Roberts Court Sticks Another Dagger In the Back Of Consumers
The Supreme Court today handed down its decision in AT&T v. Concepcion. From Reuters:
By a 5-4 vote, the high court ruled that AT&T Mobility could enforce a provision in its customer contracts requiring individual arbitration and preventing the pooling together of claims into a class-action lawsuit or classwide arbitration.
The plaintiffs, Vincent and Liza Concepcion, filed their class-action lawsuit in 2006, claiming they were improperly charged about $30 in sales taxes on cellphones that the AT&T wireless unit had advertised as free.
AT&T, the No. 2 U.S. mobile service, was backed in the case by a number of other companies and by the U.S. Chamber of Commerce business group, while consumer and civil rights groups supported the California couple.
Companies generally prefer arbitration as a less expensive way of settling consumer disputes, as opposed to costly class actions, which allow customers to band together and can result in large monetary awards.
Well, yes, of course this was the decision of the Roberts Court; it was as predictable as the sun rising in the east. The conservative block in the Roberts Court – Roberts, Scalia, Alito, Thomas and Kennedy rarely miss an opportunity to buck up big business and screw individuals and consumers when it comes to any issue involving class action law and/or standing. It is simply what they do, and they have no problem doing by politicized 5-4 majority opinion, which is exactly what occurred here.
The full opinion, including the dissent from Breyer, is here.
The dissent pointed out, correctly, that California law (the case was brought in California), known as the Discover Bank Rule for the main case setting it out, forbade such clauses and rendered them unenforceable as adhesion clauses that were forced down consumer’s throats. The majority simply dismissed the California provision as being inconsistent with the Federal Arbitration Act. The Roberts block sure don’t care much for state’s rights if said rights conflict with their pet causes, such as bucking up big business.
Irrespective of the California Discover Bank Rule, however, Breyer and the other dissenting judges pointed out an even bigger consideration: By forcing each individual to sue for a small sum (in Concepcion, it was $30), the majority was effectively denying consumers a viable remedy:
In general agreements that forbid the consolidation of claims can lead small dollar claimants to abandon their claims rather than to litigate. I suspect that it is true even here, for as the Court of Appeals recognized, AT&T can avoid the $7,500 payout (the payout that supposedly makes the Concepcions’ arbitration worthwhile) simply by paying the claim’s face value, such that “the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is still just $30.22.”
What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim? In California’s perfectly rational view, nonclass arbitration over such sums will also sometimes have the effect of depriving claimants of their claims (say, for example, where claiming the $30.22 were to involve filling out many forms that require techni cal legal knowledge or waiting at great length while a call is placed on hold). Discover Bank sets forth circumstances in which the California courts believe that the terms of consumer contracts can be manipulated to insulate an agreement’s author from liability for its own frauds by “deliberately cheat[ing] large numbers of consumers out of individually small sums of money.” Why is this kind of deci sion—weighing the pros and cons of all class proceedings alike—not California’s to make? (citations omitted)
Exactly right. Scalia and the others in the majority have effectively deemed big businesses – and any that do not yet have these clauses in their service and sales agreements will certainly incorporate them now – immune from accountability on systemic small dollar fraud. Which is a HUGE gift to companies with thousands to millions of customers. Now all we are waiting for is for the Supreme Court to finish gutting class action litigation altogether in the Wal-Mart v. Dukes case argued March 29th.
In a late breaking development, Representative Hank Johnson, and Senators Franken and Blumenthal have announced legislation to overcome the Supreme Court’s decision today in the AT&T v. Concepcion case:
After consumers were dealt a blow today when the Supreme Court ruled that companies can ban class action suits in contracts, U.S. Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) and Rep. Hank Johnson (D-Ga.) said today they plan to introduce legislation next week that would restore consumers’ rights to seek justice in the courts.
Their bill, called the Arbitration Fairness Act, would eliminate forced arbitration clauses in employment, consumer, and civil rights cases, and would allow consumers and workers to choose arbitration after a dispute occurred.
Many businesses rely on mandatory and binding pre-dispute arbitration agreements that force consumers and employees to settle any dispute with a company providing products or services without the benefit of legal recourse.
