Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.
Showing posts with label attorney general. Show all posts
Showing posts with label attorney general. Show all posts

Sunday, July 10, 2022

State AGs back Mexico in suit against gun makers

Houston gun show in 2007 (M&R Glasgow CC BY 2.0 via Flickr)
In a pattern that has become familiar, the mass shooting in Uvalde causes us to check in on the various irons in the fire on gun liabilities.

The from-right-field lawsuit that most piqued my interest in the last year was that filed by the government of Mexico against American gun manufacturers over deaths in Mexico, Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc. (D. Mass. filed Aug. 4, 2021). In the culmination of a 139-page complaint, Mexico articulates causes including negligence, product liability, and nuisance.

The lawsuit is presently in briefing on defendants' motion to dismiss.

Especially interesting are Mexico's counts seven and eight, arising respectively under the Connecticut Unfair Trade Practices Act and the famously broad Massachusetts consumer protection law, chapter 93A. It was under the Connecticut law, as a claim over marketing, that courts allowed the Sandy Hook plaintiffs to work around the personal injury liability bar of the Protection of Lawful Commerce in Arms Act of 2005 (PLCAA).

Though to be clear, Mexico's starting position is that the PLCAA doesn't apply anyway extraterritorially. In February, 14 state attorneys general, led by Massachusetts AG Maura Healey, briefed the district court on their agreement with that position (CNN), seeking to expose the gun-maker defendants to liability.

Gun maker Smith & Wesson, the named defendant in the case, was based in Springfield, Massachusetts, since 1852. In September 2021, Smith & Wesson announced plans to leave Massachusetts, amid pending legislation to limit the manufacture of assault weapons, for the friendlier venue of Tennessee (WCVB).

Monday, July 4, 2022

Judge delays decision again on Mass. right to repair, cites need to study SCOTUS climate change ruling

pix4free
Last week, in West Virginia v. Environmental Protection Agency, the U.S. Supreme Court dealt a major blow to federal regulators on the climate change front, and the case has stalled, again, release of the trial court decision over the right-to-repair law in Massachusetts.

First, a word on West Virginia, in which the Court struck down climate change-combative regulations for being born of a breadth not sufficiently specifically authorized by Congress. Others will comment more ably than I on the constitutional law of it all, but from where I sit, the case was correctly decided. Before you throw your rotten tomatoes at me for composting, at least absorb my two cents on the matter: 

We have too long been under the rule of administrative fiat in the United States, rather than democratic lawmaking, because our dysfunctional Congress long ago abdicated its role as a co-equal branch of government. Early in the 20th century, the Court unwisely allowed the non-delegation doctrine to slip away, and with it went the checks and balances of the constitutional separation of powers itself. So we're overdue for a correction.

You don't want to hear it from me, but the same problem pertains in the Roe/Dobbs debacle, where the administrative fiats on privacy have been coming from the Court rather than the administrative state, but certainly not from Congress: same difference. People, especially people ill schooled in the separation of powers—wherefore the sorry state of K12?—look to monolithic government for answers to their problems. They don't much care which public office provides the answer. So they fail to distinguish a Supreme Court decision—West Virginia or Dobbs—that says not our job from one that says simply not. Protestors picketing the Supreme Court building in recent weeks were on the wrong side of the street.

Abdication is a win-win for lawmakers, who can rake in the dough from corporations for the small price of doing nothing while blaming other branches of government for failing to offer a fix. Lawmakers sat on their hands on privacy and women's rights for decades in the wake of Griswold and Roe, content to let the Court struggle to map fine lines. Now they pantomime outrage and aspersion when Roe goes away and there is no statutory civil rights framework to replace it, nor even a framework to protect interstate travel rights, which is well within congressional authority.

Anyway, the angle on West Virginia that interests me is that on July 1, the U.S. District Judge Douglas P. Woodlock again delayed his decision in automakers' challenge to the Massachusetts right-to-repair initiative, saying that he would have to study the impact, if any, of West Virginia on his rationale. (E.g., Repair Driven News.)

Issuance of the decision in the case has been delayed time and again this calendar year, and the case has spurred occasional fireworks. Chris Villani for Law 360 wrote in February how "[a]n exasperated federal judge said ... he was close to a verdict in a suit challenging Massachusetts' revised 'right to repair' law, yet he pressed attorneys for a group of manufacturers about why they didn't tell him that new Subaru and Kia vehicles complied with rules they claimed are impossible to follow."

