Class actions

  • May 6, 2013

    by John Schachter

    Lest anyone still doubt corporate influence (or is it control?) over the nation’s high court, Adam Liptak’s nearly 3,000-word article in yesterday’s New York Times should resolve any uncertainties. The Court’s business rulings, Liptak notes, “have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes.”

    The latest report, published in April in The Minnesota Law Review, looks far beyond cursory glances and anecdotal examples, studying 2,000 court decisions over a 65-year-period ending in 2011. “The study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10,” Liptak notes. “But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.”

    Before right-wing skeptics criticize the latest report as biased propaganda, we should note that the authors who prepared the report – Lee Epstein, a USC professor of law and political science; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago – are no one’s idea of a leftist cabal.

    This study, meanwhile, comes on the heels of a new report by the Constitutional Accountability Center (CAC) that found that the Supreme Court continues to hear more cases involving business interests and “that the Chamber [of Commerce] continues to win the vast majority of its cases pending before the Roberts Court.” ACS’s own Jeremy Leaming took a look at this report and the broader issue just four days ago in a post for ACSblog. 

  • May 2, 2013

    by Jeremy Leaming

    The U.S. Chamber of Commerce has fared increasingly well before the nation’s top court, a trend that does not appear to be dissipating. In fall 2010, the Constitutional Accountability Center (CAC) reported that as the Supreme Court became more conservative, the nation’s lobby for corporate interests began to win more and more of its cases.

    In a new report, CAC reveals the Supreme Court continues to hear more cases involving business interests and “that the Chamber continues to win the vast majority of its cases pending before the Roberts Court. Although many of the Chamber’s cases this Term are still pending, it’s already off to a strong start, wining six cases so far and losing only one – a record that’s consistent with (and somewhat stronger than) the Chamber’s overall tally before the Roberts Court to date. Indeed, since John Roberts took over as Chief Justice and Justice Samuel Alito succeeded Justice Sandra Day O’Connor, the Chamber has prevailed in 69 percent of its cases overall (66 of 95 cases from 2006 – 2013).” [Footnote 2 of the report provides more information about the cases already decided this Term].

    As its initial report showed the Chamber has found more success protecting its interests as the high court has drifted rightward. The business lobby’s win-rate improved during the Rehnquist Court and has climbed since.

    CAC’s report notes the business cases before the high court have been overshadowed by high-profile cases involving equality and voting rights. But as Zachary Roth reports for MSNBC, CAC’s work reveals that an aggressive strategy launched by the Chamber in the ‘70s is paying handsomely.

    Roth notes the Powell memo – written by Lewis Powell Jr. before he was nominated to the Supreme Court by Richard Nixon. Powell wrote to the head of the Chamber and warned that an “assault on the enterprise system is broadly based on and consistently pursued. It is gaining momentum and converts.” His memo went on to blast leftists, students on college campuses and Ralph Nader for advancing the alleged attack on free enterprise and softly chastised business leaders for not responding. Powell then encouraged the Chamber to help organize business interests to fight back.

    CAC highlights this term’s Comcast Corp. v. Behrend opinion, in which the high court’s right-wing justices claimed the class action suit against Comcast was “improperly certified.”

    It’s not the first time the high court’s right-wing bloc has turned to a technicality to dismiss class actions against larger corporations. The opinions in Wal-Mart v. Dukes and AT&T Mobility v. Concepcion were also ones that have helped create a troubling dynamic of a Supreme Court that caters to corporate interests to the great detriment of individuals. Read CAC’s, “Not So Risky Business: The Chamber of Commerce’s Quiet Success Before the Roberts Court – An Early Report for 2012 – 2013.”

  • April 29, 2013

    by Jeremy Leaming

    A federal judge in Los Angeles took a step recently to bolster the nation’s indigent defense system for some undocumented immigrants. It was an all-too-rare legal action to help the most vulnerable among us, and unlikely to be celebrated by opponents of immigration reform.

    But poverty in this country is not exclusive to documented Americans, neither are basic human rights. U.S. District Judge Dolly M. Gee, as Bloomberg reports, moved to address the glaring inequality when she recently ruled that three states must pay for legal counsel for mentally disabled immigrants who are detained for potential deportation.

    Gee said that mentally disabled plaintiffs do not have meaningful access to the legal proceedings against them without counsel. “Plaintiffs’ ability to exercise these rights is hindered by their mental incompetency, and the provision of competent representation able to navigate the proceedings is the only means by which they may invoke these rights,” the judge ruled in José Antonio Franco-González v. Holder.

    As Bloomberg noted, federal agencies took action to ensure the measure would apply nationwide.

    In an April 22 statement, the Departments of Justice and Homeland Security announced “a new nationwide policy for underrepresented immigration detainees with serious mental disorders or conditions that may render them mentally incompetent to represent themselves in immigration proceedings.”  

    In its landmark Gideon v. Wainwright opinion, the Supreme Court ruled that criminal defendants have a constitutional right, secured by the Sixth and Fourteenth Amendments, to legal representation even if they cannot afford it. During a recent symposium sponsored by the Harvard Law & Policy Review and ACS, UNC Law School Professor Gene Nichol argued that one of the legal system’s greatest failures, which mirror the nation’s overall treatment of the poor, is its ongoing inability to provide the most vulnerable among us competent legal help even in civil matters.

  • March 22, 2013
    Guest Post

    by Victoria Ni, Senior Attorney, Public Justice. This piece is cross-posted at Public Justice’s blog.

    The U.S. Supreme Court has issued its first-ever decision interpreting the 2005 Class Action Fairness Act.

    On March 19, the high court ruled 9-0 that courts should disregard written promises by plaintiffs who are trying to represent a class in state court that the class will seek damages less than $5 million -- the amount that can trigger federal court jurisdiction over a case.

    The narrow decision in Standard Fire Insurance Co. v. Knowles means that plaintiffs in a proposed class action will not be able to agree in writing to a damage cap in order to stay in state court. But it does nothing to clarify the debate over how courts should figure out how much money really is at stake in a lawsuit, which determines in part whether the defendant may move the case to federal court. This matters deeply to some defendants because federal courts are perceived to be more friendly to business interests.

    We joined Public Citizen on an amici brief in the case to argue against a broad approach by the Court that could have undermined legitimate litigation choices by plaintiffs to protect the interests of the class.

    So even though the plaintiffs lost, the good news is that the Court did not take a broad approach and refused even to acknowledge the defendant's repeated attempts to characterize the plaintiff's stipulation as an underhanded effort to evade federal jurisdiction. The decision did not open the door to second-guessing of the myriad strategic decisions that go into filing a lawsuit; it simply focused on whether the stipulation was binding on the proposed class, finding it was not.

  • March 12, 2013

    by Jeremy Leaming

    While President Obama has advanced some eloquent calls for expanding equality, his administration must take more action to ensure equality in the workforce, according to a new ACS Issue Brief.

    Landmark measures such as Title VII of the Civil Rights Act of 1964 and President Lyndon Johnson’s executive order banning federal contractors from employment discrimination have been undermined by federal judges far too eager to protect the rights of employers, write Ellen Eardley and Cyrus Mehri in “Defending Twentieth Century Equal Employment Reforms in the Twenty-First Century.” 

    Citing Simon Lazarus, an attorney with the Constitutional Accountability Center, Eardley and Mehri write that lower federal court judges “have been ‘aggressively activist in narrowing, undermining, and effectively nullifying an array of progressive statutes,’ including statutes involving civil rights and affirmative action.” Eardley and Mehri, attorneys with Mehri & Skalet, PLLC, also note that former federal court judge Nancy Gertner has “recently declared that ‘changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 [are] tantamount to a virtual repeal.’”

    The authors also cite a study from the Harvard Law & Policy Review, the official journal of ACS, which reveals data showing that from 1979 through 2007 judges have increasingly sided with employers in employment discrimination cases and that the rare victories for workers are frequently invalidated at the appellate level. The study by Stewart J. Schwab and Kevin Clermont “found that the anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses.”

    And it’s not just the lower courts that have made it difficult for workers to challenge employer malfeasance, the authors add, noting that the U.S. Supreme Court has issued opinions making it tougher to bring class actions claims and providing federal courts with greater power to quickly dismiss workers’ employment discrimination cases.

    “The Draconian view of Title VII, distortion of the basic principles of civil procedure, and the new hurdles to class certification adopted by the federal judiciary make it difficult for employees to vindicate their rights,” Eardley and Mehri write.