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AT&T Mobility v. Concepcion

March 9, 2012
A Way Forward for Consumer Class Actions?
by Nicole Flatow

The U.S. Supreme Court’s decision last year in AT&T Mobility v. Concepcion was a major blow to consumers’ ability to file class actions and hold corporations accountable. In the 5-4 decision, the majority rejected a lower court ruling that an arbitration clause was unconscionable because it barred class actions.

But a recent federal appeals court decision that considered Concepcion as precedent may pave a way forward for litigants seeking to challenge corporate action as a class, writes Philadelphia litigator Joshua D. Wolson on The Legal Intelligencer Blog.

In In re American Express Merchants Litig., the Second Circuit held that an arbitration clause containing a class action waiver was unenforceable. The case was twice reversed by the U.S. Supreme Court for reconsideration in light of Concepcion and another limiting Supreme Court precedent, and twice more, the court maintained its holding.

In striking down the class action waiver, the court relied on an affidavit from an economist, which showed that no rational plaintiff would bear the cost alone of winning such a complicated antitrust case, when the potential payout was so comparatively small.

“The evidence presented by plaintiffs here establishes, as a matter of law, that the cost of plaintiffs' individually arbitrating their dispute with Amex would be prohibitive, effectively depriving plaintiffs of the statutory protections of the antitrust laws,” the judges wrote.

If plaintiffs can overcome class action bans by providing affidavits from economic experts, perhaps there is a future for consumer class actions, Wolson writes. But, he cautions, “it seems likely that the Supreme Court will have the last word.”

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Tags:
Access to Justice, Class actions, Procedural barriers to court, Supreme Court, Other courts, Arbitration, Economic, Workplace and Environment Regulation, AT&T Mobility v. Concepcion, CompuCredit v. Greenwood
February 8, 2012
Wal-Mart Decision Impacting Environmental Litigation, Greenwire Reports
by Nicole Flatow

The U.S. Supreme Court’s decision last term rejecting a class action gender discrimination lawsuit against Wal-Mart was seen as a major blow to corporate accountability in discrimination cases. But the case is also proving its impact in areas outside of the employment or discrimination context.

As Greenwire’s Lawrence Hurley reports, the Wal-Mart v. Dukes decision has been cited in several environmental decisions in both federal and state court, in just the first seven months since the case came down.

Hurley provides details on three of the decisions, all of which deny class certification to plaintiffs attempting to band together to sue large companies that they allege had contaminated their water supplies.

“The post-Wal-Mart court rulings so far also illustrate how keen the defense bar is to make the most of the Supreme Court case,” Hurley writes, quoting Richard Samp, a lawyer at the conservative Washington Legal Foundation.

"The decision is being cited by virtually every defendant who is opposing class certification," Samp said.

During a Senate Judiciary Committee hearing in June on the impact of Wal-Mart and a second case decided last term, AT&T v. Concepcion, University of Colorado law professor Melissa Hart warned:

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Tags:
Access to Justice, Class actions, Economic inequality, Procedural barriers to court, Supreme Court, Other courts, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, AT&T Mobility v. Concepcion, Benefit Corporations, Wal-Mart v. Dukes
October 14, 2011
In New SCOTUS Term, a New Test for Corporate Accountability
by Nicole Flatow

This week, the U.S. Supreme Court heard oral argument in a case about whether a consumer protection law that explicitly says “you have a right to sue” can be overridden by the fine print in a credit card contract.

The case, in which plaintiffs are challenging hidden fees of as much as $257 on a card with a $300 limit, is the latest to test individuals’ ability to hold corporations accountable in the courts.

Over the past few years, several important decisions have limited that right. In Wal-Mart v. Dukes, the court limited the scope of class actions in discrimination cases. In AT&T Mobility v. Concepcion, the court upheld a provision prohibiting class action lawsuits in a phone service contract. And in Ashcroft v. Iqbal and Bell Atlantic Corps v. Twombly, the court made it more difficult to initiate a civil lawsuit in court.

But these are just a few of the decisions in which the Supreme Court has empowered corporations through “seemingly small” procedural rulings, explains Alan B. Morrison in his new ACS Issue Brief, “Saved by the Supreme Court: Rescuing Corporate America.” In fact, “[s]ince the late 1980s, on almost every occasion where big corporations have had a case of major significance in the High Court, the Court has ruled in their favor.” He explains:

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Tags:
Access to Justice, Class actions, Procedural barriers to court, Supreme Court, Constitutional Interpretation and Change, Alan Morrison, Ashcroft v. Iqbal, AT&T Mobility v. Concepcion, Bell Atlantic v. Twombly, Corporations and the Courts, Wal-Mart v. Dukes
September 29, 2011
The Supreme Court Opens for Business
Guest Post

By Arthur Bryant, Executive Director, Public Justice. This post is cross-posted at Public Justice’s “Access To Justice Update.”

The U.S. Supreme Court starts its new term the first Monday of every October – this year, October 3. That’s when the Court opens for business. Sadly, a growing number of people believe that is who the Court is now open for.

On December 27, 2010, The New York Times published an editorial “Temple of Justice,” that said the Supreme Court’s rulings “tend to deny rather than promote access to justice.” At almost the same time, the Constitutional Accountability Center released a study, Open for Business: Tracking the Chamber of Commerce’s Supreme Court Success Rate from the Burger Court through the Rehnquist Court and into the Roberts Court. It found a dramatic increase in the Chamber’s win percentage and the Court’s ideological divide under Justice Roberts. Shortly after that, the Alliance for Justice published Unprecedented Injustice: The Political Agenda of the Roberts Court, starting with a section on “Shielding Corporations from Liability.” The Alliance now refers to the Supreme Court as “The Corporate Court.”

The Court’s rulings last term heavily reinforced this perception. To pick just (the worst?) three:

In AT&T Mobility v. Concepcion, the Court struck down 5-to-4 a California rule of law that stopped corporations from banning class actions against them for cheating large numbers of people out of individually small amounts of money. Isn’t that when class actions are most needed?

In Wal-Mart v. Dukes, the Court held 5-to-4 that a national class action could not be brought against the nation’s largest retailer for sex discrimination against its current and former women employees. If the company is discriminating – and evidence shows women workers there did far worse in pay and promotions than men – how is it to be held accountable?

In Pliva, Inc., v. Mensing, the same five members of the Court ruled that generic drug manufacturers cannot be sued for failing to warn of their drugs’ dangers, although name-brand manufacturers can be – even name-brand manufacturers of the same drug with the identical warning label. What sense does that make? Congress did not say it; the statue says nothing about this. Who does it help, except for the generic drug manufacturers?

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Tags:
Fidelity to the Constitution, Corporate governance, Supreme Court, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, AT&T Mobility v. Concepcion, corporate courts, Guest Post, Inc. v. Mensing, PLIVA, Wal-Mart v. Dukes
July 12, 2011
A Troubling Trend: Supreme Court Continues to Limit Access to the Court System
Video Interview
The Supreme Court continues to limit the ability of people to seek justice in the courts, Public Citizen’s Allison Zieve tells ACSblog. Zieve cited as an example, the high court’s April opinion in AT&T Mobility v. Concepcion, which found in favor of AT&T’s effort to bar consumers from joining in a class action to challenge the wireless company’s charges.

In an interview following ACS’s 2010 – 2011 Supreme Court Term Review, Zieve, litigation director for Public Citizen, said:

It seems to me that the court is consistently unsympathetic to class action suits, to broader suits and has a distinct anti-litigation trend in a lot of its cases. The Court doesn’t seem to feel that state law claims, tort claims, consumer protection claims, have a lot of value, and so not only do plaintiffs frequently lose in those cases, they do so through opinions that don’t really show much respect for the civil justice system. So, I think that raises a significant concern about people’s ongoing access to the courts, access to court remedies. There’s a lot of situations in which state law provides the only remedy, and the Supreme Court has been cutting those access to the court system off through a very sympathetic view of arbitration, a broad reading of the federal arbitration act, through preemption, standing requirements that have been made more and more stringent over the years; so there’s a lot of ways the courthouse doors are being closed to just regular people.

For more analysis and information about corporate interests before the Supreme Court and other federal courts, visit a the ACS Web Page, Corporations and the Courts, with resources that include two ACS Issue Briefs, “Why Does Business (Usually) Win in the Roberts Court?,” “Judicial Hostility to Litigation and How it Impairs Accountability for Corporations and Other Defendants,” and a recent article from the official ACS Journal, the Harvard Law & Policy Review, called “Class Action at the Crossroads: An Answer to Wal-Mart v. Dukes.”

Watch Zieve’s interview below or download a video podcast of the interview. The interview can also be seen here.

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Tags:
Access to Justice, Procedural barriers to court, Supreme Court, Arbitration, Pleadings standards, ACS Supreme Court Review, Allison Zieve, AT&T Mobility v. Concepcion, Public Citizen, Video Interview