After zero to $60M, Connecticut lemon law gets tuneup – Connecticut … – CT Post

  • In September 2017, the Connecticut Department of Consumer Protection updated its “lemon law” manual that instructs vehicle owners how to get vehicles fixed that hit problems within two years of purchase or 24,000 miles. Photo: Jason Rearick / Jason Rearick / Stamford Advocate

  • In September 2017, the Connecticut Department of Consumer Protection updated its “lemon law” manual that instructs vehicle owners how to get vehicles fixed that hit problems within two years of purchase or 24,000 miles.



Photo: Jason Rearick / Jason Rearick

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In September 2017, the Connecticut Department of Consumer Protection updated its “lemon law” manual that instructs vehicle owners how to get vehicles fixed that hit problems within two years of purchase or 24,000 miles. less
In September 2017, the Connecticut Department of Consumer Protection updated its “lemon law” manual that instructs vehicle owners how to get vehicles fixed that hit problems within two years of purchase or … more


Photo: Jason Rearick / Jason Rearick

After zero to $60M, Connecticut lemon law gets tuneup

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The Connecticut Department of Consumer Protection issued a newly revised handbook on the state’s “lemon law” governing sales of defective vehicles, with DCP stating the law has resulted in consumers getting refunds or replacement cars valued at $60 million since the law’s enactment.

Under Connecticut’s lemon law, vehicle and motorcycle buyers can force dealers into arbitration if unable to get satisfactory repairs of problems that surface within two years or 24,000 miles of vehicle use that are not the fault of the owner. DCP lists the outcome of arbitration cases publicly online.


Information on Connecticut’s lemon law is available online at www.ct.gov/dcp/lemon or by calling (860) 713-6120.

Alex.Soule@scni.com; 203-842-2545; www.twitter.com/casoulman

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After zero to $60M, Connecticut lemon law gets tuneup – Danbury News Times

  • In September 2017, the Connecticut Department of Consumer Protection updated its “lemon law” manual that instructs vehicle owners how to get vehicles fixed that hit problems within two years of purchase or 24,000 miles. Photo: Jason Rearick / Jason Rearick / Stamford Advocate

  • In September 2017, the Connecticut Department of Consumer Protection updated its “lemon law” manual that instructs vehicle owners how to get vehicles fixed that hit problems within two years of purchase or 24,000 miles.



Photo: Jason Rearick / Jason Rearick

Image 1of/1

Caption

Close

Image 1 of 1

In September 2017, the Connecticut Department of Consumer Protection updated its “lemon law” manual that instructs vehicle owners how to get vehicles fixed that hit problems within two years of purchase or 24,000 miles. less
In September 2017, the Connecticut Department of Consumer Protection updated its “lemon law” manual that instructs vehicle owners how to get vehicles fixed that hit problems within two years of purchase or … more


Photo: Jason Rearick / Jason Rearick

After zero to $60M, Connecticut lemon law gets tuneup

Back to Gallery


The Connecticut Department of Consumer Protection issued a newly revised handbook on the state’s “lemon law” governing sales of defective vehicles, with DCP stating the law has resulted in consumers getting refunds or replacement cars valued at $60 million since the law’s enactment.

Under Connecticut’s lemon law, vehicle and motorcycle buyers can force dealers into arbitration if unable to get satisfactory repairs of problems that surface within two years or 24,000 miles of vehicle use that are not the fault of the owner. DCP lists the outcome of arbitration cases publicly online.


Information on Connecticut’s lemon law is available online at www.ct.gov/dcp/lemon or by calling (860) 713-6120.

Alex.Soule@scni.com; 203-842-2545; www.twitter.com/casoulman

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DCP updates consumer handbook for CT's Lemon Law Program – Easton Courier

The Department of Consumer Protection (DCP) recently released an updated handbook to support consumers who may need to use Connecticut’s Lemon Law Program.

The Lemon Law Program can protect owners of defective new vehicles registered as passenger cars, combinations, or motorcycles. Since its creation, the program has returned more than $60 million dollars in refunds and replacement vehicles to Connecticut consumers.

