Business
Column: Courts finally move to end right-wing judge shopping, but the damage may already be done
Some lawsuits are won by smart lawyers and some on the facts. But nothing spells success as much as the ability to pick your own judge.
That’s the lesson taught by conservative activists who have moved in federal courts to overturn government programs and policies on abortion, contraception, immigration, gun control, student loan relief and vaccine mandates, among other issues.
In recent years they’ve gamed the judicial system to get their lawsuits heard by judges they knew would be sure to see things their way. The process is known as judge shopping, and the committee that makes policy for the federal courts just moved to put an end to it.
The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping.
— Amanda Shanor, University of Pennsylvania constitutional law expert
In a policy statement and official guidance issued last week, the Judicial Conference of the United States said that henceforth, any lawsuit seeking a statewide or nationwide injunction against a government policy or action should be assigned at random to a judge in the federal district where it’s filed.
If that sounds a bit vague to the layperson, its target is crystal clear to legal experts: It’s aimed at right-wing activists and politicians who have filed their cases in federal courthouses presided over by highly partisan judges in Texas. Most of those judges were appointed by Donald Trump.
It would be bad enough if those judges’ rulings applied only within their judicial districts or affected only the plaintiffs. But the judges have issued sweeping nationwide injunctions that block government programs and policies coast-to-coast.
As Ian Millhiser of Vox put it, this is America’s “Matthew Kacsmaryk problem.” Kacsmaryk is the Trump-appointed Texas federal judge who most recently attempted to outlaw mifepristone, a widely used abortion medication, nationwide. His April 2023 ruling has been temporarily stayed by the Supreme Court, but it’s still on the docket, ticking away.
But Kacsmaryk is not alone. As recently as March 8, Judge J. Campbell Barker, a Trump appointee who presides over 50% of the civil cases filed in his rustic courthouse in Tyler, Texas, invalidated a ruling by the National Labor Relations Board broadening the standard by which big corporations could be held jointly responsible for the welfare and unionization rights of workers employed by their franchisees.
How serious a blow could the judicial conference’s policy be to conservatives aiming to roll back civil rights? Massive, judging from the reaction of Senate Minority Leader Mitch McConnell (R-Ky.). Only 48 hours after the conference announced its initiative, McConnell wrote to the chief judges of all judicial districts urging them to ignore the new policy.
This was an audacious move, considering that the presiding officer of the Judicial Council is Chief Justice John G. Roberts Jr., its membership comprises the chief judges of the 12 judicial circuits and one judge from a district court in each circuit, and its role is to set policy for the entire federal court system.
McConnell asserted that only Congress can make the rules for the assignment of federal trial judges, but that’s dubious. In an analysis last year, the Justice Department concluded that the Supreme Court has full authority to impose rules of civil procedure in the federal courts, including a rule mandating that all federal judicial districts assign judges randomly to civil lawsuits aimed at statewide or nationwide injunctions. The Judicial Council’s policy isn’t the same as as a Supreme Court rule, but it’s a fair bet that if pushed, the court would issue the rule.
McConnell also asserted that the Judicial Conference had been pressured into acting by Senate Majority Leader Charles E. Schumer (D-N.Y.), but that’s untrue. Although Schumer has spoken out against judge shopping, numerous legal experts and Roberts himself have expressed concerns about the practice.
“The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping,” Amanda Shanor, a constitutional law expert at the University of Pennsylvania, said of the Judicial Conference’s initiative.
What’s yet unclear is whether the conference’s initiative goes far enough. Its policy statement is described as “guidance,” not a mandate. it acknowledges the district courts’ “authority and discretion” to manage their dockets as they see fit.
Last year, Shanor, with Alice Clapman and Jennifer Ahearn of NYU’s Brennan Center for Justice, proposed that the conference require all judicial districts to use a “random or blind procedure” to distribute cases among all the judges in the district when the litigants seek an injunction or other relief that would extend beyond the district’s borders.
The practice traditionally labeled “forum shopping” is not especially new. The earliest case cited by legal experts dates back to 1842, when a litigant chose to file a lawsuit in federal rather than state court in New York to gain a strategic advantage over his adversary.
Plaintiffs have been known to choose a venue based on local statutes of limitation, or a sense that juries in a region might be more amenable to their case, or because their location may be more convenient for parties or witnesses.
More recently, however, the practice has been heavily abused for partisan and ideological purposes. This results from two trends. One is the increasing partisanship of individual federal judges, especially those appointed by Trump. The second is those judges’ habit of issuing nationwide injunctions against government policies or programs.
