Only “persons” can engage with the legal system – for example, by signing contracts or filing lawsuits. There are two main categories of persons: humans, termed “natural persons,” and creations of the law, termed “artificial persons.” These include corporations, nonprofit organizations and limited liability companies (LLCs).
Up to now, artificial persons have served the purpose of helping humans achieve certain goals. For example, people can pool assets in a corporation and limit their liability vis-à-vis customers or other persons who interact with the corporation. But a new type of artificial person is poised to enter the scene – artificial intelligence systems, and they won’t necessarily serve human interests.
As scholarswho study AI and law, we believe that this moment presents a significant challenge to the legal system: how to regulate AI within existing legal frameworks to reduce undesirable behaviors, and how to assign legal responsibility for autonomous actions of AIs.
This is far from a philosophical question. The laws governing LLCs in several U.S. states do not require that humans oversee the operations of an LLC. In fact, in some states, it is possible to have an LLC with no human owner, or “member” – for example, in cases where all of the partners have died. Though legislators probably weren’t thinking of AI when they crafted the LLC laws, the possibility for zero-member LLCs opens the door to creating LLCs operated by AIs.
Many functions inside small and large companies have already been delegated to AI in part, including financial operations, human resources and network management, to name just three. AIs can now perform many tasks as well as humans do. For example, AIs can read medical X-rays and do other medical tasks, and carry out tasks that require legal reasoning. This process is likely to accelerate due to innovation and economic interests.
A different kind of person
Humans have occasionally included nonhuman entities like animals, lakes, and rivers, as well as corporations, as legal subjects. Though in some cases these entities can be held liable for their actions, the law only allows humans to fully participate in the legal system.
One major barrier to full access to the legal system by nonhuman entities has been the role of language as a uniquely human invention and a vital element in the legal system. Language enables humans to understand norms and institutions that constitute the legal framework. But humans are no longer the only entities using human language.
An LLC established in a jurisdiction that allows it to operate without human members could trade in digital currencies settled on blockchains, allowing the AI running the LLC to operate autonomously and in a decentralized manner that makes it challenging to regulate. Under a legal principle known as the internal affairs doctrine, even if only one U.S. state allowed AI-operated LLCs, that entity could operate nationwide – and possibly worldwide. This is because courts look to the law of the state of incorporation for rules governing the internal affairs of a corporate entity.
We believe the best path forward, therefore, is aligning AI with existing laws, instead of creating a separate set of rules for AI. Additional law can be layered on top for artificial agents, but AI should be subject to at least all the laws a human is subject to.
In addition to embedding law into AI agents, researchers can develop AI compliance agents – AIs designed to help an organization automatically follow the law. These specialized AI systems would provide third-party legal guardrails.
Researchers can develop better AI legal compliance by fine-tuning large language models with supervised learning on labeled legal task completions. Another approach is reinforcement learning, which uses feedback to tell an AI if it’s doing a good or bad job – in this case, attorneys interacting with language models. And legal experts could design prompting schemes – ways of interacting with a language model – to elicit better responses from language models that are more consistent with legal standards.
Law-abiding (artificial) business owners
If an LLC were operated by an AI, it would have to obey the law like any other LLC, and courts could order it to pay damages, or stop doing something by issuing an injunction. An AI tasked with operating the LLC and, among other things, maintaining proper business insurance would have an incentive to understand applicable laws and comply. Having minimum business liability insurance policies is a standard requirement that most businesses impose on one another to engage in commercial relationships.
The incentives to establish AI-operated LLCs are there. Fortunately, we believe it is possible and desirable to do the work to embed the law – what has until now been human law – into AI, and AI-powered automated compliance guardrails.
Republished with permission under license from The Conversation.
My friend "G" helped her daughter purchase a used vehicle from Pappas Toyota in St. Peters, MO, but now suspects the dealer committed fraud. Although "G" gave me permission to tell her story as a teachable moment; I'm not using "G's" name or her daughter's because "G" is a law enforcement officer.
These teachable moments are offered to provide our readers with real-life case situations that provide facts and analysis and possible remedies for common legal situations.
Facts and Background
On Monday, February 20, 2023, "G" sent her 19-year-old daughter, "T", to Pappas Toyota to test drive a 2013 Nissan Pathfinder that "G" saw online. "G" was unable to go with her daughter because "G" was working an extreme amount of overtime at that point. "G," asked me to accompany her daughter because "T" was nervous to go by herself.
After the test drive, "T" and I sat down with the salesperson to discuss preliminaries, and after several phone calls back and forth to "G", "G" took over negotiations with the salesperson over the phone. "G" was assured over the phone by the salesperson that the Pathfinder had no known issues, had gone through an extensive vehicle inspection process, had been state inspected, was a solid vehicle, and should provide reliable and trouble-free transportation for some time. In fact, the dealer stayed fairly firm on the price because the vehicle was in exceptional condition. The Pathfinder was purchased on February 24th.
On or about March 27th, Pappas was called because the Pathfinder's engine light came on and the vehicle was shaking when driving 40 mph or higher. An appointment was set for April 4th, Pappas performed a diagnostic test and replaced the "Plenum Gasket, Ignition Coil, and spark plugs". Pappas assured "G" and "T" that this would solve the problem and they spent $726 for that service. A few days later, the engine light came back on and when "T" called Pappas to report it, the service department told her there was no problem and that the engine light just needed to be reset. Pappas told "T" to look in the owner's manual for instructions on how to reset the light.
On July 12th, the Pathfinder stalled on Halls Ferry near Lindbergh and had to be towed about two blocks to Ronsick Auto Care. They performed a diagnosis on July 13th and determined that the entire Catalytic Converter System had failed. They further explained that the system includes three Catalytic converters and that it takes a substantial amount of time for the entire system to fail. Since the system includes three catalytic converters, the estimate to replace including labor was over $5,000. When "G" explained that they had just purchased the vehicle in February, Ronsick's professional opinion was that the vehicle was sold with a bad catalytic converter system.
On Thursday, July 13th, "T", phoned the salesperson at Pappas Toyota who sold the vehicle and explained the situation, and asked if Pappas would fix or allow the Pathfinder to be exchanged for another vehicle but was told Pappas couldn't do anything since she hadn't purchased an extended warranty.
On Friday, July 14th, a letter was faxed to Pappas, detailing the information above and that "G" and "T" believed the Pathfinder's conditions were preexisting prior to their purchase. Fraud was suspected because as automotive experts, Pappas knew or should have known the actual condition of the Pathfinder but did not disclose and maybe even illegally reset the engine check light to conceal the defects.
G & T chose to purchase from Pappas because they believe it to be a reputable and honest business and they were trying to avoid running into this sort of situation from a disreputable used car dealer. They demanded that Pappas make them whole and repair the Pathfinder at no cost per the Missouri Merchandizing Practices Act RSMo 407.020 et al. The following was stated in the letter to Pappas:
"This is a good faith attempt to resolve this issue, however, If we do not hear from Pappas by 2 pm today, Friday, July 14th, we will take the following actions.
My daughter, several of her friends, and family members are preparing an informational picket to take place on the public areas outside of Pappas Toyota.
A copy of this letter and a short press release will be sent to local media outlets.
If those activities produce no results, we will file a small claims complaint with St. Charles Circuit Court and let a judge decide if Pappas should have known about the defects prior to the sale."
Pappas Toyota Non-Responsive
G received no response from Pappas Toyota, since they didn't attempt to contact her, she filed complaints with the Missouri Attorney General's Office and several consumer complaint sites Friday evening. Because of the weather forecast, T canceled a planned information picket for Saturday, July 15th, however, she may reschedule later.
G is now researching and organizing documents and plans to file a small claims suit against Pappas Toyota. This page will be updated when additional information about the outcome is available.
Fraud and Lawsuit Analysis
In Missouri courts, small claims are limited to $5,000, see Missouri Rules for Small Claims Court and the Missouri Small Claims Court Handbook (PDF). According to the fee schedule for St. Charles Circuit Court, the filing fee will be $20.50. Because their claim is potentially greater than $5,000, G & T are also considering filing a standard civil lawsuit. RSMO 402.025 allows for possible reimbursement of attorney fees and punitive damages. If a civil vs small claims suit is filled, G & T will seek to recover the $729 spent in April for repairs, the cost to replace the catalytic converter system, lost time from work, car rental reimbursement, any other fees and cost associated with the action including attorney fees and punitive damages.
Missouri Revised Statute 400.2-314 provides an implied warranty of merchantability and the Missouri Supreme Court ruled in Herbert v. Harl, 757 SW 2d 585 that the statute applies to car dealers. A “warranty of merchantability” means the dealer promises the car will do what it's supposed to do: it will run. However, there are exclusions under RSMO 400.2-316, if the sales contract contains the term "as-is" the warranty of merchantability does not apply.
Pappas Toyota will most likely deny liability by stating that the vehicle was sold "as-is", however, that argument does not exempt them from liability under Missouri Merchandizing Practices Act RSMo 407.020 et al.
The Federal Trade Commission’s (FTC) Used Car Rule requires dealers to display a Buyers Guide in every used car they offer for sale and to give it to buyers after the sale. Pappas Toyota did not display a Buyers Guide when T and I test-drove the vehicle, however, they did have her sign one at the time of sale. Before and immediately after the test drive, I took several photos of the entire vehicle to record the condition and show to G, after reviewing those photos, I noticed there was no buyer's guide.
2013 Pathfinder on February 20, 2023, immediately after the test drive, T is on the left in the white coat.
In the photo above, there is a sign in the building's window advertising Pappas Premium, which is a peace of mind pledge. The following statement appears on the PappasToyota.com Pappas Premium page, "A pre-owned vehicle from Pappas Toyota isn’t an ordinary used car. After passing a rigorous inspection and reconditioning process, it’s added to our lot with Pappas Premium, a nationwide 2-Year/100,000-Mile Limited Powertrain Warranty, with 24-Hour Roadside Assistance, One Year of Tire Hazard Protection, and more!" There is no disclaimer stating that some vehicles are excluded. Any reasonable person reading this statement would assume that this applies to all used vehicles sold at Pappas.
This assurance is one of the reasons G sent her daughter to Pappas. At the time of publication, T's 2013 Nissan Pathfinder according to CarFax has a retail value of $10,220, a private party value of $7,700, and a trade-in value of $4,400. Let's assume Pappas purchased the Pathfinder for around $4,700. The reason a customer would then respond to Pappas' advertised selling price of $10,700 is that it is expected that Pappas inspected and reconditioned the vehicle as stated in the Pappas Premium pledge. Otherwise, customers could simply purchase the vehicle from a private seller and save thousands of dollars.
Under the Missouri Merchandising Practices Act, false pretense, false promise, misrepresentation, unfair practice, or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce is an unlawful act. Pappas' salesperson mentioned how their used vehicles undergo an extensive inspection which matches with the Pappas Premium statement of a "rigorous inspection and reconditioning". A dealer has an affirmative duty to tell you certain “material facts” about a vehicle, whether or not you ask for them. This includes disclosing if a vehicle was a “lemon law” buyback, a prior rental, a prior salvage, or in an accident requiring major repair work such as frame or suspension damage.
Pappas Toyota is the expert here. It is reasonable to expect that if the vehicle needed to have the "Plenum Gasket, Ignition Coil, and spark plugs replaced, the "rigorous inspection" should have identified those issues prior to the sale. It is also reasonable that Pappas should have known that the catalytic converter system was bad. How many of the three catalytic converters have to fail before the engine light comes on?
According to Automotive Diagnostic Repair Help: "As a rule, when converter efficiency drops below 90 to 95 percent, it will set off a catalyst efficiency code. A vehicle with an illuminated Check Engine Light and ANY trouble codes will NOT pass an emissions check. A fouled converter may or may not cause an increase in backpressure, but eventually, it might if carbon starts to build in the honeycomb restricting the passageways. The important point to remember here is that converters don't just foul or plug up for no good reason. There is always an underlying cause which must be diagnosed and corrected before the problem can be eliminated. Identifying a plugged or fouled catalytic converter is only half the fix. Why? Because replacing a bad converter will only solve the current problem temporarily. If the underlying cause of the converter failure is not also diagnosed and repaired, sooner or later the new converter will likely suffer the same fate."
According to RepairSmith.com and several other sites, a vehicle normally can be driven indefinitely with a bad catalytic converter. A clogged catalytic converter can only prohibit you from driving your automobile in the most severe circumstances. According to PerformanceMuffler.net, "A failing car’s catalytic converter will create a significant backpressure that lowers your car’s engine performance. Whenever this happens, you will notice your car shaking frequently".
On February 15th, the date that Pappas Toyota performed the emissions inspection, the vehicle mileage was 143,287. On April 4th when Pappas performed the repairs, the mileage was 145,283. The mileage recorded by Ronsick on July 12 was 149,069. The Pathfinder was driven less than four thousand miles since Pappas supposedly took care of the vehicle’s issues.
When a small claims lawsuit is filed, the plaintiff (the person suing), bears the burden of proof and must convince a judge. This requires the plaintiff to put forth evidence in the form of witness testimony, documents, or objects. There are four elements that need to be proven to win a Missouri Merchandizing Practices Act suit.
(1) the plaintiff purchased, or attempted to purchase, merchandise (which includes services) from a defendant in the state of Missouri;
(2) the plaintiff’s purchase of, or attempt to purchase, merchandise (or services) was for personal, family, or household purposes;
(3) the plaintiff suffered an ascertainable loss of money or property; and
(4) the plaintiff’s ascertainable loss was a result of an action by a defendant that has been declared unlawful by § 407.020 RSMo.
