Kathleen Goegel is a 2019 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.
Bowling v. Johnson & Johnson is a bit of a repeat in the realm of the “Food Court” litigation the WLF Legal Pulse routinely covers. This is yet another case with a frequent-flier plaintiff attempting to get ahead of the Food and Drug Administration’s (FDA) trans-fat fade out. However, what makes this case unique is the reasoning behind the court’s denial of class certification.
Suzannah Bowling is seeking class certification under Rule 23 for her suit against Johnson & Johnson and its subsidiary, McNeil Nutritionals, LLC. Bowling claims that the defendants’ on-label “no trans-fat” representation misled her and the putative class members into paying more money for the butter substitute Benecol than the product was worth. Benecol, she argued, in fact does contain a trace amount of trans-fat. However, Benecol contained such a low percentage of trans-fat that FDA regulations compelled it to list the amount on the food label as “zero grams trans-fat.” In addition to the economic harm, Bowling alleges that she faced intestinal distress after purchasing and consuming Benecol.
This particular suit is not Bowling’ first food-labeling suit, nor is it her first suit against Johnson & Johnson or McNeil. She previously sued Johnson & Johnson and McNeil and signed a covenant not to sue it or any of its subsidiaries again in return for money.
In order for a class to be certified, the plaintiff must meet four requirements under Rule of Civil Procedure 23(a)—numerosity, commonality, typicality, and adequate representation. U.S. District Court for the Southern District of New York Judge Allison J. Nathan found fault with Bowling’s suit on two Rule 23 grounds: typicality and adequate representation. Because two particular defenses Johnson & Johnson was likely to raise—the covenant not to sue and inaccuracies in her personal claim—had the potential to become the focus of the litigation, Judge Nathan refused to certify the class.
Because of a previous mislabeling suit against Johnson & Johnson and McNeil, Bowling signed a covenant not to sue Johnson & Johnson, McNeil, or any of their related entities. Although it was not clear to Judge Nathan how applicable this covenant would be or what remedy would be available, litigation over those questions would be a deterrent from the reason for this suit, which is to determine whether Johnson & Johnson mislabeled Benecol. Overall, the covenant not to sue was a unique defense against only Bowling and would have interfered with the claim that brought about the class.
The court focuses on two key areas of inconsistency in Bowling’s testimony. The first is Bowling’s testimony about purchasing Benecol. Bowling testified that she bought the product from a Walmart in May, June, or the second half of 2011. However, Johnson & Johnson’s records show that Walmart did not sell Benecol during that period. The second is Bowling’s testimony about contacting Johnson & Johnson to request a refund for the product. Bowling testified that she attempted to contact Johnson & Johnson by phone and in writing. However, once again, Johnson & Johnson’s records tell a different story. They have no record of Bowling reaching out to them. These testimonial inconsistencies create a class-certification issue because, as the court says, “the plaintiff’s credibility is so vulnerable to attack that the plaintiff is subject to unique defenses making [her] claim atypical and antagonistic to other members of the class.”
Frequent-flier class representatives offer advantages not only to the lawyers that represent them, but also, ironically, to the lawyers representing the businesses they sue. When a plaintiffs’ lawyer identifies a new litigation opportunity, the frequent flier is ready and willing to sign their name to another complaint. However, frequent fliers also bring with them baggage that businesses’ attorneys can exploit. The Bowling case reflects two of those problems. Litigation settlements often include agreements by the plaintiff not to sue the defendant again. A dispute over whether such a covenant applies to bar a future suit involves issues unique to the named representative, and is thus antithetical to the concept of a class action. Frequent fliers are, by their nature, profit-motivated, so they may be more likely to embellish or modify the facts to meet the requirements of the legal claim. That, again, involves an individual inquiry. Plaintiffs’ lawyers should view Bowling as a cautionary tale. Judges presiding over class actions, especially those of the Food Court variety, should follow Judge Nathan’s example and closely scrutinize the claims of frequent-flier plaintiffs.
Of course, the plaintiffs’ lawyers who filed the suit could very well pursue another Benacol purchaser making the very same legal arguments. But at least the defense lawyers’ arguments for dismissal, and the judge’s faithful application of Rule 23, may have grounded at least one frequent flier.
The post Frequent-Flier Plaintiff Flies Alone After New York Judge Denies Class Certification appeared first on Washington Legal Foundation.
The Committee on Small Business Subcommittee on Economic Growth, Tax, and Capital Access will meet for a hearing titled, “The Importance of Accurate Census Data to Small Business Formation and Growth.” The hearing is scheduled to begin at 10:00 A.M. on Thursday, June 20, 2019 in Room 2360 of the Rayburn House Office Building.
