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By F. Paul Bland, Jr., senior attorney at Public Justice.

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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.

For the court to rule for ATTM, it will have to sweep aside a widespread consensus of lower courts. Every single state supreme court to consider the enforceability of a class-action ban embedded in an arbitration clause has resolved the question of enforceability as a matter of state law. The last eight state supreme courts to consider the validity of class bans also happen to have struck them down, but even courts that have upheld class bans have done so by applying state law. In addition, federal circuit courts that have both struck down and upheld class action bans in unconscionability challenges have all examined the issue as one of state law. See here for a much longer blog offering case cites for these propositions.

The corporatist idea that the FAA preempts all state law limiting class-action bans hasn't caught on in the lower courts because there is no serious legal or intellectual basis for it. If the Supreme Court decides to completely federalize the law in this area, it will have to invent from whole cloth new federal law that is not supported by anything in the language of the FAA or in its history.

The only language in the FAA that relates to the question presented in Concepcion provides that agreements to arbitrate will be enforceable only if the agreement is not counter to laws that would lead to revocability of any contract. 9 U.S.C. § 2. In this case, the state laws at issue are the common-law doctrine that exculpatory get-out-of-jail-contract-terms that undermine statutes are unconscionable. This body of law applies to all contracts, does not mention or target arbitration, and thus does not conflict with the Federal "Arbitration" Act.

Also, the Supreme Court has said a number of times that arbitration clauses are only enforceable under the FAA if they let people "effectively vindicate their statutory legal rights." The Court will have to ignore those decisions if it's going to find that the FAA preempts state contract laws that insist that contract terms may not bar individuals from effectively vindicating their rights.

Will the majority of the Court abandon the humble role of umpire to invent sweeping and radical new law? Will scores of state and federal appellate cases be disregarded? Will the FAA be put on an inevitable collision course with the Congress? Or will the Court step back and do the right thing? No one will know for sure until the Court decides Concepcion next spring.

 

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By Scott Nova and Ben Hensler. Nova is Executive Director and Hensler is General Counsel for the Worker Rights Consortium, a university-based organization that investigates working conditions and promotes respect for labor rights in manufacturing facilities around the world.  

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Every year, hundreds of thousands of apparel workers around the world are cheated of legally-earned income when their employers fail to pay mandatory severance benefits. This pernicious form of wage theft, which costs workers the equivalent of at least several months' wages, has afflicted workers sewing clothes for just about every major apparel brand. However, since it is the brands' contract factories that directly employ the workers, the brands insist it's not their problem to fix. Factories close, bosses skip town, the brands wash their hands of the matter - and workers are left high and dry.

On July 21, Nike signed an accord under which it agreed, in effect, to accept financial responsibility for severance owed to workers by two contract factories (workers with the accord pictured left). This sharp break with business as usual by the world's leading sports apparel brand - the result of intense pressure from student activists and the company's university business partners - has significant implications for the global apparel industry.

Outsourcing and Accountability in the Apparel Industry

Outsourcing production to contract factories in the developing world, where labor law enforcement ranges from anemic to non-existent, yields a deregulatory double bonus for American clothing brands. Factories are able to violate worker rights with impunity, affording the brands big savings on labor costs. At the same time, outsourcing insulates brands from any legal accountability, since the lawbreaking from which the brands profit is committed by third parties operating outside the United States.

The primary goal of the contemporary anti-sweatshop movement has been to make it harder for the industry to play this game, by replacing the legal accountability that outsourcing has largely eliminated with accountability to civil society, generated through both consumer and political pressure, and, increasingly, private contractual relations. Activism in the 1990s compelled most apparel brands to publicly accept responsibility for working conditions at contract factories and to adopt private codes of conduct and monitoring regimes ostensibly designed to compel contractors to respect workers' rights.

Unfortunately, these corporate codes have been ineffective at protecting workers and, as a result, sweatshop conditions remain the norm throughout the industry. Brands have taken responsibility in theory, but have been highly adept at avoiding responsibility in practice. Achieving genuine improvements in working conditions would require brands to forego the savings extracted when labor standards are ignored and, instead, pay contractors prices consistent with producing in a lawful manner. Brands have refused to do this, continuing instead to push suppliers to accept prices that can only be met by running roughshod over the rights of workers. Yet despite this, brands have done an effective job of persuading many opinion leaders and consumers that their monitoring programs reflect a sincere effort to raise standards.