“This ruling is another example of the Supreme Court favoring corporations over consumers,” said Sen. Franken. “The Arbitration Fairness Act would help rectify the Court’s most recent wrong by restoring consumer rights. Consumers play an important role in holding corporations accountable, and this legislation will ensure that consumers in Minnesota and nationwide can continue to play this crucial role.”
This sounds wonderful but, of course, stands about zero chance of making it through the Republican controlled House of Representatives that serve as the daily lackey water carriers for big business.
Remind me again why we, the People, are supposed to obey the law when those in charge of uphold it are working overtime to fuck us up at every turn, thereby thwarting the very spirit of the laws of this land?
Huh? Why should we respect and follow the law? Because we could be punished if we don’t? Is that the only reason? We’re at the fascist police state now?
By the way…
Fuck the Roberts Court!!
I almost forgot:
Fuck the GOP too!!
Thank you, bmaz, I was hoping that you might have a word or two to share on this blatant twenty-first century Dred Scotting.
You may remember those “patterns” of Executive behavior I’ve been concerned that the district courts seemed unwilling or unable to see?
Well, I reckon that the patterns of SCOTUS be about as clearly deferential as could be. “Predictable” as you say. Why, one can almost see the future.
Ain’t that meaningless legislative kabuki the most thrilling stuff?
Got me right on the edge of me seat.
Half expect the Big “O” to mount his bully pulpit, it being close enough to election time, to make a little mindless noise signifying nothing. I imagine that swell fellow is a wee bit weary, though, having made all those hard choices about the CIA and all.
DW
Mandatory individual arbitrations slam the courthouse door shut on consumers as thoroughly as a Whites Only sign kept people of color from eating at a lunch counter in the Jim Crow South.
This is a major success for corporate America. Individual consumers, apart from well-resourced Warren Buffetts and Bill Gateses, rarely win mano a mano jousting contests in arbitration. And corporations don’t subject such wealthy clients to the routine mistreatment that passes for customer service in today’s corporate America.
Corporations defend such arbitrations to the death. That’s because they are defending their business models – on which their revenue and profits rest. They are not sorting out a few problems with an individual customer.
Those business models include training lower level staff and supervisors to stiff customers with double talk and a policy of just saying No, because the alternative – arbitration – is so bent in their favor. Corporations protect their business model, stiff the customer of the quality services they were led to believe they were buying, and keep their customers’ cash because the artificially constricted legal process available to customers – mandatory arbitration – means heads Ma Bell wins, tails her customers lose.
For good measure, the outcomes of arbitration are also routinely kept secret. If a consumer does win, the win has no affect on other cases. The decision and the strategy that led to it can’t be talked about or used as a precedent to fight a corporate behemoth like AT&T in another arbitration. The relatively ineffective exception is when a customer finds and uses the winning customer’s lawyer – hard to do when arbitration decisions must be kept secret. And how many people besides Donald Trump or a corporate welfare recipient can spend thousands of dollars on a lawyer in a fight over a single phone bill, no matter how egregious are its unintelligible charges?
That’s why corporations like this “dispute settlement” procedure so much, and why they used shareholder funds to get this into Roberts’ Supreme Court. For them, the resulting process is a sure win, like being the house in Vegas, with Roberts and his brethren playing Guido and his debt collectors. This is more than a dagger in the back of the average consumer; this is breaking their kneecaps.
Yeah, between this and Wal-Mart v. Dukes, they are about crippling class action as a viable litigation vehicle for the public. And it is crystal clear they are going to rule in Wal-Mart’s favor in that case.
Talk about resolving uncertainty!
The anthem for the day, from Sidney Bechet (ssax) and his Blue Note Jazzmen:
This case highlights another Grand Failing of Mr. Obama – his unwillingness to fight for or even to nominate sufficient numbers of high quality judges to fill the unprecedented vacancies in the federal judiciary. His parallel failing is in not replacing all or the bulk of Bush’s US Attorneys, including some of the most politically partisan and ethically challenged ones, such as Leura Canary in Alabama (the nominee recently named to replace her is cut from her same cloth).
Making and fighting for such appointments is not a distraction from Obama’s agenda; it’s a major reason many people voted for him. They had enough of Bush’s supremely partisan and often unqualified appointments. They are the farm team without which appellate and Supreme Court ball teams field only mediocre, even corrupted talented.