Every 10 years, the U.S. Census Bureau is constitutionally mandated to count every person in the nation and the next one is less than one year away. Census data is the basis for allocating federal funding and businesses are more dependent on Census data than any other sector. Trade associations, chambers of commerce, and businesses rely on this information for economic development, business decisions, and strategic planning. Specifically, census data helps identify potential customers and employees, business locations, where to target advertising, and what should be offered in different communities. New technology and emerging apps also heavily rely on precise and accurate data from the Census. In the 21st century information age, having access to the right data and information is crucial for the success of many small businesses. The hearing will provide an overview of the census and why accuracy is critical to small firms and emerging industries. Members will hear from a variety of witnesses about how they use census data to make strategic decisions that can help them grow and hire.
Mr. Darrin Conroy
New York Small Business Development Center
*Testifying on behalf of the New York Small Business Development Center
Mr. James Whittier Parker
*Testifying on behalf of the New Jersey Main Street Alliance
Regional Center Director
Tulsa Regional Oklahoma Small Business Development Center Office
Helmerich Research Center at the Oklahoma State University, Tulsa Campus
Thank you, Mr. Chairman. And thank you for holding this important hearing today to discuss the paramount issue of aviation safety here in the United States and around the world. I thank the witnesses for being here and their insights today, and I too want to recognize the families of Colgan Air Flight 3407 who are here today, because it is their continued persistence about getting aviation right that is so admirable. I thank them, and thank you all for being here.
The incidents that led us here today of the crash of Lion Air 610 last October, and the Ethiopian flight 302, are horrible human tragedies. I want to extend my deepest sympathies to the families and everyone impacted by this horrific incident. These two accidents cost 346 lives, leaving behind countless individuals and loved ones, who I know want to make sure this is never repeated.
The human toll is why we work every day to ensure that every possible step is taken to determine the causes that contributed to these incidents. And through the crash investigations, other federal investigations, and ongoing Congressional oversight, I believe we all share the same goal: to make sure these accidents are never repeated. It is critical that all those involved look at the causes of these accidents and work so everyone has the full picture of what happened.
Investigators in Indonesia and Ethiopia -- with help from the NTSB and FAA and other international partners – are working through the evidence to determine the causes of these accidents. And even though, as my colleagues have mentioned, global commercial aviation has experienced unprecedented periods of safety over the last decade, these two accidents are horrific reminders that we must remain vigilant in our oversight and focus on safety.
So I look forward to hearing the information from the witnesses that is available for us today. And I also commend yesterday, Secretary Chao’s indication that she will seek a previously authorized authority by the last 2018 FAA bill, which authorizes the establishment of a special committee of aviation experts to review the recommendations on the Federal Aviation Administration procedure process.
So I look forward their analysis, as they do the analysis of all the investigations that are ongoing. Safety remains paramount. And I look forward to working with all my colleagues on this very serious issue.
Thank you, Mr. Chairman. And thank you to the witnesses for being here today on this important hearing about how to develop a federal data privacy framework. It’s essential that we give a front row seat to the consumer advocate perspective, and that’s what today’s conversation does. When the dust settles after a data breach or a misuse of data, consumers are the ones who are left harmed or disillusioned. In the two months since our last full committee hearing on privacy, consumer data has continued to be mishandled. It’s clear that companies have not adequately learned from past failures and at the expense of consumers, we’re seeing that self-regulation is insufficient.
Just days ago, cybersecurity researchers revealed the existence of a massive cloud data breach left wide open and unprotected containing addresses, full names, dates of birth, income, marital status on more than 80 million US households. This blatant disregard for security and privacy risk makes it clear why we are here today. Microsoft recently admitted that an undisclosed number of consumer web email accounts were compromised. We learned more about privacy lapses on Facebook, and two more third-party Facebook apps exposed data on Facebook users, revealing over 540 million records, including comments, likes, account names, and Facebook IDs.
So Mr. Chairman, how do we create a culture of data security that protects consumer and allows commerce to continue to grow? Consumers continue to be bombarded by threats to their privacy. Cybersecurity adversaries become more sophisticated and more organized day by day, and we really need to understand privacy on a continuum of data security. We need to make a more proactive approach to cybersecurity and make sure that we are continuing to protect consumers.
This becomes especially important in the age of the Internet of Things. Yesterday, the Security Subcommittee considered this issue at length. Billions of devices collecting data about consumers at all times means there are billions of entry points and large surface areas for cyber-attack. We learned more about new bot net attacks and new weaknesses almost daily. And we face serious questions about supply chain vulnerability, which is reminding us about how security here in the US is dependent upon the health of our internet cybersecurity. Members on our side of the aisle even had a secure briefing on the potential threats and impacts to our own devices.