The Industry's Financial Firewall

A pillar of the brands' efforts to elude accountability is their long-standing insistence that their self-imposed codes of conduct, which require them to ensure that their suppliers obey the law, somehow absolve them of financial responsibility when they instead allow suppliers to rob workers of legally-owed compensation. The prime example of this self-contradictory posture and its consequences is the widespread failure of contract factories to pay statutory severance benefits and the consistent failure of the brands to do anything about it.

The laws in most apparel exporting countries mandate severance payments to workers in the case of factory closures. Because low wages make saving impossible, and because social safety nets are weak, this severance is often the only thing standing between laid off workers and outright destitution. Yet it is a routine occurrence for factories to shut down without paying severance. National governments generally do little or nothing in response. Although precise data is unavailable, anecdotal evidence suggests that the scale of this theft is massive, involving millions of workers over the decade and a half since codes of conduct were first adopted. To cite just one example: a survey of the operations of a single high-profile brand, in one Southeast Asian country, identified more than $40 million illegally withheld from workers in a three year period.

The apparel brands have been united in their refusal to accept any financial liability in such circumstances and, until last month, none had ever broken ranks. That changed when Nike agreed to pay $1.54 million in cash (and nearly a half million dollars in kind) to the employees of two Honduran contract factories.

A Radically Different Outcome

The garment factories closed last year and failed to pay more than $2 million in legally mandated severance. The Honduran government took very limited action, overseeing a process of liquidation of machinery and goods left at the factories which generated barely 20% of the money owed. Following the industry script, Nike lamented the workers' mistreatment, while insisting that it had no obligation to pay a penny to fix the problem.

On its website, Nike insisted that it was "absolutely concerned for the workers in Honduras and...deeply disappointed that the two failed sub-contract factories did not pay the workers their full severance pay. However," the company explained, "it remains [our] position that factories which directly employ workers are responsible for ensuring that their employees receive their correct entitlements and as such Nike will not be paying severance to [these] workers."

The story would normally have ended there, but several dynamics combined to produce a radically different outcome:

• First, the workers demonstrated extraordinary perseverance; they refused to go quietly to their fate and instead organized, protested and kept the issue alive in Honduras for well over a year after the factories closed (see photo, right).
• Second, Nike's own voluntary code is not the only labor code that applied in this case; Nike is also bound by the labor codes of universities across the country that license their logos to Nike and other apparel brands (who then make clothes bearing the universities' names and insignias). Unlike self-imposed corporate codes, the universities' codes are contractually binding on the brands. And, also unlike corporate codes, compliance is monitored by an entity, the Worker Rights Consortium (WRC), which accepts no funding from the industry. The WRC exposed the violations in Honduras and reported them, with extensive documentation, to Nike's university partners.
• Third, student activists, led by United Students Against Sweatshops, dedicated themselves to holding Nike accountable. The students refused to accept Nike's position that it had no financial responsibility. They organized on campus to urge aggressive university action and used a range of creative tactics to pressure Nike directly.
• Finally, universities are increasingly prepared to take strong enforcement measures when warranted - a reality that was illustrated last year when nearly 100 universities terminated the licensing rights of Russell Athletic, a subsidiary of Fruit of the Loom and Berkshire Hathaway, over labor rights violations at one of Russell's overseas factories. Russell responded, to its credit, by adopting sweeping reforms. When two of Nike's university partners - the University of Wisconsin and Cornell University - announced the termination of the brand's licenses this spring, Nike had to consider the prospect of a similar snowball effect.

A Groundbreaking Agreement

At the end of June, Nike entered into negotiations with worker representatives. These discussions produced the groundbreaking agreement signed on July 21. The accord marks the first time a major apparel brand has effectively assumed financial responsibility for labor rights violations committed by its contractors. (NB: Under the accord, Nike is not officially paying severance but contributing to a "Worker Relief Fund.")

Nike has set an example that other apparel brands will feel pressure to follow. As that pressure builds, brands will no longer be able to assume that they can easily evade financial responsibility for their contractors' misdeeds. Brands may thus begin to see the advantages of ensuring that their suppliers fulfill their financial obligations - providing the brands with an incentive both to police suppliers' behavior more aggressively and to ensure that the prices they pay suppliers are adequate to make compliance feasible. Weighed against the prospect of getting socked with millions of dollars in arrears, the short-term savings generated by underpaying for goods may no longer look like such a smart play.

