The Fifth Circuit Can't Wait to Lock You Into Scammy Subscriptions For a Little Longer

[In It to Win It]

Balls and Strikes

Earlier this month, the Federal Trade Commission finalized its “click to cancel” rule, one of those rules that feels so common-sense that it’s annoying to learn that it wasn’t a rule already. Going forward, the agency will require gyms, wireless providers, cable companies, and other subscription- or membership-based businesses to make it “at least as easy” to cancel one’s account as it is to sign up. At last, “forcing people to call obscure phone numbers and beg robot answering services to please, for the love of God, connect them to a living, breathing agent authorized to process their cancellation request” will no longer be a viable strategy for scammy businesses hoping to squeeze customers for a few more monthly payments.

This week, a coalition of industry groups sued to block the rule. To do so, they went where all conservative activist types go these days when confronted with a regulatory burden they really would rather not bear: the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, and where a small army of Trump-appointed judges is falling over one another to repackage harebrained right-wing legal arguments as binding precedent.

Of all the courtrooms in all the states in all the land, you might be wondering how your least favorite streaming behemoth had the good fortune of ending up in this one. The answer is that its lawyers selected the petitioners very carefully. The Federal Trade Commission Act allows challengers to FTC rules to file in the D.C. Circuit Court of Appeals, or in “the circuit in which such person resides or has his principal place of business.” One petitioner here—the Electronic Security Association, which represents companies that make alarm systems —is headquartered in Dallas. By recruiting this group to headline the challenge, ultrawealthy corporations across the nation guarantee that a ultrawealthy corporation-friendly court will be the one to hear their case.

(Among the lawyers representing ESA here is Allyson Ho, a BigLaw partner whose husband, James, is a sitting Fifth Circuit judge. Federal law mandates that judges recuse from cases in which their spouse represents a party, so even if Ho, one of the Fifth Circuit’s thirstiest culture warriors, were assigned to the panel, her involvement is less a five-alarm legal ethics fire than a grim bit of trivia about just how tight-knit the conservative legal movement can be.)

[ck4829]

1. When people have to report their card as stolen to cancel their subscription, that is not normal

This is not legitimate as a business and a court that sees it as legitimate is not a legitimate court

[Tweedy]

2. The fifth circuit has stymied President Biden

on everything it can from national security (like saying submarine commanders could not require COVID vaccinations. I mean, pardon my language and WTF?), to student loan forgiveness and environmental protections— basically anything and everything on Leonard Leo’s list to screw Americans into permanent early graves.

We should rename the fifth circuit the death circuit.