So it is important to remember that the internet is a global network – no matter how secure we make our networks, they remain vulnerable to weaknesses abroad. That is why it is essential that we have a nation strategy to deal with these threats. We also need to work with our international partners to form coalitions around cybersecurity standards and work towards harmonizing privacy and cybersecurity regulations.
These latest privacy and security breaches in advancing cyber threats show that this problem is accelerating. But as you said, Mr. Chairman, there is also lots of opportunity for great applications, services, and devices that we all like. So it illustrates the complexity of the challenges we face. Consumers are at the center of this, and we cannot just require them to have a deeper understanding of the risk involved. We need to make sure that their devices and concerns are not just about notice and consent, but we have strong provisions here and a description that will help create a better culture.
The best plain-language notices, the clearest opt-in consent provision, the most crystal-clear transparency doesn’t do any good when companies are being careless or willingly letting our date out the back door to third parties that have no relationship to the consumers. While the benefits of the online world are everywhere – and I truly mean that, everywhere – so must be protections of personal information that is more than just a commodity. We need to make sure that the culture of monetizing our personal data at every twist and turn is countered with the protection of people’s personal data.
So Congress has to come to terms with this. I know that the members of this committee are working very diligently on trying to address that, and that we are working to trying to make sure that the things that happened in the 2016 election cycle also don’t happen in the 2020 cycle. But these issues of information being sold or manipulated or in trying to influence or disrupt governments – even our own hacking of our employee personal information account – show that we are vulnerable, and that we need to do more. So, the consistency of the hearings that we’ve had on this issue, I appreciate both Chairman Thune and you having these hearings about cybersecurity, about Equifax, about cyber hygiene and what we should be doing. These all, I believe, should be part of the solution. Data security for Americans means that we extend the protections and we make sure that the online world is operating in a way that we see are helping to protect consumers and individual information.
So, Mr. Chairman, I know that you remain very dedicated to comprehensive legislation here. I do as well. Even though the challenge is high, we need to have the opportunity to craft solutions that address security and privacy for the entire life cycle of our data and collection to storage and to processing. So, hopefully today’s hearing will give us more input as to the way consumers look at this issue and what we can do to help us move forward. Thank you.
Thank you, Mr. Chairman. Thank you for holding this important hearing and calling the witnesses this morning. And I know we have a busy schedule this morning so I’m just going to move right into it.
Today we’re going to hear about the integration of two important users to the national aerospace system: unmanned aerial vehicles, as you were just discussing, and the commercial space launch companies. Both are areas of great potential and come with unique challenges to be addressed by us, the stakeholders, and the FAA.
In 2017, the U.S. led the world in a number of space launches for the first time in almost 15 years. American ingenuity and competiveness put us back on top, and this committee has an opportunity to ensure that the bureaucratic red tape isn’t the reason we cede this leadership to space in the future. Commercial space launch in the United States has been a huge growth over the last decade, with new entrances of Blue Origin, Space X, and others coming online, as well as new, large satellite constellations. So we can expect that we are going to see a continuation of launch activities increasing ever year.
It has been remarkable to watch this growth explode in my state of Washington and to see it’s applications in other parts of the United States. Growing the commercial space industry has huge implications for both American security and our economy. And in fact, some estimate that the global industry for space to grow from about $360 billion today to over $1-3 trillion over the next 20 years. So huge economic opportunities and job creation efforts. It will be critical for regulators to make sure we continue to facilitate to space in order for this growing industry to flourish, while continuing to ensure that U.S. air travel remains safe around the world. So that issue we will look forward to hearing from our witnesses on how we integrate that in the very near term.
Also, the integration of unmanned aerial vehicles into our airspace requires a balancing act between the safety of our skies, which we can never compromise on, and the many important applications made possible by unmanned aerial vehicles. These applications include fighting wildfires, aiding first responders, infrastructure inspection, farming, fishing issues. I think for us in the Northwest we had a tragic train accident and just happened to happen by Joint Base Lewis-McChord. But the fact that we already had an integrated response team there and they used drone systems, even though the train derailed onto I-5, within 24 hours they were able to reopen and move traffic because the drone system gave everybody the confidence that they had the accident sight investigation correct. And so that application, in and of itself, giving people the ability to get all that accident and safety information, and then thereby clearing the scene, is such an important application. And really, truly, those at home who made that application work so cost effectively there.
