Tag Archives: CPSC

Corporate Interests, Consumer Safety?

banker 2 Columnist Steve Sebelius has an article posted which is high on DB’s Must Read List: “Heck opposes ‘junk lawsuits’ ? Since When?”  It’s hoped that after reading this you’ll come back for more information on the Republican assault on your rights in the Courthouse.  Medical malpractice litigation is only one of several categories in which the Republican Party is ready and ever-so-willing to restrict the rights of ordinary citizens to have their day in court.  Failing that, there’s always the option to force litigation on those least able to afford it.

Your Body vs. Health Insurance Corporations

It’s time to remember that one of the very few specific proposals incorporated into the GOP version of health care insurance reform was “litigation reform.”  One of the more recent comes from a Louisiana Congressman:

“Representative Steve Scalise, Republican of Louisiana, is one of several Republicans pushing for the proposed legislation, which would repeal the Affordable Care Act, place new restrictions on medical malpractice suits and provide more access to health savings accounts.”  [LFC]

The standard line from Republicans is that malpractice litigation creates “runaway health care spending increases” because medical professionals order unnecessary tests, and if damages are limited fewer people will have any incentive to file law suits.  However, we’ve known since 2009 that some physicians have ordered extra testing merely to increase their billings, [TNY] and after Texas legislature capped damages costs still hadn’t dropped in the area highlighted as the poster child for escalating health care costs (McAllen, TX). [Wire]  A Florida law restricting medical malpractice suits was declared unconstitutional – after the Florida Supreme Court found that only the health insurance corporations benefited from the restraints. [Wire] And what was achieved by restraining the ability of ordinary citizens damaged by medical malpractice?

Not much:

“Defensive medicine includes tests and procedures ordered by physicians principally to reduce perceived threats of medical malpractice liability. The practice is commonly assumed to increase health care costs. The results of studies of the costs of defensive medicine have been inconsistent. We found that estimated savings resulting from a 10 percent decline in medical malpractice premiums would be less than 1 percent of total medical care costs in every specialty. These savings are lower than most previous estimates, and they suggest that the presumed impact of tort reform on health care costs may be overstated.” [HA.org, National Cancer Inst] (emphasis added)

May be overstated?” They are being overstated. And, they are being overstated in the pursuit of policies which are blatantly aligned with the interests of the health insurance corporations.   Might any Nevadan oppose litigation seeking to hold accountable those responsible for the Hepatitis C outbreak from the Shadow Lane Clinic? [LVRJ/Sebelius]  Would Floridians oppose the efforts of the family of Michelle McCall to hold a medical facility accountable for her death – the result of a case of preeclampsia being handled about as poorly as might be imagined in a nightmare. [FSC 2014 pdf]

Who in Missouri would castigate the efforts of the Schneider family in the wake of a stroke suffered by Jeffrey Schneider, an IT specialists with the Federal Reserve, which caused damage to his speech, the right side of his body, and loss of short term memory – and which was preventable had the physician paid attention to his own notes going back to 1996. [STLpd] Also left un-noted in the hyperbole about Runaway Costs from Irresponsible Juries – the fact that medical malpractice suits are extremely difficult to win.

The physicians and medical facilities usually win in most cases. In one study of 10,000 malpractice cases between 2002 and 2005, just a bit over half (55%) ended up in an actual lawsuit. Of that 55% more than half were dismissed by the court. When all the winnowing was final, less than 5% of the cases ended up being decided by a trial verdict – and 80% of the verdicts were in favor of the physicians. [reuters]  For this, we are being asked by Representatives Heck, Scalise, and others, to voluntarily abrogate our rights as citizens to have our day in court.

Your Body vs. Gun Manufacturers and the NRA

On October 20, 2005 Congress passed a law protecting gun manufacturers and dealers from any liability.  The NRA was positively elated. [NYT]  The vote on S. 397 was 283-144 [roll call 534] The law is a gun manufacturer’s delight, it:

Prohibits a qualified civil liability action from being brought in any state or federal court against a manufacturer or seller of a firearm, ammunition, or a component of a firearm that has been shipped or transported in interstate or foreign commerce, or against a trade association of such manufacturers or sellers, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, penalties, or other relief resulting from the criminal or unlawful misuse of a firearm. Requires pending actions to be dismissed. [Thomas]

Did we notice the damage might have resulted from “the criminal or unlawful misuse of a firearm?”  P.L.109-92 protects gun manufacturers and dealers like no other sector of our economy.  Did the safety fail? You have no case. Did the gun malfunction because of a preventable engineering flaw causing an injury or loss of life? You have no case. Did the Saturday Night Special shatter when fired? You have no case.  If your complaint is with a firearms manufacturing corporation – you will not have your day in court.