Nationwide injunctions can impose parochial partisan ideologies on the whole country. Through 2023, the state of Texas filed more than 31 federal lawsuits challenging Biden administration policies — but not a single one in federal court in Austin, which is the state capital but an island of blue in a red state.
The state had filed seven lawsuits in Amarillo, where by local procedure every one was automatically assigned to Kacsmaryk; six in Victoria, where all civil cases are assigned to Trump appointee Drew B. Tipton; and four in Galveston, where all civil cases come before Trump appointee Jeff Brown.
The rest were filed in divisions with two judges, most of whom are also Trump appointees or conservative appointees of George W. Bush. In the Tyler division from which Barker issued his NLRB decision, all the cases he doesn’t get are assigned to Judge Jeremy Kernodle, also a Trump appointee.
Although some nationwide injunctions have been lifted by the Supreme Court, that process seldom happens speedily. The result is that the plaintiffs effectively win by losing, as injunctions against government policies can have “the lasting systemic effect of blocking these policies for months or years,” Shanor, Clapman and Ahearn observed.
Kacsmaryk got the mifepristone case for two reasons. First, antiabortion activists knew of his strong antiabortion inclinations. Second, the policy in the Northern District of Texas is to assign cases to judges in the division where they’re filed.
Kacsmaryk is the only judge sitting in the Amarillo division of the Northern District of Texas. So it was an easy call for the mifepristone plaintiffs to file there, knowing that their chance of drawing Kacsmaryk as their judge was 100%.
The same pattern drove plaintiffs to file lawsuits against Biden administration initiatives in the same district’s Fort Worth division, which has two judges, Trump appointee Mark T. Pittman and George W. Bush appointee Reed O’Connor. Both have been sought by conservative litigants. O’Connor also presides over 100% of the cases filed in the district’s Wichita Falls courthouse, where he is the only judge.
Pittman obligingly overturned Biden’s student loan relief program in 2022. Just this month, he ruled the government’s 55-year-old Minority Business Development Agency to be unconstitutional and ordered it opened to contract applicants of all races — obviously a ruling that defeats the purpose of a program designed to help minorities get a start in the business world. O’Connor tried to declare the entire Affordable Care Act unconstitutional in 2018. The Supreme Court overruled him in 2021.
The judicial conference’s initiative is long overdue.
Customarily, rulings by federal trial judges have constituted precedents binding at most on other judges in a particular judicial district or resulted in court orders benefiting only the plaintiffs who filed the case.
Matters are different “when a court effectively can bind the entire nation with an injunction” that applies to “an unlimited range of persons and to conduct occurring in … an equally unlimited array of places,” legal scholar Ronald A. Cass wrote in 2018.
The prospect of sweeping rulings incentivizes “an extreme race to courthouses more inclined to issue nationwide injunctions and more sympathetic to the plaintiff’s position,” Cass wrote.
In its latest incarnation, “litigants effectively have the ability to effectively choose an actual judge,” Shanor told me.
“We don’t know how the policy will be rolled out, what exactly is in it, or how much of it is a recommendation rather than a requirement,” she says. “A policy may be effective, but having a rule would advance the fairness and randomness of the distribution of these nationally important cases, and ensure the perceived legitimacy of the courts.”
One is that the policy won’t apply to cases that have already been assigned to a judge. Another is that litigants can still try to game the system by filing their lawsuits in states from which appeals are heard by circuit courts known to have a particular partisan lean.
That’s a major issue with Texas cases, which are funneled on appeal to the 5th Circuit, sitting in New Orleans. That court has been the source of right-wing decisions so loopy that they’ve been slapped down by the conservative majority on the Supreme Court. Of that circuit’s 17 active judges, six are Trump appointees.
McConnell’s objection to the Judicial Conference’s policy thus should be seen in context. He had more to do than anyone else with embedding Trumpian judges in the federal judiciary, where they wreak havoc on government policies and programs that help ordinary Americans, not just corporations and the rich. The conference’s initiative may be the first step toward a more fair-minded judiciary, but it’s a crucial one.
Business
California’s gas prices push Uber and Lyft drivers off the road
The highest gas prices in the country are making it tougher for some gig drivers to make a living.
Gas prices have shot up amid the war in the Middle East. On average, California gas prices are the most expensive in the United States, according to data from the American Automobile Assn. The average price of regular gas in California is almost $6. The national average is a little above $4.
