Legal Issues

by Tim Cushing


Filed Under:
class action, fees, pacer



Judge Says Lawsuit Over PACER Fees Can Continue... As A Class Action

from the get-your-receipts-out... dept

Last April, a few legal advocacy groups banded together to sue the US government over PACER fees. PACER is the court system's electronic access system whose fees are only supposed to help it break even on the "costs" of delivering courtroom documents in PDF form. Suffice to say, the fees exceed the costs and the money doesn't seem to be going towards making PACER a better system.

To sum up very briefly, PACER:

  • works and looks like crap
    • 1998 crap, to be more specific
  • fees are $0.10/page for nearly everything
    • including search results
  • the search function works like crap
    • 1992 crap

Working (and looking) like outdated crap is one thing. Being charged by the federal government for pages your tax dollars helped create is another. PACER keeps working like crap and the US court system's administration keeps pretending the documents are stored in file cabinets and are being copied by hand for members of the public at a library-copy-machine rate of 10 cents a page.

In December, the presiding judge denied the government's attempt to dismiss the case. The government argued that members of the public agreed to whatever PACER felt like charging through some bureaucratic clickwrap.

The court disagreed with the government's assertions -- most likely because the government seemed confused about the lawsuit's purpose. The government argued that billing errors and overcharges weren't the government's fault -- and even if they were, users had agreed to pay first and ask questions later. The court pointed out this wasn't about billing errors, but whether the fees collected were lawful in the first place.

Now, the case has moved one step further -- again in favor of the public. As Politico's Josh Gerstein reports, the general public is being extended an invitation to participate in this bit of grievance redressing.

U.S. District Court Judge Ellen Huvelle said in an opinion she will allow anyone who paid so-called PACER (Public Access to Court Electronic Records) fees between April 2010 and April 2016 to be part of the class in the suit, which alleges that the government is violating a 2002 law that says fees for using the system should not exceed the costs to operate it.

In the opinion [PDF], the judge takes the government to task for its attempt to turn the proposed class action into something that only affects the original plaintiffs -- and then only affects these plaintiffs because they're supposedly so far removed from the normal PACER user.

According to defendant, named plaintiffs are not adequate representatives because “[t]heir interests in free PACER access for their favored subset of PACER users diverge from the interests of those PACER [users] seeking to minimize their costs of PACER use.”

This is the government hinting that the original plaintiffs perhaps use PACER too much, and as such, should definitely be giving Uncle Sam (US Courts division) a hand by shelling out 10 cents per page. The court points out that the plaintiffs have never alleged otherwise, but that their class action lawsuit would be beneficial to those who are both desiring access to public documents, but less likely to have as much disposable cash flow. These would be people the nonprofits are in the business of assisting. So, as Judge Huvelle points out, they're the perfect lead plaintiffs for the class action suit.

Named plaintiffs are not exempt from PACER fees and thus share with the other class members an interest in reducing the fees. The PACER fees that named plaintiffs have paid are low relative to their annual revenue and other costs of litigation. Because of their multimillion dollar annual budgets, named plaintiffs have averred that they cannot represent that they are unable to pay PACER fees, and as a result, they cannot qualify for exemptions. (Tr. 3-4.)

Thus, named plaintiffs must pay PACER fees and accordingly have an interest in reducing those fees. In fact, the nonprofit organizations who are named plaintiffs in this case make particularly good class representatives. They are interested in reducing PACER fees not only for themselves but also for their constituents. As nonprofit organizations, named plaintiffs exist to advocate for consumers, veterans, and other public-interest causes…

Thus, named plaintiffs have dual incentives to reduce PACER fees, both for themselves and for the constituents that they represent.

Now that it's a class action lawsuit -- one with thousands of potential plaintiffs at a minimum -- the government is going to have to work even harder to prevent taxpayers' money from being returned to taxpayers.


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  • identicon
    Anon, 26 Jan 2017 @ 1:29pm

    Anyone remember?

    Back in the day (1970's) the FCC used to charge something like $600 for a CB radio license. Most people simply didn't pay. A class-action lawsuit changed that, established that charging far more that the cost of the service was a tax - and only congress had the power to levy taxes. Fees can only approximately cover the cost of providing the service. So how does Pacer get away with this?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jan 2017 @ 1:39pm

    How does PACER get away with this?

    Lawyers.

    reply to this | link to this | view in chronology ]

    • identicon
      Perry, 26 Jan 2017 @ 2:17pm

      Government Legal Bureaucrats

      [

      the guilty parties here are government JUDGES who fundamentally manage &control the entire court system.

      JUDGES are also lawyers, politicians, and entrenched legal bureaucrats who often/usually function irresponsibly.

      Also note that court stenographers are an absurd anachronism in this 21st Century -- they slow in court record-keeping & retrieval to an expensive, non-auditable snail's pace.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Jan 2017 @ 2:29pm

        Re: Government Legal Bureaucrats

        I'm not sure that's true quite yet. Maybe it would be good to have court recordings in addition to stenographers, but until we have a really good automated speech to text system, stenographers are probably still worth having.

        reply to this | link to this | view in chronology ]

        • icon
          DannyB (profile), 26 Jan 2017 @ 2:54pm

          Re: Re: Government Legal Bureaucrats

          I agree that a human stenographer should still be used in addition to an audio / video system.