“We always want to encourage consumers to protect themselves and make smart choices by doing their homework before large purchases and understanding what programs exist to support them,” said Consumer Protection Commissioner Michelle H. Seagull, “We’re excited to share this updated information with consumers and for the progress we continue to make with this program.”

Find the updated manual here. For more information about the program, visit ct.gov/DCP/lemon, email [email protected] or call 860-713-6120.

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How not to get duped into buying a flood-damaged car – CNBC.com – CNBC

Flood damage in cars can take time to surface. And consumer advocates expect a stream of flood-affected cars to enter the market in coming months following hurricanes in Puerto Rico, Texas and Florida. Hurricane Harvey reportedly damaged 500,000 to 1 million cars alone — double the number of vehicles damaged by Katrina.

“Cars are rolling computers these days,” said John Van Alst, an attorney at the National Consumer Law Center. “When water gets as high as it did with Harvey, we’re going to see significant damage.”

So if you plan to buy a used car — and that goes for anywhere in the country, there are steps you should take to make sure you don’t drive away in a four-wheeled canoe.

Cars have a record — known as a “vehicle history report.” Most states require that the report include a flood or salvage title disclosure for flood-damaged cars. Using the vehicle identification number, located on the driver’s side dashboard, you can check the car’s history with the National Insurance Crime Bureau, CarFax or the National Motor Vehicle Title Information Center.

“That’s an easy way to see if there’s already reported damage to the car,” Van Alst said, “but you still want to get it inspected.”

That’s because people are not always honest about their car’s history. Some people will rush to sell their car or truck before the flood or salvage title appears on the record. Others, known as “title washers,” move cars to states where titling laws are more lenient.

This article was not written by Michigan Lemon Law.
View Original Article
Written by: Annie Nova

Man Who Sued Under 'Lemon Law' Must Pay BMW $19129 – Metropolitan News-Enterprise

Metropolitan News-Enterprise

 

Thursday,
September 7, 2017

 

Page 1

 

Man Who Sued Under ‘Lemon Law’ Must Pay BMW $19,129

C.A. Says Statutory Scheme Does Not Permit Striking Victorious Defendant’s
Cost Bill Pursuant
To Public Policy Argument That Such an Award Would Deter Resort
to Pro-Consumers Remedy

 

By a MetNews
Staff Writer

 

A man who sued
BMW of North America under the “lemon law,” but failed to persuade a jury that
there was anything wrong with his vehicle, will have pay the car-maker $19,129
in costs, under a decision of this district’s Court of Appeal.

Div.
Three, in Tuesday’s unpublished opinion by Justice Brian M. Hoffstadt, rejected
policy arguments put forth by plaintiff Samir Haroun against a cost award being
imposed on persons such as he who have sued under the Song-Beverly Consumer
Warranty Act, Civil Code §1790 et. seq.

As
Hoffstadt phrased Haroun’s contention, the award should be stricken in its
entirety because the size of it “stands as a disincentive for plaintiffs to sue
under the Song-Beverly Act, an Act that is specifically aimed at protecting
consumers.” Failing that, the jurist recited, the plaintiff wants the award
scaled down, like expert witness fee awards in Fair Employment and Housing Act
cases, “to avoid deterring meritorious lawsuits under the Act.”

He
responded that the panel will decline the plaintiff’s “invitation to implicitly
repeal or rewrite” Code of Civil Procedure §1033.5, the general costs statute,
to set forth special rules for lemon law cases where the defendant wins.

“Implied
repeals are disfavored,” Hoffstadt said.

He
remarked that this is “especially true where, as here,” the Legislature
specifically rendered the lemon law more favorable to a prevailing plaintiff
than to a victorious defendant—by providing for attorney fees only to the
former—but did not provide more favorable treatment to the consumer with
respect to costs.

Hoffstadt
added that there is “no opening for us to rewrite section 1033.5 to impose a
‘scaling down’ mandate for costs where such a mandate appears nowhere in the
statute itself.”

