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Home > Blog > All > Procedural barriers to court

Procedural barriers to court

  • July 5, 2011

    Majority in Wal-Mart Voted Against "Right to Have Our Voices Heard," Betty Dukes Says

    Video Interview

    Following a Senate Judiciary Committee hearing last week assessing the impact of recent Supreme Court decisions on corporate accountability, ACSblog spoke with Betty Dukes, the lead plaintiff in one of the most notable cases this term in which the court sided with corporations, Wal-Mart v. Dukes.

    Dukes lamented that the Supreme Court’s decision in Wal-Mart was a vote against the rights of her and her fellow plaintiffs “to have our voices heard.”

    “I feel that my rights have been violated,” she said, alluding to the claims of egregious gender discrimination in the case, “and I want to address [that] openly and honestly in a court of law.”  

    During the Senate Judiciary Committee hearing, Dukes expressed concern that women would be deterred from going forward with their employment discrimination claims against Wal-Mart, now that the court had blocked their ability to sue together as a class and halted a case that started ten years ago.

    "It is not easy to take on your own employer,” she said. “It is even more difficult when that employer is the biggest company in the world. In this country, there are many Betty Dukes who want their voices to be heard when they are denied equal pay and equal promotion. For many of these women, I am afraid that the court’s ruling will leave them without having their due day in court."

    Watch ACSblog’s video interview below, and watch the hearing here.

    Tags:
    Access to Justice, Civil rights, Class actions, Fidelity to the Constitution, Procedural barriers to court, Supreme Court, Constitutional Interpretation and Change, Women's rights, Economic, Workplace and Environment Regulation, Equality and Liberty, Betty Dukes, Corporations and the Courts, Employment Discrimination, Gender discrimination, Senate Judiciary Committee, Video Interview, Wal-Mart v. Dukes
  • June 29, 2011

    Recent Supreme Court Decisions Erode Corporate Accountability, Experts Testify

    by Jeremy Leaming

    The Senate Judiciary Committee heard testimony today on how several recent Supreme Court decisions are undermining corporate accountability and limiting individuals’ abiilty to seek justice through the courts.

    The hearing focused on three cases: Wal-Mart v. Dukes, which blocked some 1.6 million women alleging discrimination by Wal-Mart from asserting their claims as a class, AT&T v. Concepcion, which upheld an arbitration clause banning consumers from disputing an AT&T charge as a class, and Janus Capital Group v. First Derivative Traders, which halted a lawsuit by investors alleging that Janus Capital knowingly made misleading statements.

    “In my view, each of these decisions gives corporations additional power to act in their own self-interest and limits the ability of Americans to have their day in court,” said Senate Judiciary Chairman Patrick Leahy at the start of the hearing.

    University of Colorado law professor Melissa Hart, who authored an ACS Issue Brief on state elimination of equal opportunity programs, echoed these concerns in her testimony about Wal-Mart and Conception, lamenting the court’s “hostility” toward the class action device.

    More
    Tags:
    Access to Justice, Civil rights, Class actions, Procedural barriers to court, Supreme Court, Arbitration, Constitutional Interpretation and Change, Women's rights, Equality and Liberty, AT&T v. Concepcion, Corporations and the Courts, Janus Capital Group v. First Derivative Traders, Senate Judiciary Committee, Wal-Mart v. Dukes
  • June 27, 2011

    Corporate Interests Continue to Play Well Before Supreme Court, Some Experts Note

    by Jeremy Leaming

    Following today’s latest U.S. Supreme Court opinion striking a campaign finance law, a growing number of court-watchers are noting the Court’s tendency to side with corporate interests.

    “There seems to be, according to a growing number of court-watchers, a troubling trend of victories for corporate interests,” ACS Executive Director Caroline Fredrickson said. “For example, critics are already noting that the Supreme Court has ended its latest session with another decision overturning a campaign finance regulation – this time an Arizona law intended to help candidates who forgo private donations.

    “This latest decision undercutting campaign finance regulation,” Fredrickson continued, “follows last year’s Citizens United v. FEC that turned aside longstanding precedent upholding the government’s ability to regulate corporate influence of our elections.”

    She added, “The current high court session also included the decision in Wal-Mart v. Dukes, which shut down the ability of millions of former and current Wal-Mart women workers to band together in class action litigation to challenge alleged discrimination.”

    The high court ruling 5-4 invalidated the Arizona Citizens Clean Elections Act which, in part, provided public dollars to candidates who agreed to limit their personal spending. The majority, led by Chief Justice John Roberts Jr. said, “Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.” Roberts was joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr., the same majority that invalidated campaign finance regulation law in Citizens United v. FEC.

    Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, lodged a dissent. Kagan defend programs like Arizona’s writing, it “does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate.”

    In a piece for Slate, Paul Clement, former U.S. Solicitor General during a portion of the George W. Bush administration, wrote that it appears “that 5-4 divisions over campaign finance laws are here to stay. The newest justices – Kagan and Sonia Sotomayor – are passionate defenders of such laws.”

    And Clement said the majority “seems undeterred, maybe even energized, by criticism of its First Amendment holdings in the campaign-finance realm. The dissenters seem equally resolute.”

    For more material regarding the high court’s rulings involving corporate interests, see the ACS Web page, “Corporations and The Courts.” This Thursday ACS will host a Supreme Court review at the National Press Club.

