A Facebook Deal That Needs Unfriending

Time to end class-action settlements that only reward lawyers, not plaintiffs.
By David B. Rivkin Jr. and Lee A. Casey 

The Supreme Court will soon decide whether to hear a case that could determine the future of particularly abusive class-action settlements. Not abusive in the usual sense, where a class of injured plaintiffs is awarded an exorbitant amount. Instead, these settlements are abusive in that absolutely nothing goes to the injured plaintiffs. At issue is whether federal courts may approve such agreements rewarding lawyers and defendants, leaving plaintiffs out in the cold.

The case is Marek v. Lane, and it arose out of Facebook’s notorious 2007 “Beacon” program. Beacon gathered and published information about Facebook users’ other Internet activities as an advertising and marketing tool, invading the privacy of millions. It may also have violated a number of state and federal laws, including the 1988 Video Privacy Protection Act, which includes a liquidated-damages provision of $2,500 for each offense. A class-action suit was filed in 2008 on behalf of as many as 3.6 million injured social networkers.

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David Rivkin on the Supreme Court ruling on the Voting Rights Act

Congressional law attorney David Rivkin spoke on Bill Bennett’s “Morning in America,” about the court’s decision on voting rights. David compared the history of voting rights to the current societal environment. David clarifies the necessity of the previous laws and how they are no longer relevant, as they have succeeded.

 

The Case Against Deference

Judges should be unafraid to review government actions

By David B. Rivkin Jr. and Elizabeth Price Foley

For at least half a century, judicial restraint has been the clarion call of the conservative legal movement. After the Warren Court era, Roe v. Wade, and very nearly a “right” to welfare benefits, it was not surprising that conservatives would seek to rein in judicial self-aggrandizement.

The principal conservative response was to promote judicial deference: Judges should resist the temptation to legislate from the bench and “defer” to the political branches. Unfortunately, time has shown that this response was too blunt. Particularly in constitutional cases, judicial deference has led to a steady expansion of government power. This, in turn, has undermined the delicate constitutional architecture, which calls for a federal government of limited and enumerated powers.

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David Rivkin dissects Supreme Court case on gay marriage: Bill Bennett’s Morning in America (Day 2)

Will the Supreme Court rule that the Defense of Marriage Act is unconstitutional? Bill Bennett’s Morning in America: Constitutional attorney David Rivkin provides an in-depth analysis of the Supreme Court second case on gay marriage. 1,100 federal statutes use the term “marriage” without defining it. At the time the laws were passed, marriage was assumed to mean “between a man and a woman.” Nine states permit unions between members of the same sex. The federal government has an interest in uniformity. Simultaneously, under the principle of federalism, the federal government should not overstep the police powers of the states. The Bennett-Rivkin discussion explains the issues in this case about the Defense of Marriage Act.

 

David Rivkin analyzes first Supreme Court gay marriage case on Bill Bennett’s Morning in America

Did Supreme Court liberal justices disappoint gay marriage advocates? Constitutional attorney David Rivkin and Morning in America host Bill Bennett provide a cogent discussion about Day 1 of the Supreme Court arguments on gay marriage– specifically about California’s Proposition 8 which was struck down by the California Supreme Court. David Rivkin provides an in-depth analysis of key arguments. Justice Sotomayor’s question about limits on the definition of marriage goes to the heart of the problem.

 

Corporate crime and punishment

Fines levied by the SEC against a corporation for long-ago wrongdoing do not protect current investors.

By DAVID B. RIVKIN JR.  And JOHN J. CARNEY

Two weeks ago, a unanimous Supreme Court rebuffed the Securities and Exchange Commission Gabelli v. SEC. The SEC maintained that its enforcement actions for fines under the Investment Advisers Act weren’t subject to the five-year statute of limitations. This wasn’t the first time the courts have pushed back a federal agency for overreaching. It won’t be the last.

But the SEC’s audacity prompts a broader policy question: What good is accomplished by imposing monetary penalties on corporations, as the agency attempted to do in Gabelli? The answer is that when such penalties are sought by the government, they probably do more harm than good.

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