Judge Miller
Affirmed

The
opinion affirms each of Los Angeles Superior Court Judge Rita J. Miller’s calls
with respect to cost items, except for one math boner. She added the $4,200
deposited with a private court reporter to the final bill of $6,249 rather than
applying the deposit to the total.

The
$23,329 award was reduced by $4,200.

In
connection with the court reporter fees, Haroun complained that they exceeded
the $55-a-day limit set by Government Code §69948.

“However,
Government Code section 69948 and its cap only apply to ‘official superior
court reporters,’ not private court reporters hired by a litigant. Because the
court reporter here was privately hired, the cap plaintiff seeks to impose does
not apply.”

Miller
had noted that “a private court reporter was used” and observed that such a
reporter “is necessary to preserve a party’s rights on appeal in this day and age
where reporters no longer are provided by the court.” She also found that the
fee that was charged was in a reasonable amount—a finding which Hoffstadt said
was “supported by substantial evidence.”

Haroun’s
contention was that his 2008 BMW made a strange sound when started up in the
morning.

The
case is Haroun v. BMW of North America, B272279.

Haroun’s Lawyer
Comments

The
plaintiff was represented by Thomas E. Solmer and René Korper of the Law Offices
of René Korper, and Kate S. Lehrman and Robert A. Philipson of the Lehrman Law
Group acted for BMW.

Solmer
commented that the outcome is “a huge disappointment.” He asserted:

“BMW’s
purpose in seeking such high costs is to punish the consumer who takes his case
to trial and discourage others from doing the same. And the court approved
this.”

The
lawyer continued:

“BMW
was given costs for thousands of pages of copies, far in excess of the trial
exhibits, without providing any evidence of why so many were made. It claimed
to the trial court that it spent over $10,000 on daily trial transcripts, but
then changed this factual contention on appeal, with the court ignoring the
discrepancy.

“And
the court blatantly mischaracterized our policy argument, which was simply that
‘reasonable’ costs should take into account the nature of the action and the
financial resources of the parties—it was a request for proper application of
section 1033.5 rather than a plea to rewrite or repeal it. Although this was
specifically clarified in oral argument, the court instead addressed only a
straw-man version of our position and made no comment on the argument we
actually presented.”

Solmer,
a Valencia attorney who specializes in lemon law and consumer fraud litigation,
added:

“Most
distressingly, the court seemed to endorse BMW’s position that if a party loses
at trial, the loser’s position must have been unmeritorious. The court’s
summary, “A jury ultimately found nothing wrong with the car,” shows disregard
and ignorance of the Song-Beverly Act and the burden of proof at trials in
general. This was a tough case and a close case—not a frivolous one. But
someone has to win and someone has to lose. The imposition of costs must be
fair and reasonable, not punitive. And costs claimed must be supported by
substantial evidence. The costs affirmed by this court were excessive,
punitive, and unsubstantiated.”

 

Copyright
2017, Metropolitan News Company

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Will the Equifax data breach finally spur lawmakers to recognize data harms? – VentureBeat

This summer 143 million Americans had their most sensitive information breached, including their name, addresses, social security numbers (SSNs), and date of birth. The breach occurred at Equifax, one of the three major credit reporting agencies that conducts the credit checks relied on by many industries, including landlords, car lenders, phone and cable service providers, and banks that offer credits cards, checking accounts and mortgages. Misuse of this information can be financially devastating. Worse still, if a criminal uses stolen information to commit fraud, it can lead to the arrest and even prosecution of an innocent data breach victim.

Given the scope and seriousness of the risk that the Equifax breach poses to innocent people, and the anxiety that these breaches cause, you might assume that legal remedies would be readily available to compensate those affected. You’d be wrong.

While there are already several lawsuits filed against Equifax, the pathway for those cases to provide real help to victims is far from clear. That’s because even as the number and severity of data breaches increases, the law remains too narrowly focused on people who have suffered financial losses directly traceable to a breach.