So the use of drones can save money, they can improve our delivery of systems, and improve our quality of life. So many on this panel have heard from constituents who are working on innovative solutions to existing problems and want to develop new markets for unmanned aerial vehicles. And so the FAA has had to work to make these applications through a waiver process, the use of Part 107 for commercial use of small drones, and work with the FAA and unmanned aerial vehicle test sites.
So, while I know that applications can happen faster than our ability to integrate them, implementing them is a very important process of meeting these new challenges. Right now, for example, the entire industry is waiting for the FAA to issue a rule on remote identification standards. So these remote ID standards are a critical part to unlocking the next area of unmanned aerial vehicle activity. So we want to make sure that we are including this as part of our top priorities. These new UAS uses promote that a remote ID is able to maintain and help with the safety and identification. And to allow the unmanned traffic management system to work effectively.
I can assure you, as I have seen demonstrations of these unmanned aerial vehicles, I can just think of all the applications immediately that would be helpful. Whether that is delivering medicine, delivering critical supplies, or even in some of our challenging areas of the Pacific Northwest, where natural disasters are something we have to think about all the time, getting the right product and supply into a community can be very critical. So we look forward to hearing the discussion this morning about that rulemaking and where we are.
So there is plenty of work to be done and we have a vision before us. So in addition to certifying aircraft and the rigorous standards to carry passengers, the FAA and the industry will need to develop this very reliable traffic management system and work with our communities on how to integrate our existing infrastructure. So I thank all the witnesses for your work and appearing today to discuss how we keep moving forward together. Thank you.
Thank you Mr. Chairman. And I too would like to thank your staff and you for working on today’s markup agenda, and particularly the Maritime Administration Authorization Enhancement Act. This bill represents a first in many bipartisan actions I think that this committee will be undertaking to help the U.S. maritime industry.
The maritime industry is a cornerstone of our economy in the Pacific Northwest, but it also supports 650,000 jobs nationwide. It’s an important aspect of direct and indirect jobs to our economy and, as you mentioned, costal states, it’s vital. But it also helps the heartland, which relies on a thriving maritime industry to transport their goods all across the world in a timely fashion.
So by codifying improvements to these programs, I hope that we will address the shortage in maritime workers and making the transition for our service members to attain their maritime credentials. The bill expands investments in the maritime security program, which supports American ships that service both commercial and military routs. The bill represents a significant investment in our ports, expanding the port operations, research, and technology grant program, and these critical investments help us improve the competitiveness of our future opportunities as we continue to move more products around the globe.
The grant program will address environmental needs at ports, one of the top priorities that I hear about, and also help balance out our maritime economy with our fisheries economy and continue to keep both of them strong.
So, I hope that the – last piece I wanted to mention is the Small Shipyard Grant Program that was worked on by many of our colleagues. This is important to helping our small shipyards continue to grow in the future. So, look forward to continuing to work with you on these important issues and the rest of today’s committee items.
Thank you, Mr. Chairman. I, too, will try to be brief this morning so we can hear from our witnesses and possibly get some questions in before our 11:00 votes today. But thank you for holding this hearing and thank you to the witnesses for their insights on the ever-changing content market and delivery system.
Obviously billions are being invested in new programming and new production and there are many more options for consumers in the ever-expanding world of content. Entertainment is at our fingertips whenever we want it, including this hearing, Mr. Chairman, being seen, I’m sure, by many people.
So much of the content in so many places, and we obviously love the notion that we can watch it when we need the content and content information. But how has this innovation in the television and video market impacted consumers? How are they better off and what are the challenges that we face in continuing to protect their interests?
The committee must engage, I believe, in a robust debate about how we’re going to foster true localism, diversity in competition, and fidelity to the public interest as we work on various issues when we move forward.
Not so long ago, most of us watched TV for free over the air. At the time our eyeballs were rented to watch a lot of ads to pay for that content. And we understood what that meant, and we understood what the public interest meant. But as we have changed into this larger picture, how has the heart of localism and diversity and true media competition been maintained?
So these are the issues that, I think, we will be pondering with as we look at issues of broadcast and cable industry, and the changes people are imposing. The FCC’s desire to strip away basic rules that would ensure that companies play fairly in a marketplace, or dismantling of rules that preserve the diversity of content and media ownership, particularly impacting, I believe, in a negative way, the number of voices that we need to have in media. And also an impact in key issues.
Consumers still trust local broadcasters. In fact, a recent survey revealed that 76% of Americans trust their local news a great deal or a fair amount more. So I want to make sure that we’re understanding how the public interest here is being served in this debate that sometimes can seem, discussions about big business behemoths as opposed to the consumer and the content that they are after.
