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Judicial Genuflection before Capitalists: New Gilded Age Style

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One sign of the New Gilded Age is how the courts back up obnoxious aggressive corporate behavior against citizen activism. In the first Gilded Age, this would happen in all sorts of ways, perhaps most prominently in completely disregarding the Sherman Anti-Trust Act when it could be applied to corporations but creating reasons to apply it against unions in order to bust their strikers. While on the federal level the upsurge in Obama-appointed judges after the judicial filibuster was broken is providing some buffer against this, in Republican states, the courts are issuing increasingly ridiculous decisions.

Take this example from, you guessed it, Texas. A fracking operation opened near a house. The residents of that house could then set their tap water on fire. They filmed it and complained. The company responded by filing a defamation suit. Even though this is absurd, there’s no way a regular family can fight this because they don’t have the money. The Texas Supreme Court said the defamation suit can go forward. The family now basically has no choice but take whatever the company offers to settle their complaints without actually solving any of the problems.

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  • Malaclypse

    I ask you, who is a better judge of risk here: a bunch of libtards from the EPA that somehow believe we need to “protect” the “environment”, or the unbiased scienticians of the Texas Railroad Commission?

    • From the biography of Ryan Sitton, Texas Railroad Commissioner:

      Ryan is a passionate conservative committed to putting his energy expertise to work for the people of Texas. As Railroad Commissioner, Ryan is working to make the commission more efficient and effective so Texas can lead America to energy independence. Ryan understands that the Railroad Commission exists to serve the people of Texas by keeping them safe while encouraging the responsible production of our natural resources. He also understands Texas, not the EPA or other federal agencies, should be responsible for overseeing the production of our natural resources and he is committed to fighting burdensome federal interference.

      • Malaclypse

        You must admit, being able to heat your house by burning your tap water is a sort of energy independence.

        • DrS

          Maybe it’ll even power a hilariously oversized pickup.

          Take that libtarbs

          • c u n d gulag

            Yeah, but it won’t belch tons of smoke in the air, so the pickup won’t be any fun!!!

            Also, think of the savings in time and money, when you can light your tap and get hot water for your coffee!

            • Shakezula

              Yeah, but it won’t belch tons of smoke in the air, so the pickup won’t be any fun!!!

              But you will after a glass of H20nowhatelseisinhere on a hot day.

              • Sure, I’m dizzy and nauseous, but where’s the inflated sense of self importance?

        • Warren Terra

          It’s an incredible convenience: want a nice cup of tea? Fill the cup at the tap, ignite it, add teabag once the flames die down. Gives a whole new meaning to “Texas Tea”.

    • Sly

      Incidentally, the Texas Commission on Environmental Quality used to be called the Texas Natural Resource Conservation Commission. According to Molly Ivins, the most popular phonetic pronunciation of the acronym TNRCC by people within the state government was “train wreck.”

      • The Temporary Name

        I feel bound by old habits when I mention Ivins and Texas – I’ve done it enough – but when I read the post I heard her saying “good for bidness” as the standard justification for everything Texas government does.

  • Srsly Dad Y

    Well, I’ve represented whistleblowers and I hate corporations and Texas too, but …

    Saying that the Lipskys put up a video and got sued for defamation oversimplifies quite a bit. The Texas Railroad Commission investigated their allegations and concluded that the fracking wasn’t the source of the contamination. The Lipskys were unhappy. They denounced everybody, posted the video, and sued the company (Range) for negligence and nuisance. Range didn’t drag them into court for citizen activism. The Lipskys had eight attorneys of record. Range had five. It moved to dismiss the lawsuit as an improper collateral attack on the administrative proceeding and filed counterclaims for business disparagement, defamation, and conspiracy. Range got the complaint dismissed, and the Lipskys got the conspiracy counterclaims dismissed, and the defamation counterclaim dismissed as to Ms. Lipsky and their environmental consultant, but not Mr. Lipsky.

    Three courts found that Range presented some evidence that the following statements by Mr. Lipsky, among others, were false:

    * Range’s drilling went under the Lipskys’ house (while omitting
    that Range’s wellbore was over a mile below the surface);
    · the Lipskys’ well no longer pumped water (when it actually could);
    · the Lipskys had found unnatural detergents in the water;
    · the Lipskys could not live in their home (although they continued to do so);

    · the Lipskys could literally light their water on fire, and the water was unsafe to drink …

    Range alleges that Mr. Lipsky made the video by hooking a methane vent to his water spigot.