The law consistently fails to recognize other sorts of harms to victims. In some cases this arises in the context of threshold “standing” to sue, a legal requirement that requires proof of harm (lawyers call it “injury in fact”) to even get into the door in federal courts. In other cases the problem arises within the claim itself, where “harm” is a legal element that must be proven for a plaintiff to win the case. Regardless of how the issue of “harm” comes up, judges are too often failing to ensure that data breach victims have legal remedies.

The consequences of this failure are two-fold. First, there’s the direct problem that the courthouse door is closed to hundreds of millions of people who face real risk and the accompanying reasonable fears about the misuse of their information. Second, but perhaps even more important, the lack of legal accountability means that the companies that hold our sensitive data continue to have insufficient incentives to take the steps necessary to protect us against the next breach.

Effective computer security is hard, and no system will be free of bugs and errors.

But in the Equifax hack, as in so many others, the breach resulted from a known security vulnerability. A patch to fix the vulnerability had been available for two months, but Equifax failed to implement it even though the vulnerability was being actively exploited. This wasn’t the first time that Equifax has failed to take computer security seriously.

Even if increasing liability only accomplished an increased incentive to patch known security problems, that alone would protect millions of people.

The High Bar to Harm

While there are exceptions, too often courts dismiss data breach lawsuits based on a cramped view of what constitutes “harm.” These courts mistakenly require actual or imminent loss of money due to the misuse of information that is directly traceable to a single security breach.

Yet outside of data breach cases, courts routinely handle cases where damages aren’t just a current loss of money or property.The law has long recognized harms such as the infliction of emotional distress, assault, damage to reputation and future business dealings.1 Victims of medical malpractice and toxic exposures can receive current compensation for potential for future pain and suffering. As two law professors, EFF Advisory Board member Daniel J. Solove and Danielle Keats Citron, noted in comparing data breach cases to the recent claims of emotional distress brought by Terry Bollea (Hulk Hogan) against Gawker: “Why does the embarrassment over a sex video amount to $115 million worth of harm but the anxiety over the loss of personal data (such as a Social Security number and financial information) amount to no harm?” “Why does the embarrassment over a sex video amount to $115 million worth of harm but the anxiety over the loss of personal data (such as a Social Security number and financial information) amount to no harm?”

For harms that can be difficult to quantify, some specific laws (e.g. copyright, wiretapping) provide for “statutory damages,” which sets an amount per infraction.2

The recent decision dismissing the cases arising from the 2014-2015 Office of Personnel Management (OPM) hack is a good example of these “data breach blinders.” The court required that the plaintiffs—mostly government employees—demonstrate that they faced a certain, impending, and substantial risk that the stolen information would be misused against them, and that they be able to trace any harm they alleged to the actual breach. The fact that the data sufficient to impersonate was stolen, and stolen due to negligence of OPM, was not sufficient. The court then disappointingly found that the fact that the Chinese government—as opposed to ordinary criminals—are suspected of having stolen the information counted against the plaintiffs in demonstrating likely misuse.

The ruling is especially troubling because we know that it can take years before the harms of a breach are realized. Criminals often trade our information back and forth before acting on it; indeed there are entire online forums devoted to this exchange. Stolen credentials can be used to set up a separate persona that incurs debts, commits crimes, and more for quite a long time before the victim is aware of it. And it can be difficult if not impossible to trace a problem with credit or criminal activity misuse back to any particular breach.

How are you to prove that the bad data that torpedoed your mortgage application came from the breaches at Equifax as opposed to the OPM, Target, Anthem, or Yahoo breaches, just to name a few?

What the Future Holds

When data is being declared the ‘oil of the digital era’ and millions in venture capital funding await those who can exploit it, it’s time to reevaluate how to think of data breaches and misuse, and how we restore access to the courts for those impacted by them.

When data is being declared the ‘oil of the digital era’ and millions in venture capital funding await those who can exploit it, it’s time to reevaluate how to think of data breaches and misuse, and how we restore access to the courts for those impacted by them.

Simply shrugging shoulders, as the OPM judge did, is not sufficient. Courts need to start applying what they already know in awarding emotional distress damages, reputational damages, and prospective business advantage damages to data breach cases, along with the recognition of current harm due to future risks, as in medical malpractice and pollution cases. If the fear caused by an assault can be actionable, so should the fear caused by the loss of enough personal data for a criminal to take out a mortgage in your name. These lessons can and should be brought to bear to help data breach victims get into the courthouse door and all the way to the end of the case.

If the political will is there, legislatures, both federal and state, can step up and create incentives for greater security and a much steeper downside for companies that fail to take the necessary steps to protect our data.

The standing problem requires innovation in crafting claims, but even the Supreme Court in the recent Spokeo decision recognized that intangible harms can still be harms under the Constitution and Congress can make that intention even more clear with proper legislative language. Alternately, as in copyright or wiretapping cases where the damages are hard to quantify, Congress can use techniques like statutory damages to ensure that those harmed receive compensation. Making such remedies clearly available in data misuse and breach cases is worthy of careful consideration. So far, the federal bills being floated in response to the Equifax breach and earlier breaches do not remove these obstacles to victims bringing legal claims and ensure a private right of action.

Similarly, outside of the shadow of federal standing requirements, state legislatures can consider models of specific state law protections like California’s Lemon Law, formally known as the Song-Beverly Consumer Warranty Act. The Lemon Law provides specific extra remedies for those purchasing a new car that needs significant repairs. States should be able to recognize that data breach situations are special and may similarly require special remedies. Things to consider are giving victims easier (and free) ways to clean up their credit rather than just the standard insufficient credit monitoring schemes.

By looking at various options, Congress and state legislatures could spur a race to the top on computer security and create real consequences for those who choose to linger on the bottom.

Of course, shoring up our legal remedies isn’t the only avenue for incentivizing companies to protect our data better. Government agencies like the Federal Trade Commission and state attorneys general have a role to play, as does public pressure and media attention.

One thing is for sure: as long as the consequences for neglecting to protect user data are weak, data breaches like the Equifax breach will continue to occur. Worse, it will become increasingly difficult for victims to demonstrate which breach caused their credit rate to drop, their job prospects to dim, or their hopes for a mortgage to be dashed. It’s long past time for us to rethink the approach to harm in data breach cases.

This story originally appeared on the EFF’s blog.

This article was not written by Michigan Lemon Law.
View Original Article
Written by:

How not to get duped into buying a flood-damaged car – CNBC

Flood damage in cars can take time to surface. And consumer advocates expect a stream of flood affected cars to enter the market in coming months following a string of hurricanes in Puerto Rico, Texas and Florida. Hurricane Harvey reportedly damaged between 500,000 and 1 million cars alone — double the number of vehicles damaged by Hurricane Katrina.

“Cars are rolling computers these days,” said John Van Alst, an attorney at the National Consumer Law Center. “When water gets as high as it did with Harvey, we’re going to see significant damage.”

So if you plan to buy a used car — and that goes for anywhere in the country, there are steps you should take to make sure you don’t drive away in a four-wheeled canoe.

Like people, cars have a record, known as a “vehicle history report.” Most states require that flood-damaged cars disclose a so-called flood or salvage title on this report. You can check a car’s record, using the Vehicle Identification Number, located on the drivers’ side dashboard, with the National Insurance Crime Bureau, CarFax and the National Motor Vehicle Title Information Center.

“That’s an easy way to see if there’s already reported damage to the car,” Van Alst said, “but you still want to get it inspected.”

That’s because people are not always honest about their car’s history. Some people will rush to sell their car or truck before the flood or salvage title appears on the record. Others, known as “title washers,” move cars to states where titling laws are more lenient.

This article was not written by Michigan Lemon Law.
View Original Article
Written by: Annie Nova

Will the Equifax Data Breach Finally Spur the Courts (and Lawmakers) to Recognize Data Harms? – EFF

This summer 143 million Americans had their most sensitive information breached, including their name, addresses, social security numbers (SSNs), and date of birth. The breach occurred at Equifax, one of the three major credit reporting agencies that conducts the credit checks relied on by many industries, including landlords, car lenders, phone and cable service providers, and banks that offer credits cards, checking accounts and mortgages. Misuse of this information can be financially devastating. Worse still, if a criminal uses stolen information to commit fraud, it can lead to the arrest and even prosecution of an innocent data breach victim.    

