A new Delaware law that would restore the rights of stockholders to bring class action lawsuits without fear of having to pay legal costs if they don't win every single part of their legal claim is being slammed by the U.S. Chamber of Commerce and its affiliate, the Institute for Legal Reform (ILR). But even right-wing media outlet Forbes isn't sold on their arguments.
In May, the Delaware Supreme Court surprisingly ruled in ATP Tour v. Deutscher Tennis Bund that corporations were allowed to unilaterally add bylaws forcing the loser in shareholder litigation to pay all the associated legal fees. These sorts of "loser pays" provisions are atypical in the U.S. but have been promoted by conservative organizations like the Chamber and the ILR under the guise of ending "frivolous lawsuits." Ultimately, though, such provisions have the effect of deterring or outright blocking many meritorious class action lawsuits brought by victims of corporate malfeasance.
In response to the state supreme court's holding in ATP Tour, Delaware legislators have proposed SB 236, a bill that would reinstate the normal prohibition on "loser pays" bylaws. The ILR is already registering its vocal opposition to the bill, arguing that it will leave corporations vulnerable to "abusive litigation."
Usually, right-wing media can be counted on to recycle the Chamber and ILR's pro-business talking points, in particular The Wall Street Journal editorial board. This time, however, even Forbes' Daniel Fisher questioned ILR's arguments. According to Fisher, who has supported anti-consumer provisions like forced arbitration clauses in the past, "opponents of SB 236 may be pushing too far" by promoting a loser pays system:
The bill's sponsor, Democratic Sen. Bryan Townsend, said he will set the bill aside for a while amid vocal opposition by the U.S. Chamber Institute for Legal Reform, according to the Wilmington News Journal.
The bill seems to restore the status quo by affirming the limited liability nature of corporations, where shareholders can only lose money to the extent of their investment. But the ILR said the proposed law -- passed, it noted, on "an extraordinarily expedited basis" -- would reverse a decision that "gives corporations a way to protect their shareholders" against the costs of "abusive litigation."
By pushing to retain the option implied by the ATP Tour decision, opponents of SB 236 may be pushing too far. Delaware courts have granted them ample tools to deal with shareholder litigation and chipping away at limited liability might be a cure that is worse than the disease.
Fisher's skepticism of ILR's issues with the bill are well-founded. According to Paul Bland, executive director of Public Justice, the Delaware Supreme Court's decision not only runs afoul of the basic concepts of contract law by allowing corporations to unilaterally change the rules of the game on their investors, it makes it "far easier for corporations to insulate themselves from accountability if they cheat shareholders or break the law. By contrast, the vast majority of courts in the U.S. disapprove of this kind of loser-pays provision."
It's not just states like Delaware that are threatening the viability of investor class action lawsuits, one of the best ways for defrauded stakeholders to get legal relief from the corporation who harmed them. Any day now, the Supreme Court will issue its decision in Halliburton v. Erica P. John Fund, a case that could make it nearly impossible for investors who have been the victims of corporate fraud to join together as a class and sue. Watch Bland explain in two minutes how Halliburton could be yet another in a long line of pro-business decisions from the conservative majority at the Court:
In response to a New York Times report about General Mills' new anti-consumer legal terms connected to its website privacy policies, Forbes came to the defense of the large corporation and its recent attempt to immunize itself from class action lawsuits.
On April 16, The New York Times reported that General Mills had changed its legal terms to include burdensome forced arbitration clauses, contract provisions that force consumers to waive their right to sue or join a class action. In the aftermath of the high-profile publicity and condemnation from consumer advocacy groups, General Mills abandoned the change after complaining their short-lived class action bans were "mischaracterized."
Forced arbitration clauses have become increasingly popular in the wake of Supreme Court decisions upholding the legality of such clauses. Unsurprisingly, forced arbitration is beloved by right-wing media and corporations alike, because they make it exceedingly difficult for injured consumers to join together in a class action.
However, General Mills' forced arbitration agreement was particularly outrageous. According to the Times, the new terms could be interpreted to bind consumers by merely downloading coupons, interacting with the company's website through social media like Facebook, or by entering a sweepstakes or contest, even if they were unaware that they had supposedly relinquished their right to sue.