The cable industry led the charge to eliminate the FCC’s strong net neutrality rules that help ensure that consumers are guaranteed by rule to have unfettered access to new online video content, and now the industry is asking the FCC to further eliminate its public interest obligations, including those that could potentially force localities to choose whether to keep public education and government access channels on the air.
So I hope all these issues will be discussed this morning, and I again thank our witnesses for being here on this very important public policy debate.
Thank you Chairman Wicker, and thank you for holding this important hearing and having the FCC commissioners before us today. We’ve had two and a half of the last years, which I think a lot of the important issues that affect consumers before the FCC have been challenged, and I would say eviscerated, as opposed to the consumer interests that have been pushed forward.
Last year, more than 20 million Americans wrote asking you to protect a free and open internet. And instead, net neutrality protections for consumers were repealed. Don’t worry, big cable companies will do the right thing by you. And just last week, in my own state, Comcast was ordered to pay $9.1 million in fines for deceptive practices that affected 50,000 Washingtonians.
And since the repeal of net neutrality, some wireless and broadband companies already appear to be testing ways to undermine the free and open internet. Wireless carriers have been accused of potentially throttling subscribers to Netflix and YouTube, CenturyLink temporarily blocked access to the internet in Utah to force consumers to watch ads, Sprint allegedly interfered with competitive Skype services using wireless networks. So these are all questions that I will definitely be following up on in our Q&A section.
But time and time again, big cable companies have prioritized their bottom lines over the fair treatment of consumers and the internet economy, and we want to know that you are on the front line of consumer interests.
When scientists and weather experts from outside and inside the Trump administration warned that actions on spectrum could harm forecasting, their concerns were ignored. Peer-reviewed science research has concluded that without key vapor data that could vanish due to actions on where spectrum has been allocated, that this could impact our weather forecasting.
And despite the correct forecasting – if you consider what Sandy impacted, hundreds of lives and $70 billion, getting that forecast wrong would have been deadly. I want to thank Chairman Wicker for agreeing to hold a hearing on this topic in the near future, because I think it needs to be addressed in more detail. I also want to make sure that we are clear today: we are not going to allow this vital information to be jeopardized in the future.
We have also heard, at a time when motor vehicle accidents claim more than 37,000 lives in the United States each year, that the FCC is pushing to open up key spectrum that jeopardizes the promise of new technologies in this particular area that could prevent as many as 80 percent of these actions.
So, just like spectrum, and its important use in transportation, weather, launch forecasting, also the chairman mentioned broadband. So we all agree that we need to make more access to internet broadband equitable to Americans. He mentioned the issue that is so important to all of us, and that is rural telemedicine. But if we’ve failed at the FCC to collect accurate data about who has access to broadband, and we don’t have the right information, how can we ever fix the problem? I know the FCC wants to put a cap on universal service, the most successful broadband deployment in the nation’s history, because they refuse to make the hard decisions about how to appropriately fund it.
So I hope that we will hear about real solutions today, and how we get through these challenging times and make sure we are protecting the public interest. I know that in an information age we are going to continue to grow and new products and services are going to be there, but we also have to make sure we are aggressive about doing our jobs and protecting that interest on behalf of the consumer.
Thank you Mr. Chairman.
Thank you Chairman Wicker, and thank you for holding this important hearing today, and to the witnesses for being here. Every day, millions of ships, trains, planes, and vehicles move billions of dollars worth of goods all over our increasingly connected global marketplace. Our ports are at the very heart of this global marketplace, which American farmers and manufacturers rely on to get their products to market, and speed is critical in the 21st century economy. When farmers and manufacturers can’t move their goods efficiently, they don’t just lose a sale, they lose a market share. They lose shelf space and they lose opportunity to compete.
Regardless of where you grow or make your product, whether it’s in the heartland or on a coast, a world-class port system is good for business. I know my colleague, the chairman of the committee, agrees on this important issue. But right now we are falling behind. If we don’t modernize our ports, companies and countries all over the world will turn elsewhere. Ports all over America are facing competition from nations that are making robust, long-term investments in infrastructure. So, I want to thank Chairman Wicker for recognizing the important role this plays in our economy and I look forward to working with him on a comprehensive package.
In the FAST Act, this committee fought for increased funding for multimodal freight infrastructure. Not only does this fuel job growth and American economic competitiveness, it also reduces congestion and increases safety. In the state of Washington, just one congested railroad crossing in Seattle cost $9.5 million a year in economic activity. By eliminating this chokepoint, we can speed up freight movements for goods coming from the heartland to our ports and to those global markets. Freight infrastructure initiatives such as CRISI and INFRA are designed to do just that. So in the FAST Act re-authorization, I hope that we’ll look to increase levels of funding to meet the strong demand for these programs.