Given the scope and seriousness of the risk that the Equifax breach poses to innocent people, and the anxiety that these breaches cause, you might assume that legal remedies would be readily available to compensate those affected. You’d be wrong.

While there are already several lawsuits filed against Equifax, the pathway for those cases to provide real help to victims is far from clear.  That’s because even as the number and severity of data breaches increases, the law remains too narrowly focused on people who have suffered financial losses directly traceable to a breach.

The law consistently fails to recognize other sorts of harms to victims. In some cases this arises in the context of threshold “standing” to sue, a legal requirement that requires proof of harm (lawyers call it “injury in fact”) to even get into the door in federal courts. In other cases the problem arises within the claim itself, where “harm” is a legal element that must be proven for a plaintiff to win the case. Regardless of how the issue of “harm” comes up, judges are too often failing to ensure that data breach victims have legal remedies. 

The consequences of this failure are two-fold. First, there’s the direct problem that the courthouse door is closed to hundreds of millions of people who face real risk and the accompanying reasonable fears about the misuse of their information. Second, but perhaps even more important, the lack of legal accountability means that the companies that hold our sensitive data continue to have insufficient incentives to take the steps necessary to protect us against the next breach. 

Effective computer security is hard, and no system will be free of bugs and errors. 

But in the Equifax hack, as in so many others, the breach resulted from a known security vulnerability. A patch to fix the vulnerability had been available for two months, but Equifax failed to implement it even though the vulnerability was being actively exploited. This wasn’t the first time that Equifax has failed to take computer security seriously.

Even if increasing liability only accomplished an increased incentive to patch known security problems, that alone would protect millions of people.

The High Bar to Harm

While there are exceptions, too often courts dismiss data breach lawsuits based on a cramped view of what constitutes “harm.” These courts mistakenly require actual or imminent loss of money due to the misuse of information that is directly traceable to a single security breach.

Yet outside of data breach cases, courts routinely handle cases where damages aren’t just a current loss of money or property. The law has long recognized harms such as the infliction of emotional distress, assault, damage to reputation and future business dealings. Victims of medical malpractice and toxic exposures can receive current compensation for potential for future pain and suffering. As two law professors, EFF Advisory Board member Daniel J. Solove and Danielle Keats Citron, noted in comparing data breach cases to the recent claims of emotional distress brought by Terry Bollea (Hulk Hogan) against Gawker: “Why does the embarrassment over a sex video amount to $115 million worth of harm but the anxiety over the loss of personal data (such as a Social Security number and financial information) amount to no harm?” “Why does the embarrassment over a sex video amount to $115 million worth of harm but the anxiety over the loss of personal data (such as a Social Security number and financial information) amount to no harm?”

For harms that can be difficult to quantify, some specific laws (e.g. copyright, wiretapping) provide for “statutory damages,” which sets an amount per infraction. 

The recent decision dismissing the cases arising from the 2014-2015 Office of Personnel Management (OPM) hack is a good example of these “data breach blinders.” The court required that the plaintiffs—mostly government employees—demonstrate that they faced a certain, impending, and substantial risk that the stolen information would be misused against them, and that they be able to trace any harm they alleged to the actual breach. The fact that the data sufficient to impersonate was stolen, and stolen due to negligence of OPM, was not sufficient. The court then disappointingly found that the fact that the Chinese government—as opposed to ordinary criminals—are suspected of having stolen the information counted against the plaintiffs in demonstrating likely misuse.  

The ruling is especially troubling because we know that it can take years before the harms of a breach are realized. Criminals often trade our information back and forth before acting on it; indeed there are entire online forums devoted to this exchange. Stolen credentials can be used to set up a separate persona that incurs debts, commits crimes, and more for quite a long time before the victim is aware of it. And it can be difficult if not impossible to trace a problem with credit or criminal activity misuse back to any particular breach.