In all likelihood, the condition of the plenum gasket, ignition coil, and spark plugs would have resulted in a check engine light prior to the sale. Additionally, since the catalytic converter was so bad that it failed just three months later indicates there were issues for a while even before G& T purchased it. Remember, even the mechanic that the car was towed to agrees that this was a preexisting condition, so why didn't Pappas catch this, was it fraud or negligence? Either way, it's a material fact that Pappas should have known that wasn't disclosed. However, a vehicle with a catalytic converter so bad that it causes the car to stall shouldn't have passed inspection in the first place which increases the likelihood fraud was involved. It's highly probable a judge will agree.
If you are a former or current employee of Pappas Toyota, a customer, or someone who has helpful information concerning this case contact us.
G contacted the St. Charles Circuit Court about filing the small claims suit against Pappas Toyota and was told that she must first send a certified demand letter to the registered agent. She visited the Missouri Secretary of State's office and search their records of business listings and discovered that Pappas Toyota is owned by North Motors Inc. and that Michael Pappas become the registered agent in March 2023, his father Thomas Pappas (the former registered agent), passed away the previous month. G sent her demand letter on Friday, July 21st.
On Monday, July 24th, G received an email from the Attorney General which included Pappas Toyota's response prepared by their attorney including three attached documents; "Retail buyer's order, buyer's guide, and a document declining extended service contract. Pappas' attorney as expected cited the sale as-is but also asserted the parties agreed to arbitration. Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.
The irony here is that Section (a) of the attached Pappas arbitration clause states; "The Federal Arbitration Act, not state law, shall govern the arbitration process and the question of whether a claim is subject to arbitration. The customer, however, retains the right to take any claim, controversy or dispute that qualifies to small claims court rather than arbitration." The Pappas Toyota arbitration clause itself allows for issues to be taken to small claims court instead of arbitration. The important lesson is to carefully read any document provided by the opposition or their attorney.
An arbitration clause in a contract is usually binding, however, the Missouri Supreme Court has ruled that such clauses cannot waive the protection provided by the Missouri Merchandising Practices Act (MMP). See Shaffer v. Royal Gate Dodge where the dealer tried to compel arbitration but the court ruled the arbitration clause unenforceable.
In the case of Huch v. Charter Communications, the Missouri Supreme Court stated the following often while citing other relevant cases:
"the public policy involved in Chapter 407 is so strong that parties will not be allowed to waive its benefits."
In short, Chapter 407[, the MPA,] is designed to regulate the marketplace to the advantage of those traditionally thought to have unequal bargaining power as well as those who may fall victim to unfair business practices. Having enacted paternalistic legislation designed to protect those that could not otherwise protect themselves, the Missouri legislature would not want the protections of Chapter 407 to be waived by those deemed in need of protection. Furthermore, the very fact that this legislation is paternalistic in nature indicates that it is fundamental policy: "a fundamental policy may be embodied in a statute which … is designed to protect a person against the oppressive use of superior bargaining power."
Likewise, in Whitney v. Alltel Communications, Inc., a contract provision requiring arbitration was found to be unconscionable because giving it effect would deny protections afforded by the merchandising practices act. 173 S.W.3d 300, 314 (Mo. App.2005). The court held that to allow companies to avoid the consumer protections established in the act "would effectively strip consumers of the protections afforded to them under the Merchandising Practices Act and unfairly allow companies… to insulate themselves from the consumer protection laws of this State." Id. "This result would be unconscionable and in direct conflict with the legislature's declared public policy as evidenced by the Merchandising Practices Act and similar statutes."
Car dealers are required by the FTC to post a Buyers Guide before they display a vehicle for sale or let a customer inspect it for the purpose of buying it, even if the car is not fully prepared for delivery. The Buyers Guide must be displayed prominently and conspicuously on or in a vehicle when a car is available for sale. This means it must be in plain view and both sides must be visible. You can hang the Guide from the rear-view mirror inside the car or on a side-view mirror outside the car. You also can place it under a windshield wiper. The Guide also can be attached to a side window. A Guide in a glove compartment, trunk, or under the seat is not conspicuous because it is not in plain sight. Since the vehicle did not have a visible buyer's guide when T and I test-drove the vehicle, that violation could also be considered an omission per the MMP.
G & T are both listed as purchasers, however, T was the only signer to the contract which contains the arbitration clause. G & T financed the vehicle at a bank that only G had an account with at the time. Even if the arbitration clause was valid, and was not barred from being invoked in cases involving the MMP, it could be argued that the clause does not apply to G since she never signed it but does have a protectable interest.
Michael Pappas
President North Motors Inc.
D.B.A. Pappas Toyota
10011 Spenser Road
St. Peters, MO 63376
Dear Mr. Pappas,
This letter serves as a formal demand for payment of $5000, the partial cost to repair the prior damage that Pappas Toyota, knew or should have known existed before our purchase. Our claim is based upon the Missouri Merchandizing Practices Act, RSMo 407.020 et al, which applies even when merchandise is sold as-is.
I helped my 19-year-old daughter T purchase a 2013 Nissan Pathfinder from Pappas Toyota on February 24, 2023. We live in Florissant, however, the primary reason for choosing your business was the Pappas Premium pledge on your website; https://www.pappastoyota.com/pappas-premium/.
Unfortunately, a month later, we were forced to pay Pappas $729 for repairs which included the Plenum Gasket, Ignition Coil, and spark plugs. Those items should have been detected from the "rigorous inspection" you claim to perform on all used vehicles before being added to your lot.
A few days later, the engine light came back on and when Taylor called Pappas to report it, the service department told her there was no problem and that the engine light just needed to be reset. Pappas told Taylor to look in the owner's manual for instructions on how to reset the light.
Three months later, the entire catalytic converter system failed and the estimated cost to replace is $5,285, I have included a copy of the repair estimate with this letter. A second mechanic we consulted said it was nearly impossible that an inspection wouldn't have caught those issues. Both mechanics concluded the conditions existed before our purchase.
For more complete information about this claim, see the self-help legal blog that picked up our story: http://court.rchp.com/is-pappas-toyota-engaging-in-unethical-car-dealer-practices/
We have previously tried to resolve this matter, my daughter T contacted your salesperson D on Thursday, July 13th, I sent a fax to your manager, A on Friday, July 14th at 636-xxx-xxxx, and I sent an email to you on Monday, July 17th at, mpappas@pappastoyota.com. We lodged a complaint with the Missouri Attorney General, the Better Business Bureau, and others, however, as of the date of this letter, we have not received any response.
If we do not receive a full payment of $5,000 by August 4, 2023, we will have no choice but to file a claim in St. Charles small claims court. In lieu of payment, if arrangements are made by July 27th, we will allow Pappas the option to replace the catalytic converter system at their cost and provide us with the full Pappas Premium coverage as we no longer feel confident about the vehicle's condition when sold.
Since our total claim exceeds $5,000:
$5,285 – estimated catalytic converter system replacement and related work
+ $729 – cost of prior repair April 4th
+ $112 – daughter lost wages
We reserve the right to file a standard civil case where we would seek full restitution including filing fees, attorney fees, tow charges, additional lost wages all other associated cost, and punitive damages.
This letter fulfills the St. Charles Circuit Court requirement of sending a certified letter to the registered agent of the business prior to filing suit. You have 10 days to respond after receipt of this letter to respond.
Pappas Toyota responded to the Missouri Attorney General's office, but no one has reached out directly to G about her complaints. G contacted the Toyota Corporation to alert them about the questionable practices of their franchisee. In reply to Pappas Toyota's attorney's response to the Missouri Attorney General about her complaint, G sent the following:
Re: Complaint No. CC-2023-07-00xxx
Dear Ms. W:
After careful review of the Pappas response and exhibits, I'd like to point out the flaws and oversight. I've been a Deputy Juvenile Officer (DJO) in the City of St. Louis since 1996 and my deceased husband, M, was an attorney so I have some familiarity with the law.
Mr. K mistakenly stated our claims need to be arbitrated. Section 8(a) of Pappas Exhibit 1, states; "The Federal Arbitration Act, not state law, shall govern the arbitration process and the question of whether a claim is subject to arbitration. The customer, however, retains the right to take any claim, controversy or dispute that qualifies to small claims court rather than arbitration." Pappas' arbitration clause itself provides the authority to bypass arbitration and go to small claims court. However, the Missouri Supreme Court has ruled that such clauses cannot waive the protection provided by the Missouri Merchandising Practices Act (MMAP); see Shaffer v. Royal Gate Dodge, Inc., 300 SW 3d 556, where the dealer tried to compel arbitration but the court ruled the arbitration clause unenforceable.
Additionally, please note that both my name and my daughters' name appear as purchaser on Pappas Exhibit 1, however, only my daughter signed the agreement with the arbitration clause, therefore, I cannot be forced into arbitration. I would have preferred to accompany my daughter, however, I was working over 80 hours of overtime per pay period during that time leaving only a small window where we could both be present on February 24th. D, our Pappas salesperson, wasn't available during that window and informed me that I didn't need to be there to finalize the sale, but I was never informed about the arbitration clause or that the vehicle was sold as-is and not covered by the Pappas Premium pledge, Exhibit A. My negotiations with D were over the phone and by text and I didn't visit their location until after the deal was completed. The online advertisement for the Pathfinder did not mention it was as-is.
Car dealers are required by the FTC to post a Buyers Guide before they display a vehicle for sale or let a customer inspect it for the purpose of buying it, even if the car is not fully prepared for delivery. I was sent photos, Exhibit B, of the vehicle before and after the test drive which clearly shows there was no Buyers Guide. Please note that Pappas Exhibit 2 may have been signed by my 19 year old daughter if they presented it, but the Buyer's Guide certainly does not contain my signature.
The MMPA is designed to regulate the market place to the advantage of those traditionally thought to have unequal bargaining power, as well as those who may fall victim to unfair business practices. The Missouri legislature enacted paternalistic legislation to protect those consumers that could not otherwise protect themselves, signifying it would not want the protection of chapter 407 to be waived by those deemed in need of protection. This very fact indicates that it is a fundamental policy embodied in a statute which is designed to protect persons against the “oppressive use of superior bargaining power.” Huch v. Charter Communications. Inc., 290 S.W.3d 721, 726 (Mo.banc 2009). Therefore, the fact that my daughter signed the Buyer Guide does not exempt Pappas Toyota from their pledge.
We raised fraud issues in our complaint, so the Pappas attorney's correspondence does not fully resolve this matter. We hope that the AG's office may provide assistance, however, we are fully prepared to file suit in St. Charles Circuit Court if it cannot. The secondary nature of our AG complaint was to notify this office of possible fraud and to prevent Pappas from making false statements on their website concerning the Pappas Premium and "rigorous inspections" and then using the "As-Is" sale, arbitration, and declining to purchase an extended service contract to bypass and insulate themselves from the consumer protection laws of this State.
I am attaching a copy of the Pappas Premium Pre-Owned Peace of Mind pledge from their website. Please note there is no disclaimer stating that some vehicles are not covered. This pledge would mislead any reasonable consumer into thinking all used vehicles sold by Pappas are covered. Several mechanics have explained that the vehicle we purchased shouldn't have passed a basic state inspection and that any sort of "rigorous inspection" certainly should have identified the issues we faced in March and then July.
The 2013 Nissan Pathfinder we purchased was advertised for $10,700 on the Pappas Toyota website. The price was negotiated down to $10,000, however, I refused to pay a $499 administrative fee. That fee was then subtracted from the sales price to equal the original $10,000 agreed upon. We were charged $759 in March for repairs, Exhibit C, and now face another $5,285 for the catalytic converter system, Exhibit D. The total of these repairs is more than 60 percent of the purchase price for a vehicle according to the, Pappas Pledge "is like no other used car". It is illegal for a car dealer to sell a vehicle with a failing emissions system.
As part of my investigation and research, I pulled the Pathfinder's CarFax Report, Exhibit E. Please note that spark plugs and the ignition system was serviced on 11-06-2019 and the Plenum gasket was replaced on 09-21-2021. Keep in mind that the Plenum gasket, ignition coil, and spark plugs were replaced in April 2023 by Pappas Toyota. The CarFax report states that Pappas performed an emission inspection on 2-8-2023, however, the actual inspection certificate is dated 2-15-2023, Exhibit F. Did the Pathfinder fail inspection on the 8th? Further indication the Pappas emission certificate might be fraudulent. The Pappas Toyota website states they are a 2022 CarFax Top-Rated Dealer. It's reasonable to expect they would use the CarFax report as a guide to look for possible issues.
According to WheelsJoint.com, the Nissan Pathfinder ignition coils are responsible for amplifying the relatively low battery voltage from 12V to a high voltage of tens of thousands of volts for the spark plugs. Driving a Pathfinder with bad ignition coils can damage the engine or the catalytic converter.
According to RepairPal.com, the Plenum Gasket, also known as the intake manifold gasket on a Nissan Pathfinder is designed to last the life of the vehicle, but often it will be replaced when doing related engine repairs in order to prevent problems with it down the road. YourMechanic.com states, " The principal concern with a leaking intake manifold gasket is potential damage to the engine, depending on where the leak is. …. If the leak involves coolant, it could lead to engine overheating damage or the coolant could contaminate the engine oil, which can damage the engine bearings. If there is an air leak to the cylinders, it can cause lean operation which could overheat the catalytic converter."
On 1-10-2023, Pappas Toyota performed recommended maintenance including changing tires and an oil change. They performed an emissions inspection on Feb. 8th or 15th, however, no other inspections are mentioned. A condition of our purchase was the touch ups of noticeable paint chips and scratches which is most likely the service that was performed on 2-21-2023.
