaints about the game, like about the arguably biased officiating of the all-SEC crew of refs, or about the way that the other team was behaving such that Notre Dame's own key players seemed to get hurt with regularity, then they should have complained through channels different than the path that led to the opposing quarterback.

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THESE ARE YOUR FEDERAL CONTRACTORS NOW.

Felipe Gomez Alonso was eight years old when he died.  He died in the custody of the United States.

After Border Patrol agents looked him over and found no cause to be alarmed.  Until later.  Until they heard or saw Felipe coughing.  And the agents say his eyes then glossed over also.

Then they sent Felipe to a Regional Medical Center that contracts with the Federal Government.  The care Felipe received there is reported in today's newspapers.  The newspaper accounts are based on what the Federal Government itself says happened next to this eight-year-old boy.  Recall that the child was in their custody before, after, and during the entire time they sent him to the Regional Medical Center:

    Hospital workers diagnosed Felipe with a cold and gave him Tylenol, but held him for observation after determining that he had a 103-degree fever. They released him with prescriptions for antibiotics and Ibuprofen that afternoon.

Miriam Jordan, Migrant Boy Died After 6 Days Adrift in Crowded U.S. System, N.Y. Times Print Edition, Dec. 27, 2018, at A1 (emphasis added), published online under the headline, 'A Breaking Point':  Second Child's Death Prompts New Procedures for Border Agency.

So the Federal contractor, the Regional Medical Center or its employees, "determined" that the child had a 103-degree fever.

And then they released him back to the Border Patrol.  Where the boy was sent to another border facility that had no provisions for a child.  Or for illness, for that matter.

What is the name of the Federal contractor?  It is reported in the linked article and you could look it up if you want to know it.

The point here is that these are your Federal contractors now.  That message cannot, should not be obscured by the name of one Federal contractor.

If you are reading this, you are also paying for the Federal contractor.  And you are paying for the current Federal Government too.

So, soon you will undoubtedly be paying for a settlement for the death of this poor man's child.

And for the settlements of many more deaths just like his.

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ANOTHER CHILD DIES IN FEDERAL CUSTODY AT THE BORDER: ....

How Many Deaths Will It Take Till We Know That Too Many Children Have Died?

An eight-year old boy in Federal custody at the border died on Christmas Day.  See Laura King, An 8-Year-Old Guatemalan Child Dies in U.S. Custody on Christmas Day After Being Treated For a Cold, Los Angeles Times Online December 25, 2018.

A seven-year old girl died in Federal custody at the border a week ago.  See The U.S. Border is a Dangerous Place.  Not by Mistake, Claims and Bad Faith Law Blog December 18, 2018.

Both times they told us that the children had been examined and that there were no signs of illness, but then the children died.

Who told us?  The Federal agents responsible for the children's safety.

We only know that the children were "treated."

Tell us.  Who treated the children?  And how did they treat them?

Did Doctors treat the children?

Trained medical personnel?

More employees of the Federal Government?

Has anyone talked to them other than agents of the Federal Government?

Members of Congress and reporters have allowed themselves to be turned away from places where the children were housed and where other children are still kept.

The places like those where now children are dying.

What will it take for Members of Congress and reporters to get into these places, inspect them, and photograph them, for the sake of the children still held there if for no other reason?

For anyone to inspect these places other than the same Federal Government which imposes the cruel conditions under which children die now?

If they do not gain entry to these places, then the answer to the next question is pretty clear:  Is the death of children the latest anti-immigration policy?

And if the answer to that question is "yes," then what in the name of Christmas are you going to do?

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