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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Working (and looking) like outdated crap is one thing.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.

Filed Under: class action, fees, pacer

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  1. 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.

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