In a recent column in Forbes, columnist Daniel Fisher responded to the Times by minimizing the importance of class actions as a method of recovery for injured consumers, and hyped forced arbitration clauses as an adequate alternative. Fisher went on to mock the Times for flawed reporting before relying on right-wing talking points about forced arbitration:
The bigger issue is what the Times writers work so strenuously to keep out of their stories. The fight here isn't over individual lawsuits; it's over class actions, those cases that reward lawyers with millions of dollars in cash fees and give their clients little to nothing. In editorials and articles like this, the Times carries water for the class-action bar, which also happens to supply a significant amount of money to the Democratic Party each year. The paper conflates the individual right to sue with the right of lawyers to assemble huge groups of consumers, typically without their knowledge or participation, into zombie armies that can compel companies into settling on lucrative terms.
What do General Mills customers really give up if they agree to an arbitration clause?
[A]rbitration does offer some advantages over traditional litigation. Such as: No lawyer would ever take a small case against General Mills in the first place. The General Mills policy specifies a $200 filing fee, which the company waives in cases involving less than $5,000. And anybody who really wants to preserve his right of jury trial can opt out of the policy entirely by notifying General Mills in writing.
The desert tortoise has become a symbolic scapegoat for right-wing media figures running defense for an anti-government cattle rancher who's threatening to wage a range war against federal law enforcement officers.
Conflict has erupted in Nevada between the Bureau of Land Management (BLM) and the family and supporters of rancher Cliven Bundy, a man who has refused multiple court orders to remove his cattle from public land. Bundy has stated that he does not recognize federal law and in fact argued in court in 1998 that the United States government didn't own the land in question (he lost). Now BLM officers and contract cowboys have begun confiscating Bundy's herd. And the scofflaw rancher has emerged as a right-wing folk hero after repeatedly stating that he owns firearms and is willing to "do whatever it takes to gain our liberty and freedom back."
At the center of the controversy -- according to right-wing media figures -- is the formerly endangered (and still threatened) desert tortoise. When Bundy's grazing rights were modified by BLM in 1993, it was in part to protect the species, which inhabits the same publicly-owned desert areas trodden by Bundy's cattle and was at the time on the brink of extinction.
That's where the connection to the tortoise ends, however. In 1993, Bundy began refusing to pay grazing fees required by the new rules. This led to an escalating series of reprisals from the judicial system that culminated in an order to confiscate Bundy's cattle in order to repay $1 million in fines and fees that over 20 years later remained unpaid. The current enforcement has less to do with protecting the tortoise, and more to do with Bundy's refusal to comply with the law or recognize the legitimacy of the federal government.
Nevertheless, right-wing supporters of Bundy's stand have tried to pin the conflict on the tortoise and the Endangered Species Act (ESA), which is being depicted in negative terms ranging from being dismissed as irrelevant and economically harmful to becoming the basis for conspiracy theories about unlawful land grabs by Big Government.
On Fox, the situation afforded the network the opportunity to perpetuate the conservative narrative that the ESA unjustly puts the rights of wildlife above the rights of people. One host declared, "We're not anti-turtle, but we are pro-logic and tradition." His co-host sarcastically (and inaccurately) described the government's position as "get the cows off so they can have the desert tortoise live there in peace."
David Blackmon, a Forbes contributor, penned a piece titled, "Using Snipers To Protect A Tortoise." (It's since been taken down, but cached here). In it, Blackmon argued that protecting the desert tortoise was merely a pretext being used by the government "with the clear expectation of running the Bundys off the land entirely."
As evidence that the protection of the tortoise is a scam, some in conservative media have pointed to the Bureau of Land Management itself, claiming it's been euthanizing tortoises and/or "planting" them in the desert in order to make a case that they're endangered.
In fact, a BLM tortoise conservancy in Nevada was forced to shut down due to budget cuts. Prior to its closure, the Desert Tortoise Conservation Center had to make the difficult decision to put down the tortoises that carried disease or were too feeble to survive on their own. The others were released back into the wild.
But despite how real the concerns about the future of desert tortoise may be, the reality is that the right-wing media is simply providing cover to a rancher who refuses to obey the law.
On January 28, President Obama gave his fifth State of the Union speech during which he addressed the urgent need to act on climate change. Conservative media pundits latched on to the cold winter weather in the area during his speech to laugh off global warming, despite the clear long-term warming trend.
The New York Times reported on a dangerous legal challenge to the Affordable Care Act (ACA) brought by officials in states who refuse to implement their own healthcare exchanges, which has been widely trumpeted in right-wing media. But these lawsuits are based on a far-fetched theory that the law only authorized essential tax credits in state exchanges, not federal ones, a counterintuitive claim that has been widely discredited.