As we invest in transportation improvements, we also must keep safety at top of mind. According to preliminary NHTSA data, there were a staggering 36,750 traffic fatalities in 2018. That is an average of 100 people dying each day on our national roadways. While the overall crash fatality number dropped slightly from 2017, NHTSA reported sharp increases in truck and pedestrian and cyclist fatalities. So I support developing new vehicle safety technologies, like automated braking and other innovations, to be widely deployed through our fleets, and to continue to make sure that we are meeting the challenge of pedestrian and cyclist safety.
We also need to innovate in the area of transportation. That is imperative in the area of global warming. According to the EPA, our transportation sector is responsible for 29% of the U.S. greenhouse gas emissions. This is an area where smart policy, combined with American ingenuity, can make a difference. So this committee has been involved with this issue before. The historic 2009 agreement on CAFE standards reflected a consensus among auto industry, state regulators, bipartisan people here in this committee, and in the Congress. So, I don’t agree with the administration’s proposal to roll back fuel efficiency standards. I think that takes us in the wrong direction, and I hope our committee will play a constructive role in moving us in the right direction.
So, I look forward to hearing from the witnesses today and working with all of you on meeting our transportation safety, efficiency, and infrastructure improvements for the future. Thank you, Mr. Chairman.
Thank you, Chairman Moran, for holding this oversight hearing, and for the commission being here. The Consumer Product Safety Commission is a small federal agency with a huge mission. It is to be the cop on the beat when protecting consumers from potentially dangerous products. Time and time again, though, over the last two years, I’ve seen a pattern with the commission where it has deferred to the industry on critical product safety matters instead of being more aggressive as a commission.
From the get-go, almost all of the consumer commission’s pending product rulemakings were terminated. For instance, instead of setting mandatory standards for window blinds to protect kids from cord strangulation, the commission deferred to the industry to set its own standard. Another rule involved shut-off switches for portable generators, which are commonly used after power failures caused by hurricanes or winter storms that we often get in the Pacific Northwest. These generators propose a carbon dioxide poisoning risk, and again the commission nixed a mandatory standard and instead asked the Portable Generators Manufacturers’ Association to write their own standards.
But the failures have not just been with the safety standards intended to protect against dangerous products. Also, the Consumer Product Safety Commission has essentially stopped imposing civil penalties on manufacturers. The commission’s most basic mission is to protect consumers from dangerous products, and I think two recent examples highlight a trend that I think is very problematic.
The first involved the BOB jogging stroller. The Consumer Product Safety Commission career staff found a serious defect in the stroller that allowed the front wheel to detach unexpectedly. Those wheel detachments resulted in serious injuries to scores of adults and children. The commission staff recommended a recall, and some on the commission voted to move forward with a lawsuit against the manufacturer, but instead the commission sought a settlement with the company that resulted in little more than a public safety campaign and provided certain consumers with replacement parts. Other consumers with older models got nothing more than a 20% coupon on the stroller. So this agreement allowed the company to say that these corrective amount only to an information campaign when so much was at risk for families.
The second involved the Fisher-Price Rock and Play Infant Sleeper. According to the consumer products report, almost 35 infant deaths have been associated with this product since 2009, but the commission did not reveal this information until Consumer Reports blew the whistle and brought it to the public. So who knows how many more children could have been impacted. And even if the product was recalled, the commission found a way to continue to fail the consumer when the commission’s recall notice listed just “refund” as the remedy for consumers that return the Rock and Roll Play. So consumers with the older Rock and Roll Play Sleepers will only get a voucher for another. And so this is very problematic.
We have a tradition on the committee of working together to enact bipartisan legislation to help protect consumers and the Consumer Product Safety Improvement Act of 2008, which was signed into law by President George W. Bush, gave the Consumer Product Safety Commission substantial new authority to protect consumers. So going forward I hope that the White House will put forth names of people to be on the commission that are going to use the authority, and put American consumers and our children first, when protecting them with these laws.
I thank the chairman. I look forward to hearing from the commissioners.
By Frank Cruz-Alvarez, a Partner in the Miami, FL office of Shook, Hardy & Bacon L.L.P., with Talia M. Zucker, a Partner with Shook, Hardy & Bacon L.L.P. in its Miami, FL office. Mr. Cruz-Alvarez is the WLF Legal Pulse‘s Featured Expert Contributor on Civil Justice/Class Actions.