          A human has far better hearing than an audio system. Can distinguish the direction a sound came from, and who said it.

          I believe that at some point stenographers may no longer be necessary. But we're not (quite) there yet. It is just too important to have a record of the court proceedings. A failure cannot be tolerated. A human can speak up and ask to repeat something. And sometimes does. Or which juror asked that question? Etc.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 27 Jan 2017 @ 8:41am

            Re: Re: Re: Government Legal Bureaucrats

            Stenographers need to be there. Text to speech is getting better, but dealing with accents is still way out there. Think about the last time you dealt with someone from Brooklyn, Atlanta, Mobile, Little Rock, Seoul, and Bangalore. (I deal with all of the above on about a monthly basis)

            All of them can say the same thing and sound completely different. My own accent (Western Missouri) and phrases when I don't think about my audience will have people at work scratching their heads wondering wtf I was saying, and I'm not that far geographically from where I grew up!

            reply to this | link to this | view in chronology ]

      • icon
        killthelawyers (profile), 27 Jan 2017 @ 7:31am

        Re: Government Legal Bureaucrats

        Stenographers get transcripts up within one to two days. They also assure that there is an *accurate* record of proceedings, which is important if you want to challenge something that happened in court or during a deposition.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Jan 2017 @ 10:16am

        Re: Government Legal Bureaucrats

        Stenographers are necessary because there has to be someone to testify under oath as to what the transcript says. That's not possible with an automated system. No matter how good speech to text gets, stenographers or their human equivalent will be necessary if only to give sworn testimony. If you think this is a waste of money, just imagine you're on trial for your life and your fate hangs on which particular word was uttered during your trial. Do you really want some complex legacy computer program to be the only witness? Who will have audited the code to be sure it's accurate? Not just on average, either, but in your particular case?

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jan 2017 @ 1:47pm

    All they have to do is hire more clerks. the cost will increase and they aren't making any money.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jan 2017 @ 2:00pm

    I can absolutely attest to everything bad that is being said about PACER here. It is a horrible, no-good, terrible site and it costs a mint to use.

    I was a legal secretary for four years, and it was incredibly difficult trying to get PACER's clunky website to work correctly--that shit was NOT intuitive: it was unforgiving if you made an error. The site sure didn't bother giving understandable directions on how to get what you wanted to do done--when you screwed up, you had to call them and the clerk would rapid-fire tell you how you fucked up like they had better things to do than instruct a rube--obviously they were constantly fielding the same questions over and over again, and they were bored with it. Why everything they said couldn't be laid out in detail on a website, I don't know--or better yet, how about giving us a sensible, understandable, intuitive website from this century to work with? I always got the feeling PACER's attitude was that THIS was the way it was always done, and if you didn't know exactly what you were doing going in, they didn't want you on their site.

    The bug-fuck crazy lawyer I worked for would froth at the mouth every time we tried to access PACER as part of our job--partly because it took us so long to get anything done, she'd rant that our work was piling up and remind us she was paying us by the hour, and partly because of how much it cost to print anything out. She would threaten to deduct from our paychecks the cost of any pages we printed out that had already been printed out. Apparently we were supposed to know at a glance everything we'd printed out, even if it was hundreds of pages of dense legalese in a file folder. It got to the point that my co-workers refused to go on PACER at all; it fell to me to do it because I was the most computer-literate in the office. I finally told the lawyer that if she tried to take one penny out of my salary, it would be the last she saw of me, and she shut up. I left that toxic job soon after.

    reply to this | link to this | view in chronology ]

    • icon
      killthelawyers (profile), 27 Jan 2017 @ 7:34am

      Re:

      It sounds like there were two issues:

      1) You weren't given enough time to use the PACER training (https://www.pacer.gov/psc/etraining.html) or read the documentation to figure out how to use the system.

      2) Your boss was an enormous asshole.

      Personally, (2) sounds to be the reason why you hate the system and everything associated with it.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 26 Jan 2017 @ 4:49pm

    Tis a pity that there isn't any oversight of what they've been blowing all the cash on. They figured out how to funnel it out & no one likes a pay cut.

    Hell with what they have collected they could have hired Google to manage the whole project, fix all the the privacy issues, and created a state of the art system that only cost pennies to maintain... 3 or 4 times. Hell Google could have created a new system from the ground up and gotten it into every court in the country. No more of the cobbled together systems feeding the ancient system that they have no interest in improving because they like the cash a simple error gets them... even when it wasn't supposed to cost anything.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jan 2017 @ 5:33pm

    Question

    If I contributed to the various charities that need funds to pay for PACER, does that count as standing given what the judge said?

    (Nope - it doesn't, but I'd love to be wrong!)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jan 2017 @ 8:16pm

    A blogger I read uses PACER frequently to get copies of motions in malicious/frivolous lawsuits against him, or as reference material for legal citations. While he's not exactly poor, it wouldn't be a bad thing for PACER to not suck so much [time and money from him].

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 27 Jan 2017 @ 3:41am

    Charge a one time fee per day/month/year giving discounts for extended time frames. 10 queries or 1 million queries don't matter, the incremental cost should be negligible. And add a free tier for those who need specific cases once.

    It's easy and the amount of money collected by now should be enough to update the system to very modern standards with efficient search functions. But hey, that's less sweet money getting into the system.

    reply to this | link to this | view in chronology ]


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