While Uber and Lyft drivers have concocted clever ways to cut gas consumption, they say that without some relief they will be forced to leave the ride-hailing business.
John Mejia was already struggling to make money as a part-time Lyft driver when soaring gas prices made his side hustle even harder.
“Unfortunately, it’s the economics of paying less to drivers and gas prices,” he said. “It actually is pulling people out of the business.”
Guests at The Westin St. Francis hotel get into an Uber.
(Jess Lynn Goss / For The Times)
Gig work offers drivers the freedom to work for themselves and more flexibility, but being independent contractors also means they must shoulder unexpected costs.
Ride-sharing companies say they’re trying to help, but drivers say the gas relief comes with caveats. For now, drivers say they’re being pickier about what rides they accept, cutting hours and are looking at other ways to make money.
Mejia, who started driving for Lyft more than a decade ago, said in his early days, he would sometimes make $400 in three hours. Now it takes 12 hours to rake in $200.
The San Francisco Bay Area consultant is an active member of the California Gig Workers Union, so he knows he isn’t alone. California has more than 800,000 gig rideshare drivers, according to the group, which is affiliated with the Service Employees International Union.
On social media sites such as Reddit and Facebook, gig workers have posted about how the higher gas prices are eating into their earnings. Among the tricks they are suggesting: reducing the number of times the ignition is turned on or off, avoiding traffic, working in specific neighborhoods and at times with high demand and switching to electric vehicles.
Gig drivers usually have only seconds to decide whether to accept a ride on the app, but they have become more strategic about which rides and deliveries they accept.
That means they are more likely to sit back in their cars and wait for higher fares for quick pick-up and drop-off.
“I highly recommend the ‘decline and recline’ strategy, rejecting unprofitable rides until a better one appears,” wrote Sergio Avedian, a driver, in the popular blog the Rideshare Guy.
Pedestrians cross the street in front of a Lyft and Uber driver on Wednesday. High gas prices have made it hard for gig drivers to make a living, cutting into their profits.
(Jess Lynn Goss / For The Times)
Uber, Lyft and other companies have unveiled several ways to help drivers save on gas.
Uber said drivers can get up to 15% cash back through May 26 with the Uber Pro card, a business debit Mastercard for drivers and couriers. Based on a worker’s tier, they can get up to $1 off per gallon of gas through Upside — an app that offers cash rewards — and up to 21 cents off per gallon of gas with Shell Fuel Rewards. The company also offers incentives for drivers who want to switch to electric vehicles.
“We know the price of gas is top of mind for many rideshare and delivery drivers across the country right now,” Uber said in a blog post about its gas savings efforts.
Lyft also said it’s expanding gas relief through May 26 because the company knows that the extra cost “hits hardest for drivers who depend on driving for their income.”
The company is offering more cash back, depending on the driver’s tier, for drivers who use a Lyft Direct business debit card to pay for gas at eligible gas stations. They can get an additional 14 cents per gallon off through Upside.
Drivers say the fine print on the offers dictates which card they use and where they fill up gas, making it difficult for them to save money.
“If I do the math, it’s ridiculous,” Mejia said. “They’re offering us nothing.”
Uber declined to comment, but pointed to its blog post about the gas relief efforts. Lyft also referenced the blog post and said “the gas savings were structured through rewards to maximize stackable opportunities.”
Guests at The Westin St. Francis hotel get into an Uber.
(Jess Lynn Goss / For The Times)
Gig workers have struggled with rising gas prices in the past.
In 2022, Lyft and Uber temporarily added a surcharge to their fares amid record-high gas prices following Russia’s invasion of Ukraine. This year, Uber is adding a fuel charge to its fares in Australia for roughly two months to offset the high cost of gas for drivers. Lyft said it hasn’t added a fuel charge in the U.S. or elsewhere.
Margarita Penalosa, who drives full time for Uber and Lyft in Los Angeles, started as a rideshare driver in 2017. Back then, gas was cheaper. She would easily hit her goal of making $300 in eight hours. Now she’s making just $250 after working as much as 14 hours.
Gas prices, she said, used to be less than $3 per gallon. Now some gas stations are charging more than $8 per gallon.
“Take out the gas. Take out the mileage from my car and maintenance. How much [do] I really make? Probably I get $11 for an hour,” she said.
Jonathan Tipton Meyers wants to spend fewer hours as a rideshare driver.
He already juggles multiple gigs even while driving for Uber and Lyft in Los Angeles. He’s a mobile notary and loan signing agent, a writer and performer.