It was not clear, later, whether Subaru and Kia had actually complied, or just turned off the offending telematic features in new cars to be sold in Massachusetts. Turning off an otherwise functional mechanism does not, Massachusetts AG Maura Healey opined, and I agree, comply with the consumer data access law.

Though the omission that aggravated the judge was explainable, the incident is demonstrative nonetheless of automakers' obfuscating foot-dragging in their conduct of the case overall. They threw every kitchen-sink theory and procedural roadblock at the Massachusetts law, because every day of noncompliance is money in the bank, never mind the merits, nor the defense cost to taxpayers.

Automakers' problem is less with telematics regulation and more with being regulated state by state, rather than by federal standards. Federal regulation, rather than state regulation, has two powerful advantages for industry. First, federal regulations are universal, rather than 50+ in number, which vastly reduces compliance costs. More efficiency in compliance costs is good for consumers, too. So that's fair.

Second, federal regulations come from a grinding rule-making process that is almost irretrievably contaminated by the mostly lawful if deeply lamentable corruption of the industry-state complex. So manufacturers can lobby their way free of meaningful burdens that would benefit consumers and protect social and economic rights. Less fair.

It is not clear why Judge Woodlock thinks that West Virginia might affect his ruling. I might be able to say if I followed the Massachusetts case more closely. Absent a study, my guess is that the issue has to do with preemption. One of the automakers' kitchen-sink challenges alleged that Massachusetts could not regulate telematics because federal regulation of the auto industry impliedly preempts state right-to-repair regulation. If the judge thought that the vitality of that theory depended on the breadth of the federal regulations, and the permissible breadth of federal regulations, when ambiguous, is necessarily narrowed by West Virginia, then maybe it's less likely that the federal regulations can be said impliedly to preclude state regulation.

I'm now piling supposition upon supposition, but if I'm right, the likelihood is that the trial court was going to rule in favor of industry, and it's possible but unlikely that West Virginia would change that. I put money on industry on this one back in the winter, too, in part because I supposed that the judge's exasperation was evoked by a seeming deception on the part of the soon-to-be-announced prevailing side, and in part because I'm a pessimist. Or, I like to think, a realist.

My will for public policy, though, if not my bet, is on the side of AG Healey. Previously, I've written favorably about right to repair as a bulwark of consumer protection, and I support the Massachusetts initiative.

The Massachusetts case is Alliance for Automotive Innovation v. Healey (D. Mass. filed Nov. 20, 2020).

Friday, February 21, 2020

Gambia AG initiates truth inquiry to get country on track

A Gambian customs office shades goats near the southern border with Senegal.
All images: RJ Peltz-Steele CC BY-SA 4.0.

The TRRC process includes public awareness via signage.
With the independence of a nation's attorney general now the subject of discussion in the United States, consider Ba Tambadou, AG of the African nation of Gambia, where I visited on its independence day, February 18. A former Hague prosecutor, Tambadou was instrumental in creating the present Truth, Reconciliation, and Reparations Commission, which now is holding hearings in Gambia and dropping revelations nearly by the day in the news there.


The Gambian TRRC concerns abuses of power, including repressive violence and press suppression, that kept Yahya Jammeh in control of the country from 1994 coup to surprise election upset in 2017. The ex president now lives in exile, in reportedly sweet digs in Equatorial Guinea. He seems to have ample access to the fortune he looted on the job, which is looking like hundreds of millions of dollars, despite a 2017 US freeze on his assets under the Magnitsky Act.

TRRC proceedings captivate public attention on TVs in Banjul.

Unfortunately Gambia's elected president, Adama Barrow, has raised eyebrows by recently rescinding a pledge to serve only three years, though the national constitution does permit five. Political opponents whisper about corruption, and no doubt nerves are raw since the country finally freed itself of Jammeh. All the more important then is the independent judgment exercised by Tambadou to shine light on historical misdeeds. The TRRC is the sixth of its kind on the African continent and essential to break the cycle of maladministration in government, and hence the cycle of underdevelopment and poverty in this brilliantly diverse yet smallest mainland nation of Africa.

American rice bags are repurposed to make a mattress in Gambia. All images: RJ Peltz-Steele CC BY-SA 4.0.