There are also moves afoot to make being a consumer in this consumer economy a matter of a perverted form of survival of the fittest – or the wealthiest at least.  In this regard the advocates of corporate interests want to remove the very agencies which provide administrative options to litigation.  Instead of eliminating your day in court, the massive corporations would like very much to make you challenge them in court – if you dare.

Your Wallet vs. The Financial Institutions and Big Banks

Nothing so alarmed the bankers and other participants in the Great Mortgage Disaster of 2007-2008 as the creation of the Consumer Financial Protection Bureau.  In fact, a small community bank in (where else?) Texas along with two conservative groups,  were moved in 2012 to file a lawsuit saying the appointment of CFPB director Richard Cordray was unconstitutional and the agency was without “checks and balances.” The bankers also didn’t like the Financial Stability Oversight Council – the one that studies risk in the financial sector. [Reuters]  In September 2012 some Republican state attorneys general were planning “non-cooperation” with the CFPB, following along the talking points made in the litigation. [Bloomberg]  Nothing would please these folks more than the repeal of the Dodd-Frank Act, so that the wheels of the Wall Street Casino could be free to spin again.

And what subjects does the Consumer Financial Protection Bureau review? Student Loans, Manufactured Home financing,  Bank Overdraft and other fees… As of June 2014 the CFPB reviewed (pdf) complaints in a variety of financial transaction categories – 34% concerned mortgages, 20% concerned debt collection activities, 14% were about credit cards, 12% about banking accounts and services, 3% were about consumer loans, 3% about student loans, and payday loans 1%.  In other words, disputes about loans and other services common, ordinary, everyday, citizens of the U.S. might be involved in.  

The legal system usually demands that all administrative options be finished before litigation is initiated.  If there is no CFPB then there is one less way for disputes to be resolved at the administrative level – and the individual citizen (the one in the mobile home, in the student apartment, in the apartment house complex…) is left with no option except the expense of litigation.  If the big banks had their way – you’d get your day in court – at your expense, and there would be no agency tasked with protecting you before you faced the battalion of legal forces arrayed against you.

Your Life vs. Manufacturing Interests

Calls for the abolition of the Consumer Product Safety Commission are nothing new, they’ve been around since at least 1980. [Sanders]  The Libertarian Party is pleased to offer the following vision:

We oppose all so-called “consumer protection” legislation which infringes upon voluntary trade, and call for the abolition of the Consumer Product Safety Commission. We advocate the repeal of all laws banning or restricting the advertising of prices, products, or services. We specifically oppose laws requiring an individual to buy or use so-called “self-protection” equipment such as safety belts, air bags, or crash helmets.

Does someone “voluntarily” purchase a crib for an infant which has features potentially lethal for a baby?  Who “voluntarily” buys a four wheeler where the components of the front gear case can fail causing a loss of control and crash hazard?  Or a lawn mower in which the welding on the drive axle can fail, again causing a loss of control and crash hazard?  Would you “voluntarily” purchase a bicycle helmet which fails in cold temperatures?  Would you “voluntarily” buy a scarf which doesn’t meet federal flammability standards? Or a infant’s “hoodie” the drawstring of which creates a strangulation hazard? Or a riding lawn mower wherein the ignition fails to ground and tends to overheat and melt? [CPSC]

What is the response when the four-wheeler’s front gear case fails, the vehicle goes out of control, and the resulting crash causes injury or death? You should have had a degree in Mechanical Engineering before you purchased the rig?  Or, is it if enough people are injured or die in crashes consumers won’t purchase the vehicle? How many have to die?

Again, without the Consumer Products Safety Commission not only is the likelihood of death or injury made more commonplace, but there is no administrative remedy intermediate to litigation.  Worse still, the “pro-business” Republicans don’t even want the public to know which products have been the subjects of complaints.   When the CPSC allowed the publication of its consumer database, the Republicans went off the deep end.

They said: “…that the database “wastes taxpayer money, confuses and misleads consumers, raises prices, kills jobs, and damages the reputations of safe and responsible manufacturers.” Testifying last month before the House Subcommittee on Commerce, Manufacturing, and Trade, Wayne Morris, a vice president for the Association of Home Appliance Manufacturers, complained, “It is wrong for the federal government to allow companies and their brands to be unfairly characterized, even slandered.” The National Association of Manufacturers said the database’s “credibility” and “usefulness to consumers” is “severely damaged.” In response to such criticism (and possibly also in response to Koch Industries, which showered an improbable $79,500 on his campaign), Rep. Mike Pompeo, R-Kansas, a Tea Party freshman, sponsored an amendment zeroing out funding for the database that cleared the House, 234-187. The CPSC database, Pompeo said, “will drive jobs overseas.” [Slate]