    Tags:
    Campaign finance, Class actions, Procedural barriers to court, Supreme Court, Constitutional Interpretation and Change, Democracy and Voting, First Amendment, Arizona campaign finance law, Arizona Free Enterprise Club's Freedom Club Pac v. Bennett, Caroline Fredrickson, Citizens United v. FEC, Paul Clement, public campaign financing
  • June 16, 2011

    Liberal Justices Miss the Point in Recent Court Access Cases

    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

    In what now sometimes seem like the good old days, when five conservative Justices closed the courthouse doors on plaintiffs seeking to enforce progressive statutes, Justice Stevens could be counted on to protest loudly.  None of the present members of the Court have taken on his role of objecting to the conservative assault on court access to enforce civil rights, consumer protection, and safety net statutes.  Their relative silence on the issue of court access is worrisome. 

    Ever since the conservatives garnered a five vote majority in the early 1990s, the conservative Justices have systematically eroded the ability of private individuals to enforce progressive federal and state laws.  While the four liberals were powerless to stop it, at least Stevens’ dissents understood the destructive force of the denial of court access.  The liberals presently on the Court are not following his lead.  Their opinions are missing the big picture of the importance of preserving the private enforceability of progressive federal laws.

    On Monday in Janus Capital Group, Inc. v. First Derivative Traders, by a vote of 5 to 4, the Court threw out a suit to hold a corporation accountable for lies to stockholders, on the grounds that the corporation only advised and did not have complete control over the corporate entity that published the lies.  Justice Thomas, writing the majority opinion, made no bones about seeking to get rid of citizen suits.  He explicitly stated that because the securities statute had an implied, rather than an express, right of action, the Court would give the right to sue “narrow dimensions.”  He instructed courts to exercise “caution” against the “expansion” of court access.  In addition, he disparaged the federal government for standing up for investors.  He ridiculed the government agency, saying the SEC’s “presumed expertise” was of “limited value” when the government advocated for a right to sue. 

    More
    Tags:
    Access to Justice, Procedural barriers to court, Guest Post, Inc. v. First Derivative Traders, Janus Capital Group, Rochelle Bobroff, Supreme Court
  • May 16, 2011

    The Schindler Decision: Now It’s Congress' Turn

    Guest Post

    By Reuben Guttman.  Mr. Guttman, a partner at the law firm of Grant & Eisenhofer, heads the firm's whistleblower practice and is founder of the website Whistleblowerlaws, which helps individuals using the False Claims Act to seek compliance with environmental, affirmative action, wage and hour, and "Buy American" requirements. It was cited as an authority by the Chamber of Commerce in its brief in Schindler Elevator Corp. v. U.S. ex rel. Kirk, which the U.S. Supreme Court today issued an opinion. Mr. Guttman is also a Senior Fellow and Adjunct Professor at the Emory Law School Center for Advocacy and Dispute Resolution.

    With the heightened pleading standard established by the Supreme Court in Twombly and Iqbal, it must follow that Plaintiffs are entitled to some accommodation in the manner and methods used to muster the facts now required to properly plead a case. Apparently this is not so.

    In issuing its 5-3 decision (Justice Kagan did not take part in the decision) in Schindler Elevator Corp. v United States, No. 10-188 (May 16, 2011), the Court held that a whistleblower litigating under the Federal False Claims Act (FCA) does not have standing if his or her claims are based on information secured from a Freedom of Information Act (FOIA) request. The FCA precludes whistleblowers from basing claims on government "reports" and in Schindler, the Court had to decide whether the Government’s response to a FOIA request constituted a government report. Justice Thomas opined that because a response to a FOIA request provides information, it must therefore be a "report" within the meaning of the statute. While this may be good news for college students seeking support for the proposition that a one page document suffices as a term paper or report, it is indeed a blow to whistleblowers seeking redress from private contractors that cheat the government.    

    The whistleblower in Schindler, Daniel Kirk, a Vietnam Veteran, claimed that his employer, a government contractor, failed to honor a veterans job preference, which in turn violated a government contract.  In support of efforts to prove his claims, Schindler's wife secured information from the Department of Labor (DOL) through a FOIA request. Mrs. Kirk’s efforts, according to the Court's opinion, proved fatal to the complaint.

    The False Claims Act's public disclosure bar is designed to preclude the filing of parasitic lawsuits or lawsuits based on public information readily known to the government. Specifically, the statute bars suits based on government audits and reports. If a government agency issues a report documenting fraudulent conduct by a contractor, it would make sense that a private citizen should not be able to use that report, file a lawsuit, and claim a bounty for bringing attention to that which is already known. But a response to a FOIA request is different. First, as a document generated at the behest of a private citizen, it would never be revealed if the private citizen did not know to ask for it. Second, the document may only provide raw data or information absent any analysis and its relevance may only be understood by the individual seeking the information. As Justice Ginsburg noted in her dissent, quoting the Opinion of the Second Circuit which was reversed, the Department of Labor's responses "did not synthesize the documents or their contents with the aim of itself gleaning any insight or information, as . . . It necessarily would in conducting a 'hearing" or 'audit.' "

    The truth is that Daniel Kirk, the relator in Schindler, was doing exactly what the Court in Iqbal and Twombly required of him; he was mustering very precise facts in order to plead a case. And though he may have filled his complaint with some facts secured from the government itself, there is no evidence that the government was able to put the pieces together absent his aide. 

    With so much public money being injected into the private sector these days and with insufficient oversight of contractors, does this case -- like other recent Supreme Court decisions -- merit corrective legislation? As Justice Ginsburg noted in her dissent: "[a]fter today's decision, which severely limits whistleblower's ability to substantiate their allegations before commencing suit, that question is worthy of Congress' attention."

    Tags:
    Access to Justice, Procedural barriers to court, Supreme Court, Pleadings standards, Guest Post, Reuben Guttman, Schindler Elevator Corp. v. U.S. ex rel. Kirk, whistleblower protection, Whistleblowers
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