    Just asking, what exactly is the right, non-Gilded Age result on these facts? You lie down with lawyers, you get up with … litigation.

    • efgoldman

      So we’ll just wait until an earthquake swallows the house and occupants, and then the problem will have gone away.

    • Joshua

      The Texas Railroad Commission investigated their allegations and concluded that the fracking wasn’t the source of the contamination.

      Has the TRC ever investigated similar allegations and found fracking was the source?

    • Malaclypse

      The Texas Railroad Commission investigated their allegations and concluded that the fracking wasn’t the source of the contamination.

      The Environmental Protection Agency maintains that the methane in the water that allows Lipsky to set it on fire is the result of Range’s wells,

      But what would the EPA know?

      • Linnaeus

        Here’s a bit more on that. Short version: when the EPA dropped its action against Range in 2012 in exchange for Range’s cooperation with a subsequent investigation with less stringent disciplinary action, the EPA’s IG instead found that the EPA thought the political risk was too great to pursue the matter, even though it believed its own findings to be sound.

        Maybe the Texas regulators are right, but I wouldn’t take their word for it just yet.

    • yet_another_lawyer

      Just asking, what exactly is the right, non-Gilded Age result on these facts? You lie down with lawyers, you get up with … litigation.

      I am wondering about this myself. Is the OP calling for a rule that there is no action for defamation, if the plaintiff is a corporation and the defendant represents that they can’t afford a defamation suit? If not, then what exactly should the courts do with a defamation action in such a situation, aside from what the Texas courts did here? If the allegations are true, then Range has a strong claim on the elements, and given the publicity the case has received, possibly damages as well.

      • Just_Dropping_By

        +1 Having read the article that the OP linked to and the sources linked in turn in that article, the most generous interpretation I can come up with for Loomis’ position to make it consistent with the normal procedural rule that the allegations of a complaint are accepted as true for purposes of a motion to dismiss is that he wanted the court to apply a Twombly/Iqbal pleading standard (required in federal cases, but not followed by most state courts), which might have precluded the claim. I suspect though that your guess is more accurate.

        • Srsly Dad Y

          “Person good. Company bad. Court smash!” is the standard we all want applied on a motion to dismiss, but alas, it doesn’t work that way,

      • The Temporary Name

        then Range has a strong claim on the elements

        It would be interesting to see the harm done to Range demonstrated.

        • Srsly Dad Y

          The parties filed cross-motions to dismiss. The proof comes later, now that the motions are resolved. It might be worthwhile to the company to prove Lipsky lied (if he did) and get nominal damages. The tort of business disparagement exists in every state AFAIK, and companies recover for it against each other all the time.

          • The Temporary Name

            I understand that there’s action that can be taken, but where the harm lies (outside the possible fact of the tort) would still be interesting to know. Did stock fall? Was business prevented? Can “I spent this money because I was worried about reputational damage” be included? In that case it’d be wise to spend a whole lot on reputation at every slight…just because.

      • Lurker

        In Finland, we have such a rule. You can defame only a natural person. A corporation has no honour that could be violated. Theoretically, you can defame its owners, managers or employees but another rule states that no defamation can arise if the speech was on the political, professional, scientific or artistic conduct of the alleged victim. Essentially, no amount of criticism on one’s professional conduct can be defamation, unless you start calling names. (In a case, a schoolboy was convicted for putting a video of his teacher singing in a Christmas party on Youtube with a caption: “Christmas at an asylum”. The boy would have walked free if the caption would have been less of a personal insult.)

        On the other hand, defamation on private issues is a serious matter. It is not a civil thing but a crime that can land you to prison for two years. There are actual, fresh cases where a person was actually sentenced to prison for more than a year, without probation for particularly severe defamation as a repeat offender. In addition, the prosecution will pursue the victim’s civil claim as part of the criminal case without any cost to the victim.

        If you are defamed here, your first step is going to police. A civil case is extremely rare because it is much cheaper to make a police report.

        • cpinva

          in the U.S., we have a type of civil suit, filed in the Federal courts, that is designed specifically to make corporations think at least twice, before filing suit against someone (usually an individual of somewhat limited means) who has the temerity to suggest, in a public venue, that the company is guilty of some kind of wrongdoing, in order to force them to stop. it’s called an anti-SLAPP suit.

          see:
          http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

          defamation, for a corporation, is going to be difficult to prove on its face, proving actual monetary damages will be next to impossible. unless the company can show something like, they were about to sign a contract, that had the potential to generate millions in revenues and net profits, but the other party backed out, specifically citing the allegations made by the defendent as the reason.