Conservative Washington Post columnist and Fox News contributor George Will cherry-picked outlier examples of campaign finance violations while ignoring legitimate concerns about the potential for big-money donors to corrupt elections and balloted measures .
In his October 30 column, Will attacks campaign finance reform and celebrates the Supreme Court's infamous Citizens United decision, which opened the floodgates for large donors to corrupt elections with outsized contributions. Will highlights a pair of lower-court cases where judges struck down regulations on political speech that affected seemingly small-time civic participation to downplay the danger of political corruption, conveniently overlooking how these decisions might make it easier for large corporations to obfuscate their own political participation:
Brick by brick, judges are dismantling the wall of separation that legislators have built between political activity and the First Amendment's protections of free speech and association. The latest examples, from Mississippi and Arizona, reflect the judiciary's proper engagement in defending citizens from the regulation of political speech, a.k.a. "campaign finance reform."
In 2011, a few like-minded friends and neighbors in Oxford, Miss., who had been meeting for a few years to discuss politics, decided to work together to support passage of an initiative amending Mississippi's Constitution. The amendment, restricting the power of the state and local governments to take private property by eminent domain, was provoked by the U.S. Supreme Court's 2005 Kelo ruling that governments could, without violating the Fifth Amendment ("nor shall private property be taken for public use, without just compensation"), take property for the "public use" of transferring it to persons who would pay more taxes to the government.
The Mississippi friends and neighbors wanted to pool their funds to purchase posters, fliers and local newspaper advertising. They discovered that if, as a group, they spent more than $200 to do these simple things, they would be required by the state's campaign finance law to register as a "political committee." And if, as individuals, any of them spent more than $200 supporting the initiative, they must report this political activity to the state.
Mississippi defines a political committee as any group of persons spending more than $200 to influence voters for or against candidates "or balloted measures." Supposedly, regulation of political activity is to prevent corruption of a candidate or the appearance thereof. How does one corrupt a "balloted measure"?
The answer to this question should be obvious, and even Will begrudgingly admits "there is some slight informational value in knowing where money supporting a voter initiative comes from." Although Will doesn't mention it, the judge in the Mississippi case clearly left the door open for future regulations of political speech, giving a nod to the possibility of improper influence with respect to ballot initiatives:
Significantly, the Court does not hold that Mississippi may not regulate individuals and groups attempting to influence constitutional ballot measures. Instead, the Court holds only that under the current regulatory scheme, which is convoluted and exacting, the requirements are too burdensome for the State's $200 threshold.
Nevertheless, Will goes on to call the Supreme Court's decision in Citizens United -- one that allowed a tsunami of corporate money to enter the election process -- an "excellent" one. But even Citizens United noted the corrupting danger of unchecked money in the political system, and transparency was explicitly recognized as the critical protection against such a problem.
Multiple mainstream media outlets have covered a new report touting the economic benefits from hydraulic fracturing ("fracking") without disclosing the report's industry funding.
The recently released study, titled "America's New Energy Future: The Unconventional Oil & Gas Revolution and the US Economy," received widespread media attention on Thursday. The report, conducted by consulting group IHS CERA, was commissioned by multiple fossil fuel organizations that stand to benefit from growth in the oil and gas industry. According to the report, the increase in unconventional oil and natural gas extraction has added an average of $1,200 in discretionary income to each US household in 2012, and now supports 1.2 million jobs -- projected to increase to 3.3 million by 2020. These figures are much larger than the findings of many previous economic studies.
However, multiple major news outlets, including Reuters, CNBC, Forbes.com, and the Los Angeles Times, covered the new report with no mention of its financial ties to the industry. The research was monetarily supported by America's Natural Gas Alliance, the American Petroleum Institute, the American Chemistry Council, the Natural Gas Supply Association, and others who stand to gain economically from an unregulated increase in fracking. Kyle Isakower, vice president of regulatory policy at the American Petroleum Institute -- the largest trade association for the oil and gas industry -- lauded the new report, saying "[f]or an organization like the American Petroleum Institute, being able to cite the findings and reputation of IHS goes a long way toward making its point to government officials." According to Steve Forde, vice president of policy and communication at the Marcellus Shale Coalition (an industry trade group), economic impact studies such as this are "an important advocacy tool" for industry development.