Sections 407.020 and 407.025 provide four elements to a MMPA claim: (1) the use or employment of a “deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression or omission of any material fact,” (2) the unlawful act must occur in connection with the sale or advertisement of merchandise, (3) the unlawful act must result in an ascertainable loss of money or real or personal property, and (4) the loss must occur to a person who purchases or leases merchandise primarily for personal, family or household purposes.
The Pappas Premium pledge in our case is an obvious false promise, then the fact there was no Buyer's Guide which was a concealment, suppression, or omission of a material fact, a major repair one month after purchase and then the complete failure of the catalytic converter system three months later in consideration of the facts above by any reasonable standard satisfies an action under MMAP.
A quick scan of Pappas Toyota's BBB file tells me we're not their first victim, but hopefully, we'll be their last. Proof of intent can be shown by circumstantial evidence. See Rice v. Lammers, 65 S.W.2d 151 (Mo. App. 1933). And silence or concealment is actionable on a showing of the seller’s superior knowledge or the seller giving partial information. In Hess v. Chase Manhattan Bank, USA, NA, 220 SW 3d 758 the Court held that the admission or concealment of material facts under the MMPA required less proof than what was required to prove comparable elements of common law fraud.
As a DJO, sadly, I must enforce the law on children as young as 10 years old, sometimes for minor offenses as low as $10, often motivated by great need. Hopefully, your office will hold grown men to account for thousands of dollars stolen by fraud and motivated by great greed!
Sincerely,
G
Attached are the following:
Printout of the Pappas Premium Pledge from their website
A recent Cracker Barrel experience is being used as a teachable moment, which will include legal analysis to help determine if the restaurant's actions were illegal. This site provides free self-help legal information.
I visited Cracker Barrel located at 10915 New Halls Ferry Road, Ferguson, MO 63136, on Monday to help celebrate my son's birthday. I ordered meatloaf listed in the "Weekday Lunch Features" section for $5.99. Since my 92-year-old father was unable to attend, I placed a to-go order of the meatloaf for him.
When I received my bill, the meatloaf orders were listed for $6.99 each instead of the $5.99 menu price. I pointed out the mistake to the server who mentioned that the price had changed but that it wasn't reflected on the menu. The server had mentioned earlier that it was his first time working as a server. We left a tip on the table and I decided to get the bill corrected when I checked out.
Photo of a menu on a podium in the cashier area of the Ferguson Cracker Barrel on September 13, 2021.
When I presented the bill to the cashier, I explained that my bill was incorrect. A copy of Cracker Barrel's menu was sitting on a podium in the checkout area and I was able to show her the $5.99 price on the menu. The cashier also explained that some prices had gone up, but that they were not reflected on the menu and she called for the manager.
Cracker Barrel checkout receipt with credit card number redacted.
After waiting for the manager for about 10 or 15 minutes, he also acknowledged that some of the prices on the menu were incorrect and that they were waiting for the company to send updated copies. I asked, how do we fix this? The manager replied that $6.99 was the price. I pointed to the menu setting on the podium and stated this is the price, the $5.99 listed on the menu. The manager stated he had no way to honor the $5.99 menu price.
I mentioned under Missouri's truth in advertising statute, state law requires them to honor the menu price. I further explained that it was a simple matter to place a sticker with the new price over the old price. The manager held firm on the $6.99 price. Rather than escalate the issue, I explained that I no longer wanted the to-go meal, and only paid the $6.99 price plus tax for the meal I consumed. I told the manager to tell Cracker Barrel's corporate office I would be filing a complaint with the Missouri Attorney General's office.
I don't regularly patronize Cracker Barrel and the location was chosen by someone else. I've visited Cracker Barrel maybe four or five times, usually to meet with others celebrating a special occasion. Before ever visiting a Cracker Barrel restaurant, I saw news reports about racial bias. That information helped to form my impression of Cracker Barrel. I prefer to spend my money with businesses that appreciate my patronage. In 2004 the U.S. Department of Justice settled a complaint that alleged Cracker Barrel:
allowed white servers to refuse to wait on African-American customers;
segregated customer seating by race;
seated white customers before African-American customers who arrived earlier;
provided inferior service to African-American customers after they were seated; and
treated African-Americans who complained about the quality of Cracker Barrel's food or service less favorably than white customers who lodged similar complaints.
You can read the consent decree for yourself. Later that same year, Cracker Barrel customers filed a $100 million federal discrimination lawsuit. I have no reason to believe this incident being discussed here was racially motivated; in fact, my server, the cashier, and the manager were all African-American.
Legal Analysis
When an offer is made and accepted a contract is created. Once I placed my order, a contract existed between Cracker Barrel and myself. Here's where it can get a little tricky; the menu is not an offer. Menus are considered invitations to make an offer. When I placed my order, I was making an offer to purchase the menu item (accepting their invitation). By taking the order the server is accepting the offer, thereby forming the contract. The consideration is made by my acceptance to pay for the $5.99 menu price in exchange for the food or beverage.
The essential elements of a contract in Missouri are: “(1) competency of the parties to contract; (2) subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation.”
Since Cracker Barrel failed to honor the contracted price, they breached the contract and exposed themselves to the possibility for legal action simply because they wouldn't honor their menu price.
Truth in Advertising
The Missouri Merchandising Practices Act (MMPA), Chapter 407 of Missouri Revised Statutes, is the state’s primary truth-in-advertising law.
RSMO 407.010, defines the term advertisement fairly broadly which would include restaurant menus. An advertisement or solicitation that creates a false impression in the mind of a reasonable consumer and that was made with the intent of influencing a purchasing decision is unlawful false advertising in Missouri. The regulations specifically provide that reliance is not an element of deception or misrepresentation. 15 CSR §§ 60-9.020, -9.070.
RSMO 407.020 defines misrepresentation, suppression, or omission of any material fact among other things as an unlawful practice. Under the MMPA, “omission of a material fact is any failure by a person to disclose material facts known to him/her, or upon reasonable inquiry would be known to him/her.” The server, cashier, and manager all knew about the price change but failed to tell the customer.
RSMO 407.025 provides for damages and allows punitive damages and attorney fees.
To succeed in a false advertising claim under the MMPA, a plaintiff must prove the following four things:
There was a purchase, advertisement, or active solicitation of goods or services
The advertisement in question was primarily targeted for consumer purposes, not for business-to-business purposes
The advertisement or solicitation was, in some manner, unlawfully deceptive
The plaintiff suffered actual financial harm as a result of the false advertising
Truth in Advertising is not the same as Truth-in-Menu also known as “Accuracy-in-Menus” and “Truth-in-Dining” terms used to describe regulations governing restaurant menus. Many locations require that menu descriptions be honest and selling prices and service charges be accurate. Examples of information that should be carefully described include preparation style, ingredients, item size, and health claims.
Conclusion
It's unwise for a business to expect customers to pay for their mistakes. Until Cracker Barrel refused to correct its pricing error, I had an enjoyable experience. The meatloaf was decent and everyone else seemed to enjoy their meal. I relied on the accuracy of the menu. I don't know if I would have placed the same order if the $6.99 price was listed. I was actually considering a couple of more expensive options when I noticed the $5.99 menu. I might have ordered the chicken for $9.99 instead. Regardless, I would have still placed an order for my father. It wasn't that I couldn't afford the extra dollar, it was the total lack of regard and respect shown when they refused to honor their menu price!
Cracker Barrel ruined what would have been a positive experience and turned it into a negative one. If not but for the pricing error, I would have left very satisfied and my father would have been too. When I explained what happened, my father said you made the right decision to leave that other meal. Then I prepared his lunch myself.
Imagine you are at a store to make a purchase and a stranger snatches two dollars out of your hand. What would you do; keep quiet, say something, or do something? When Cracker Barrel wouldn't honor the menu price, I felt as if they were attempting to steal my money.
There are two separate causes of action to file a lawsuit against Cracker Barrel; "breach of contract" and "Missouri Merchandise Practices Act".
The breach of contract damages is only one dollar per meal. However, sometimes it's not about the money as much as the principle of the thing. If this was a deliberate tactic to increase profits, Cracker Barrel would know most people would never consider going to court for such a small amount. How many hundreds or even thousands of customers were overcharged? Everyone has to decide how much principle is worth to them. I've certainly spent more than two dollars in time and effort researching and writing this article which for me was worth it. I'm not planning to file suit.
Since the MMPA includes the possibility of punitive damages, that might prompt someone to file a lawsuit or even a class action. If someone were to file a lawsuit, Cracker Barrel would have to pay an attorney to represent them which could cost tens of thousands of dollars depending on the number of motions and hearings. A judge could decide to teach Cracker Barrel a lesson and award thousands in punitive damages.
The solutions were simple; use labels to show the new price, verbally tell customers about the price changes or make the adjustment when a customer complains. The reality is many customers might not notice or might be too embarrassed to mention the price difference. My research revealed the Ferguson Cracker Barrel's online menu (PDF) included the $6.99 pricing on September 13th. The manager could have simply printed copies for temporary use until the corrected menus arrived.
Cracker Barrel violated the law. Every member of our party thought it was wrong for them not to correct their mistake. Hopefully, Cracker Barrel will learn from this and treat its customers more fairly in future situations.
Christopher Hill, Founder/CEO of ManUpGlobal and co-author of the book, "The Re-Factor," recently endured a car rental experience from hell. He was placed on Enterprise Rent-A-Car's do not rent (DNR) list by mistake.
Enterprise and other car rental companies maintain a (DNR) list which is a list of customers who have been forbidden from renting a vehicle for any reason.
Christopher was preparing for ManUpGlobal's Operation Suave when his car became inoperable because of an accident. Below is an interview Christoper did before the event.
Christopher who happens to be my son needed a car immediately and there was a rental car shortage. He eventually found a vehicle at Avis in West County about 20 miles away for $100/day. Christopher drove the Avis vehicle that weekend and to work Monday.
Christopher is an ordained minister, he is employed by a non-profit organization where he teaches classes to incarcerated men transitioning back into society, however, he has never been incarcerated himself or had any major legal issues.
On Monday, May 24, 2021, I searched for a better rate while he was at work and made a car rental reservation on Enterprise.com. I normally rent from their Dellwood location and reserved a midsize there for $82/day. That reservation was canceled after I discover a midsize rate of $38.75/day at the Ladue location.
Enterprise reservation for 5-24-2021 showing daily rate of $82. This reservation was cancelled after the Ladue reservation was confirmed.
When Christopher finished working, We met at Avis and drove to the Ladue Enterprise location.
I listed Christopher as an additional driver, but we were informed he was on the do not rent list. Enterprise Rent-A-Car stated that a car Christopher previously rented had been repossessed, which we both knew was untrue. We waited while the agent tried to reach someone, however, Enterprise's corporate offices were closed. The agent told us she would check into the matter the next day and we ended up renting from another company at twice the cost.
Rental that caused Do Not Rent Blacklisting
Christopher rented a car from the Enterprise Rent-A-Car location, 2233 Washington Avenue in downtown St. Louis in December 2019, then extended the rental multiple times. On or about January 13, 2020, Christopher returned to the Washington Avenue location to extend his rental and provided his credit/debit card.
The car was returned undamaged on what Christopher thought was the due date, January 29th, his card was charged and he didn't think anything else about the matter. He was never told there was an issue or that he was being added to the DNR list or even that he was in danger of being added to that list.
The vehicle was returned undamaged, the credit/debit card provided was charged and the total fees were paid in full. Since there was no vehicle damage, no outstanding or unpaid fees. It's hard to understand why Christopher was added to the do not rent list.
False Hope for Removal
On May 25th, the Enterprise Rent-A-Car agent called to explained that she confirmed that the vehicle had been repossessed. I knew this information was incorrect. Assuming they mixed up Christopher's rental with someone else; I asked the location of the repossession. I was hoping for some clue which renter's car had been repossessed. The agent checked, called back, and then stated that the car had been returned but that a repo request was made before the vehicle being returned. The agent explained that her boss would call to see about removing Christopher from the do not rent list.
After not hearing from anyone, I phoned back and eventually spoke to a manager who stated Christopher could not be removed from the list. Upon further inquiry, I was provided with information for the Risk Management department.
Before calling Enterprise Risk Management, I phoned the repo company. The owner confirmed that on January 28, 2020, a repo order from Enterprise was received, however, it was canceled less than 24 hours later on January 29th. Enterprise experienced no charges for the canceled repo order according to the owner of the repo company.
Efforts to Resolve
I phoned the manager of Enterprise's Risk Management several times between May 27th and June 9th, but only reached his voicemail. I emailed a detailed message using Enterprise.com's customer service link. I received a response that they needed to hear directly from Christopher, so I forwarded the email.
On June 13th, Christopher contacted Enterprise by email. Explained he wasn't sure how he ended up on the DNR list and because Enterprise's office hours conflicted with his work schedule, he asked his father to look into the DNR list issue. Christoper disclosed he read his father's summary of the incident and the details were correct and to please accept the statement as if it were his own and asked to be promptly removed from the DNR list.
On June 14th, Enterprise apologized for the inconvenience, stated they would engage the management team at Risk Management and that they would contact him soon to provide proper assistance.
On June 25th, Christopher explains he had not heard from anyone. Christopher was approaching the July 3rd deadline for the auto insurance replacement from Hertz. Pandemic supply chain issues caused delays at the auto dealer where Christopher's car was being repaired. The dealer offered to provide him with an Enterprise replacement vehicle beginning on July 3rd. Because the DNR list issue was not resolved, Christopher had to pay to continue the Hertz rental. Hertz continued the rental at the insurance rate (around $26/day including taxes and fees) until August 11th at which time he was charged $975.87.
On August 10th, the dealership reserved a rental from Enterprise since Christopher's car still was not fully repaired. I attempted to reach the manager of Enterprise Risk Management again. The person who answered the phone (TW) explained he was on vacation and would not return until Monday, August 16th.