There’s “voluntarism” for us – not only should manufacturers be able to slap together unsafe products and sell them to American consumers, but those potential consumers should be prevented from finding out that other consumers have had problems with the products.  We should remember that then Representative Dean Heller (R-NV) was one of the 234 House Republicans who voted in favor of Pompeo’s amendment cutting the funding for the CPSC database. [roll call 137]

The Ties That Bind

There is a common thread to all of this.  In the instances of medical malpractice and gun manufacturing and sales, it is assumed by the Republicans that the consumer – the average American – must be prevented from challenging the major corporations who provide the goods and services; or at least their dismal chances of successful litigation must be further curtailed.

In the examples of the Consumer Financial Protection Bureau and the Consumer Product Safety Commission the notion that some administrative option prior to expensive litigation must be removed for the sake of the manufacturers and dealers. Only those with the financial wherewithal to take on interminable legal battles should be able to challenge the desire of manufacturers to cut corners (“increase shareholder value”) and thereby produce and distribute potentially lethal products.

Nowhere in any portion of these Republican challenges to consumer safety and security will we find any true concern for the average American consumer, patient, or victim. Unfortunately, for the GOP it’s  all about the corporate Benjamins.

Comments Off on Corporate Interests, Consumer Safety?

Filed under civil liberties, conservatism, consumers, Gun Issues, Health Care, health insurance, Heck, Heller

Management Prerogatives and Workplace Equity: A Small Argument Illustrating Bigger Questions (Update)

The life-long hope of liberals is that if the opponents will just listen to facts and logic correct conclusions can be reached on questions of national policy. The apparent abiding hope of modern day conservatives appears to be that if the liberals would just shut up life would march on toward a replication of some golden era.  Both are dead wrong.  The 2012 election will be about the economy, but there’s far more to it than that.

Consider for a moment the Paycheck Fairness Act, which is supported by Rep. Shelley Berkley (D-NV1) and opposed by incumbent appointed Senator Dean Heller (R-NV).   The act itself is fairly simple.  [C&L] [OpenCongress] [CRS summary]  Here’s the essence of the bill:

“Revises the exception to the prohibition for a wage rate differential based on any other factor other than sex. Limits such factors to bona fide factors, such as education, training, or experience.

States that the bona fide factor defense shall apply only if the employer demonstrates that such factor: (1) is not based upon or derived from a sex-based differential in compensation, (2) is job-related with respect to the position in question, and (3) is consistent with business necessity. Avers that such defense shall not apply where the employee demonstrates that: (1) an alternative employment practice exists that would serve the same business purpose without producing such differential, and (2) the employer has refused to adopt such alternative practice.

Revises the prohibition against employer retaliation for employee complaints. Prohibits retaliation for inquiring about, discussing, or disclosing the wages of the employee or another employee in response to a complaint or charge, or in furtherance of a sex discrimination investigation, proceeding, hearing, or action, or an investigation conducted by the employer.”

Simple enough really, there will be equal pay for equal work, the employer must not discriminate, and an employer cannot retaliate if an employee complains about lesser pay for the same work done by male counterparts.

What enlightened components of our society, during the 21st century, could have a problem with these requirements?  The U.S. Chamber of Commerce.  Note how the issue is framed:

“Several business groups, including the U.S. Chamber of Commerce and associations representing bankers, construction firms and retailers, issued a statement opposing the legislation, saying it would result in “unprecedented government control over how employees are paid at even the nation’s smallest employers.”  [WaPo]

“Unprecedented government control?”  This framing allows the opponents of the Paycheck Fairness Act to mouth “I love my (wife, mother, aunt, sister) and want them to be paid fairly BUT I hate guv’amint control.”  And here we have the crux of the matter.  For the conservative Republicans in the halls of the Congress, this is a matter of preserving the prerogatives of management even at the expense of equity in the workplace.

When we start talking about preserving prerogatives we’ve stopped discussing economic issues and started another discussion about power.   Liberals and centrist Democrats focus on the equity in the workplace, no one with any credibility is attempting to argue that the average woman isn’t getting shortchanged by some 25¢ for every dollar earned by the average male employee.  Conservative Republicans are arguing that this situation is really too bad, a regular hand wringer, BUT to do something about it would be to encroach on the prerogatives of management.

The Conservative thinking is that all enterprises should be as free as possible from any and all incursions into the realm of management.  Businesses should not be humiliated by having the Consumer Product Safety Commission publish information about product recalls.   Businesses should not be subjected to rules and regulations regarding clean air, clean water, and the disposal of toxic waste.  Businesses should not be required to comply with regulations regarding their financial transactions.  Those topics, in the ideal world of the Financialist conservatives, are management decisions, and not the proper subjects of polite conversation around the kitchen tables of the employees.

