On this, the communists and paleo-conservatives can agree:
The bourgeoisie, wherever it has got the upper hand, has put an end to all feudal, patriarchal, idyllic relations. It has pitilessly torn asunder the motley feudal ties that bound man to his “natural superiors”, and has left remaining no other nexus between man and man than naked self-interest, than callous “cash payment”. It has drowned the most heavenly ecstasies of religious fervour, of chivalrous enthusiasm, of philistine sentimentalism, in the icy water of egotistical calculation. It has resolved personal worth into exchange value, and in place of the numberless indefeasible chartered freedoms, has set up that single, unconscionable freedom — Free Trade. Preamble, The Communist Manifesto
(Of course, Marx had no love for ancien regime, while the conservatives did.)
It depends. If someone breaks into your house with government encouragement, that’s a Fourth Amendment violation. If he breaks into your house because he’s a burglar, and then happens upon something he knows the government would want, and then sells that information to the government, it’s not a Fourth Amendment violation.
The question is, if you hold a garage sale and someone buys your stuff and the governments then buys that stuff from whomever you sold it to, is it a Fourth Amendment violation?
Because that's what's really happening here. Once you sell your data to Facebook, Twitter, etc, it's no longer "in your house." If you granted third parties license to collect and sell your data under terms of service, then that data no longer belongs to you, and you agreed to that..
To me the bigger problem isn't the government buying data on the open market, it's that data is a market to begin with.
>Because that's what's really happening here. Once you sell your data to Facebook, Twitter, etc, it's no longer "in your house." If you granted third parties license to collect and sell your data under terms of service, then that data no longer belongs to you, and you agreed to that.
That's the general thrust of Fourth Amendment jurisprudence and is called the "third-party doctrine". But the Carpenter decision in 2018 is a big exception to that, and it's likely that more are to come.
So a one off garage sale run doesn’t seem “unreasonable” —they came upon it… accidentally or gumshoed it… but once it becomes systematic and pervasive I definitely believe it is in contradiction with the fourth amendment to the constitution of the US
You would think so, but Congress has occasionally done things like this, like pass the Wiretap Act and the Electronic Communications Privacy Act, both of which impose restrictions on government access to information beyond what the Courts at the time required under the Fourth Amendment.
One concerning development is how much the Democratic Party, which used to be a major proponent of restrictions on government searches, has cozied up to the defense and intelligence establishments since 2016 because of a shared interest in stopping populist right-wing movements that also happen to be anti-interventionist. They're also less keen on digital rights these days because they want to censor right-wingers online.
It appears like the Neocons, previously associated with a war-philic faction of the Republican party has surreptitiously, through the Clintonite "third way" faction of the Democrat party, made vast inroads into the current Democrat party, in measure because of the Neocon opposition to non-interventionism which is associated with parts of the Republican right and also parts of the Democrat left. Off bedfellows but has become rather "mainstream" in both parties.
I could respond with something equally condescending and sarcastic like “You Europeans should try not legislating yourselves into laughably low salaries,” but that would be rude and counterproductive.
No, GP makes a fair point. If it were true that all this does is benefit claimants and plaintiffs, the adversaries of the one taking the action, why would they do it?
Of course it would benefit J&J too. You get to consolidate your cases in one court. You get to be in federal court, which is by conventional wisdom believed to be more defendant-friendly. You get to achieve legal certainty in a shorter period of time. It also benefits all the plaintiffs who weren't early to the party, since they are guaranteed a slice of the pie (if they win), instead of the first few successful plaintiffs eating the whole thing.
> It also benefits all the plaintiffs who weren't early to the party, since they are guaranteed a slice of the pie (if they win), instead of the first few successful plaintiffs eating the whole thing.
The pie is much smaller though. Georgia Pacific was faced with 62,000+ claims. They went through this same process. Spun off their subsidiary. "Pledged" to fund it with an "initial" billion dollars, and that GP would fund all claims.
Never happened. They actually only funded $175M. Less than $3,000 per claimant for asbestos related injuries. Less than $3,000 before legal fees.
And there was nothing defendants could do, because there was no legal obligation that could be created to force GP to fully fund. "That entity is independent and is in bankruptcy. So sad, too bad."
The Texas two-step allows solvent companies to shield their assets from litigants using protections that are normally reserved for bankrupt companies. The goal of a Texas two-step is for the parent company to gain a third-party release of all liabilities it assigned to its spinoff, thus preventing litigants from pursuing those claims against the parent.