Enacted in 1990, Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., provides, in relevant part:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
With specific rules governing who must comply and how, implementation of this prohibition by qualifying entities, at least in the beginning, was a relatively modest concept in practice. Unbelievably, despite its broad coverage and specific requirements, the ADA has never discussed the Internet despite its ubiquity in the 21st century. As a result, application of this prohibition as it relates to accessibility of websites or mobile apps has become increasingly controversial and the target for litigation.
One such piece of litigation started in 2016 when Guillermo Robles sued Domino’s Pizza LLC in the U.S. District Court for the Central District of California when he was unable to complete his custom pizza order using the Domino’s website or mobile app. Robles, who is blind, alleged that Domino’s violated Title III because its website and mobile app were not compatible with the screen-reading software he used to access the Internet. The district court granted Domino’s motion to dismiss finding that while the ADA applied to websites and mobile apps maintained by brick-and-mortar places of public accommodation, it would be a due process violation if Domino’s website and mobile app were required to comply with Title III when there is no guidance on how to do so.
On appeal, the Ninth Circuit reversed, holding that the Domino’s website and mobile app are subject to Title III. In so ruling, the Ninth Circuit opined that Title III imposes isolated accessibility requirements for Domino’s website and mobile app because they “connect customers” to the goods and services of Domino’s physical locations, which are places of public accommodation governed by the ADA.
On the heels of a ruling that extends the reach of Title III into the Internet, a feat the ADA has not yet addressed, and further worsens circuit splits on the issue, Domino’s filed a Petition for Writ of Certiorari on June 19, 2019, hoping for clarity on an issue that affects companies across every industry. In support of its petition, Domino’s raised three points: (1) the Ninth Circuit’s decision exacerbates a circuit split over whether website inaccessibility violates Title III, (2) the question presented is recurring and important, and (3) the Ninth Circuit’s decision is wrong.
As to the first point, the First, Second, and Seventh Circuits hold that website-only businesses are subject to Title III liability based on inaccessibility. See Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New Eng., Inc., 37 F.3d 12, 19 (1st Cir. 1994); Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999); Morgan v. Joint Admin. Bd., Ret. Plan, 268 F.3d 456, 459 (7th Cir. 2001). Conversely, the Third, Sixth, and Ninth Circuits have ruled that website-only businesses cannot face Title III liability. See Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).
This same line of cases are also divided on whether Title III requires websites maintained by companies that also offer their goods and services at brick-and-mortar locations to comply with accessibility requirements. Once again, the First, Second, and Seventh Circuits hold that any company offering a good or service to the public, whether online or at a physical location, is considered a standalone public accommodation subject to Title III. In so ruling, the Seventh Circuit explained that, “[t]he site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public.” Morgan, 268 F.3d at 459; see also Carparts, 37 F.3d at 19; Pallozzi, 198 F.3d at 32–33.
The Third, Sixth, and Eleventh Circuits, however, only impose Title III liability if the disabled individuals lack equal access to the goods or services of the physical place of public accommodation. Ford, 145 F.3d at 613; Parker, 121 F.3d at 1011; Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002). These cases focus on whether a website, mobile app, or any specific means of access, hinder a person’s overall access to the goods and services provided by the brick-and-mortar public accommodation. The Ninth Circuit’s decision squarely conflicts with the Third, Sixth, and Eleventh Circuits.
As Domino’s points out in its second point, the Ninth Circuit’s decision will effectively apply nationwide because as the largest circuit, nearly every national business and non-profit offers its goods and services at physical locations in the Ninth Circuit, as well as on websites and mobile apps. If this issue lingers, web-accessibility litigation will continue to grow, particularly in the Ninth Circuit where plaintiffs know the law is on their side and companies will struggle to comply. Furthermore, these lawsuits are expensive, as are plaintiffs’ accessibility demands. These burdens push businesses and non-profits to settle, or worse, eliminate online offerings, a result that harms all consumers.
In support of its third point, Domino’s explains the improper basis upon which the Ninth Circuit based its opinion. The plain text of Title III which states that it covers, “any person who owns, leases (or leases to), or operates a place of public accommodation” confines the scope of “public accommodations” to physical locations. 42 U.S.C. § 12182(a) (emphasis added). Moreover, Title III’s definition of “public accommodation” sets forth twelve categories of places, all of which are physical locations (e.g., “inn,” restaurant,” motion picture house,” “bakery”). It would be extremely peculiar to conclude that Congress intentionally listed twelve categories of physical locations, but overlooked intangible locations such as websites and mobile apps.