For these reasons, last month's breakthrough may prove to be a watershed moment in the battle to impose the rule of law on the "wild west" environment of global manufacturing supply chains.

 

U.S. District Judge Susan Bolton has issued a preliminary injunction blocking key portions of the Arizona immigration law scheduled to take effect tomorrow.

The Associated Press reports that the law will take effect, "but without many of the provisions that angered opponents -- including sections that required officers to check a person's immigration status while enforcing other laws. The judge also put on hold a part of the law that required immigrants to carry their papers at all times, and made it illegal for undocumented workers to solicit employment in public places." 

Before the judge's ruling, The Arizona Republic reported that uniformity among police authorities on enforcement was lacking.

Supporters of the law, SB 1070, the newspaper reports had hoped it would help uniformity among the various counties on enforcement. "But a survey of Arizona police agencies indicates there is anything but a uniform approach," The Republic reports. The law requires police officers, during the enforcement of other laws, to question a person's immigration status if the officers have a reasonable suspicion that the person is in the country illegally. The law also makes it a crime for immigrants not to carry immigration documents. But Judge Bolton's ruling, which came after hearings on three of the seven federal lawsuits challenging the law, puts a halt, for now, on those portions of the law, The Republic reported. In her ruling, Judge Bolton said the Department of Justice "was likely, but not certain, to prevail on those points [that it is better to place a preliminary injunction on a law likely to be judged later as pre-empted by federal law, among others] at a later trial in federal court, The New York Times reported. It also noted that the judge had made "no ruling on the six other suits that also challenged the law."  

Beyond the legal challenges, the law has attracted widespread criticism. The Times recently editorialized, that the law is constitutionally suspect because "Only the federal government can set or enforce immigration policy."

Beyond watching a video of training standards, The Republic noted that police departments across the states are taking varying approaches. The Washington Post reported that "the hardest-line approach is expected in the Phoenix area, where Maricopa County Sheriff Joe Arpaio plans his 17th crime and immigration sweep."

The Republic, after citing some of the varying enforcement tactics, concluded that the approaches "are a reflection of the confusion that persists among agencies tasked with enforcing the law ...."

Mark Spencer, president of the Phoenix Law Enforcement Association, blasted the law, noting that it would add to the burden of the U.S. Immigration and Customs Enforcement (ICE).

"In light of the state statute, you have policy that appears to be designed to be costly, invasive or intrusive to citizens and burdensome to ICE," he said. "You take those three ingredients, and you have a policy that appears designed to undermine the rule of law."

The newspapers also noted that opponents of the law are planning protests within the state. Liz Hourican of CodePink told The Post that the group plans to "block the driveway for immigration officers in downtown Phoenix."

Recently Labor Secretary Hilda L. Solis and AFL-CIO President Richard Trumka discussed the immigration system and how it affects the economy and needs to be reformed. Secretary Solis and Trumka agreed that a path for immigrants to become documented needs to be found. Video of that discussion is available here.

For additional analysis of the Arizona law, see video here of a panel discussion on the topic from the 2010 ACS National Convention. Following that panel discussion, MALDEF leader Thomas A. Saenz talked with ACSblog about immigration reform. His interview is available here.

The immigration system is broken and the situation urgently calls out for lawmakers on both sides of the aisle to come together and find a way to fix the system, said Labor Secretary Hilda L. Solis in a recent discussion with Richard Trumka, president of the AFL-CIO. The discussion, led by Jaime Zapata, senior managing director of the Labor Department's Office of Public Affairs (OPA), touched upon why the immigration system currently undercuts the nation's economy and ways to reach reform.

Secretary Solis said the immigration system "isn't helping those legitimate businesses and those employees right now that are getting shortchanged because there's an employer who doesn't want to play by the rules, is not paying back taxes or is not paying into the system," which ultimately "robs our economy of those revenues." Solis added, "Yes, we have to crack down on the border and make sure the criminals are taken out of this country, but at the same time we have to protect all workers." The Secretary said a pathway must be created for those immigrants willing to follow the rules to become documented. She said that it is simply impossible to deport 11 million people, destroying families and depriving the economy of many people who provide it great innovations.

Trumka urged immigration reform, maintaining that the current system negatively affects all workers. "If we're going to create an economy that really does work for all workers, immigration has to be fixed because it is a terribly broken system that is being exploited and creating a permanent underclass of citizens that is being used to drive down wages, so we have to eliminate that," he said.

Trumka added, "This nation was built on the notion that we embrace immigration."

Watch video of the entire discussion here or by clicking on the picture. For additional discussion of immigration reform, watch video of a plenary panel from the 2010 ACS National Convention called "Immigration Reform: Congress and the States." In addition, following that panel discussion, Thomas A. Saenz, president and general counsel of MALDEF, talked with ACSblog about the need for greater public education surrounding immigration reform. Video of the interview, which can be downloaded as a podcast, is available here.

Among the Supreme Court's string of opinions issued this morning were two closely watched cases involving the power of the National Labor Relations Board and another centering on a dispute between Florida homeowners and state officials seeking to enforce an environmental protection law.

In New Process Steel v. NLRB, the high court ruled 5-4 that the NLRB, which hears disputes between employers and managers, must maintain 3 members of the five-member board in order to render decisions. For years the NLRB has functioned with only two members due to political fights over nominees to the Board. The opinion is available here (pdf). During a recent ACS event about the National Labor Relations Act (NLRA) and the NLRB, panelists discussed the legacy of the act, which was created to protect the rights of workers and encourage collective bargaining. That discussion featured a keynote address by Deputy Secretary of Labor, Seth Harris, followed by a panel discussion of scholars and former NLRB members. Video of the event and ACSblog interviews with two of the panelists is available here.

In an 8-0 opinion, with Justice John Paul Stevens not taking part, the justices ruled that Florida officials did not violate the Constitution with a beach-widening project that altered the property of beachfront homeowners. The homeowners argued that the project, which was launched to counter erosion, amounted to a taking of property without just compensation in violation of the Constitution, The Associated Press reported. The opinion in Stop the Beach v. Florida Department of Environmental Protection is here (pdf). For more information and analysis of the other decisions issued today see SCOTUSblog here.

Following an ACS event focusing on the 75th anniversary of the National Labor Relations Act (NLRA), which was created to protect the rights of workers and encourage collective bargaining, Professor James J. Brudney talked with ACSblog about the historical nature of the act and the impact of the evolving nature of the National Labor Relations Board (NLRB) on it. Brudney noted that NLRB, which administers the NLRA and enforces employees' rights, has evolved overtime to become a more politicized body. Brudney said that the historically the NLRB was not a political entity. But the NLRB has become more political Brudney said, noting that in the 1980s, President Ronald Reagan began appointing attorneys to the NLRB who had "experience in union-avoidance terms."

The event also included a keynote address by Deputy Secretary of Labor, Seth Harris, followed by a panel discussion of scholars and former NLRB members. The panel moderated by West Virginia University law school professor Anne M. Lofaso, included Brudney, and former NLRB members Dennis Walsh and Marshall B. Babson.

Brudney's interview is below or can be downloaded as podcast here. Video of the entire event, including Harris' keynote, is here or can be viewed by clicking image of Harris (right).

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By Naomi Cahn, John Theodore Fey Research Professor of Law, George Washington University Law School & June Carbone, Edward A. Smith/Missouri Chair of Law, University of Missouri-Kansas City School  of Law 

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Released last week, a new study found that women over the age of 35 in the U.S. gave birth to more babies than did American teens -- a reversal of the situation 20 years ago.

Given our research into family formation, this doesn't surprise us. In Red Families v. Blue Families, we discuss which families are succeeding in the 21st Century. It is "blue" families, which invest in women as well as men, delay family formation until after young adults reach emotional maturity and financial independence, and view sexuality as a private matter, that have adapted to the new information economy. By contrast, the "red" family system is a traditional one that continues to preach abstinence, early marriage and more traditional gender roles. The religious backlash against the new values has locked red families into a war against modernity. The book also shows how cultural controversies over abortion, gay marriage and single motherhood are masking the country's real divisions, and then suggest practical steps to reshape the debate surrounding red and blue America.

Although we didn't start writing the book until after the 2004 election, our interest in family systems started almost a decade ago, when we became curious about evolutionary psychology. We quickly found that even a cursory look at the anthropological literature belied conservative claims that the family was somehow fixed and unchanging; indeed, serial monogamy seemed to be more common than long term fidelity. At the same time, some patterns seemed persistent enough to make us skeptical of the claims that family life was infinitely flexible. Children, for example, benefit from the commitment of more than one adult in almost every society.

Just as we were mulling over the potential implications for modern family law, the 2004 election occurred, with polls highlighting the role of moral values in President George W. Bush's reelection. We read with recognition the op-eds highlighting the higher teen pregnancy and divorce rates in the areas of the country ranking moral values at the top of voters' list of concerns. We thought we knew the answer. In "red" areas of the country, family life began at earlier ages -- and early marriage was a risk factor for divorce. The average ages of marriage and first birth are among the more significant factors that predict whether a state will vote red or blue.

Today, the average age of marriage has risen to over 25 for women, almost 28 for men. College-educated women, particularly those in urban areas and the coasts, have led the way. In this new world, families invest in both men and women's workforce opportunities, and emotional maturity and financial independence are the markers of responsible family formation. Social norms no longer punish non-marital sexuality, but contraception is essential, with abortion as the reluctant fallback. For those who adhere to the new rules, good things happen. College-educated women are the only group in society whose marriage rates have increased, and family income has increased. Their divorce rates have fallen partly because greater maturity is a protective factor, but even more because the successful have become even more likely to marry each other and to do so later in life.

Yet, the new family terms poses a crisis for everyone else. Divorce rates seemed to plateau in the nineties, but more sophisticated research shows that, for the college-educated, they fell in the nineties back to the levels of thirty years earlier while continuing to rise for everyone else. The well-paying blue collar jobs that supported early marriages in the fifties are gone, and self-supporting women have been become less willing to put up with violent, drunken or simply inconsiderate mates.

Today, family stability is a marker of region and class, and the more conservative and religious areas of the country are ready to fight back. They see the futures of their children and grandchildren at stake.

Even so, the emergence of family values as a divisive political issue was hardly a given. In the seventies, support for contraception was close to unanimous -- Congress passed the first federal family planning initiative in 1970 with a unanimous vote in the Senate, token opposition in the House, and the support of Republican President Richard Nixon. And both parties were divided on abortion. We argue that while the culture gap is real -- different families live different lives in different areas of the country -- culture clash is a political construct. The emergence of family values as political involves the coming together of several different trends. Those who feel threatened attribute greater importance to traditional values that they see under assault, and those who believe that moral values are a given -- fixed, eternal and divinely ordained -- are also drawn to more conservative and hierarchical leadership.

We hope the book will help move us beyond contemporary battles over moral values towards supporting families. Towards that end, we suggest three strategies:

Change the subject from abortion to contraception. The fact that teen births and abortion rise and fall in tandem provides compelling evidence that unintended pregnancy rates respond to the effectiveness of contraception, while a host of studies demonstrate that the U.S. in first in the developed world in unintended childbearing and the issue is a growing and increasingly class-based concern.

Change the subject from family to work. The essential next step for red and blue families alike is reconsideration of the relationship between work and family. For blue families, where human capital acquisition precedes family formation, the challenge is to structure the work place to fit in family. For red families, where family formation may come first, the challenge is to restructure the relationship to the workplace to make it easier to return to school, cycle in and out of the workplace, and care for sick children.

Move to the middle on family formation. One critical area where genuine convergence between the two models might ultimately transform the debate: can we persuade our prototypical red family to delay family formation to the mid-twenties and our prototypical blue family to start a bit earlier?

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By Senator Tom Harkin (D-IA). Sen. Harkin is Chairman of the Senate Health, Education, Labor and Pensions Committee.

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This morning, the Committee on Health, Education, Labor and Pensions heard testimony from a variety of witnesses on a pressing, national issue - the need to ensure fairness for older workers. We heard from the chair of the Equal Employment Opportunity Commission and a leader from AARP, who both described the national implications of this issue. But I was most taken by the testimony of a remarkable Iowan named Jack Gross, who has become a central national figure in the fight against age discrimination.

Jack worked for nearly a quarter century as a claims adjuster for FBL Financial in West Des Moines. He was a model employee, with performance reviews in the top three percent of the company for 13 consecutive years. Then, in 2003, when he was 55 years old, his company brazenly demoted him and other employees over the age of 50. His job was give to a much younger, less qualified person.

Four decades ago, expressly to prevent this kind of discrimination, Congress passed the Age Discrimination in Employment Act. Very simply, that act made it unlawful to discriminate on the basis of age.

When Jack sought enforcement of his rights, a jury of fellow Iowans readily found in his favor. But, last year, the Supreme Court ruled against Jack and other older workers. A narrow majority on the Court didn't just rewrite the rules, it arbitrarily rewrote the law.