After explaining the details to TW, she found Christopher's rental record and stated that he had only paid for two days on January 13, 2020, that the car was due back on January 15th, but the vehicle was not returned until January 29th. I disputed that information and wondered if they might have mixed him up with another renter.
She provided me with her email to send some documentation we discussed, however, she stated Christopher would most likely never be removed from the DNR list. She said no one other than the department manager could remove Christopher from the list.
Christopher emailed me copies of his bank statements showing six separate payments to Enterprise Rent-A-Car totaling $1,214.28 concerning the rental resulting in him being blacklisted on Enterprise’s DNR list. (bank statements cutouts shown)
Dec. 19. 2019 $178.75
Jan. 02, 2020 $240.00
Jan. 07, 2020 $170.00
Jan. 13, 2020 $120.00
Jan. 21, 2020 $275.45
Feb. 03, 2020 $230.08
This information among other things was shared with Enterprise on August 11th. I received a response indicating I would be contacted by an area manager and another stating my message has been sent to the Regional Office, and someone would contact me concerning my son's 'do not rent' case. As of the publication of this article, we have not heard from anyone.
The dealership made a reservation in Christopher's name at Enterprise. Since the DNR list issue was not resolved, I had the dealership change the reservation to my name and picked up a vehicle. My wife drove the Enterprise rental and Christopher drove her vehicle. Christopher will not drive the Enterprise rental unless and until he is removed from the DNR list and authorized to drive it.
How the DNR List is Supposed to Work
Supposedly, most drivers don’t have to worry about ending up on a Do Not Rent list. The assumption is that renters are only blacklisted from car rental companies due to avoidable issues like failing to follow the terms of the rental lease, causing unpaid damage to rental cars, or participating in illegal activities. However, Enterprise has been shown to penalize renters for frivolous reasons. One man was added to the DNR list because he shared an address with a former roommate who owed a balance.
There's a Facebook group "Enterprise Rent-A-Car did me wrong", where people share how they have been wronged by Enterprise Rent-A-Car. Several people complained about being unfairly added to the Enterprise's DNR list.
What particularly caught my attention is how many people complained that they only discovered they were on Enterprise's DNR list at the rental counter which seems punitive and retaliatory. I can't imagine the stress of arriving in another city standing in line at the rental counter for a long time so you can attend a funeral, job interview, or some other important function, especially if you're running late, only to be blindsided with the news that you're on the DNR list!
Relevant Facts about Enterprise Rent-A-Car
Enterprise is the largest company of the US car rental Oligopoly which controls over 94% of the market:
AvisBudget Group (owns Avis, Budget, and Payless)
Enterprise Holdings (owns Alamo, Enterprise, and National)
Hertz Global Holdings (owns Dollar, Hertz, and Thrifty)
Enterprise Holdings and its affiliates own nearly 1.7 million cars and trucks, making them the largest car rental service provider in the world measured by revenue and fleet. The company is privately owned by the Taylor family, #48 on Forbes 2020 America's Richest Families List, with a net worth of $7.8 billion. Enterprise dominants the insurance replacement market. According to Auto Rental News at one point Enterprise controlled over 85% of that market.
Jack Taylor (d. 2016) founded Enterprise in 1957. He named the company after the USS Enterprise, an aircraft carrier he served on as a Navy pilot during World War II.
Jack Taylor's son, Andrew C. Taylor is Executive Chairman of Enterprise Holdings.
Andrew C. Taylor's daughter Chrissy Taylor is the president and CEO of Enterprise.
The St. Louis-based company reported $22.5 billion in revenues for the fiscal year through July 2020, down 13% due to less travel during the pandemic.
Enterprise has 80,000 employees and operates in nearly 100 countries and territories.
The Taylor Family controls two major charitable foundations; the Enterprise Holdings Foundation with over $323 million in assets and the Crawford Taylor Foundation with over $585 million in assets.
A previous negative experience with Enterprise was used as a teachable moment on this site in 2015.
Legal Analysis
It seems extremely unfair that a company would ban some of its customers for life, sometimes for minor transgressions, however, if you’re placed on a Do Not Rent list for a legitimate reason, you generally don’t have legal recourse against the company, including any right to appeal. When you land on a DNR list of the parent or subsidiary DNR list you are barred from renting from any of the related companies.
When a person is mistakenly placed on a DNR list, there may be remedies available.
Car rental agreements are contracts. Therefore the first step is to look closely at the contract, which usually includes two separate parts.
“The big print giveth and the little print taketh away”
The contract you are given at the rental counter is often a rental summary (big print) which provides the most important details. There's usually a terms and conditions section (little print) that may be accessible thru an internet link, printed on the rear of the contract in small print or attached.
It's been nearly two years since the December 2019 rental resulting in Christopher being listed on the DNR list and he did not have a copy of that contract. Assuming that my August 11th contract is the same as Christopher's prior contact, our discussion will concentrate on what I consider the most relevant parts of the contract concerning the DNR list issue.
Section 1, provides the following definition: “Rental Period” means the period between the time Renter takes possession of Vehicle until Vehicle is returned or recovered and in either case, checked in by Owner. This is an interesting definition since this could be interpreted differently than the dates appearing on the rental summary. The summary portion of my rental contract listed 8-11-2021 as the pickup date and 8-12-2021 as the anticipated return date. When I asked Enterprised about this, I was told the dealership usually rents the vehicle for a single day and then continues to renew the contract each day until the repairs are complete. Therefore, even though the rental summary so far indicates my car is over a week late, the rental is still valid and I have legal possession. A similar situation might have been the source of Enterprise's confusion concerning the January 2020 due date.
Section 4 – outlines the prohibited uses and what the renter shall not allow or do with the vehicle. None of the prohibitions were violated in Christopher's case, therefore, no further discussion is required.
Section 16 – Limitation of Remedy/No Consequential Damages. This may be unenforceable. Consequential damages, also known as "special damages," refers to damages from an indirect result of an event or incident. The difference between direct and consequential damages is not clear. When a generic exclusion of consequential damages is included in contracts without bothering to define what consequential damages are, it is frequently a fact question whether the damages are direct or consequential. Not long ago a federal court held that a contractual provision excluding “consequential damages” is ambiguous.
A breach of contract action includes the following essential elements:
(1) the existence and terms of a contract;
(2) that plaintiff performed or tendered performance pursuant to the contract;
(3) breach of the contract by the defendant; and
(4) damages suffered by the plaintiff. Howe v. ALD Servs., Inc., 941 S.W.2d 645, 650 (Mo. App.1997).
Inclusion on the DNR list would normally indicate a breach of contract. In Christopher's case, Enterprise suffered no damages.
The car dealership repairing Christopher's car uses Enterprise exclusively. That sort of market dominance certainly has created some situational monopolies. Exclusive contracts with a single car rental company can result in serious hardships if your job requires travel. With this in mind, we wondered if there are any legal remedies under the law when placed on a DNR list by mistake?
Missouri law implies a covenant of good faith and fair dealing in every contract. Slone v. Purina Mills, Inc., 927 S.W.2d 358, 368 (Mo.App. 1996). When Enterprise blacklisted Christopher without a valid reason or warning based upon his contracted rental vehicle, Enterprise violated the covenant and therefore breached the contract. Unlike Enterprise, Christopher has suffered damages. He suffered embarrassment, mental anguish, increased rental charges from May 24th, then July 3rd thru August 11th and August 20th; Christopher was forced to rent another vehicle from Hertz to drive to a speaking engagement about 200 miles away.
Since corporations are considered persons under the law when placed on a DRN list by mistake, would it be considered slanderous or libelous since each is a separate entity? We could find no case law concerning this issue and this question may remain unanswered until tested in court.
Car rental companies are public accommodation providers under the Americans with Disabilities Act and Title II of the Civil Rights Act of 1964, 42 US § 2000. Privately owned businesses and facilities that offer certain goods or services to the public including food, lodging, gasoline, and entertainment are considered public accommodations for purposes of federal and state anti-discrimination laws. Federal law prohibits public accommodations from discriminating based on race, color, religion, or national origin. If you believe you have been discriminated against, you may file a complaint with the Civil Rights Division of the Department of Justice, or with the United States attorney in your area. You may also file suit in the U.S. district court.
With this in mind, does a valid reason need to exist before placing members of a protected class on a car rental do not rent list without a clear and convincing reason? Business owners have the right to refuse service to customers for legitimate reasons. Business owners cannot refuse service to protected classes of people based on arbitrary grounds. Reasons must be legitimate enough to hold up in court, otherwise, a rebuttable presumption of discrimination could exist.
Considering the evidence of systemic racism we uncovered at Enterprise, with limited research, we believe it might be possible to make a prima facie case, especially once we conduct further research. To establish a prima facie case for public accommodation discrimination, the complainant must show that he/she: (1) is a member of a protected class, (2) attempted to exercise the right to full benefits and enjoyment of a place of public accommodation, (3) was denied those benefits and enjoyment, and (4) was treated less favorably than similarly situated persons outside her protected class. McCoy v. Homestead Studio Hotels, 390 F. Supp. 2d 577, 583-85 (S.D. Tex. 2005).
While evidence that a person engaged in bad behavior in the past is generally not admissible in court cases, habit evidence is admissible as an exception to this rule. Habit evidence refers to evidence of a repetitive response by a person to particular circumstances. Corporations are considered persons under the law. It is used in court cases for proving how that person would likely act in a similar situation.
We believe we have a valid claim under both state and federal law. We will allow Enterprise a reasonable amount of time to respond before filing suit if we so choose to pursue that option. We will update this page once additional details become available.
Racism at Enterprise
Enterprise CEO Chrissy Taylor published, “We Must Do More, and We Will”, a pledge to help increase racial equity in response to the murder of George Floyd. If sincere, I applaud Ms. Taylor's pledge.
As a black man, I have endured many slights and inconvenience that makes you wonder in the back of your mind if the treatment, lack of attention or service is because of race. This is because black folks have a proverbial institutional knee on their necks.
I don't pretend to know the hearts and minds of others; however, statements, tone, reaction, facial expression, and body language all provide clues. Although bias is often difficult to quantify, to paraphrase the late Supreme Court Justice Potter Stewart, "I know it when I see it."
Institutional racism is embedded through laws, regulations, and customs within society or an organization. It's less perceptible because of its "less overt, far more subtle" nature. It can be seen or detected in processes, attitudes, and behavior that amount to discrimination through prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people. It originates in the operation of established and respected forces in the society
Unfortunately, bias and prejudice are innate characteristics—often deeply ingrained and concealed from our own self-examination. The United States Supreme Court recognized this when it said that “[b]ias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence.” Further, the high court said, bias or prejudice can exist in someone “who was quite positive he had no bias and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence.” Crawford v. United States, 212 U.S. 183, 196 (1909).
Our research indicates some Enterprise policies and practices are most likely disproportionately negatively impacting African-Americans and other minorities. Below are some examples.
Miami Beach, FL – 2021
Earlier this year, a man says he was racially profiled at Miami Beach Enterprise Rent-A-Car. After waiting for hours over two days, a white female employee refused to rent him a car and called the police. When the police arrived, it was refreshing to see them take a neutral approach and not automatically believe the false narrative that the black customer was the problem.
Detroit, MI – 2018
Employees of the Enterprise Rent-a-Car at Detroit Metropolitan Airport claim black customers are discriminated against when trying to rent luxury vehicles. White customers were given discounts not available to black customers and code words to distinguish black from white customers were used. The video below provides shocking details.
Baltimore, MD – 2019
Enterprise Rent-A-Car Co. of Baltimore was ordered to pay more than $16.3 million in lost earnings, benefits, and interest to 2,336 black job applicants who were passed over for the company's management trainee program.
Following an investigation by the U.S. Department of Labor's (DOL's) Office of Federal Contract Compliance Programs (OFCCP), an administrative law judge found that the company—which is a federal contractor—showed a pattern over 10 years of discriminating against black applicants in favor of white applicants. According to the judge, the company's policy had a disparate impact, which means that a seemingly neutral policy was discriminatory in practice.
Alexandra, VA – 2018
Brendalan Jackson, an Enterprise customer in Alexandra, VA stated the following at complaintsboard.com:
"I have had multiple issues with Enterprise but figured that the representatives were having a bad day. I have called out a few situations at enterprise when I truly knew I've been racially profiled; then only to be patronized by Enterprise employees (Station Manager). I have called the customer service deescalation number for assistance; however, never getting my issue resolved (demeaning me further). My husband completed the registration online for me for a premium SUV (Chevrolet Suburban). I know I was racially profiled again on 11/21/18 in Old town Alexandria, Va. When I arrived at the counter there were two Caucasian females both to assist me. When they looked up my information they both looked at each other while I was standing there, one of the females switched the keys on the counter (as if I was blind and did not see them); I inquired if there was an issue? One of the ladies paused and said that both the Tahoe and Suburban vehicles were identically the same. She then continued to switch out the keys from the Suburban to the Tahoe (which had multiple issues). Now keep in mind that this is Thanksgiving Eve and I needed to get on the road to travel home, I didn't know what she was talking about until my husband informed me that the car wasn't a premium car that I was being charged /paying for and told me that I should've received a Suburban. I am an African American female with over 15 years of experience as a Master of Social Work that supervises a clinical program teaching adolescents on this very issue. I am appalled at the very treatment that I have been given as an Enterprise Plus Member and a paying customer of the Corporation. I am officially putting this on our Core Agency Web site to inform all of our over 5, 000 employees of this Metropolitan area. So that they avoid Enterprise and avoid them being humiliated as I have been on 11/21/18 and again another situation with enterprise at DCA on 11/17/18."
Ms. Jackson's complaint was marked resolved, however, we do not know what the resolution was. However, there were at least 27 discrimination complaints on the site including the one from a federal law enforcement officer below.
Tawana – another Enterprise customer stated the following at complaintsboard.com:
"Before arriving at the Enterprise Car Rental desk I called from home to ask what I needed to rent a car and I was told a credit card. I was asked if my credit card was linked to my checking account and I said yes. I was told to bring two bills (utility bills) from home. I brought four or five to be on the safe side. Once I arrived at the desk I presented all of the information that was required of me. The agent went over to another gentleman in the office and they began to whisper, the agent came back and asked if I had any proof that my bills are not past due. The bills that he had were current and had no past due amounts listed on them, which would have proved that they were not past due and were paid. I was the only African American customer in the office at the time, I was told that I had to pull up my bank account online at one of their desks in order for them to see if I paid my bills. They placed me at a desk to do so. I was extremely insulted by this treatment. I am a Federal Officer (Law Enforcement) and I was treated like a criminal."
On October 24, 2000, eight black individuals filed a class action complaint in the United States District Court for the Eastern District of Missouri (St. Louis), alleging that their employer, Enterprise Leasing Company of St. Louis and its parent company, Enterprise Rent-A-Car, engaged in racially discriminatory practices in promotion and hiring. The plaintiffs claimed that Enterprise was in violation of Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e), The Civil Rights Act of 1866 (42 U.S.C. § 1981), and portions of the Missouri Human Rights Act (MHRA) RSMO 213.
On May 3, 2002, a judge signed a consent decree which required the Enterprise to pay $2.3 million in damages to the two sub-classes and the named plaintiffs and included injunctive relief requiring the company to make changes in the way it advertises and publicizes available jobs as well as how it communicates with those who are turned down for jobs within the company.
As previously mention, I normally rent from the Dellwood location, however, the May 24th reservation was made with the Ladue location because their cars were more than half off Dellwood pricing. I live in the Ferguson/Dellwood area which is predominantly black. Ladue is 94.1% white and only one percent black. I'm not sure why there was such a difference in pricing between Dellwood and Ladue, however, that fact taken along with other factors support an argument for racial discrimination.
At Enterprise, renters without a ticketed return travel itinerary need to provide a credit card with sufficient funds to cover the cost of their rental plus an additional amount between $200 to $400 based on the rental location. Why? What possible difference could the rental location make in determining how much deposit is required. Are Black renters being charged $400 disproportionately?
Age Discrimination
We also discovered proof of age discrimination at Enterprise.
2019 – Capital One, Enterprise Ensnared in Facebook Ad Bias Scandal – The U.S. Equal Employment Opportunity Commission found “reasonable cause” to believe Enterprise violated federal anti-discrimination law by restricting job postings on the social network to people of certain ages or genders. In both cases below Enterprise refused to promote anyone over the age of 40; click on cities for details.
The Taylor family owned the Keefe Group, a company profiting off public and private prisons and their prisoners. A 2015 Post Dispatch article, revealed the company has contracts with more than 800 public and private prisons. They are one of the larger players in a cottage industry that handles deposits to prisoner accounts, provides inmates with everything from food and condiments to music players and phone service. The following statements were made in the article: “They find so many ways to milk these people for every penny they can”…“You are talking about people who are extremely poor”, said Michael Campbell, assistant professor of criminology at the University of Missouri-St. Louis. Alex Friedmann, managing editor of Prison Legal News accused the Keefe Group of price gouging. The day after the first anniversary of the Michael Brown shooting death protestors marched on Enterprise Holdings because of their connection to the Keefe Group.
Months later, the St. Louis Business Journal reported the Taylor family was considering selling the Keefe's Group parent company Centric Group for $900 Million.
Our "Secret Meeting" page discusses the allegations that companies who profited off prisons conspired to target young black men to fill prisons. If your employer requires driving or travel, inclusion on a DNR list could result in job loss. I worked for a transportation company the used Enterprise rentals; if one of our drivers was on the DNR list and unable to drive those trucks, they may have lost their job. Unemployment, financial hardship, and poverty are among the top reasons people commit crimes.
If you are an Enterprise employee and have evidence of discrimination or unfair practices, please contact us.
Alternatives When Black Listed
As we discovered, landing on a DNR list can be a major setback. The first and most obvious alternative is to try another rent from another company not affiliated with the company the place you own their list.
If Enterprise or some other company is your only or lowest cost option, ask a friend or relative to borrow their car and offer to pay for the rental vehicle as a replacement. DO NOT DRIVE THE RENTAL. If the person on the DNR list is allowed to drive the rental, the renter could also end up on the DNR list.
Since three companies control over 94 percent of the car rental market, complain to your US Representative about how they are using their superior bargaining position to create unfair consumer conditions and request new regulations or breaking companies up into separate entities.
Check out Turo, a peer-to-peer car sharing, sort of the Airbnb of car rentals. Renters search for available vehicles listed by people who are willing to rent their vehicle often at prices much lower than car rental companies.
Another possible option if you need a rental for vacation is RvShare.com, where you can rent RVs and motor homes directly from local owners. UPDATE: RV Share became an affiliate advertiser after we published, so booking your RV rental thru the link above helps support this site financially.
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Conclusion
I did not want to write this article! Christopher and I made several good faith attempts to resolve this issue, but there comes a point where the ridiculousness of a situation just needs to be called out.
Mistakes happen, I understand that, but what’s important is how those mistakes are handled and Enterprise handled this issue very poorly. Research indicates that for every complaint expressed, there are over 25 unregistered complaints. Many dissatisfied customers just quietly take their business elsewhere. When you are the largest company in an Oligopoly that statistic may not be as meaningful.
We have had to expend too much effort trying to resolve an issue that never should have occurred in the first place. This situation has caused financial hardship, embarrassment, major inconvenience, and wasted a great deal of time.
Enterprise Rent-A-Car expended great effort explaining and justifying why Christopher was on the DNR list, but virtually no effort was expended to see if a mistake was made. I was told that it is not possible for Christopher to be removed from the DNR list and if that is true, it is unconscionable that Enterprise does not even consider correcting its mistakes or letting customers make amends.
As things stand now, avoiding Enterprise completely may not be possible. That is assuming they do not blacklist me on the DNR list for publishing this article. Enterprise Rent-A-Car may be the only option when a third party is providing a rental car. Enterprise will no longer be my primary choice for car rentals and I plan on doing a test rental on Turo in the future.
After we published, we heard about a Black diversity and inclusion business program manager from Microsoft who had his Avis rental car repossessed by mistake.
The opening scene of HBO's "Watchmen" begins with a powerful depiction of the 1921 Tulsa massacre. Last year, when "Watchmen" aired, many people were shocked to learn for the first time this atrocity actually happened.
In honor of Juneteenth, HBO has made all nine episodes of "Watchmen" available to stream for free through Sunday on HBO.com and Free On Demand.
by Russell Cobb, University of Alberta
For only the second time in a century, the world’s attention is focused on Tulsa, Okla. You would be forgiven for thinking Tulsa is a sleepy town “where the wind comes sweepin’ down the plain,” in the words of the musical Oklahoma!.
But Tulsa was the site of one of the worst episodes of racial violence in American history, and a long, arduous process of reconciliation over the Tulsa Race Massacre of 1921 was jarred by President Donald Trump’s decision to hold his first campaign rally there since the COVID-19 pandemic began.
The city is on edge. Emotions are raw. There’s anxiety about a spike in coronavirus cases, but lurking even deeper in the collective psyche is a fear that history could repeat itself. Tens of thousands of Trump supporters will gather close to a neighbourhood still reckoning with a white invasion that claimed hundreds of Black lives.
In this June 15, 2020, photo, people walk past a Black Wall Street mural in the Greenwood district in Tulsa, Okla. Dozens of blocks of Black-owned businesses were destroyed by a white mob in deadly race riots nearly a century ago.(AP Photo/Sue Ogrocki)
A Trump rally near a site of a race massacre during a global pandemic already sounded like a recipe for a dangerous social experiment. But then there was the matter of timing. The rally was to be held on Juneteenth (June 19), a holiday commemorating the day slaves in the western portion of the Confederacy finally gained their freedom.
Normally, Juneteenth in Tulsa is one big party, the rare event that brings white and Black Oklahomans together. But fears about spreading COVID-19 led organizers to cancel the event. Then came the protests over the murder of George Floyd. During those demonstrations in Tulsa, a truck ran through a blockade of traffic, causing one demonstrator to fall from a bridge. He is paralyzed from the waist down.
COVID-19 cases surging
To make a bad situation even worse, the city is witnessing a surge in coronavirus cases. Local health officials have acknowledged that the increase in new cases, mixed with close to 20,000 people packed into an arena, is “a perfect storm” that could fuel a super-spreader event.
Tulsa Mayor G.T. Bynum speaks during a news conference at police headquarters.(Matt Barnard/Tulsa World via AP)
Some of Mayor G.T. Bynum’s biggest supporters began pleading with him to cancel the event. Bynum is of that rarest of species, a Republican who has staked part of his political legacy on combating racism. It was Bynum who shocked the white establishment by ordering an investigation into potential mass grave sites from the 1921 massacre, even as many Republicans accused him of opening old wounds.
Faced with the prospect of provoking a fight with Trump, however, Bynum equivocated. Bynum found himself under attack from former friends and allies who urged him to do something. Then, on June 13, the Trump campaign announced that it would change the date of the rally to June 20 “out of respect” for Juneteenth. It was a small victory for protesters, but some were further enraged by Bynum’s moral equivalence between the protests over Floyd’s murder and a Trump campaign rally.
Reminiscent of another mayor
The mayor’s impotence has also brought back memories of 1921. The mayor then, T.D. Evans, found himself unable — or unwilling — to stand between an angry white mob ginned up over fears of a “Black uprising” and a Black community demanding racial equality.
Evans saw the rising influence of the Ku Klux Klan in Oklahoma politics and quietly voiced his displeasure. As the Tulsa Tribune cultivated white paranoia about a Black invasion of white Tulsa, Evans, and many like him, did little. “Despite warnings from Blacks and whites that trouble was brewing,” Tulsa Word reporter Randy Krehbiel wrote in a book about the massacre, “(Evans) remained mostly silent.”
In this 1921 file image provided by the Greenwood Cultural Center, Mt. Zion Baptist Church burns after being torched by white mobs during the 1921 Tulsa massacre.(Greenwood Cultural Center via Tulsa World via AP)
One historical parallel with 1921 stands out above the rest: the power and influence of “fake news” to mobilize alienated voters.
While much has been made of a revolution of social media and YouTube to undercut the gatekeepers of traditional media, a false news article was the most proximate cause of the Tulsa Race Massacre of 1921.
The Tulsa Tribune published an article on May 30, 1921, with an unproven allegation that a Black man, Dick Rowland, had tried to rape a white woman in a downtown elevator. The dog-whistle came through loud and clear. No evidence was presented and charges were later dropped. But the news was enough to set off calls for a lynching of Rowland.
Hundreds killed
A mob formed around the Tulsa courthouse. The Tribune had been stoking fears of a “Black uprising” for months, running stories of race mixing, jazz and interracial dancing at Black road houses.
A few Blacks armed themselves and tried to stop the lynching. The sight of armed Blacks made the white mob direct its fury at a bigger target — the Black section of town, Greenwood.
By the dawn of June 1, 1921, Greenwood lay in ruins, with hundreds dead and thousands interned in camps. The devastation did not come as a surprise to those who had watched the rise of xenophobia during the First World War and the second coming of the KKK, an organization that received a boost after the screening of the racist film The Birth of a Nation in 1915 at the White House.
Trump reaches into his suit jacket to read remarks following the events in Charlottesville, Va. He defended white supremacists following a Unite the Right rally that turned violent.(AP Photo/Pablo Martinez Monsivais)
Tulsa, and the nation, had been primed for racial violence by a white supremacist media and presidential administration. Many well-intentioned people stood idly by, hoping the trouble would soon blow over. It did not.
Karl Marx wrote that history repeats itself, the first time as tragedy, the second as farce. During the spring of 1921, Tulsa got the tragedy. With Trump rallying tens of thousands of his supporters near Greenwood amid a deadly pandemic, the best we can hope for this time around is farce.
Republished with permission under license from The Conversation.
Dr. William "Bill" Key, was born a slave in Murfreesboro, TN in 1833. While enslaved, Key became a successful veterinarian who decades after the Civil War trained the famous "Beautiful Jim Key", known as the smartest horse in the world.
Bill was owned by Captain John Key. When Bill was five years old, the Captain's died and willed Bill to his cousin, John W. Key of Shelbyville, Tennessee. Bill demonstrated a special way with animals as early as six years of age. He also was a great help to the John W. Key family when it was observed that the disabled father of John W. Key was much calmer when Bill was around.
However, the place where Bill really shined was around horses, he demonstrated a remarkable talent for working with horses and mules. He was so effective with horses that he was soon being sent to the pasture alone to train the horses. Additionally, he was given special attention because of his work keeping his master's father company. John Key taught Bill reading, writing, mathematics, and science. As a child he Bill read veterinary texts and experimented with animal remedies until he became a successful veterinarian and horse dentist. Known as Dr. Key, he also practiced dentistry and other healing arts for slaves.
Martha, John's wife, really appreciated the effect Bill had on John's father as it saved her from having to deal with the recalcitrant old man. She taught Bill such gentlemanly skills like presentation, elocution, and etiquette. These skills would all come to be most valuable to him later when he became an adult and found himself in need of them to succeed as a free man after the Civil War.
Civil War
With the outbreak of the Civil War, Dr. Key accompanied his master's two sons to Fort Donelson. There he constructed his own shelter, a log-covered dugout known as Fort Bill, in which he took refuge and offered protection to his masters during Union bombardment. When Fort Donelson surrendered, Key helped his masters escape to Confederate forces commanded by Nathan Bedford Forrest. After the battle of Stones River, the Sixth Indiana regiment captured Key as he tried to smuggle another black man through Union lines. He was sentenced to hang, but the execution was postponed when it was learned that he was a good cook and poker player. Playing poker with Union officers, Key purchased his release in exchange for their gambling debts. Captured and sentenced to hang on another occasion, Key purchased a delay of execution with one thousand dollars he had sewn between the soles of his shoe. Confederate raiders liberated him the next day.
The relationship between the John W. Key family and Bill continued to grow stronger and after the Civil War when the Key family lost everything, Bill, who by then had accumulated quite a sum of money, stepped in and helped send John W. Key’s two sons to Harvard.
After the war, Dr. Key and his former masters found the family estate in ruins. The elder Key had died, leaving the family lands heavily mortgaged. Key developed and marketed Keystone Liniment for various animal and human ailments. With proceeds from gambling winnings and Keystone Liniment sales, he quickly paid off the mortgage for his former masters and subsequently underwrote their education. When asked about his unusual generosity toward his master's family over the years, he is said to have responded, "I was one of those fortunate men who had a kind master."
William Key's Wives
Though he was eventually married to four notably beautiful, educated women, Dr. Key had no children of his own.
Dr. Key was first married to Lucy Davidson, the daughter of Arabella Davidson. Lucy was born in February of 1832 and died on August 17, 1885. She is buried in Willow Mount Cemetery in Shelbyville.
Dr. Key took for his second wife, the sister of Lucy Davidson. She was Hattie Davidson, but Hattie did not live very long, she died about 1886.
Dr. Key took for his third wife, Lucinda Davis, the daughter of George and Harriett E. Davis. Lucinda was born on February 24, 1859, and died August 21, 1896, with her burial in Willow Mount Cemetery. Lucinda Davis Key, MD, received her medical degree at Howard University, one of the first black women doctors licensed to practice in the state of Tennessee.
Dr. Key took for his fourth and last wife, Maggie Davis, a sister of Lucinda Davis. Maggie was born in 1865 and died in 1935 with her burial in Willow Mount Cemetery.
Dr. Key established a leading veterinary practice and horse hospital in downtown Shelbyville on a lot he purchased on North Main Street. While he had no formal training, his reputation of being able to do wonders for horses caused him to be considered a veterinarian by the townspeople. He also opened a racetrack, a restaurant, a hotel, a wagon shop and operated a successful pharmaceutical business. The liniment business became so profitable, he promoted it across the South. He organized a traveling minstrel and medicine show, at which his animals performed skits to demonstrate the apparent effectiveness of his medications.
Within five years, “Dr.” Key was one of the most prosperous men in Shelbyville. This gave him the resources to turn his attention to the sport of kings, horse racing, and his goal was to breed the world’s fastest racehorse.
Beautiful Jim Key
While in Tupelo, Mississippi, Key bought a badly abused Arabian bay, Lauretta, from a defunct circus. He nursed the mare back to health and bred her to Tennessee Volunteer, a Standardbred stallion. She produced a colt so sickly that Dr. Key considered having it destroyed. Instead, he named it Jim, after the town drunk, who had a similarly wobbly gait. After treating Jim with his own medicines, Dr. Key nursed Jim to good health, he watched as the misfit colt eventually transformed into a gorgeous mahogany bay.
In narrating Jim's unique education, Dr. Key notes that he was already fifty-six years old when the sickly Jim was foaled. When Jim's mother died, the orphaned colt refused to be separated from his owner and trainer, causing such a ruckus in the barn that Dr. Key was forced to take the colt into his home. For the first year of his life, Jim lived as a human, absorbing language and abstract concepts to a staggering degree. When he outgrew the house and moved back to the stables, Dr. Key noticed that the animal let itself out of gates, opened drawers to retrieve apples, and responded with affirmative and negative nods to questions. Dr. Key set up a cot out for himself in the stable to sleep with Jim. The two were inseparable companions and partners from then on.
Key put Jim on a rigorous training routine that lasted for seven years. When finally exhibited, Beautiful Jim Key could read, write on a blackboard, spell, do math, distinguish among coins and make change, identify playing cards, play a hand-organ, tell time, sort mail, cite biblical passages and respond to political inquiries, among other amazing feats.
Although Beautiful Jim Key was clearly gifted his opportunities were limited by Dr. Key’s race. No matter how eloquent he was, or how talented, because Dr. Key was a black man in the 1800s he was only allowed to participate in selected competitions.
In 1897, Dr. Key was asked to serve on the “Negro Committee” at the Tennessee Centennial Exposition in Nashville. "Beautiful Jim Key" made his stage debut in front of none other than President William McKinley. President McKinley offered high praise for both the horse and the training methods. Dr. Key often emphasized that he used only patience and kindness in teaching the horse, and never a whip.
Albert R. Rogers, a wealthy officer of the American Humane Association, witnessed the performance and was especially gratified that Key's training methods consisted entirely of positive rewards for performance. Rogers negotiated the right to exhibit the horse nationally, advanced Key a large sum of money, and promised that Jim would not be separated from Key as long as either lived. Key, Beautiful Jim, and grooms Sam and Stanley Davis of Shelbyville, traveled to the Rogers estate in New Jersey where, for several months, Key prepared Beautiful Jim for his New York City debut. In August 1897 Beautiful Jim amazed viewers and the New York City press and quickly became a celebrity.
Invitation to the St. Louis World's Fair opening performances of Beautiful Jim Key
This horse became one of the most famous celebrities, animal or human, in the late 1890s and early 1900s. Dr. Key and Beautiful Jim Key became the toast of two World's Fairs and even had their own pavilion at the St. Louis fair in 1904.
Jim Key exhibition hall and show ticket during 1904 St. Louis World's Fair.
The Beautiful Jim Key exhibit was one of the first shows to open at the beginning of the St. Louis World's Fair and was a popular top moneymaker. William Key performed in front of then-President Teddy Roosevelt's daughter, Alice. Jim Key spelled Alice's name- “Alice Roosevelt Longworth,” adding the surname of her escort.
The Beautiful Jim Key exhibit building was called the Golden Horseshoe Building and cost $12,000; Carson-Hudson & Co were the architects. The price of Admission to see the Beautiful Jim Key exhibit was 15 cents for adults and 10 cents for children. The exhibit made a profit of $51,654.28 dollars; the equivalent of nearly $1.5 million in 2020 dollars.
Jim became the number one box office star in the nation and energized the worldwide animal welfare movement, making the phrase "be kind to animals" a household ideal.
Known as the "Marvel of the Twentieth Century" and "The Greatest Crowd Drawer in America," the two were seen by an estimated ten million Americans and written about in every major newspaper. Fans collected his promotional pamphlets, souvenir buttons, postcards, and photos, bought Beautiful Jim Key pennies, danced the "Beautiful Jim Key" two-step, wore Jim Key gold pinbacks in their collars, and competed in Beautiful Jim Key essay contests, while millions signed up to join and support humane groups around the country. Two million children joined the Jim Key Band of Mercy and signed his pledge, "I promise always to be kind to animals."
When Dr. Key traveled along with Beautiful Jim, the horse traveled in private train cars, drank purified water and ate hay that was fit for a star of his caliber. He also had quite an entourage. He traveled with Dr. Key, two grooms, a veterinarian and Monk, a former stray dog that served as the horse’s companion and bodyguard. Monk, the dog liked to stand on the horse’s back.
For nine years, Key, Rogers, and Beautiful Jim toured major cities east of the Rocky Mountains and performed at large venues from Atlantic City to Chicago.
Universally praised for Service to Humanity, Beautiful Jim Key and Dr. William Key retired after their record-breaking 1906 season when Jim's rheumatism caused the two to return to Shelbyville with the plan to resume after a year's rest. Three years later, Bill passed away at age 76, causing a stir even in death by the large numbers of mourners – black and white – who attended his memorial.
Dr. William Key's family grave site
In 1912, Beautiful Jim Key died on a cool autumn day, "passing out with all ease," as Dr. Key's brother-in-law, Dr. Stanley Davis, wrote to Albert Rogers.
For a century, this astonishing, true story of an American hero who rose to international fame a century ago, spurring a significant shift in human consciousness, has been buried in history.
The Trump administration has weakened legal protections for farmers and eased off enforcing rules on powerful meat companies.
by Isaac Arnsdorf
After years of working as a sheriff’s deputy and a car dealership manager, John Ingrum used his savings to buy a farm some 50 miles east of Jackson, Mississippi. He planned to raise horses on the land and leave the property to his son.
John Ingrum lost his farm after chicken processor Koch Foods stopped delivering flocks for him to grow. “They put me slap out of business,” he said.
The farm, named Lovin’ Acres, came with a few chicken houses, which didn’t really interest Ingrum. But then a man showed up from Koch Foods, the country’s fifth-largest poultry processor and one of the main chicken companies in Mississippi. Koch Foods would deliver flocks and feed — all Ingrum would have to do is house the chicks for a few weeks while they grew big enough to slaughter. The company representative wowed Ingrum with projections for the stream of income he could earn, Ingrum recalled in an interview.
What Ingrum didn’t know was that those financial projections overlooked many realities of modern farming in the U.S., where much of the country’s agricultural output is controlled by a handful of giant companies. The numbers didn’t reflect the debt he might have to incur to configure his chicken houses to the company’s specifications. Nor did they reflect the risk that the chicks could show up sick or dead, or that the company could simply stop delivering flocks.
And that growing concentration of corporate power in agriculture would only add to the long odds Ingrum, as a black farmer, faced in the United States, where just 1.3% of the country’s farmers are black.
The shadow of slavery, sharecropping, and Jim Crow has left black farmers in an especially precarious position. Their farms tend to be smaller and their sales lower than the national average, according to data from the U.S. Department of Agriculture. While white farmers benefited from government assistance such as the Homestead Act and land-grant universities, black farmers were largely excluded from owning land and accumulating wealth. In recent decades, black farmers accused the USDA of discriminating against them by denying them loans or forcing them to wait longer, resulting in a class-action lawsuit that settled for more than $1 billion.
Along with these historical disadvantages, black farmers say they have also encountered bias in dealing with some of the corporate giants that control their livelihood. In complaints filed with the USDA between 2010 and 2015, Ingrum and another black farmer in Mississippi said Koch Foods discriminated against them and used its market control to drive them out of business.
After the complaints by the farmers, an investigator for the USDA, which is responsible for regulating the industry, looked into Koch Foods’ dealings with those farmers and found “evidence of unjust discrimination,” according to a 700-page case file obtained by ProPublica. The investigator concluded that Koch Foods violated a law governing meat companies’ business practices.
The Trump administration has cut back on enforcing this law, with the USDA now conducting fewer investigations and imposing fewer fines, as ProPublica has reported. Koch Foods hasn’t faced any penalty.
Koch Foods declined to provide an interview with any of its executives or to answer detailed questions about its dealings with black farmers in Mississippi. A lawyer for the company said it denies wrongdoing.
The five largest chicken companies now make up 61% of the market, compared with 34% in the hands of the top four firms in 1986. As the biggest companies expanded their control, they raised farmers’ average pay by a mere 2.5 cents a pound from 1988 to 2016, while the wholesale price of chicken rose by 17.4 cents a pound, according to data from the USDA and the National Chicken Council.
Mississippi is the country’s fifth-largest poultry-producing state. From 2009 to 2017, one of the main chicken companies, Koch Foods, went from having contracts with four black farmers in Mississippi to zero.
Mississippi is the fifth-largest poultry-producing state, with more than 1,300 chicken farms. In a state where the population is 38% black, only 96 of those farms were operated by African Americans in 2012, the most recent USDA data available. From 2009 to 2017, Koch Foods went from having contracts with four black farmers in Mississippi to zero.
Koch (pronounced “cook”) Foods is based outside Chicago and supplies chicken, often sold under other brands, to major restaurants and retailers such as Burger King, Kroger and Walmart. The company, which is privately held, is not part of the business empire of the conservative billionaires Charles Koch and David Koch. The owner of Koch Foods, Joseph Grendys, has a fortune that Forbes estimates at $3.1 billion.
After Ingrum signed his contract to grow chickens for Koch Foods, in 2002, different company representatives kept coming with lists of expensive modifications they wanted Ingrum to make, according to an affidavit he provided to the USDA investigator. After Ingrum met all the specifications, the next representative went back on what the previous one said and wanted things done a different way, Ingrum said in the affidavit.
Chicken companies usually say they update their specifications to improve animal welfare or respond to consumer preferences like avoiding antibiotics. But Ingrum couldn’t find much logic in the changes Koch Foods wanted him to make. One service technician directed Ingrum to install lights in one place, the next one someplace else. Another time, the company wanted Ingrum to move a power line, even though it was out of the way of the feed trucks and bins. That cost him $6,000.
Under Ingrum’s contract with Koch Foods, the company supplied the flocks and feed but penalized him if his birds were sick or underfed.
According to Ingrum’s affidavit, when he met with a manager about the shifting demands, the manager said, derisively, “I had a couple of y’all when I was at Sanderson,” another big chicken company. Ingrum asked the manager, who was white, what he meant by that. The manager didn’t answer Ingrum. Reached by ProPublica on his cellphone, the manager hung up.
Ingrum suspected that the truck drivers who delivered feed were shortchanging him, so he installed sensors to alert him when the drivers arrived. In 2007, according to his affidavit, Ingrum caught a driver failing to fill a whole feed bin. The company brushed it off as an honest mistake. But Ingrum had heard of drivers asking farmers for payoffs to get more feed, according to the affidavit.