More to the point, Title III does not demand full accessibility for every means of accessing goods or services a public accommodation offers to its consumers. Rather, Title III contemplates “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). This does not mean that each and every means of accessing goods and services of a public accommodation must be accessible in isolation. It simply means that a consumer is entitled to “full and equal enjoyment” of the goods and services, whether it be, for example, in a physical location, on a website, or through a telephone hotline. To hold otherwise would require rewriting the language of Title IIII.
The bottom line is the Ninth Circuit’s opinion misreads Title III and effectively imposes unwritten and unreasonable constraints on companies as it applies to websites and mobile apps. If not addressed, companies, both big and small, will be forced to expend incredible amounts of money, time, and resources to try to comply with accessibility requirements in the online environment that do not exist. Now is the time for the Court to intervene and settle a conflict that has been plaguing the circuits and districts for years.
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The Fixing America’s Surface Transportation Act of 2015, better known as the FAST Act, reauthorized many of the modal administrations responsible for ensuring the safety of our surface transportation system, including FMCSA, NHTSA, and FRA.
Today’s hearing provides our witnesses with the opportunity to discuss the implementation of the FAST Act and to identify issues that this committee should consider as we prepare for a surface transportation reauthorization.
The FAST Act placed a greater focus on our nation’s multimodal freight network, that includes establishing the INFRA grant program. This program and others such as BUILD grants – formerly TIGER grants – are critical to improve our nation’s transportation infrastructure.
I hope the witnesses will provide the committee with an update on efforts to improve our infrastructure and how INFRA and BUILD grants are being utilized.
As the Commerce Committee considers reauthorizing the FAST Act, I plan to work closely with Ranking Member Cantwell and our other distinguished members on both sides of the aisle to:
- Authorize the BUILD discretionary grants;
- reauthorize Amtrak and continue to enhance our freight and passenger rail network;
- facilitate innovative transportation technologies across modes through coordinated research, development, and deployment;
- advance highway safety initiatives;
- focus on our nation’s multimodal freight network through programs like INFRA.
Senator Cantwell and I are also fully committed to working to improve our coastal and inland ports.
Safety is a top priority for this committee and for the Department of Transportation. But, with 37,000 highway deaths in 2017, more must be done.
Sadly, deaths in cars also happen when they are parked. Last month, I reintroduced the HOT CARS Act with Senator Blumenthal and Ranking Member Cantwell to prevent deaths of children left in unattended vehicles. In my state of Mississippi alone, there were at least 18 such fatalities between 1998 and 2018. These tragedies should be addressed immediately through technological improvements and enhanced education efforts – the HOT Cars Act would move us in the right direction. Technology will be a key part of solving the future of transportation challenges.
Let me take a moment to congratulate Secretary Chao for her efforts to prepare for those challenges by supporting emerging technologies, including advancing the safe testing and deployment of autonomous vehicles.
Until such time as autonomous vehicles are pervasive on our roads and used commercially, there is still an urgent need for truck drivers to help move our nation’s goods. I know the FMCSA is working on a pilot program to meet this need by studying the feasibility of allowing 18 to 20-year-old drivers with military experience to operate trucks in interstate commerce.
I think the committee would benefit from an update on that pilot program and a conversation regarding what other steps can be taken to address the shortage of truck drivers.
There is much to discuss today as we assess the safety and reliability of our nation’s transportation system and prepare for reauthorization of the FAST Act and the future of surface transportation. I look forward to the testimony of our panel of witnesses.
And I now recognize my friend, the Ranking Member, Senator Cantwell for her opening remarks.
The Committee on Small Business will meet for a hearing titled, “Unlocked Potential? Small Businesses in the Cannabis Industry.” The hearing is scheduled to begin at 11:30 A.M. on Wednesday, June 19, 2019 in Room 2360 of the Rayburn House Office Building.
While still illegal under Federal law, over a majority of states have legalized medical cannabis use and nearly a dozen with legalized adult recreational use. As the debate about legalizing cannabis strengthens, so does its economic impact with spending in the industry projected to increase to over $20 billion by 2022. The hearing will focus on the opportunities the legitimate cannabis industry presents for small businesses in states with legal cannabis, as well as entrepreneurs from traditionally underserved communities. The hearing will also enable Members to explore the challenges currently faced by those businesses, and also those of “ancillary” or “indirect” cannabis businesses who may not be directly involved in the production or distribution of cannabis products.
Ms. Shanita Penny
President of the Board of Directors
Minority Cannabis Business Association
Mr. Eric Goepel
Founder & CEO
Veterans Cannabis Coalition
Ms. Dana Chaves
Senior Vice President and Director of Specialty Banking
First Federal Bank
Lake City, FL
Mr. Paul Larkin
John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies
The Heritage Foundation
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