For decades the law was clear: If an employee showed that age was one factor in an employment decision, the burden was on the employer to show it had acted for a legitimate reason other than age. The Court, however, addressing a question it did not grant cert on, tore up this decades-old standard and imposed a new standard that the Supreme Court itself had rejected in a prior case and Congress had rejected when we enacted the Civil Rights Act of 1991. In its place, it invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination.

According to the Court's new standard, a victim of age discrimination bears the full burden of proving that age was not only a motivating factor but the decisive factor.

This extremely high burden of proof has radically undermined older workers' ability to hold employers accountable. Bear in mind that unlawful discrimination is often difficult to detect. Those who discriminate usually go out of their way to conceal their true intent. And discrimination cases rarely involve a smoking gun.

The good news is that the Court's arbitrary ruling is not the final say. Congress has the power to step in with a legislative remedy. That's what we did when the Court weakened the rights of women in the workplace. Last year, we passed the Lilly Ledbetter Fair Pay Act.

Likewise, nearly two years ago, we passed the ADA Amendments Act, reversing Court decisions that weakened the Americans with Disabilities Act.

Now the Court has opened the door to discrimination against older workers. And Congress needs to close that door.

The Protecting Older Workers Against Discrimination Act, legislation I introduced last year, will restore the law to what it was for decades. It makes clear that when an employee shows that discrimination was "a motivating factor" behind a decision, the burden is properly on the employer to show it complied with the law.

This legislation would make certain that, once again, Jack Gross and all older workers in this country enjoy the full protections of the law.

Video of this morning's hearing is available here.

[image via Senate Health, Education, Labor and Pensions Committee]

The operator of the Upper Big Branch mine in West Virginia, where 29 miners died earlier this month, is coming under increasing scrutiny from law enforcement officials. News broke today that the FBI is interviewing dozens of current and former employees of Massey Energy, the mine operator, as part of a criminal investigation into the deadliest American mining disaster in 40 years. Massey denied any wrongdoing, and offered full cooperation with federal law enforcement officials.

In the wake of the Upper Big Branch disaster, as well as two other deadly mining accidents this month, some legislators are seeking ways to strengthen mine safety. Despite the Mine Safety and Health Administration having notoriously weak enforcement tools, coal-state "lawmakers remain reluctant to enter the emerging debate over what's gone wrong, and whether Congress should step in with new laws to protect the nation's miners," reports Mike Lillis at The Washington Independent.

Though some families have already filed wrongful death suits against the mine operator, Massey is reportedly offering each family $3 million. In exchange, the families are being asked to dismiss pending suits or forgo their right to sue, one family said. According to Mark Moreland, an attorney involved in one of the suits, these settlement offers so soon after the deaths come at a tough time for families and help Massey "avoid answering hard questions raised publicly in litigation." Massey spokespeople refused to comment about the reported settlement offers.

[Image via ChuckHolton.]

More than a year after oral argument, a narrowly divided federal appeals court affirmed certification of the largest class action in American history. In Dukes v. Wal-Mart, more than one million potential plaintiffs are suing the retailer for gender discrimination. 

"The lawsuit, brought in 2001, accuses the retailer of systematically paying women less than men, giving them smaller raises and offering women fewer opportunities for promotion," The New York Times reports. "The plaintiffs stressed that while 65 percent of Wal-Mart's hourly employees were women, only 33 percent of the company's managers were." 

Considering the case en banc, the U.S. Court of Appeals for the Ninth Circuit sided with the plaintiffs by a vote of 6-5. Casting the deciding vote was Clinton appointee Judge Susan Graber, who wrote in concurrence, "If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members."

The Recorder reports: 

Judge Michael Daly Hawkins wrote Monday's majority 9th Circuit opinion, joined by Graber and Judges Stephen Reinhardt, Raymond Fisher, Richard Paez and Marsha Berzon. All were appointed by Democrats.

"It would be better to handle some parts of this case as a class action instead of clogging the federal courts with innumerable individual suits litigating the same issues repeatedly," Hawkins wrote in Dukes v. Wal-Mart, 04-16688.

Judge Sandra Ikuta dissented, joined by Chief Judge Alex Kozinski and Judges Pamela Rymer, Barry Silverman and Carlos Bea. All of them are Republican appointees except for Silverman, a moderate Clinton pick much like Graber.

Wal-Mart is expected to appeal the decision to the Supreme Court. Considering some observers' assessments of the Roberts Court as hostile to justice accessibility, plaintiffs' victory this week remains far from final.

[Image via Dystopos.]