That’s not to say Obama’s once and not so future supporters wanted him to nominate equally partisan replacements. They wanted and want experienced and qualified jurists who would not be so beholden to corporate America, jurists who would value individuals as much as the rights of corporations and the state, who would recognize that balancing inherent conflicts among them is a hard battle, not a foregone conclusion.
Mr. Obama has joined the beltway consensus and calls such appointments being partisan. What it would be is doing his job; if it caused a ruckus, that would be meat for a politician’s speeches, not a reason to cringe and avoid it.
Obama cannot even manage to nominate someone to replace John Roll, who was killed in the Giffords shooting. There were already two vacant seats when Judge Roll was killed, so we are now minus three District Judges here. It is just pitiful and a dereliction of duty.
Yep. It’s not partisan to make these nominations, it’s a basic part of his job as the federal government’s chief executive. You know, actually hiring staff to run the agencies he’s responsible for. (He’s responsible for nominating federal judges, even if their work is part of another branch of government, and their pay and conditions are determined by Congress.)
Obama was unwilling to do that job his first two years, when his party controlled the Senate and the House. Now that he has fewer votes in the Senate, which must pass on his nominations, he’s even more reluctant to do that job. Like Nixon, Obama will tell us he’s saving all his energies for his re-election. Why support his re-election when he is so unwilling to perform his job’s most routine but important tasks?
If his vaunted military were so afraid of hiring and succession planning, it would fall apart after the first shot, the first loss of a single commander.
during the NCAA March Madness hoo ha and all the time & attention Obama put into filling out his brackets, i had the mental image of some frustrated staffer in the White House judiciary office putting together a Judicial Nominees bracket and sticking it in his daily planner with fingers crossed.
if i had the technical expertise and judicial nominee know-how i was going to attempt to make up a sample bracket. alas, i lack either. but if someone around here was so moved…
my current motto: shame is underrated.
I’ll put Goodwin liu at #1 on that bracket
http://www.oregonlive.com/opinion/index.ssf/2011/03/the_nomination_of_goodwin_liu.html
The only chance to get Liu confirmed was to push hard when Obama and the Dems had the large majority in the Senate in the first two years. He couldn’t be bothered. It is now impossible to get Liu done.
The only possibility I can think of would be to package Liu with some Bush appointee that is hideously toxic and make a deal to do them both. Like a Miguel Estrada for instance.
Yes, shame is underated: It doesn’t pay very well.
These onerous terms in non-negotiated adhesion contracts – changeable at seller’s will – used to be void as against public policy. It will now be malpractice for a lawyer not tell his or her corporate clients to insert binding arbitration clauses in every consumer contract in America, from GM to AT&T, from Chase and Wells Fargo to your local hospital and Wal-Mart, from your realtor to your dentist and veterinarian. Everyone including the plumber and guy who does your lawn, if you still have a house and a yard you can’t mow yourself.
That’s great for corporations, great for the private arbitration business, great for the courts that won’t have to hear difficult cases involving thousands of plaintiffs and millions of consumer dollars, and horribly bad for every consumer in America. John Roberts has just boosted the financial statements of every seller of consumer goods and services in America. Some balls, some strikes.
I just know the White House is waiting to jump in on this and help out its base. Would they think it rude or even partisan to ask Congress to fix an obvious injustice? Imagine how much hay a real politician could make in sticking it to recalcitrant House and Senate members for hating their consumer constituents and stealing money from their near empty pocketbooks.
I really, really hope that the four wingnut justices find themselves in situations where their only choice is arbitration, so that they can find out what it’s like for the rest of us. And I hope they lose.
Justice Breyer demonstrates in his first paragraph that Roberts and his debt collecting pals went out of their way to reach their corporate friendly decision:
Roberts needn’t have held that the FAA and Californian consumer protection law are in conflict. The FAA by its own terms contemplates exceptions to the enforcement of arbitration clauses in otherwise valid contracts. Roberts searched for a case and a means to reach so anti-consumer, so corporate friendly a decision.
As many commentators knew when he said it at his Senate confirmation hearings, Roberts doesn’t limit his role as a Supreme Court Justice to calling balls and strikes. Here, he called the game for his preferred team before the first inning was over. That’s the epitome of an activist judge legislating unconsidered, unagreed new laws from the bench. As usual, his conservative supporters disdain that process only when they don’t like the outcome.