Bloomberg, which did disclose the report's industry ties, reported that the IHS report didn't take potential environmental impacts from extracting unconventional oil and gas through drilling and fracking, such as groundwater contamination and strains on water resources, into account.
UPDATE (9/10/13): The Wall Street Journal joined the slew of coverage that failed to disclose the report's oil and gas industry funding, in an editorial published on Tuesday. The editorial claimed the IHS report was "evidence" that fracking "may be the country's best antipoverty program." The Wall Street Journal has published editorials downplaying the risks of fracking before.
Right-wing media outlets have advanced a number of myths regarding automatic across-the-board spending cuts -- commonly called the sequester -- in order to hide the facts behind an inherently harmful economic policy.
Despite the overwhelming consensus among climate experts that human activity is contributing to rising global temperatures, 66 percent of Americans incorrectly believe there is "a lot of disagreement among scientists about whether or not global warming is happening." The conservative media has fueled this confusion by distorting scientific research, hyping faux-scandals, and giving voice to groups funded by industries that have a financial interest in blocking action on climate change. Meanwhile, mainstream media outlets have shied away from the "controversy" over climate change and have failed to press U.S. policymakers on how they will address this global threat. When climate change is discussed, mainstream outlets sometimes strive for a false balance that elevates marginal voices and enables them to sow doubt about the science even in the face of mounting evidence.
Here, Media Matters looks at how conservative media outlets give industry-funded "experts" a platform, creating a polarized misunderstanding of climate science.
The Economist has called the libertarian Heartland Institute "the world's most prominent think tank promoting skepticism about man-made climate change." Every year, Heartland hosts an "International Conference on Climate Change," bringing together a small group of contrarians (mostly non-scientists) who deny that manmade climate change is a serious problem. To promote its most recent conference, Heartland launched a short-lived billboard campaign associating acceptance of climate science with "murderers, tyrants, and madmen" including Ted Kaczynski, Charles Manson and Fidel Castro. Facing backlash from corporate donors and even some of its own staff, Heartland removed the billboard, but refused to apologize for the "experiment."
Heartland does not disclose its donors, but internal documents obtained in February reveal that Heartland received $25,000 from the Charles Koch Foundation in 2011 and anticipated $200,000 in additional funding in 2012. Charles Koch is CEO and co-owner of Koch Industries, a corporation with major oil interests. Along with his brother David Koch, he has donated millions to groups that spread climate misinformation. Heartland also receives funding from some corporations with a financial interest in confusing the public on climate science. ExxonMobil contributed over $600,000 to Heartland between 1998 and 2006, but has since pledged to stop funding groups that cast doubt on climate change.
Despite their industry ties and lack of scientific expertise, Heartland Institute fellows are often given a media platform to promote their marginal views on climate change. Most visible is James Taylor, a lawyer with no climate science background who heads Heartland's environmental initiative. Taylor dismisses "alarmist propaganda that global warming is a human-caused problem that needs to be addressed," and suggests that taking action to reduce emissions could cause a return to the "the Little Ice Age and the Black Death." But that hasn't stopped Forbes from publishing his weekly column, which he uses to spout climate misinformation and accuse scientists of "doctoring" temperature data to fabricate a warming trend. It also hasn't stopped Fox News from promoting his misinformation.
In order to distract from the announcement this week that Arctic sea ice is at a record low, right-wing media are pointing to Antarctic sea ice as proof that climate change isn't occurring. But Antarctic sea ice gains have been slight, whereas Arctic ice decline -- a key indicator of climate change -- has been extreme. Furthermore, scientists have long expected the Arctic to experience the first impacts of climate change, and still project that in the long run, sea ice in both regions will decline as greenhouse gas concentrations increase.
On September 16, the National Snow and Ice Data Center announced that Arctic sea ice reached its minimum extent for the year and the lowest seasonal minimum measured since record keeping began in 1979. But in a blog post published the day of that record low, climate contrarian Steven Goddard changed the subject, asserting that Antarctic ice on "day 256" (September 12 in a leap year) was the highest ever recorded for that date, and the eighth highest daily recording ever. A few days earlier, contrarian Anthony Watts cited satellite readings showing "mass gains of the Antarctic ice sheet" to similar end.
Heartland Institute fellow and Forbes contributor James Taylor quickly seized on the argument, complaining that instead of covering the Antarctic, news reporters were "breathlessly spreading fear and warning of calamity because Arctic sea ice recently set a 33-year low." Investor's Business Daily used the Antarctic ice growth to pass judgment on "global warming alarmists" for noting record summer temperatures across much of the U.S. and concluded " The alarmists' bible has turned out to be full of false prophets."