And yet here we have multiple people trying to spin things as "Oh, J&J just want what is fair for the litigants!"
Fun fact: the majority of large corporations who utilize the Texas Two Step somehow manage to avoid paying out anything more than a token sum, either through the "new" entity that holds the liabilities, or the "old" entity which promised it'd fully fund the liability holding entity.
Georgia Pacific did this. Pledged $1B, ended up funding $175M. The entity went bankrupt three months later with 62,000 claims fighting over those scraps for mesothelioma (i.e. an average claimant getting less than $3,000 - before legal costs).
Saint-Gobain did the same thing. More building products liabilities. Less than $100M in assets and no operations to fund more than 6,000 asbestos claims per year.
> Gross testified that Saint-Gobain repeatedly misrepresented its intent in creating the subsidiary that eventually filed for bankruptcy, calling executives’ testimony and other statements “misleading” and “not truthful.” U.S. Bankruptcy Judge Craig Whitley followed Gross’s testimony last August with factual findings that included his own blistering critique of the executives’ statements as “contrary to the evidence,” saying the company’s story “strains credibility.”
Trane Technologies. Same deal.
And yet you and Matt talk about how the whole concept is "designed to be more fair for the claimants".
"Facts and analysis" in the three companies who have done this before J&J would disagree with you. Strongly.
Can you find a source saying that Georgia Pacific or any other company was able to use this process to shield the parent company from liability? I’m not finding anything to that effect. Everything I see complains about them using the process to improperly consolidate the cases.
>Georgia Pacific did this. Pledged $1B, ended up funding $175M. The entity went bankrupt three months later with 62,000 claims fighting over those scraps for mesothelioma (i.e. an average claimant getting less than $3,000 - before legal costs).
A source would be helpful here too. Is it because the judge ultimately only found them liable for a total of $175M? Or did the judge find them liable for more but was only able to find $175M in actual money to pay out with?
This is the top-voted comment but as many of the other replies have pointed out, it's totally wrong outrage-bait. J&J, the parent company, is still ultimately liable for the full amount. The bankruptcy process just allows the courts to manage all of the claims together under the authority of one judge, instead of having different courts in every state issue incompatible damages awards in a race to judgment.
They're only liable for the full amount because a judge refused to let them go through with the plan. Just because they failed to enact their plan doesn't mean the plan didn't exist.
No, wrong. That's not what happened and it's not what the article says. The court didn't like the idea of them using the bankruptcy system to consolidate the cases.
The main issue with the action seems to be stalling for time in the courts while the parent company can continue to operate without much consequences (as far as I can tell all the companies listed in the texas-two-step wiki page are still operating and have not paid out).
Because the bankrupcy basically pauses all litigation (including against the parent company) it means even more delays on an already extremely lengthy process, but the restrictions of bankrupcy only apply to the spin-out, not the parent. So while in theory they may pay out eventually, the process can easily take more time and money than many of the claimants have (literally in the case of those who have cancer).
In general the immense amount of time most court systems take to actually resolve disputes like this is a big contributer to the lack of faith most people have in them, and the capacity to stall for time available to both parties but especially defendents is a big part of that problem.
> The bankruptcy process just allows the courts to manage all of the claims together under the authority of one judge, instead of having different courts in every state issue incompatible damages awards in a race to judgment
This "just" is sure doing a lot of work.
First off, if J&J is really on the hook for all the liabilities of the child company, then the child company is not bankrupt since it has plenty of money to pay unless J&J is also bankrupt. This makes it pretty clear that the bankruptcy is a sham legal maneuver.
Second, it is a bit rich that this legal maneuver is framed at "protecting claimants" when it blocks those claimants from pursuing cases that maximizes their damages. It seems pretty clear that J&J are not following this strategy to protect the victims an ensure fairness but to minimize their own costs and damages.
What this basically amounts to is subverting bankruptcy law to force claimants into something more akin to a class action without the consent of the claimants.
If it really is the case that total awarded damages exceed what J&J can pay, then J&J should itself file for bankruptcy.
>Second, it is a bit rich that this legal maneuver is framed at "protecting claimants" when it blocks those claimants from pursuing cases that maximizes their damages.
This is purposefully obtuse. If a few courts award 5 plaintiffs the entire pot of gold, then there's nothing left for all the other claimants. And of course it's in J&J's interest to consolidate the cases. It's also in the plaintiffs' interests, especially those who weren't first.
Potentially but it's also a waste of our judicial system resources to have 12 identical cases going at the same time. However if you like paying for legal admin fees on both side its a great way to make sure lawyers get paid.
That's not true. Judges can't just take cases from different districts and different states, different court systems altogether, and consolidate them. Plaintiffs can choose to file a class action, but you can't force them into one. If all the cases are in federal court, you can kind of consolidate into an MDL (multi-district litigation), but that just consolidates certain pre-trial procedures. Unless they settle, the cases still get sent back out to the districts they came from for resolution by the original judges and separate juries.
If you weren't allowed to see medical bills and such, then you were probably tasked with determining other kinds of damages (e.g. emotional distress) that are totally unrelated to those.
How would you like it if you were a plaintiff suffering severe lifelong emotional distress but the jury saw that the medical bills were only $1000? It's not as simple as you make it out to be.
Ok, no "outrage" here @somenits. This is a variation on a "bad bank" scheme that normally is suggested only where jettisoning the toxic liabilities from the main entity will facilitate a government bailout of the resulting "bad bank". That's what makes the scheme work, normally. There isn't a bailout on the way for J+J's bad bank, and the closest suggestion of any value-creation from the manuver comes from disassociating the consumer brand from consumer injuries they allegedly caused. However, that doesn't sound like a compelling case for such a remarkable corporate manuver.
So then, what we are left with is a "bad bank" scheme that is devoid of a compelling legitimate justification, which you yourself do not offer. This naturally raises an inference that J+J hopes to cram down tort claims via the maneuver. Perhaps the cram-down is in administrative overhead associated with litigation. Maybe it's some kind of mismatch in claim acceptance or approval criteria. None of the materials explain, and while I adore Matt's writing the bottom line is it looks like a shell game and that's from someone with no "outrage" whatever involved.
Would you have preferred I refer to a shell game rather than "three card monte." I do confess some ignorance of street hustle lingo. Or, maybe the street people have already switched to simply calling it the "bad bank game?"
It's just recognition by a UN body. If you'll indulge some cynicism, all it really means is that a bunch of people spent your tax money (which funds the UN through member-state contributions) to sit around (and expense a bunch of pointless travel) pontificating on what's worthy of recognition.
There is an optimal number of firms in competition with each other. It could be that for a particular industry, 10 firms means everyone is losing money and unable to make new investments, while 8 firms means that there's a healthy amount of profit that can sustain R&D and growth. Sure, eventually it might all work out as firms go bankrupt or go into a new business, but you can lose decades in waiting that out.
Also, this is easily circumvented by just buying the crucial assets of a competitor, like trade secrets, factories, offices, patents, etc.
> 10 firms means everyone is losing money and unable to make new investments, while 8 firms means that there's a healthy amount of profit that can sustain R&D and growth.
don't confuse economic profit with accounting profit: the promise/goal/benefit of competitive markets is that economic profit goes to zero. (quickest way to describe the difference is, there are dry cleaners dotting the landscape in competition with each other, they make income which pays the owner's living including saving for retirement, kids college fund, etc. That's accounting profit. That's not economic profit, which is why you don't see VCs and investment banks investing in dry cleaning startups.)
Another important aspect of competitive markets is that weak companies die, and new companies enter, what Schumpeter called creative destruction. The 10 firms "losing money" is 10 firms competing, some of whom will fail. The 8 firms making healthy profits with fat (and lazy) R&D departments is attractive for disruption.
I'm not confused. But you are introducing unnecessary concepts here. A firm needs to make some profit in the long run, whatever you want to call it, to be able to sustain investment. If there's too many firms in the market, that can be undermined. That's why you don't see five dry cleaners right next to each other in the same strip mall.
And your second paragraph fails to address my point too. I acknowledged that in the long run, the health of the industry could be restored by some of the firms failing. But that can take way too long, and in the meantime, all of them are capital-starved and unable to invest in improving their businesses.
The bourgeoisie, wherever it has got the upper hand, has put an end to all feudal, patriarchal, idyllic relations. It has pitilessly torn asunder the motley feudal ties that bound man to his “natural superiors”, and has left remaining no other nexus between man and man than naked self-interest, than callous “cash payment”. It has drowned the most heavenly ecstasies of religious fervour, of chivalrous enthusiasm, of philistine sentimentalism, in the icy water of egotistical calculation. It has resolved personal worth into exchange value, and in place of the numberless indefeasible chartered freedoms, has set up that single, unconscionable freedom — Free Trade. Preamble, The Communist Manifesto
(Of course, Marx had no love for ancien regime, while the conservatives did.)