You may now resume your drunken boating

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Greatsealcal100Yesterday, the Court of Appeal (Second Appellate District, Division Two) upheld Los Angeles Superior Court Judge Victoria G. Chaney’s order enjoining the state from suspending and revoking licenses to operate a motor vehicle based upon an individual’s "boating under the influence" conviction.  (Okamoto, Court: State May Not Suspend Driver’s License Over Drunken Boating (May 4, 2008) www.metnews.com.) 

Plaintiffs Cinquegrani and Royea brought a class action challenging the DMV’s practice of summarily suspending or revoking a driver's license following a "BUI" conviction.  The trial court concluded that they were likely to prevail on the merits.  Vehicle Code Sec. 13352(a) mandates that the DMV immediately suspend or revoke an individual’s driver’s license upon receiving a court record showing that an individual had been convicted of driving a vehicle under the influence of alcohol or drugs in violation of Sec. 23152.

The Court of Appeal, affirming the trial court, held that Sec. 23620 only applies to the sentencing of defendants for driving under the influence because boating offenses have their own punishment scheme set forth in the Harbors and Navigation Code.  Construing the statutes and observing that the Legislature has employed the term "separate violation" in all of the statutes increasing the penalties for repeat DUI offenders, the Court of Appeal concluded the Legislature included the reference to Harbors and Navigation Code Sec. 655 in the Vehicle Code for purposes of enhancing a DUI conviction, not as a separate punishment for a BUI.

Please feel free to return to your regularly scheduled drunken boating activities, secure in the knowledge that your driver's license is safe.

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Supreme Court declines to consider whether state laws limiting class actions ban clauses are preempted by federal law

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According to the Associated Press, the United States Supreme Court rejected T-Mobile's appeal in three related cases.  The issue in the three cases is identical: whether state laws limiting class action ban clauses in consumer contracts are preempted by federal law.  As of this posting, the Supreme Court docket does not yet reflect the denial of the Petition in case 07-976.

T-Mobile sought review of a Ninth Circuit decision that precluded enforcement of a class action ban on the ground that a recent "Third Circuit decision (Gay v. Creditinform) created a conflict among the lower courts."  (Gupta, Supreme Court Refuses to Hear Class-Action Ban Issue (May 27, 2008) pubcit.typepad.com.)  [Note: Public Citizen participated in the opposition to T-Mobile's petition.]

State and federal courts have been holding of late that class-action bans in arbitration clauses are unconscionable under state contract law, a result seen in the Discover Bank decision (Discover Bank v. Superior Court (2005) 36 Cal.3d. 148) in California.  Defendants routinely argue that the Federal Arbitration Act preempts state law on this issue.  However, that argument has not met with success; the Federal Arbitration Act expressly saves generally-applicable state contract law of unconscionability from preemption.

UPDATE:  The May 28, 2008 Order List from the Supreme Court includes the Laster v. T-Mobile determination.

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My identity is worth $2.00?

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I was just informed by the Consumer Law & Policy blog that my identity is worth a scant $2.00.  The apparent basis for this valuation is the fact that so much data is available for the taking online, that there is essentially no barrier to entry in the market to sell this stuff.  That is sufficiently troubling to be the end of the story, but it got me thinking.  If I bring a consumer identity theft class action against some big company that suffered one of those headline-generating breaches, will I see as an expert for the defendant one of the black market identity theft privateers, opining that the data is nearly worthless (but he'll bid $1.75 for each person in the data set)?  It just seems like the natural progression: "Sure, your private data was stolen, it's just worthless.  Here's your settlement for 99 cents."

[From Techdirt, via Consumer Law & Policy Blog]

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