But the low Arctic sea ice came on the heels of a "record-breaking summer," and it is lower than any since observation began "by a wide margin." According to a NASA release on the record, the difference between the new Arctic sea ice extent and the old mark is larger than the state of Texas, whereas, as National Snow & Ice Date Center [NSIDC] Director Mark Serreze told LiveScience, "Antarctic sea ice hasn't seen these big reductions we've seen in the Arctic."
Indeed, the daily sea ice extent for the Arctic is well outside of two standard deviations from the 1997-2000 average, while the Antarctic daily sea ice extent is only slightly outside of this range for 2012:
And according to a study published in Nature of 69 sites around the Arctic, the drop in late summer sea ice in the Arctic is unprecedented in over a thousand years:
Conservative media have claimed that the Obama administration is waging a "war" on "cheap," "clean" coal that will cause blackouts and massive layoffs. In fact, the Obama administration has simply implemented long overdue and legally required clean air regulations to protect public health without hurting electric reliability or employment, and much of the transition away from coal is due to the rise of cheaper, cleaner natural gas.
Natural gas can help the U.S. transition away from reliance on coal in the near-term if it is produced responsibly. But conservative media have dismissed the risks involved with the rapid spread of natural gas extraction to push for deregulation, attack the Obama administration, and ignore the need for a comprehensive energy policy to transition to renewable energy.
A recent Forbes column alleges that federal scientists are "doctoring" temperature data to fabricate a warming trend, after the National Oceanic and Atmospheric Administration announced that the last 12-month period was the warmest on record for the continental U.S.
But what the column paints as a nefarious conspiracy is actually just proper science -- NOAA painstakingly applies peer-reviewed adjustments to account for errors and gaps in the raw data from thousands of temperature stations across the country. The resulting temperature record has been independently evaluated and corroborated.
The column is by James Taylor of the Heartland Institute, the libertarian group that recently made headlines with a short-lived billboard campaign tastelessly invoking the Unabomber. This is not the first time Taylor has used his platform at Forbes to malign scientists and spread bad information about climate research.
At issue are the corrections NOAA uses to eliminate errors and known sources of bias from the raw weather station data (which Taylor likes to call "the real-world data"). Keep in mind that the U.S. represents just 2% of the Earth's surface so the data we're talking about are a small part of the evidence of global climate change.
The scientists (Taylor calls them "bureaucrats") know that the raw data have flaws -- stations are moved, natural disasters knock stations offline, measuring instruments change -- so NOAA performs quality control using methods that are published in peer-reviewed papers. Taylor concedes that "it is, of course, possible that certain factors can influence the real-world temperature readings such that a correction in real-world temperature data may be justified." But when he doesn't like the results, he concludes that the adjustments aren't valid corrections but "doctored data."
Following relentless attacks on the solar industry in the wake of Solyndra's bankruptcy, wind power has become the latest target of the right-wing campaign against renewable energy. But contrary to the myths propagated by the conservative media, wind power is safe, increasingly affordable, and has the potential to significantly reduce pollution and U.S. reliance on fossil fuels.
On April 22, 1970, 20 million Americans participated in the first Earth Day, rallying across the country to raise awareness about pressing environmental challenges. Organized by a Democratic senator and a Republican congressman, Earth Day 1970 "achieved a rare political alignment, enlisting support from Republicans and Democrats," according to Earth Day Network, and provided momentum for the passage of landmark legislation to protect our air, water, and endangered species.
But in today's political climate, even Earth Day has become the target of partisan attacks from the right.
This past Sunday, as millions of Americans celebrated Earth Day, conservative media figures spent the day downplaying the impact of human activity on the environment, advocating for more fossil fuel development, and taking credit for misleading the public about the threat of climate change. Others attempted to spread fear about the holiday by noting that it falls on Vladimir Lenin's birthday, and by linking it to a convicted murderer who falsely claimed to be behind the first Earth Day.
And one right-wing blogger recalled how he tried to delay his son's birth because he "really didn't want a child born on Earth Day."
It was not long ago that Earth Day -- and the values of conservation and environmental responsibility it represents -- enjoyed bipartisan support. The Times-Picayune reported on Sunday on the shift that has taken place over the last 40 years: