Preemption

  • November 9, 2010
    Guest Post

    By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center (CAC). Wydra's analysis is cross-posted at CAC's Text & History blog.
    You know it's been a less-than-thrilling morning at the Supreme Court when the only time the courtroom audience really perked up was at a rather inexplicable joke by Justice Stephen Breyer about a "9,000-foot cow." (Something about how mountainous Switzerland could discriminate against other European countries' milk products by enacting the facially neutral law that it will only buy milk from cows that graze in meadows above 9,000 feet.) Perhaps that is inevitable in a case that involves preemption doctrine, state contract principles of unconscionability, and forced arbitration. But as complicated as the legal argument in AT&T v. Concepcion may have been in the Court today, it was perhaps just as impenetrable as what is at the core of the case: the lengthy, legalese-heavy, fine print that many of us never read in our cell phone contracts (or employment contracts, health insurance agreements, or other contracts that consumers are effectively forced to sign these days in order to obtain goods and services). And in many of those contracts-as in the contract the Concepcions signed with AT&T-the fine print will require that all disputes be resolved through arbitration, not through the court system, while banning class actions. Accordingly, the Court in Concepcion could decide whether individuals can band together to hold big corporations accountable for misconduct-including discrimination in the workplace and widespread consumer fraud in the marketplace-or whether corporations can get away with wrongdoing so long as they do it on an individually small scale, making individual claims too small to pursue.

    The Concepcions sued AT&T on behalf of themselves and all others who were charged $30.32 in sales tax for a supposedly free mobile phone. If successful, the class action could have yielded millions of dollars for all of AT&T's customers who were improperly charged. But because the arbitration agreement contained a provision banning class actions, the Concepcions were faced with fighting just for their own $30, an amount over which it's hardly worth the time and expense of pressing a legal claim against a corporate giant like AT&T. The company would essentially get away with allegedly fraudulent behavior because the fraud was, for each consumer, not worth fighting over when the expense of filing fees, lawyers, etc., are taken into account.

  • November 5, 2010
    Guest Post

    By Annie Decker, Visiting Assistant Professor, Benjamin H. Cardozo School of Law.
    On November 3, the Supreme Court heard oral argument in Williamson v. Mazda Motor of America. This case ties another important knot in the string of cases addressing when state tort claims can survive federal preemption challenges.

    1. What Question for Preemption Doctrine Does Williamson Pose?

    The overarching - and unresolved - preemption question that emerged from the pack on Wednesday was whether and when an agency's decision to give manufacturers a choice between two or more options means that the agency intended to preserve manufacturers' freedom of choice to the extent that manufacturers had immunity from state tort claims challenging whatever choice the manufacturers ended up making. On the other hand, when does an agency's decision to establish minimum standards in the form of options not signal its intent to preempt subsequent state tort claims arguing that manufacturers made the unreasonable choice among those options?

    2. The Facts

    The potentially preemptive federal law here is a 1989 regulation that the National Highway Traffic Safety Administration promulgated as a "minimum standard" pursuant to the National Traffic and Motor Vehicle Safety Act of 1966. Instead of setting a single standard, the NHTSA gave car manufacturers two options for installing seatbelts in certain specified positions: The first option was to install a lap-only belt, and the second was to install a full lap and shoulder belt assembly.

    Mazda chose to put only a lap belt in the minivan seat occupied by Thanh Williamson, who died of internal injuries after jackknifing over the belt during a head-on collision. Her husband and daughter - who were in the car in seats that had shoulder belts -survived and sued Mazda on her behalf. They asserted that Mazda should have installed the shoulder/lap belt combination, primarily alleging defective design but attaching associated claims, such as failure to warn.

    Martin Buchanan, a San Diego attorney, argued for the Petitioners, the Williamsons. William Jay argued on behalf of the U.S. Solicitor General as amicus curiae in support of the Williamsons. Gregory G. Garre, a partner at Latham & Watkins, argued for Mazda, the Respondent.

    3. What Type of Preemption Is Mazda Arguing Applies Here?

    Preemption doctrine is generally broken into two categories: express and implied. Mazda cannot argue that the Motor Vehicle Safety Act or its regulations expressly preempt the Williamsons' litigation. While the Act has an express preemption clause, it also contains a strong so-called savings clause that preserves state tort claims: "Compliance with a motor vehicle safety standard prescribed under this chapter," Congress mandated, "does not exempt a person from liability at common law."

    Seeking to go beyond the reach of that savings clause, Mazda therefore is relying on implied preemption doctrine to argue that the Williamsons' tort claim is barred. Among the various types of implied preemption, Mazda is relying on the strand known as "obstacle preemption." Obstacle preemption lets federal statutes and regulations trump state or local acts that obstruct the accomplishment of important federal objectives. This strand led Honda to victory in the Supreme Court decision most relevant here, Geier v. American Honda Motor Company, as discussed more below.

    4. Into the Oral Argument Weeds

    The broad question outlined above provoked the Justices to tussle with the several interrelated questions.

  • November 1, 2010
    Guest Post

    By William Funk, Professor, Lewis & Clark Law School, and Member Scholar, Center for Progressive Reform
    The Supreme Court will hear arguments on November 3 in a potentially important preemption case, Williamson v. Mazda Motor of America. In Williamson, a woman was fatally injured in a collision when she was sitting in the center rear seat of a Mazda van, secured by a lap belt. The two other passengers in the vehicle, both wearing lap-shoulder belts, survived with minor injuries. Thanh Williamson, however, suffered severe abdominal injuries and internal bleeding because her body jackknifed around the lap belt. Williamson's survivors sued Mazda asserting that the van was defectively designed by providing only a lap belt in the center rear seat. When the van was built, the National Highway Transportation Safety Administration's Federal Motor Vehicle Standard (FMVSS) 208 only required lap belts in the center seat, even while it required lap-shoulder belts in all other seats. Mazda moved to dismiss the case on the grounds that the common law tort claim was preempted by the federal standard. The California trial court granted the motion and the appellate court affirmed. The Supreme Court granted certiorari to consider that decision.

    This is not the first time that the Supreme Court has considered the relation between FMVSS 208 and state tort law. In Geier v. American Honda Motor Co. (2000), the Court held that FMVSS 208 at the time of that case preempted a state tort law claim that the failure to provide for an airbag was a design defect. Since that case, virtually every tort claim based on an alleged design defect regarding seat belts or airbags has been dismissed as preempted in light of the Geier decision. Thus, the outcome in Williamson in the lower courts is not surprising. What is surprising is that the Supreme Court granted certiorari to hear the case.

    There are two possible explanations. First, unlike Geier, in which the United States filed an amicus brief in favor of preemption, here the United States filed an amicus brief in favor of granting certiorari, arguing that the lower courts had misread Geier and applied it much more broadly than appropriate. Second, on the merits, the United States is absolutely correct; Geier was a very fact-specific case, which subsequent courts have misread.

    In Geier, the plaintiffs were arguing that an auto manufacturer's failure to provide airbags in 1987 was a design defect. At that time, the 1984 version of the FMVSS 208 was in effect. Not only did it not require airbags to be installed, but the Department of Transportation had considered and rejected requiring airbags, instead opting to allow manufacturers to comply with a variety of passive restraints, and even these were to be phased-in over a period of years. The Department expressed the belief that this gradual approach toward passive restraints would most effectively result in increased penetration in the market of these devices as well increased acceptance and use by the public.

  • August 24, 2010
    Guest Post

    By F. Paul Bland, Jr., senior attorney at Public Justice.
    The consumer and civil rights communities are closely watching AT&T Mobility v. Concepcion, a case that will be argued in the Supreme Court this November. The case could decide the fate of most consumer and employee class actions for years to come.

    The Concepcion case involves the widespread corporate practice of using standard-form contract terms that purport to prevent consumers and employees from ever participating in class proceedings. Consumers and employees rarely have time to read the lengthy agreements companies send them, let alone the ability to understand their dense legalese. And even if they did, few consumers or employees could negotiate the contracts' terms.

    Many federal and state courts have held such class-action bans unenforceable under state laws providing that contract terms that block individuals from enforcing their rights under consumer protection and civil rights laws. Hoping to sweep aside many of those cases, AT&T Mobility ("ATTM") has asked the Supreme Court to find that at least some of that state law is preempted by the Federal Arbitration Act ("FAA").

    Class-action bans dramatically undermine enforcement of consumer- and employee-protection laws. In many circumstances, very few individuals would ever bring a claim (in court, or in a small claims court, or in arbitration) even when those laws are broken. Many people never realize when their rights are violated, for example, and many people do not have the knowledge or skills to begin to pursue a case to protect their rights. For those who know to seek out a lawyer, very few lawyers will handle cases that are quite small, and few if any lawyers will handle fairly complex cases that involve only a few thousand dollars. There are many situations where a case will either be handled on a class action basis or it will never be brought at all.

    In the worst case scenario, Concepcion could wipe away the vast majority of consumer and employee class actions for years to come. But that result is far from inevitable. For one thing, ATTM submitted a narrow question in its petition for certiorari, and if the Court sticks to the question presented (as it should), then the decision should be limited. On the merits, if the Court agrees with the vast majority of lower courts, then the decision will change little. If the Court uses this case to grant the fondest wishes of some corporate lawyers for immunity, however, then this case could have the kind of impact on class actions that an asteroid landing in Mexico millions of years ago had on dinosaurs.

  • August 6, 2010
    Guest Post

    By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Professor Schwinn is also co-editor of the Constitutional Law Prof Blog.
    There's a lot to criticize in Federal District Court Judge Henry Hudson's ruling earlier this week allowing Virginia's case challenging the individual health insurance mandate to move forward. For example, the ruling gave credence to the recently enacted Virginia Health Care Freedom Act, the state's effort to nullify the federal mandate through legislation that purports to exempt Virginians. The Act was a thinly disguised attempt to legislate standing for the state-to give Virginia an interest in defending its own state laws. But Virginia has no real interest other than making a political statement. Its manufactured standing mocks Article III's case-and-controversy requirement and risks inspiring other states to fabricate standing simply by enacting legislation anytime a majority in a state legislature objects to a federal law.

    Then there's the ruling's apparent conflation of Congress's Commerce Clause authority and its taxing authority under the General Welfare Clause. The ruling runs uncomfortably close to saying that congressional authority to tax is cabined by its authority to regulate interstate commerce - a position flatly rejected by the Supreme Court since 1936. In fact the ruling says almost nothing about Congress's taxing power; instead, it falls back on the Commerce Clause, suggesting, with little analysis, that the mandate looks more like a "penalty" (enacted under the Commerce Clause) than a "tax" (enacted under the General Welfare Clause).

    These and other similar concerns with the ruling are troubling, but they come at only a preliminary stage of the litigation. The court will have another opportunity to consider the substance of the constitutional arguments, and not merely whether Virginia adequately pleaded its constitutional case. And as Judge Hudson wrote, this court will almost certainly not have the final say in the matter.

    Aside from these immediate and serious, but perhaps fleeting, doctrinal concerns, there is another problem with the ruling: The court embraced and legitimized Virginia's theory that the mandate amounts to "regulating non-action," and in so doing transformed a mere political argument into a budding constitutional doctrine.