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From the Archives

We’re bringing back #tbt to the blog! Here are some great throwbacks to WSAJ at bill signings through 3 governorships – Locke, Gregoire & Inslee.

STIFLING THE COMPETITION

In May, the White House released a report saying 30 million Americans are subject to non-compete clauses. What was once seen as a clause only for high-skills employment positions has now begun to pop up everywhere – including hair styling and sandwich making.

Non-compete clauses are seemingly designed to protect intellectual property and customer bases. However, those are already protected by confidentiality laws. Non-compete clauses, therefore, inhibit labor mobility, forcing workers to look into jobs in other cities – or states – to get a job in their field. What the laws are designed to protect, the local economy, end up hurting that very same thing.

As the New York Times reported, several states have started introducing regulations for non-compete clauses, noting that the Treasury Department has also issued a report criticizing the excessive use of these contracts.

 

(And since the author of this piece saw mentioned numerous times that lawyers love non-compete clauses, we will just say for the record: that it not the case.)

COMPANIES CUTTING CONSTITUTIONAL RIGHTS

The American Association for Justice recently released a report on the injustice that is forced arbitration. (Not to be confused with the pro-access-to-justice civil arbitration system we have in Washington.) Following an extensive, multi-part investigative report by the New York Times, forced arbitration was the topic of our last Fighting for Justice newsletter, which you can find here.

Joanne Doroshow of the Center for Justice and Democracy wrote in the Huffington Post, “In forced arbitration systems, access to the courthouse door is blocked and all disputes must be resolved privately and secretly by the arbitration company chosen by the insurer. Arbitrators are not required to have any legal training. They may be biased. The discovery process, whereby parties obtain information from one another, is extremely limited. Arbitrators issue no written legal opinions, so no legal precedents or rules for future conduct can be established. And there is no right to appeal even though the arbitrator’s decision may be legally incorrect.”

It I hard to imagine a more clear and simple Constitutional amendment than the Seventh Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” This seems as clear a violation of the Constitution as we can imagine.

WAITING FOR GODOT

It has been months since Judge Merrick Garland was nominated for appointment to the Supreme Court. The waiting in perpetuity is the longest delay ever for filling a vacancy to the Court. Having 8 members of the Court is not sufficient, as was noticeable this year when many cases could not be decided.

“Even the most politically contentious nominees, once they join the Supreme Court, can serve as unifying figures who put the bipartisan legitimacy of the institution above their own ideological agendas,” wrote the New York Times. “There’s reason to believe that Judge Garland, if confirmed, would also be a unifying figure…He could be just what America needs to help bring us together at a time when justices and citizens of different perspectives have never seemed so far apart.”

It’s time for Congress to act.

It is worth noting that Judge Garland was confirmed 76-23 in 1997 and many senators, such as Sen. Orrin Hatch (R-UT), said, “Merrick B. Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned… His legal experience is equally impressive.”

DISCRIMINATORY LAW DENIES JUSTICE

The Ride the Ducks corporation recently cited a century-plus-old law to dismiss a claim that arose from their vehicle causing a fatal crash on Highway 99. The law? An amendment to the wrongful death law that allows only parents “who are resident within the United States” at the time of their child’s death to claim damages.

In May, reported The Stranger, one of the affected families, the Kims, challenged the constitutionality of the state law in federal court for violating both the state constitution and the U.S. Constitution’s Equal Protection Clause.

The resident status law was passed in 1909, during a period of particularly strong anti-Asian and generally xenophobic sentiments, as an attempt to evade liability after a case involving a dockworker.

In The Seattle Times, Larry Shannon of WSAJ said, “It’s something in law that nobody knows about until something like this (the Ducks crash) happens, and then you think, ‘My God, how have we allowed that to be the law?'” He pointed out how our law is unique among states – only a couple other states have similarly discriminatory laws. He says that the ability to change the law resides primarily with legislators.

As WSAJ Past President Steve Bulzomi said, “We’ve been down [in Olympia] for many years trying to get this changed.” He also mentioned the other ways Washington’s law is discriminatory: especially that parents are granted damages if their child is a minor, but the day they turn 18, the parents lose that right. The law also came under fire before 2012 for its particularly harsh and discriminatory impact on the LGBT community, who, as single adults, saw their lives devalued.

We will be continuing to fight for this basic constitutional right for families. The Kim family’s case will be heard in September.

Liability in the gym

In some states, when someone is hurt at the gym, they are prevented from seeking justice. A New Jersey judge said, “Health clubs are entitled to broad limits on liability ‘because of the fact that when you engage in rigorous physical activity—like is encouraged in a health club [and] is the entire purpose of a health club—there are chances that you may injure any range of muscles, tendons, bones, nerves, what-have-you.’” But what if the injury is the gym’s fault?  Luckily, many states recognize that these liability waivers are detrimental to public policy.

Recently, for example, a Soul Cycle failed to provide instruction to a new student, in part perhaps because instructors are not compensated for the safety lessons (which has been subject to wage-and-hour lawsuits), and the student repeatedly dislocated their ankle due to the lack of safety instructions.

For more information on gym liability, check out the longer article in ThePopTort. 

“Inherent conflict of interest”

NPR reports that a new study from the International Association of Industrial Accident Boards and Commissions (IAIABC) says that:

Injured workers face “inherent conflict of interest,” barriers to benefits, “unequal treatment,” limited appeals, and little to no independent oversight, when employers opt out of state-regulated workers’ compensation.

Labor Secretary Thomas Perez called opt-out a “pathway to poverty.” Barriers to qualifying for compensation for medical care and lost wages are throwing injured workers into poverty. The report discredits claims that these plans serve injured workers, enhance treatment, or are cheaper or quicker.

This article is the newest addition to the ProPublica & NPR series on the dismantling of workers’ compensation. Read the whole series here.

 

Medical errors now third leading cause of death in United States

Researchers at Johns Hopkins University have released a study showing that medical errors are the third leading cause of death in the United States.

“It boils down to people dying from the care that they receive rather than the disease for which they are seeing care,” said Martin Makary, a professor of surgery who led the research.

Currently, the Centers for Disease Control (CDC) does not require reporting errors in the data it collects about deaths through billing codes; Makary says the CDC should update these rules to provide information about preventable deaths.

For more information: The Washington Post

 

Terror Compensation Masks a Worse Injustice

Via ThePopTort:

This week, the U.S. Supreme Court ruled that Iran’s central bank must pay nearly $2 billion to families of  241 service members killed in the Iran-sponsored 1983 Marine Corps barracks bombing in Beirut.

The plaintiffs sought to collect frozen funds from Bank Markazi, Iran’s central bank, relying on a 2012 federal law, the Iran Threat Reduction and Syria Human Rights Act, that made the task easier by specifying assets of the bank that could satisfy the plaintiffs’ judgments. The law was quite specific, naming a single, pending consolidated case by caption and docket number.

Notorious RBG wrote the decision, “saying Congress has the power to alter legal standards in existing cases.”

Read the rest of their article here.