Driving is “a very challenging, full-time job,” he said. “It’s very taxing and, of course, wages were just continually decreasing.”
John Mejia, a longtime Lyft and Uber driver, poses for a portrait before attending a meeting about unionizing gig drivers.
(Jess Lynn Goss / For The Times)
Even if oil continues to flow through the Strait of Hormuz, which Iran reopened Friday, it could take a while for gas prices to come down to earth, said Mark Zandi, the chief economist at Moody’s Analytics.
“There’s an old adage that prices rise like a rocket and fall like a feather,” he said. “I think that’ll apply.”
In the meantime, it will be survival of the fittest drivers. If enough of them decide to leave the apps, the ride-hailing companies could be forced to raise fares further to attract some back.
“Those who approach rideshare driving strategically, tracking expenses, choosing trips carefully, and optimizing efficiency are far more likely to weather periods of high gas prices,” wrote Avedian in the Rideshare Guy blog. “For everyone else, a spike at the pump can quickly turn rideshare driving from a side hustle into a money-losing venture.”
Business
‘We’ve lost our way’: Clifton’s operator gives up on downtown Los Angeles
The proprietor of Los Angeles’ legendary Clifton’s has given up on reopening the shuttered venue.
It’s just too difficult to do business in downtown’s historic core, he says.
Andrew Meieran bought Clifton’s on Broadway in 2010 and poured more than $14 million into repairs, renovations and upgrades, adding additional bar and restaurant spaces in the four-story building. In 2018, he found that demand for cafeteria food was too low to be profitable, and he pivoted to a nightclub and lounge concept called Clifton’s Republic, featuring multiple dining and drinking venues. Meieran has tried elaborate themed environments, such as a tiki bar and forest playgrounds, and renting out the location for big events to spark more interest.
It was never easy, but during and since the pandemic, the neighborhood has grown increasingly unsafe as downtown has emptied of office workers and visitors.
Storefronts are gated up due to vandalism in the historic district in downtown Los Angeles on Tuesday.
(Eric Thayer / Los Angeles Times)
The alley behind Clifton’s Cafeteria in the downtown historic district Tuesday.
(Eric Thayer / Los Angeles Times)
Vandalism has been rampant, with graffiti appearing on the historic structure almost daily. Vandals would use acid or diamond glass cutters to deface the windows, often cracking the glass. It would cost Meieran more than $30,000 each time to replace the windows. Insurance companies either stopped offering policies that covered vandalism or raised premiums by as much as 600%, he said.
There has been continuous crime in the area, he said, including multiple assaults on people in front of his building. He last shut the venue last year, hoping things would improve and he could come back with a business that could work. Now he has given up. Someone else may take over the space or even the name of the historic spot, but he is done trying.
“We’ve lost our way,” Meieran said. “I want to get up on the tops of the skyscrapers and yell that people need to pay attention to this.”
The disenchantment of a business leader who used to be one of downtown L.A.’s biggest backers shines a spotlight on the stubborn safety concerns, rising costs and thinner foot traffic that have made it increasingly difficult for even iconic businesses to survive.
The once-popular institution dates back to 1935, when it was a Depression-era cafeteria and kitschy oasis that sold as many as 15,000 meals a day when Broadway was the city’s entertainment hub.
It served traditional cafeteria food such as pot roast, mashed potatoes and Jell-O in a woodsy grotto among fake redwood trees and a stone-wrapped waterfall reminiscent of Brookdale Lodge in Northern California.
It’s not the only once-prominent destination that has failed to find a way to flourish in today’s market. Cole’s, one of L.A.’s most famous restaurants and often credited with inventing the French dip sandwich, closed last month after a 118-year run.
“The bigger problem for us and the rest of the industry is the high cost of doing business,” said Cedd Moses, who used to operate Cole’s and has backed many other bars and restaurants in historic buildings downtown for decades. “That’s what is killing independent restaurants in this city.”
Outside of Clifton’s Cafeteria.
(Eric Thayer / Los Angeles Times)
Clifton’s Republic owner Andrew Meieran stands next to a boat on the top floor of the historic restaurant in 2024.
(Wally Skalij / Los Angeles Times)
Clifton’s opened and closed repeatedly during the pandemic and, more recently, after a burst pipe caused extensive damage. Meieran opened it for special events such as last Halloween, but it has otherwise been closed.
Police are woefully understaffed and hampered by public policy, said Blair Besten, president of downtown’s Historic Core Business Improvement District, a nonprofit that arranges graffiti removal, trash pickup and safety patrols in the area.