In 2009, Ingrum spent $50,000 on renovations that Koch wanted. Then the company wanted Ingrum to rebuild his compost shed. That was another $5,000. Then Koch Foods said the shed had to be certified by a government inspector. Ingrum called the agency, which said the shed didn’t require approval and they only sent an inspector out once a year.
With Koch Foods delivering flocks to Ingrum’s farm less frequently than expected, he was making less money and falling behind on his loan payments. He looked into selling his farm. When a prospective buyer from Florida called Koch to inquire about a contract with them, a Koch employee scared him off by saying Ingrum’s farm needed $100,000 in repairs, according to Ingrum’s affidavit. The employee also swore at Ingrum’s real estate agent and spread a rumor that the bank had foreclosed, according to the affidavit. That wasn’t true, but it was becoming increasingly hard to avoid.
In 2010, Ingrum heard that the Obama administration was making a push to help farmers who were getting squeezed by consolidation in agriculture. Attorney General Eric Holder and Agriculture Secretary Tom Vilsack were going around the country to hear from farmers about the problems in their markets. When they came to neighboring Alabama to meet with chicken farmers, Ingrum went and spoke on a panel.
At the hearing, Ingrum recounted how the company would pay him less if the birds were sick or underfed, even though the company supplied the chicks and the feed. Ingrum said he’d received a tray of 100 chicks with 35 to 40 already dead. Another time, he ran out of feed for three days and the chickens started eating one another.
“There’s no way it could be fair,” he said at the hearing, according to the transcript. “I had no control over the feed that they brought me.”
Companies typically say they want their farmers’ chicken houses to meet certain specifications to improve animal welfare or respond to consumer preferences. But Ingrum couldn’t find much logic in the costly changes Koch Foods wanted him to make.
That night, when Ingrum returned home to Lovin’ Acres Farm, he found a note from Koch Foods saying his contract had expired.
The USDA investigator later inquired whether it was “solely a coincidence” that Koch Foods left the note at Ingrum’s farm on the same day he attended the hearing 300 miles away. A company supervisor said he “could not say.”
“I never got another chicken after going to that meeting over there in Alabama,” Ingrum, 55, said in an interview. “They put me slap out of business.”
As Ingrum ran out of money, the power company cut his electricity, but he refused to leave for three months. His former colleagues at the sheriff’s office had to come remove him. For the next five years, he stayed with relatives until he scraped together enough money from working at a car dealership to get back on his feet.
“Twenty years, everything I worked for, I lost it in one summer,” Ingrum said. “It just ruined me.”
Around the same time, two other black farmers in the area also stopped growing chickens for Koch Foods. Out of 173 chicken farmers under contract with Koch Foods in Mississippi, there was only one African American left. His name was Carlton Sanders.
Ingrum said he warned Sanders: “They’re coming after you, Carlton. You next.”
Sanders’ farm was in a nearby town called Lena. He had been in the business since 1992. Back then, he worked with a local family business called BC Rogers, which he said always treated him professionally. He used the chicken manure to fertilize his vegetable garden, and he took pride in his trees growing figs, pears and apricots. “I just had everything set,” Sanders said.
When Koch Foods bought BC Rogers in 2001, everything changed, Sanders said. Sanders’ performance was above average, according to the ranking system that the company used to pay farmers. But he felt singled out for disadvantages.
“I’ve never been treated like that by anybody,” Sanders, 63, said. “It was just like I was in hell with them.”
Carlton Sanders on his front porch before church. Sanders was the last black farmer under contract with Koch Foods in Mississippi, until the company gave him a list of expensive renovations that no other farmer received.
In 2014, Koch Foods wanted Sanders to make $105,000 worth of improvements, according to the USDA case file. Then Sanders borrowed an additional $93,000 to buy new curtains, insulation, cables and heaters. Suddenly, he owed a total of $295,000, but he made his payments on time, according to financial records reviewed by ProPublica.
The next year, Koch Foods informed its farmers of a new requirement for the ventilation in their chicken houses. Sanders went to his bank to see about another loan. The loan officer called the manager at Koch Foods and sent a follow-up email asking for “a listing of needed improvements that Koch Foods is requiring.”
The manager never responded directly to the banker. Instead, the company gave Sanders an “update list” with 23 items. Sanders gave the list to his banker, who understood it to be the company’s response to his inquiry. Sanders obtained work estimates for the 23 updates, amounting to $318,000, according to the case file.
The banker advised Sanders not to apply for another loan and to consider selling his farm instead. Meanwhile, Koch Foods stopped giving Sanders chickens to raise.
Sanders asked around and realized other farmers hadn’t gotten the same 23-item “update list.” So in December 2015, he filed a complaint with the USDA.
The complaint was assigned to a government attorney in Atlanta named Wayne Basford. Basford had also looked into Ingrum’s case, stretching back to 2010. Over the years, Basford had collected affidavits attesting to Koch employees’ calling black farmers “niggers” (the employees denied it), and he observed that the office staff was all white. He also noted that the Equal Employment Opportunity Commission was suing Koch Foods, alleging sexual harassment, retaliation and discrimination against Hispanic employees in Mississippi. (The company later paid $3.75 million to settle the lawsuit, though it did not admit wrongdoing.)
In February 2016, Basford notified Koch Foods that he was investigating a new complaint he’d received, without mentioning Sanders. Koch Foods’ lawyer responded by criticizing the condition of Sanders’ farm and, at the same time, denying that the company asks farmers to make “upgrades.”
As Basford inquired about the 23-item “update list” that only Sanders received, Koch Foods said these were optional. The list used the word “must” six times and never said the updates were voluntary.
“I hate to say it, but they just don’t like black people,” Sanders said. “There are no black people in the office — they don’t even want black people cleaning up after them.”
Basford asked to schedule a meeting with Koch Foods’ executives to present his findings. The company’s lawyer, Scott Pedigo, of the firm Baker Donelson in Jackson, Mississippi, called Basford to suggest meeting with local managers instead, according to emails included in the case file. Basford insisted on speaking with the top executives “due to the potential gravity of the situation.”
In July 2017, Basford and two colleagues from the USDA met in Birmingham, Alabama, with Koch Foods’ chief operating officer, Mark Kaminsky, along with two other executives and Pedigo. Grendys, Koch Foods’ billionaire owner, did not attend, but Basford sent Grendys a copy of his slides.
In the presentation, Basford said Koch Foods’ actions toward Sanders, combined with its treatment of Ingrum and the other black farmers, was “evidence of unjust discrimination.” Chicken companies are prohibited from engaging in “unfair, unjustly discriminatory or deceptive” business practices under the Packers and Stockyards Act of 1921. The Obama administration tried to tighten enforcement of this law by proposing new regulations to spell out what those prohibited practices are. But the meat industry lobbied Congress to block the proposed rules by withholding funding from the USDA. When the Trump administration came in, it swiftly prevented the rules from taking effect.
So when Basford presented his findings to the Koch Foods executives in July 2017, he included all the evidence of discrimination, but he alleged a narrower violation: that Koch Foods failed to notify Sanders of why it stopped delivering chickens to his farm. In response, Pedigo argued that the notification nine months earlier about the new ventilation requirement was enough.
A chicken house on the farm that Sanders lost.
The notice requirement had been strengthened by the Obama administration, but Congress reversed the change in 2015. That made it harder for Basford’s case to stick.
Basford, who declined to comment for this article, submitted the case for the USDA’s lawyers to evaluate possible next steps, such as seeking a fine against Koch Foods. The agency hasn’t taken any action so far. A USDA spokesman said the investigation is “ongoing” and the agency is coordinating with the Department of Justice.
Meanwhile, Basford tried to mediate between Koch Foods and Sanders. In the months following Basford’s presentation in 2017, he pushed Koch Foods to resume delivering chickens to Sanders’ farm so that Sanders could save it from foreclosure.
Pedigo responded with a list of 10 repairs that Sanders would have to make first. Seven were among the 23 fixes that the company had previously insisted were optional.
Basford wanted Koch Foods to assure Sanders that if he spent the money to make the latest repairs, the company would start bringing him chickens again. The company wouldn’t agree.
In the end, all Koch Foods agreed to was “reviewing its policies and programs.” Pedigo told Basford the company has a “commitment to treating all of its independent contract growers equally and with dignity and respect.”
In response to questions from ProPublica about Ingrum and Sanders, Pedigo declined to comment on the specific allegations in Basford’s investigation. In a statement, he said, “Koch Foods applies its standards and expectations to all growers uniformly without regard to race or any other protected status and has never discriminated against any grower on such basis.”
Kaminsky, the Koch Foods COO who attended Basford’s presentation, last October became chairman of the National Chicken Council, the industry’s trade group.
Koch Foods and other top chicken companies — Tyson Foods, Pilgrim’s Pride, Sanderson Farms and Perdue Farms — are fighting multiple lawsuits from retailers, distributors and farmers accusing them of conspiring to fix prices. The companies have denied the allegations. In one of the cases, the Justice Department’s Antitrust Division asked the judge on June 21 to freeze discovery in order to protect an ongoing criminal investigation.
The USDA is now doing fewer investigations like Basford’s. His office finished 1,873 investigations in 2017, the most recent data available, down from 2,588 in 2012. Penalties for violating the Packers and Stockyards Act dropped from $3.2 million in 2013 to as little as $243,850 in 2018, according to preliminary case data on the USDA’s website.
The enforcement office, known as the Grain Inspection, Packers and Stockyards Administration, or GIPSA, was dissolved as part of a department-wide reorganization. The USDA shifted responsibility for enforcing the Packers and Stockyards Act into another division whose primary purpose is helping companies boost sales. The staff in the Packers and Stockyards Division has decreased to 137 from 166 in 2010.
Sanders is living on food stamps and whatever he gets from hunting and fishing.
Sanders found himself in a downward spiral after the dispute with Koch Foods. He had a stroke and a heart attack. The bank foreclosed on his farm and he filed for bankruptcy. His wife left him. These days, he’s living on food stamps plus whatever he gets from hunting and fishing.
“I’ve been about as dead as somebody can go without being dead,” he said. “I’m trying to hold my head up, that’s all I can do.”
On Sundays, Sanders passes by his old farm on his way to church. The farm is just sitting there, still up for sale, lying fallow. Sometimes, he takes a long way around to avoid seeing it.
Republished with permission under license from ProPublica.
The U.S. Supreme Court on Tuesday vacated an appeals court ruling that supported a lengthy licensing process for hair-braiders in Missouri and ordered a judge in St. Louis to dismiss the case. The Supreme Court voided the 8th Circuit Court of Appeals opinion that upheld the previous cosmetology license requirements, because a new law, which is discussed in the background section, had already addressed it.
The Supreme Court didn't write a separate opinion, it simply reversed the 8th Circuit opinion. Therefore, the question of whether Missouri and other states within the 8th Circuit can require a cosmetology licensing for African hair braiders remains unanswered. However, the lawsuit which called the law into question in the first place is most likely the only reason the law was changed.
This case demonstrates why it is so important to understand and be able to use the law for your benefit. As we have said before, just because a law exists, doesn't mean it legitimate. You have a right and an obligation to question unfair and questionable laws!
Cases such as this is one of the reason Court.rchp.com exist; so people, especially those who have traditionally been oppressed can be empowered. Discover the hidden secrets of our legal and justice system with the information contained within Court.rchp.com.
Case Background
African hair braiders sue over Missouri law
Ndioba Niang and Tameka Stigers are professional African-style hair braiders in Missouri, but are not licensed as cosmetologists or barbers. The Missouri Board of Cosmetology and Barber Examiners required hair braiders to be licensed as cosmetologists or barbers even though African-style hair braiding is not included in the cosmetology or barbering school curriculum, and the licensing tests barely test on subjects related to the practice.
In order to obtain a Missouri cosmetology license, one must pass a background check, undergo substantial training, and pass an exam. Before sitting for the exam, an individual must have: (1) graduated from a licensed cosmetology school with at least 1,500 hours of training; or (2) completed an apprenticeship of at least 3,000 hours; or (3) completed similar training in another state. Alternatively, obtaining a barbering license requires at least 1,000 hours of training at a licensed barber school or completion of an apprenticeship of at least 2,000 hours. Completing the necessary requirements for a license would have forced Ms. Niang and Ms. Stigers to incur significant costs for irrelevant training.
Four years ago, Ms. Niang and Ms. Stigers filed the federal lawsuit; they sued to vindicate their constitutional right to earn a living free of unreasonable government interference, and after losing in lower courts asked the Supreme Court to take their case. The original lawsuit, filed in 2014, complained that African-style hair-braiders were required to obtain a cosmetology license, which can cost thousands of dollars but doesn’t include any hair-braiding training.
When the lower courts considered the braiders’ challenge, they essentially ignored the evidence provided by the braiders that showed the licensing requirements were overly burdensome and did not sufficiently relate to the government’s asserted interests in public health and safety. In so doing, the lower courts applied a version of the rational basis test that is no more than a rubber-stamp of approval of government regulation. But that is not the proper application of the rational basis test.
The lawsuit was filed on behalf of Tameka Stigers, of Locs of Glory in St. Louis, and Ndioba “Joba” Niang, who runs Joba Hair Braiding in Florissant. Both have performed the hourslong braiding process for years without licenses and say they fear prosecution.
one Tameka Stigers
Joba Hair Braiding owner Ndioba Niang, a native of Senegal who later lived in France, said she completed 1,000 of the required 3,000 hours of cosmetology training at a cost of thousands of dollars before dropping out.
Ndioba Niang
In 2016, U.S. Magistrate Judge John Bodenhausen upheld the requirements, and the 8th U.S. Court of Appeals agreed in January. A petition for writ of certiorari was filed on April 11, 2018 with the U.S. Supreme Court. However, the Missouri Legislature passedHouse Bill 1500 which eased the rules on hair- braiding, although those new rules have yet to take effect.