There are a thousand ways to tell liberals and Democrats to “shut up,” and the behavior of conservative, financialist, management oriented representatives in the 112th Congress has demonstrated several categories  of these.

Opposition to the Paycheck Fairness Act, the Affordable Care Act, and the Dodd-Frank Act are predicated on the “unprecedented government interference” theme.  There’s really very little new in these acts, the Paycheck Fairness Act extends and modifies legislation already on the books.  The Affordable Care Act sees its beginnings in the Romney Care system in Massachusetts, itself generated by a plan for the individual mandate from the Heritage Foundation.  The Dodd-Frank Act tentatively moves back to a system of regulation familiar to anyone who even vaguely remembers the New Deal.

Opposition to the expiration of the Bush Tax Cuts, which primarily benefit the ethereal upper reaches of the management class, is framed as preserving the capital of the job creators.  Likewise, any suggestion that the capital gains tax should be increased brings wails beseeching the deliberative bodies not to consider any measure which might restrict the financialist endeavors.

Few examples of the orientation toward the upper echelons of income earners and the needs of average small business owners have been so clear as when Republicans oppose capital gains tax increases citing the impact on small business — that would be hedge funds and lobby shops with fewer than 500 employees.  Discussion of the estate tax brings on cries that “farms, ranches, and small businesses, will be left bereft of assets — conveniently omitting the part where  the new rules will benefit only the top one-quarter of one percent of all estates since those are the ones eligible under the 2009 rules. [CBPP] Republicans all but ignore additional tax cuts enacted during the Obama Administration which now have federal tax liabilities as low as they’ve been since 1955.

When the choice comes down to one between management prerogatives and workplace (or national) equity, conservative Republicans have demonstrated a definite preference for management prerogatives.   If all attempts to construct an equitable or sustainable system can be caricatured as “unprecedented” government encroachment then the peril is that what has been categorized as freedom can easily devolve into license.

Should executives have the power to decide that it is more profitable to manufacture ladders with just a few rivets or bolts less than ideal for each rung? Should a manager have the power to  decide that dumping toxic contaminants into the local water supply is a good thing because it is cost effective?  Should a financier have the latitude to make London Whale like trades even if those endanger the very existence of his or her bank?  Should a banker be free to keep from view positions which could create another disaster like the credit meltdown in 2008?  Should an employer feel perfectly “free” to pay female employees 25% less than their male counterparts for the same work?

Finally, there’s a predictable argument from Republicans in D.C., and the argument offers that any modification of legislation regarding equity will “open the floodgates of litigation.”  Note that Senator Heller uses this contention in his response to Rep. Berkley in the video clip below.  The same arguments were made against the passage of the Lily Ledbetter Act — if the flood gates were open, it seems there was precious little water behind them.  Funny thing, the business insurance sector which watches these kinds of things,  reports:

“The Lilly Ledbetter Fair Pay Act of 2009 has kept lawsuits alive that otherwise would have been dismissed and revived others, but it has not generated the significant increase in litigation that some observers had feared.

Furthermore, federal courts generally have been conservative in interpreting the law, observers say.”  […]

“The sky hasn’t fallen,” said Martha J. Zackin, of counsel with law firm Mintz Levin Cohn Ferris Glovsky & Popeo P.C. in Boston.

“Some people got more excited” than the situation justified, said Thomas H. Christopher, a partner with law firm Kilpatrick Stockton L.L.P. in Atlanta. The legislation “applies only to a very limited situation and those kind of situations come up sometimes in the courts, but not as much as I think some people would think.”  [BusIns.com]

In short, the old “floodgates” argument as applied to paycheck equity has produced a trickle rather than any sort of deluge.  So, when Senate candidate Shelley Berkley asks incumbent Dean Heller to drop his opposition to the Paycheck Fairness Act, is she asking that he desist from continually supporting the demands of corporate management that they be allowed to progress without any encumbrance from questions of equity?

Update: The Senate Republicans blocked consideration of S. 3220 today on a 52-47 vote.  60 votes were needed to break the Republican filibuster.   Senator Heller voted to sustain the filibuster and block the bill from getting an up or down vote on the Senate floor. [vote 115]

Comments Off on Management Prerogatives and Workplace Equity: A Small Argument Illustrating Bigger Questions (Update)

Filed under 2012 election, Berkley, consumers, Economy, financial regulation, Heller, Nevada politics, Women's Issues, Womens' Rights