Businesses and residents in the area would like to see a bigger police presence, but there have been protests against that by people who are not from downtown, she said.
“People are starting to see the fruits of the defunding movement,” she said. “It has not led us to a better place as a city.”
The Los Angeles Police Department is making progress downtown, Captain Kelly Muniz said, with violent crime down more than 10% from last year.
“While we’re working very hard to solve crime, to prevent crime, there are still elements such as trash, open-air drug use, homelessness and graffiti,” she said. “We’re swinging in the right direction.”
Retailers have been opting out of downtown L.A., said real estate broker Derrick Moore of CBRE, who helps arrange commercial property leases. Brands have headed to more vibrant nearby neighborhoods such as Echo Park and Silver Lake.
“A lot of operators are just electing to skip over downtown,” he said. “They’re leasing spaces elsewhere, where they feel they have a greater chance at higher sales.”
A man walks past a pile of trash left on the street in the historic district.
(Eric Thayer / Los Angeles Times)
While some businesses are struggling, many downtown residents say their perceptions of safety are improving and that the area is regaining some vibrancy.
“A lot of people live here. I think people forget that,” Besten said. “We’re all surviving. It’s just hard for all the businesses to survive.”
A green shoot for the Historic Core is Art Night on the first Thursday of every month, when 50 or 60 locations, including permanent art galleries and pop-up galleries in unused storefronts, display art to map-toting visitors who come for the occasion.
They often end up in Spring Street bars, which more typically thrive on weekend nights but are still a draw to downtown.
“I think nightlife will thrive downtown, since bars attract people that don’t mind a little grittier atmosphere,” said Moses. “Our sales are hitting new records at our bars downtown, fortunately, but our costs have risen dramatically.”
A closed sign for Clifton’s Cafeteria.
(Eric Thayer / Los Angeles Times)
Clifton’s former backer, Meieran, says he doesn’t think things are going to bounce back enough to warrant more massive investment. He has sold the building, and the owner is looking for a new tenant to occupy Clifton’s space. He still controls the Clifton’s name.
While there is still a chance he could let someone else use the name Clifton’s, Meieran is done for now — too many bad memories.
“There was a guy who was terrorizing the front of Clifton’s because he decided he wanted to live in the vestibule in front, and he didn’t want us to operate there,” Meieran said. “He would threaten to kill anybody who came through.”
He doesn’t believe official statistics that show crime and homelessness are way down in the area, and he doesn’t want to restart a business when criminals can so easily erase his hard work.
“What business that’s already on thin margins can survive that?” he said.
Business
If you shop at Trader Joe’s, it may owe you $100
Trader Joe’s customers might soon get a payout from the popular grocery chain.
The Monrovia-based company agreed to a $7.4-million settlement in a class action lawsuit that claimed customers were left vulnerable to identity theft.
Customers who purchased items with a credit or debit card from March to July in 2019 might be eligible for a payment as part of the settlement.
The plaintiff alleged that some receipts printed in 2019 included 10-digit credit or debit card numbers —double what’s allowed under the Fair and Accurate Credit Transactions Act.
Trader Joe’s “vigorously denies any and all liability or wrongdoing whatsoever,” the grocery chain said in the settlement website. The grocery chain decided to settle to avoid a long and costly litigation process.
The payout will go toward paying impacted customers as well as attorney fees and other expenses.
About $2.6 million will go toward attorney fees, and the plaintiff will receive a $10,000 incentive payment, according to the settlement. The remaining funds will be distributed evenly among customers who submit valid claims.
It’s unclear how much money each customer would get, but the payout could be about $102, according to the settlement notice.
To receive the payout, customers must have received a receipt displaying the first six and last four digits of the card number.
Some customers identified as part of the settlement class have been notified and received a class ID number to file a claim.
Customers have from now until June 6 to file a claim online or by phone.
A customer not identified in the settlement can still submit a claim by entering the first six and last four digits of the card used, along with the date it was used at Trader Joe’s.
Brian Keim, the plaintiff who brought the case, used his debit card at stores in Florida in 2019. He said some stores printed transaction receipts that included the first six and last four digits of customers’ card numbers.
The receipts did not include other personal information, such as the middle digits of the users’ cards, the cards’ expiration dates, or the users’ addresses. No customer has reported identity theft as a result of the receipts since the lawsuit was filed, the grocer said.
However, identity theft doesn’t require submitting a claim for payment.
The settlement was agreed upon by both the grocer and the plaintiff, but still has to be approved by a court. A hearing is set in August.
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