How are you to prove that the bad data that torpedoed your mortgage application came from the breaches at Equifax as opposed to the OPM, Target, Anthem, or Yahoo breaches, just to name a few?  

What the Future Holds

When data is being declared the ‘oil of the digital era’ and millions in venture capital funding await those who can exploit it, it’s time to reevaluate how to think of data breaches and misuse, and how we restore access to the courts for those impacted by them. 

When data is being declared the ‘oil of the digital era,’ it’s time to reevaluate how to think of data breaches and misuse.

Simply shrugging shoulders, as the OPM judge did, is not sufficient. Courts need to start applying what they already know in awarding emotional distress damages, reputational damages, and prospective business advantage damages to data breach cases, along with the recognition of current harm due to future risks, as in medical malpractice and pollution cases. If the fear caused by an assault can be actionable, so should the fear caused by the loss of enough personal data for a criminal to take out a mortgage in your name. These lessons can and should be brought to bear to help data breach victims get into the courthouse door and all the way to the end of the case.

If the political will is there, legislatures, both federal and state, can step up and create incentives for greater security and a much steeper downside for companies that fail to take the necessary steps to protect our data. 

The standing problem requires innovation in crafting claims, but even the Supreme Court in the recent Spokeo decision recognized that intangible harms can still be harms under the Constitution and Congress can make that intention even more clear with proper legislative language. Alternately, as in copyright or wiretapping cases where the damages are hard to quantify, Congress can use techniques like statutory damages to ensure that those harmed receive compensation. Making such remedies clearly available in data misuse and breach cases is worthy of careful consideration. So far, the federal bills being floated in response to the Equifax breach and earlier breaches do not remove these obstacles to victims bringing legal claims and ensure a private right of action.  

Similarly, outside of the shadow of federal standing requirements, state legislatures can consider models of specific state law protections like California’s Lemon Law, formally known as the Song-Beverly Consumer Warranty Act. The Lemon Law provides specific extra remedies for those purchasing a new car that needs significant repairs. States should be able to recognize that data breach situations are special and may similarly require special remedies. Things to consider are giving victims easier (and free) ways to clean up their credit rather than just the standard insufficient credit monitoring schemes. 

By looking at various options, Congress and state legislatures could spur a race to the top on computer security and create real consequences for those who choose to linger on the bottom.

Of course, shoring up our legal remedies isn’t the only avenue for incentivizing companies to protect our data better. Government agencies like the Federal Trade Commission and state attorneys general have a role to play, as does public pressure and media attention.  

One thing is for sure: as long as the consequences for neglecting to protect user data are weak, data breaches like the Equifax breach will continue to occur. Worse, it will become increasingly difficult for victims to demonstrate which breach caused their credit rate to drop, their job prospects to dim, or their hopes for a mortgage to be dashed. It’s long past time for us to rethink the approach to harm in data breach cases.

 

 

This article was not written by Michigan Lemon Law.
View Original Article
Written by:

Man Who Sued Under 'Lemon Law' Must Pay BMW $19129 – Metropolitan News-Enterprise

Metropolitan News-Enterprise

 

Thursday,
September 7, 2017

 

Page 1

 

Man Who Sued Under ‘Lemon Law’ Must Pay BMW $19,129

C.A. Says Statutory Scheme Does Not Permit Striking Victorious Defendant’s
Cost Bill Pursuant
To Public Policy Argument That Such an Award Would Deter Resort
to Pro-Consumers Remedy

 

By a MetNews
Staff Writer

 

A man who sued
BMW of North America under the “lemon law,” but failed to persuade a jury that
there was anything wrong with his vehicle, will have pay the car-maker $19,129
in costs, under a decision of this district’s Court of Appeal.

Div.
Three, in Tuesday’s unpublished opinion by Justice Brian M. Hoffstadt, rejected
policy arguments put forth by plaintiff Samir Haroun against a cost award being
imposed on persons such as he who have sued under the Song-Beverly Consumer
Warranty Act, Civil Code §1790 et. seq.

