Mark B. Cohen - Public Interest Litigation

Public Interest Litigation

In June, 1980, represented by attorneys George D. Gould, John F. Street, and David Cohen (politician), he joined other elected officials and leading Philadelphia consumer advocate Max Weiner as plaintiffs against a SEPTA fare increase, winning in both the Court of Common Pleas and in the Commonwealth Court on the claim that SEPTA failed to follow the state law and recognize two votes against the fare increase from Philadelphia board members and one vote from a Delaware County board member as a veto of the fare increase. But, after subsequent decisions by SEPTA and the Common Pleas Court, the Commonwealth Court, on an appeal by SEPTA, said "We now supplement that holding by noting that a 'veto' can be exercised only by an 'express objection' made pursuant to the provision of Section 18(a) and that a negative vote without more is inefficient to constitute such objection," effectively reversing the original decision.

Represented by P. Stephen Lerario, Cohen was the lead plaintiff for one of 28 groups or individuals filing legal objections to the 1981 Legislative Reapportionment Plan, which was upheld by the Pennsylvania Supreme Court on December 29, 1981, by a vote of 4 to 3. The lead dissent in the case, filed by Chief Justice Robert N.C. Nix, Jr. sided with concerns raised by Cohen and others and said that "the fact that a better one may be easily designed which accommodates all of the constitutional concerns may strongly suggest the constitutional invalidity of the selected plan....to facilitate the functioning of a representative form of government particularly in smaller units such as state representative districts. I would therefore remand the plan to the Commission for the purpose of reconsideration and redrafting in such a form that all constitutional concerns are addressed." The Nix dissent of 1981 gained new relevance for 2012 when it helped lead the Pennsylvania Supreme Court in Holt v. 2011 Reapportionment Commission to invalidate the 2011 Reapportionment Plan for only functioning on equality of population concerns at the expense of minimizing splits of geographical units. The Supreme Court, as Nix had suggested in 1981, remanded the plan back to the Reapportionment Commission.

Represented by Theodore M. Lieverman, Cohen was an amici curiae in New Jersey State Chamber of Commerce v. Hughey, which established that OSHA's 1984 Hazard Communication Standard did not preempt the pre-existing New Jersey Worker and Community Right to know Act "insofar as it regulates employers outside the manufacturing sector, or insofar as it requires identification and reporting of environmental hazards. The preempted provisions may be servered from those that are valid...." This decision, written by Judge Gustave Diamond, sitting by designation on the US Court of Appeals for the Third Circuit, was of precedential value in helping preserve Pennsylvania's similar law, of which Cohen had been prime sponsor.

Cohen, as Counsel of Record, with co-counsel Eric Fillman, filed an amicus curiae brief in the case of Grutter v. Bollinger on behalf of current and former Pennsylvania legislators seeking a continuation of affirmative action programs that were deemed by educational institutions to be in the best interests of the student body. His brief foreshadowed one of the arguments used by Justice Sandra Day O'Connor in writing the majority opinion: that the evidence before the trial court which had declared affirmative action unconstitutional did not support the holding. He called the majority opinion "a ringing affirmation of the goal of an inclusive society."

Cohen was an early plaintiff in a class-action lawsuit, filed after the 2007 pet food recalls, seeking, and winning, compensation for damages for pet owners against companies which sold tainted pet food which killed or sickened many people's pets. Years earlier, working with the Philadelphia SPCA, he had forestalled litigation, and protected the right of Pennsylvania homeowners to own pets, by threatening to push through legislation banning insurance discrimination against pet owners, which led an offending insurance company to change its mind quickly.

Represented by Daniel Ocko, Cohen intervened as a plaintiff before the Pennsylvania Public Utility Commission in the Act 129 Pennsylvania electric utility energy efficiency and conservation proceedings of PECO Energy Company filed on March 2, 2009, seeking to secure greater energy conservation benefits for low-income residents of Pennsylvania. Along with the Action Alliance of Senior Citizens of Greater Philadelphia and the Tenant Union Representative Network, Cohen helped persuade the Pennsylvania Public Utility Commission to issue order #8 on October 15, 2009, requiring PECO to redraft its proposed procedure allowing it to shift funds for the benefit of one class of users to the benefit of another class of users, and replace it with a procedure requiring any change in beneficiaries to be submitted to the Commission instead. Dealing with another issue raised by Cohen, the Commission Order and Opinion said that "While we fully appreciate Representative Cohen's interest in mitigating the potential impact of future rate increases through consumer conservation," they felt the existing PECO Consumer Education Plan for 2008-2012 was adequate for informing consumers of rate-saving conservation techniques, and that no further order to PECO was necessary to maximize consumer outreach.

Cohen's November 10, 2010 Prehearing Memorandum to Pennsylvania Public Utility Commission Administrative law Judges Elizabeth H. Barnes and Dennis J. Buckley (1) opposed transfer of $1.8 million from the Residential Whole Home Performance Program to the Compact fluorescent lamp program for both business and residential consumers; (2) favored "the identification and targeting of RH (residential heating) customers for all existing residential Act 129 programs with marketing materials that among other things would provide realistic estimates of future electric bills using past consumer usage in winter months with the new and future rates" and argued that RH (residential heating) customers are providing some of the millions of dollars of ratepayer's dollars that are being spent to implement Act 129 programs and with targeted efforts and programs they could pay an important role in conserving electricity," conserving energy; (3) favored the use of PECO subsidies to reduce the cost of a less expensive $25 or $20 LED bulb to $10 or $5 as opposed to reducing the cost of a more expensive $45 LED bulb to $30; (4) favored greater stakeholder participation in meetings with PECO.