Why, it is almost as if the authors of the Federal Arbitration Act made allowance for just such a provision as the Discover bank rule in California.
Well, as Breyer demonstrated, that is exactly what they did. Balls and strikes my ass.
Yup, or Robert’s tripe about stare decisis
To clarify earlier comments, this decision voids aggregating arbitrations into class actions; it is not a contest directly between arbitration versus litigating.
California is the biggest consumer market in the United States. It is one of the few states that retains a vestige of aggressive consumer protections that were once popular defenses to growing and increasingly reckless corporate power.
California has experienced practitioners and well-developed procedures for managing class actions in both arbitration and court settings. It has a very large number of consumers, which attracts corporations from around the world to service them.
The Roberts Court’s decision prevents state legislatures from protecting their consumers by allowing to aggregate their arbitrations into class actions. It thereby works an enormous hardship on those consumers and considerably benefits corporations.
This decision adds a moral hazard to what is already a consumer battlefield laden with corporate IED’s. Arbitrations already favor corporate power over individual consumers. Class action arbitrations somewhat evened out that imbalance. The Roberts Court tilts the playing field back in favor of corporate power by prohibiting state legislatures from allowing consumers to band together to vindicate their rights through joint arbitrations by a class of similarly situated plaintiffs. That helps corporations avoid accountability for their excesses. It will embolden them to commit more of them.
As John Roberts knows, “divide and conquer” works just as well in an economic war as it does in a political or military one.
hank johnson is a first-rate representative and as much of a no- bullshit person as you will ever find in the u.s. congress.
if you thought there was no such thing as a american congressman with integrity, you need to have a talk with hank johnson.
his view of being a congressman has been, from the beginning,” i am going to do what i think is right. if that doesn’t suit or serve, then i’ll go right back to practicing law.”
it is very interesting to me that johnson is working with franken and blumenthal. from what i’ve read, franken has the same very smart, not-corruptible-by-corporate-money integrity that johnson has. blumenthal ( from conn. i presume) i know little about, but he was reputed an atty genrl who kicked some ass – probably why the nytimes tried to trash him.
i say ” interesting” because i am always looking for a core of democratic congressmen with integrity. such cores can form raindrops and raindrops can in time become storms.
i thought sheldon whitehouse might be such a person, but he seems to have backslud.
we can work and hope that the augean stables of congress are cleaned of democratic congressmen like bayh, lieberman, rockefeller, feinstein, nelson, et al. and that representatives and senators with diamond-hard integrity take their place.
Blumenthal’s reputation was he put on mean sounding press conferences and talked tough, but usually petered out pretty good on the actual follow through. Kind of an all of the show, but little of the go of Eliot Spitzer.
Eliott joke Spits er. A corp shill hidden in harsh wordz.
bmaz@19
good to know, though i’m sorry to hear that.
i could hope his run for the senate was a near-death experience,
but, alas, for politicians with a slip-and-slide personality, repeat, personality,
there is no near-death experience,
only more opportunity to slip and slide –
wheeee!
That is not to say he is a horrid senator or anything, in fact this is a commendable attempt; that was just my observation of him as state AG.
The country isn’t going to survive a Roberts lifetime appointment.
Time for Federal judges to get appointed for a fixed term. 6-8 years maybe. Apply it to current judges.
The founders gave judges lifetime appointments when most people didn’t live 50 years. No way the Founders forsaw judges being appointed in their 40’s and continuing to serve into their 80-90’s.
The lifespan of the first 14 justices:
56 . 84 . 78 . 68 . 58 . 48 . 87 . 61 . 70 . 62 . 67 . 55 . 80 . 63
The founders were very used to having people live into their 70’s and 80’s. Especially rich people.
The life expectancy was shortened by disproportionate infant mortality and the death of women in childbirth. Men and women who lived through that often lived well into their 70’s.
What I’d like to know is Why are we not trying to impeach Justice Thomas? He certainly deserves it.
Would have been nice if we’d had a Democratic majority in the House anytime recently. People who lied to congress during their confirmation hearings could have been impeached.