          “Did stock fall?”

          no direct harm to the plaintiff, unless it held issued & outstanding shares as treasury stock. the only instance I can see where the drop in market value of the stock might have an adverse affect on the company, is if a floating loan rate, or interest rate swap, used the stock’s daily ending value as the underlying market index for valuing the loan’s or swap’s interest rate.

          however, the company would have to prove a causal connection between the two events: the defendent makes public, derogatory/defamatory comments about the company, and within minutes of them hitting publically available media, the stock’s value drops. they would only be able to prove that if the stock is listed on some public stock exchange. if it isn’t, then they’re shit out of luck.

    • Masturbating to Poster of Himmler

      Most courts a full a lawyers most lawyers are Jews who will always side with the Jews who run Wall Street.

      • Malaclypse

        Still won’t fuck you.

        • Hogan

          But you have to admit that’s an unusual pickup line.

          • Malaclypse

            It explains why he is as successful in love as he is in life.

            • Manju

              Well, it takes time to master the neg.

              • malindrome

                … and Goebbels has no balls at all!

          • Ahuitzotl

            used to work great in Muenchen

    • Masturbating to Poster of Himmler

      Marxists have never cared about evidence.

      • AlanInSF

        Hey, I’m a Marxist, and I care about evidence. Post a pic of you and this Himmler poster.

        • Himmler doesn’t post here. Bimmler does, though.

  • Masturbating to Poster of Himmler

    That’s Capitalism for year this type of thing would never happen in a country like North Korea or Cuba.

    • Malaclypse

      Jennie, I will never fuck you, no matter how often you softly moan out my name as you type in ecstasy.

      Also, I know the difference between “you” and “year.”

    • tsam

      NO, stupid. It’s PANTS FIRST, THEN SHOES.

      Why can’t you remember this?

      • Hogan

        I’m liking this approach.

    • sharculese

      Every single time you do this it gets sadder. Get help.

      • Philip

        We did get a surprisingly long time before Jenny figured out how to register accounts, though.

    • cpinva

      “That’s Capitalism for year this type of thing would never happen in a country like North Korea or Cuba.”

      and your point would be?

  • Masturbating to Poster of Himmler

    If we had a loser pays system this lawsuit wouldn’t cost the owners of the house any money; assuming the oil company really has no case.

    • Just_Dropping_By

      I really go back and forth on the merits of loser pays. On the one hand, it almost certainly would deter some frivolous suits and encourage more rapid settlements in others. On the other hand, I could see it being a serious deterrent to bringing claims that appear thin at the outset, but which might be vindicated by actually getting to the discovery phase.

    • advocatethis

      Yeah, except the history of litigation between corporations and individuals in this country has demonstrated that that “ball don’t lie” approach often fails to square with justice or the truth.

      • Epsilon

        What, you mean to tell me that corporations spend so much on high-priced lawyers because it makes them more likely to win? What madness is this?

    • jim, some guy in iowa

      you’re offering to pay the costs?

  • Mike G

    Here is a case for libertarians who think everything can be resolved with ‘property rights’ and contracts instead of laws. It becomes a world of giant bullies getting their way because they’ll bankrupt you long before you get any ‘justice’.

    • Every Libertarian Ever

      And?

      • AlanInSF

        The really well-thought-out aspect of this segment of Libertarian fantasy is that, if you can’t light your water on fire from a fracking operation next door, but instead develop cancer ten years down the road after being poisoned from upstream air or water pollution, all you have to do is prove your cancer came from something that happened ten years ago and that it was the company’s pollution, and not someone else’s, that caused it. Power of the individual!

        • brugroffil

          Then you get money, and everything is good!

          Actively preventing harm doesn’t seem to cross their minds for some reason.

          • Davis X. Machina

            Comes from replacing ’cause and effect’ with ‘purchase and sale’

        • Morat

          As long as you can pay for your own investigation and somehow compel the corporation to accept its validity!

          I mean, I personally can totes afford to pay environmental scientists, statisticians, actuaries, etc. to spend months proving my injury. And obviously I have the time and expertise to judge whether they’re good at their jobs and haven’t been already bought by the fracking company.

  • Srsly Dad Y

    This thread drifted a long way from the OP. The court’s affirmance of an affirmance of the nondismissal of colorable disparagement counterclaims (under a heightened anti-SLAPP standard btw) is not facially “ridiculous” no matter what you think of the litigants or the merits or the American rule on attorney fees. Just not a well chosen example IMO.

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