The Institute for Justice, which has filed suits across the country against regulation of various occupations, said the appeals court decision in the Missouri case was in conflict with other federal courts and the Supreme Court. Both the group and the Missouri attorney general asked the court to dismiss the case because of the change in the law, they said.
In May, the Missouri legislature passed a law easing requirements on hair-braiding that made the four-year lawsuit moot. Braiders are now exempted from the cosmetology license and a new specialty braiding license only requires that braiders pay a fee of $20, watch a four- to six-hour instructional video and submit to board inspections. Attendance at a licensed cosmetology school in Missouri can cost more than $16,000.
Fourteenth Amendment Jurisprudence
The Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Passed during Reconstruction, these provisions held the promise that freedman would finally be granted the same rights and protections as their white brethren. Yet less than five years after this amendment was enacted, the Supreme Court eviscerated the Privileges or Immunities Clause in what became known as the Slaughter-House Cases (1873).
There the Court held that the clause—which was supposed to protect substantive rights against state infringement—only guaranteed a limited set of federal rights, such as the right to access seaports, to use navigable waters, and to demand protection on the high seas (not exactly the key motivations for the Civil War). The ruling not only delayed the protection of African Americans’ civil rights, it left the Court’s Fourteenth Amendment jurisprudence hopelessly confused and contradictory.
Slaughter-House eventually led to the development of modern “substantive” due process doctrine as a makeshift bandage over the hole in the Fourteenth Amendment left by the unprotected privileges and immunities. While allowing the Court to protect some rights, the “incorporation” of certain rights through the Due Process Clause relegated other, often “economic” rights to second-class status. Instead of judges’ taking a hard look at the actual reasons a law was passed and asking whether the government has overstepped its constitutional bounds, infringements of the right to earn a living or the freedom of contract barely receive a passing glance. They are upheld unless nobody—not even the judge hearing the case!—could possibly imagine a legitimate rationale for the law. Suffice it to say, hardly any laws are struck down under this so-called rational-basis test.
What It Has to Do with Hair-Braiding
Enter Ndioba Niang and Tameka Stigers, both of whom are traditional African-style hair braiders attempting to support themselves by offering their services to willing customers. The Missouri Board of Cosmetology and Barber Examiners, however, demands that they first pay thousands of dollars to receive completely irrelevant training that has virtually nothing to do with hair-braiding. Applying the usual government-can-do-whatever-it-wants-regarding-economic-regulations level of judicial scrutiny, both the federal district court and the U.S. Court of Appeals for the Eighth Circuit upheld the licensing scheme.
You Shouldn’t Need a License to Braid Hair
This approach is wrong: ethically, historically, and legally. There is a long and well-documented history recognizing the right to earn an honest living as being at the center of the Anglo-American legal tradition and indispensable to the maintenance of a free and open society. Industry insiders often lobby for licensing laws and regulations—and then populate the boards or agencies tasked with enforcing the new rules as a means of limiting their competition. By contrast, those harmed are often politically powerless groups with limited means to fight back. But as long as the government says the magic words of “safety,” “health,” or “consumer protection” in asserting its restrictions, courts are content to turn a blind eye.
Because the right to earn a living is one of the basic rights that our Constitution was formed to protect, Cato has filed an amicus brief supporting the hair-braiders’ petition to the Supreme Court. We ask that the Court take Niang v. Tomblinson and establish that courts must meaningfully examine government incursions against this essential liberty, regardless where in the Fourteenth Amendment it finds the relevant right.
The background section was reprinted with permission under license from Cato at Liberty, with additional edits from other sources.
This elite club employs and controls millionaires. Billionaire NFL owners are using money in an attempt to control player protest. Similar methods can be used to control politicians through contributions, book deals, speaking engagements, and other perks including high-end employment opportunities after they leave office.
As long as Trump continues to assist billionaires to increase their wealth, it is not in their best interest to have him removed from office. Politicians who don't want billionaires contributing to their opponent's campaigns are held hostage. The five corporations who control the majority of the media are using the ancient Roman philosophy panem et circenses (bread and circuses); a phrase that means to generate public approval, not by excellence in public service or public policy, but by diversion, distraction or by satisfying the most immediate or base requirements of a populace – a diet of entertainment or political policies on which the masses are fed to keep them happy and docile.
The media creates a circus atmosphere by highlighting the latest buffoonery of Trump, the circus clown, and distracts away from policies that hurt the environment, siphons public money from social programs to provide grants, tax abatements and other incentives to corporations and wealthy individuals.
Trump with the men who would replace him – Vice President Mike Pence on the left and House Speaker Paul Ryan on the left. Win McNamee/AP Pool
Editor’s note: Removing a president from office is a two-step process. The first step is impeachment. That’s when members of the House indict, or charge, an official with an impeachable offense. Impeachment does not remove the president from office. That only happens if a second step is taken and the president is convicted of the alleged crimes.
Jacob Neiheisel, an assistant professor at the University at Buffalo, SUNY answers five questions about how impeachment works.
1. What sort of crime can lead to impeachment?
The U.S. Constitution states that the president can be removed from office after being both impeached and convicted for “Treason, Bribery, or other High Crimes and Misdemeanors.”
Treason is notoriously difficult to prove. For example, Aaron Burr – a former vice president – was caught stockpiling supplies and gathering a force to take over some of the lands that would eventually be obtained through the Louisiana Purchase. And yet, he still wasn’t convicted of treason.
To date, no president has been charged with bribery.
What exactly constitutes a “high crime” or “misdemeanor” has always been open to interpretation, but it is clear that partisan politics plays a role.
Scholars argue that Andrew Johnson, the first American president to be impeached, was targeted because of his “soft” approach to states of the former Confederacy during Reconstruction. The official reason was his violation of the Tenure of Office Act, which was later declared unconstitutional by the Supreme Court.
Even Alexander Hamilton expected the process of impeachment to be overtly political. President Gerald Ford put the matter bluntly when he described an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history.”
2. How does the process work?
The process usually begins when a member of the House brings forth articles of impeachment. Last year, five Democrats in the House did just that.
Next comes a vote on the articles of impeachment by the House Judiciary Committee. The Judiciary Committee can choose to investigate the matter – or opt out, as they did in the case of the Clinton impeachment. The committee can then recommend for or against impeachment. Either way, their recommendation isn’t binding – meaning the House can impeach over their recommendation. The current chair of the committee, Virginia Republican Bob Goodlatte, is a strong supporter of the president, but he is set to retire in 2019.
Next comes a vote in the full House, with only a simple majority required.
If the House votes to impeach, the case is referred to the Senate for trial. The trial runs much like a criminal case, and witnesses can be called on either side. A supermajority, or two-thirds, of the Senate then has to vote to convict and remove the president from office.
Although two presidents, Andrew Johnson and Bill Clinton, have been impeached by the House, both avoided a conviction in the Senate and a resulting removal from office.
A common misconception is that the Supreme Court plays a major role in the proceedings. The chief justice does preside over impeachment trials in the Senate, but that is the court’s only role.
3. Republicans have a majority in the House and the Senate. Does that essentially make Trump bulletproof?
More or less.
Although it is possible that Republican members of Congress could join with Democrats in calling for Trump’s removal, as we saw happen in the run-up to Nixon’s resignation over the Watergate scandal, today’s polarized political environment makes such an occurrence unlikely absent clear and convincing evidence of major wrongdoing.
While Nixon’s impeachment was likely inevitable, with Democratic majorities in both houses of Congress in 1974, today substantial Republican defections from Trump would be essential to any movement toward impeachment.
Currently, there are 236 Republican House members. That means 22 Republicans would have to join with all of the Democrats in the House to impeach Trump. However, the 2018 midterm election could change this math if the Democrats pick up seats.
The articles of impeachment against Trump might look remarkably similar to those levied against Nixon and Clinton. The articles of impeachment drawn up by Democrats in November 2017 accuse the president of obstruction of justice related to the firing of FBI director James Comey, undermining the independence of the federal judiciary, accepting emoluments from a foreign government and other charges. Any attempt to accuse him of treason is extremely unlikely, in my opinion.
4. If the president is removed, who takes over? What would happen if the vice president was also implicated in the president’s crime?
If President Trump was removed from office, Vice President Mike Pence would be immediately sworn in. In the unlikely event that both the president and the vice president are impeached by the House and convicted by the Senate, Speaker of the House Paul Ryan would become president.
5. Can officers other than the president be impeached?
Absolutely. In fact, 15 federal judges have been impeached, although only eight have been removed from the bench. The most recent example was in 2010 when federal Judge G. Thomas Porteous was found guilty on multiple articles of impeachment by the U.S. Senate. Porteous was found to have accepted bribes from lawyers with dealings before his court.
Republished under license, with permission from The Conversation.
On July 3, 2018, a ribbon-cutting ceremony for the renovated St. Louis Gateway Arch grounds was held. The history of the Arch is rooted in exclusion and racist policy. Black businesses were evicted to make room for the Arch and blacks were denied employment opportunities during the Arch construction. 53 years later, blacks were not represented in the ribbon cutting ceremony although the City of St. Louis has a majority black population.
Officials and National Parks Service staff cut the ribbon to the new Gateway Arch visitor center and museum Tuesday.
The photo above is symbolic of how black people are constantly being removed for the benefit of others. The City of St. Louis removed blacks from the riverfront, sections of downtown including the Mill Creek Valley to build Pruitt Igoe.
Mill Creek Valley looking northwest towards Grand, St. Louis, MO.
The Mill Creek area was supposedly blighted, however, my father, who will be 90 later this year, told me many of the residents of Mill Creek were homeowners who took pride in their homes and kept them up. When I saw pictures of Mill Creek Valley, it looked very similar to the Soulard and Lafayette square neighborhoods. Mill Creek Valley family on moving Day
In 1959, demolition of the neighborhood began, displacing over 20,000 residents, 95% of whom were black. Keep in mind, during this time the federal government was still actively redlining and withholding funds to improve black neighborhoods. Of the $120 billion worth of new housing subsidized by the government between 1934 and 1962, less than 2 percent went to nonwhite families.
Former Mayor Raymond Tucker (at right) and then-civic leader and bond issue chairman Sidney Maestre look out over an area of Mill Creek Valley slated for clearance in 1956.
The Interstate highways wiped out many predominantly black neighborhoods and turned them into surface parking and highways or isolated them contributing to their failure. Even the Cookie Thornton shooting was related to black removal. Most recently, the false promises of Paul McKee and the NGA project resulted in the further displacement of black families and neighborhoods all under the guise of urban renewal. James Baldwin pointed out in a 1963 interview that, "urban renewal..means negro removal".
People of African descent have played a large role in St. Louis since the city’s founding in 1764. Downtown St. Louis was a center of black cultural, economic, political, and legal achievements that have shaped not only the city but the nation as well. Early census figures show blacks, both free and slave, lived in St. Louis from its earliest days under French and Spanish colonial rule. By the 1820 census, 10,000 slaves lived in Missouri, about one-fifth of the state’s population, however only 347 "free colored persons" lived in Missouri. That same year, the Missouri Compromise admitted Missouri to the Union as a slave state. Evidence of black life in downtown St. Louis has been erased from the City's landscape and memory. See: "African Americans in Downtown St. Louis".
In 1935 St. Louis approved a bond issue for a project commemorating Jefferson’s Louisiana Purchase and to clear an area of empty, “blighted” warehouses. A study by the Post-Dispatch at the time of the 1935 vote found the riverfront wasn’t a derelict district that needed to be cleared. The paper found 290 active businesses and a 2% vacancy rate on 37 blocks that would become the Arch.
The St. Louis riverfront, looking northeast from the Old Courthouse in 1895. This area now contains the Gateway Arch. The buildings shown here were prized by many historic preservationists, who objected to the demolition of unique cast-iron structures
Let's not forget the original motivation for the St. Louis Arch. It was built to honor St. Louis' role in westward expansion, a time when Manifest Destiny was used to push Native Americans and Mexicans out of their lands. It is estimated 10 million+ Native Americans were living on land that is now the United States when European explorers first arrived in the 15th century. It is estimated that over nine million Native Americans were killed after European settlers arrived.
"Illegal aliens have always been a problem in the United States. Ask any Indian."
As the United States expanded westward, violent conflicts over territory multiplied. In 1784, one British traveler noted:
“White Americans have the most rancorous antipathy to the whole race of Indians; and nothing is more common than to hear them talk of extirpating them totally from the face of the earth, men, women, and children.”
After the American Revolution, many Native American lives were already lost to disease and displacement. In 1830, the federal Indian Removal Act called for the removal of the ‘Five Civilized Tribes’ – the Cherokee, Chickasaw, Choctaw, Creek, and Seminole.
Between 1830 and 1838, federal officials working on behalf of white cotton growers forced nearly 100,000 Indians out of their homeland. The dangerous journey from the southern states to “Indian Territory” in current Oklahoma is referred to as the Trail of Tears. By 1837, 46,000 Native Americans had been removed from their homelands, thereby opening 25 million acres for predominantly European settlement.
Ferguson should have acted as a wake-up call to the entire St. Louis region. This year will mark the fourth anniversary of Michael Brown's death, but the City of St. Louis and the greater St. Louis region are either in denial or indifferent about its exclusionary institutionalized racist and oppressive nature. As Dr. Martin Luther King Jr. aptly stated, “a riot is the language of the unheard".
Considering the history of what the St. Louis Arch commemorates and the history of its construction, the lack of diversity in the ribbon cutting symbolized St. Louis' culture of racism. It's time to start listening to the unheard!
Maggie Davis Key