Oh wait. Impeachment is off the table, one of the reasons there is no Democratic majority in the House.
What an effing surprise…
it’s over and it’s been over. just backing up the car and rolling over this and that pesky little vestige, that’s all it is now.
this whole mobster sham has to go down, and they’re pushing madly with their thug/lie energy in every direction.
good.
If there ever was justification for expanding the size of the Supreme Court to overcome a clearly partisan majority that has no regard for justice or the law, then that time is now.
hank johnson has appeared in these pages before, in fact fairly recently.
here is misswiki’s mini-biography of the congressman:
http://en.wikipedia.org/wiki/Hank_Johnson
an interesting fellow!
bmaz@24
understood (without prejudice :>) ).
Why on Earth didn’t the Democratic majority in Congress pass any legislation limiting the ability of corporations to inflict so-called contracts of adhesion on consumers? Probably for the same reason they didn’t amend the Bankruptcy Act to soften some of its anti-consumer provisions. Worthless lawmakers, worthless party.
And speaking of Chief Justice Roberts, Senator Gasbag, Joe Biden, made a complete dog’s breakfast of the confirmation hearings for Roberts and Justice Alito. What a blithering incompetent.
He had a lot of help.
nonpartisanliberal@27
yes, indeed!!
the supreme court has been as few as 6 or as many as the current nine.
when the right-wing (anachronism) supreme court worked to destroy franklin roosevelt’s new deal, he proposed expanding the numbers of the court.
that did not work out.
but pressuring one of the conservative justices did work, and fdr’s programs were never again threatened ideologically.
some of that history may lie behind the johnson/franken/blumenthal bill.
there is no rule that says the congress cannot increase (or decrease) the numbers of the supreme court.
p.s. sara, could you pay us a visit please; this is when we miss your knowledge most.
read this at work today. it sucks.
i seem to recall, from my american history classes for high school juniors many decsdes ago, that the congress can also declare an area or aspect of the law off-limits to the supreme court.
like impeachment, none of these options are highly desireable, but they present arm-twisting opportunities.
Well, if we ever get a less conservative bloc in the SCOTUS, I’m sure you could reverse the damage this ruling has done — stare decisis be damned. It’s not like the Roberts court has respected it in the past. Why are they allowed to get away w/ this crap? Obama should add more seats and pack the court.
He hasn’t bothered to fight for any of his nominees so far: why do you expect him to change his ways?
Thankfully, such action was nixed when FDR initially contemplated it; such an attempt would create a legitimate Constitutional crisis as there is no question whatsoever the Supreme Court would find such legislation unconstitutional even if you could get Congress to pass it. Which is also impossible by the way.
Strange, there are those who suggest that SCOTUS, with Bush v Gore, that non-precedent precedent, created an “illegitimate” and very real Constitutional (and societal) crisis … that continues to this very day, in fact leading to the “situation” we is now discussing and cussing.
And, “looking forward” … what do we see?
Ah well, bmaz … what do you think?
DW
The sole purpose of the scotus as embodied in roberts, scalia, thomas, alito, and kennedy now is to provide a veneer of legality for our corporatocracy.
In Constitutional Law one learns that the Supreme Court applies different standards for certain types of cases; e.g., Strict Scrutiny, Rational Basis, etc.
The Roberts Court has developed new additional tests that trump the traditional categories: 1) Republican Favoritism Test, as applied in Citizens United — this test ultimately, after all the written hoohaa, comes down to: help Republicans over Democrats; 2) Crush Consumer Test, corporations win over consumers and especially environmentalists.
The law books now must be re-written to accomodate the Roberts court decisions. As does the bar exams. This is radically new stuff for future law students to puzzle over.
So, basically, there’s nothing you can do to reverse the damage?
Why couldn’t one add more seats to the Supreme Court via Congressional legislation? How would that be unconstitutional? Think I’ll go read Article III again.
If the President enablers want my support in any shape or form, I will tell them,I don’t want to be called partisan. As far as the Roberts court. Is that fool still having his melancholy moments and falling out? Maybe the Koch sucker can brew him some tea.Or maybe he can get some unemployed worker to fan him for a spell.Who said all dog go to heaven? The Roberts Courts is a combination of hell hounds and circus freaks that have turn modern day hooliganism into High Courts Thuggery.Where Justice is punish for being blind . The law is something they discuss and workout at their friends cocktail parties .