As
Hoffstadt phrased Haroun’s contention, the award should be stricken in its
entirety because the size of it “stands as a disincentive for plaintiffs to sue
under the Song-Beverly Act, an Act that is specifically aimed at protecting
consumers.” Failing that, the jurist recited, the plaintiff wants the award
scaled down, like expert witness fee awards in Fair Employment and Housing Act
cases, “to avoid deterring meritorious lawsuits under the Act.”

He
responded that the panel will decline the plaintiff’s “invitation to implicitly
repeal or rewrite” Code of Civil Procedure §1033.5, the general costs statute,
to set forth special rules for lemon law cases where the defendant wins.

“Implied
repeals are disfavored,” Hoffstadt said.

He
remarked that this is “especially true where, as here,” the Legislature
specifically rendered the lemon law more favorable to a prevailing plaintiff
than to a victorious defendant—by providing for attorney fees only to the
former—but did not provide more favorable treatment to the consumer with
respect to costs.

Hoffstadt
added that there is “no opening for us to rewrite section 1033.5 to impose a
‘scaling down’ mandate for costs where such a mandate appears nowhere in the
statute itself.”

Judge Miller
Affirmed

The
opinion affirms each of Los Angeles Superior Court Judge Rita J. Miller’s calls
with respect to cost items, except for one math boner. She added the $4,200
deposited with a private court reporter to the final bill of $6,249 rather than
applying the deposit to the total.

The
$23,329 award was reduced by $4,200.

In
connection with the court reporter fees, Haroun complained that they exceeded
the $55-a-day limit set by Government Code §69948.

“However,
Government Code section 69948 and its cap only apply to ‘official superior
court reporters,’ not private court reporters hired by a litigant. Because the
court reporter here was privately hired, the cap plaintiff seeks to impose does
not apply.”

Miller
had noted that “a private court reporter was used” and observed that such a
reporter “is necessary to preserve a party’s rights on appeal in this day and age
where reporters no longer are provided by the court.” She also found that the
fee that was charged was in a reasonable amount—a finding which Hoffstadt said
was “supported by substantial evidence.”

Haroun’s
contention was that his 2008 BMW made a strange sound when started up in the
morning.

The
case is Haroun v. BMW of North America, B272279.

Haroun’s Lawyer
Comments

The
plaintiff was represented by Thomas E. Solmer and René Korper of the Law Offices
of René Korper, and Kate S. Lehrman and Robert A. Philipson of the Lehrman Law
Group acted for BMW.

Solmer
commented that the outcome is “a huge disappointment.” He asserted:

“BMW’s
purpose in seeking such high costs is to punish the consumer who takes his case
to trial and discourage others from doing the same. And the court approved
this.”

The
lawyer continued:

“BMW
was given costs for thousands of pages of copies, far in excess of the trial
exhibits, without providing any evidence of why so many were made. It claimed
to the trial court that it spent over $10,000 on daily trial transcripts, but
then changed this factual contention on appeal, with the court ignoring the
discrepancy.

“And
the court blatantly mischaracterized our policy argument, which was simply that
‘reasonable’ costs should take into account the nature of the action and the
financial resources of the parties—it was a request for proper application of
section 1033.5 rather than a plea to rewrite or repeal it. Although this was
specifically clarified in oral argument, the court instead addressed only a
straw-man version of our position and made no comment on the argument we
actually presented.”

Solmer,
a Valencia attorney who specializes in lemon law and consumer fraud litigation,
added:

“Most
distressingly, the court seemed to endorse BMW’s position that if a party loses
at trial, the loser’s position must have been unmeritorious. The court’s
summary, “A jury ultimately found nothing wrong with the car,” shows disregard
and ignorance of the Song-Beverly Act and the burden of proof at trials in
general. This was a tough case and a close case—not a frivolous one. But
someone has to win and someone has to lose. The imposition of costs must be
fair and reasonable, not punitive. And costs claimed must be supported by
substantial evidence. The costs affirmed by this court were excessive,
punitive, and unsubstantiated.”

 

Copyright
2017, Metropolitan News Company

This article was not written by Michigan Lemon Law.
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