I have yet to read the thread, but…
…WHY can businesses join together to advocate for their interests but The People can NOT?!?
Well, harpie, “people” are mortal, that is, they DIE.
But “Corporate Persons”, by their very nature, are potentially IMMORTAL.
If you were part of the political-judicial class, then wouldn’t you prefer the long-long-range “stability”, pragmatically speaking, of aligning yourself with immortal and all-powerful “interests” rather than the short-term messiness of flesh and blood where resorts to necessary expediency are very trying and consistently unpopular (for some strange, inexplicable reason)?
Basically, Corporations are WORTH a whole lot more than all the people of the world stacked up on top of each other ever, in one hundred thousand years or more, could possibly be.
The is the Age of the Divine Right of Money, which, when coupled to state secrecy means that people and life itself … really just get in the way.
Humankind birthed corporations to take humanity’s “place” so that is what “they” are doing … corporations are god-like in their powers and, if you remember Genesis, God’s REAL concern was not that humans had eaten fruit from the tree of knowledge, but that they might eat from the tree of immortality and thereny consider themselves to be like unto gods.
Clever folks simply slipped one by the Old Fella in the Sky and His wrath is, apparently, not provokalated.
People, together, are just a lot of dust, but a lot of corporations, gathered together is rather similar to a heavenly host of the “most”…
DW
Very funny, DW…in a grim kind of way.
The must be it. We are too mortal. ;-)
Well, harpie, there is also the fact that human beings can, possibly, have and make use of a conscience.
Corporations, by their very nature, are incapable of this.
People can, within certain limits, only “grow” to be just so “large” but corporations must “grow” ever larger, else they will be eaten by other corporations … which is the ONLY way that corporations may “die”.
And then there is the flesh and blood reality of feeling pain, all humans do, even those who deny it … but NO corporation has ever or will ever feel pain, loss, or despair.
“Entities” which cannot feel or think, cannot understand and the notion of “enough” or even the lament of “too late …” precludes conscious consequence or even the idea of “shame”
The sociopathic human being envies the corporation this “freedom” and emulates it as best he or she may … the corporation becomes his or her “front” and ultimate protection from responsibility, which was and remains its primary function.
In the half of a millenium search for the justification of unfettered greed, of complete selfishness, the corporation is the most “tool” so far invented in the service of that end.
If corporations are permitted and allowed, by law and by force and by resignation, total suasion and control, then that “end” will be brutal, ruthless, quite nasty … and short.
Unless the nature and power of corporations is fundamentally changed and completely reduced, then the tenure of our species on this planet, our only home in the immensity of universe, will end rather abruptly.
My apologies, harpie, for not being able to sustain the humorous vein.
However, I fear that, without a functioning rule of law, we shall be ruled by the whims and the perverse appetites of the least human among us as they seek to deny their own dark fears, for they are the most fearful amongst us, and to deny such humanity as they might yet possess for the fear of what it would reveal to themselves OF themselves.
This grim future will change ONLY when true understanding has reached the hearts and humanity of the many, that they may find the courage and wisdom to become fully human.
As EOH has said, wishful thinking will NEVER be sufficient, it will take much more, time, broad understanding, great courage, and never-wavering resolve, as well as a clear, and compelling “destination” It may very well be the most difficult challenge our species has, so far, had to face, individually and collectively. Let there be no doubt of that.
DW
Very nicely put, DW.
I hope we can perservere.
The following is somewhat obliquely off-topic, yet is Scotus specific.
There is an interesting new colloquy about why and how the Roberts court has adopted new sly tactics to avoid political repercussions from its frontal attacks on stare decesis, the very topic on which both Roberts himself and then justice nominee Alito were quizzed in the senate judiciary committee.
Here is a link to a georgetown Law Journal draft by a NYU law prof. The ABA journal looks at the topic, there; as does now UCI law senior faculty Hasen, there. The linked article in the Georgetown LJ specifically looks at what Roberts* court has done to vitiate Miranda. All three documents linked provide a helpful look at the end of stare decisis under the leadership of umpire zebra chief justice Roberts.