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Saturday, April 30, 2011

Injustice of the week: Supreme Court Give Big Business License to Steal

Injustice of the week: Supreme Court Give Big Business License to Steal...

The Corporate Supreme Court is getting good at this. You would  better with a Taliban Tribal Council than with the "gang of five" on almost any civil justice issue. I am serious you really would as one of the Taliban courts guiding principles is equity and justice. These guys are the "Goldman Sachs" of the judicial world. Never meet a monied interest they didn't like. Dark days are ahead for the few rights left for average AAmerican citizens. Maybe it is time to start dusting off the court stacking plan, or at least maybe we can get with the tea party and just eliminate 90% of their budget. If some of these guys actually had to live in the real world and maybe be forced to sign about 20 of these things a day, maybe they would have a different view point. I doubt it though as when you have no empathy for average Americans it doesn't matter.  I just hope they don't put giving up your religion, right to vote, or habeus corpus on an arbitration clause cause or these guys will damn sure go for it. In Minnesota a major corporation is already arguing that you can arbitrate out of a Federal Sherman anti-trust violation. (criminal abuse of monopoly power) This will soon be law of the land I have no doubt. Rather than give you a full analysis I am just going to be lazy and post my favorite articles. Basically ATT got caught screwing customers for a few dollars a month on bogus tax charges. (Do you really all those tax and access charges on your cell bill are correct) They got sued in a class as no way you can litigate a case over 60 bucks, but 60 times 1000 or 1000000 you can. ATT has a provison in its agreement as does Cellular South, Comcast, Your bank, Blue Cross and everyone other big Corporation saying they can not be sued in a class or any collection of cases and each claim must be arbitrated individually. As arbitrations are not free and cost a minimal of $1,500 a piece any one taking these cases would lose at least $1400 dollars even if they won.  Get it, it is a license to steal. (Unless you happen to live in California or Washington as theses Supreme Courts have said such provision violate their state constitutions. (Until Big Business finds a way to get this in front of the "gang of five" on Federal Due process or something.

This is the print preview: ack to norma view »
David Arkush

David Arkush


U.S. Supreme Court to Major Corporations: You Write the Rules

Posted: 04/28/11 05:06 PM ET
On Wednesday the U.S. Supreme Court sided with AT&T in AT&T Mobility v. Concepcion -- a decision with devastating consequences for consumer protection and civil rights. In essence, AT&T asked the court to allow it to use the fine print of contracts to eliminate class actions, a practice that flouts the laws of 20 states. In a 5-4 decision, the court granted AT&T's request.
The case's potential impact is breathtaking. Corporations can now prevent consumers and small business owners from exercising what is often their only real option for challenging companies that defraud them by millions or even billions of dollars: banding together to file class action lawsuits. The case could be equally devastating to millions of non-union employees, who need class actions to challenge systemic discrimination by their employers. The Supreme Court has given major corporations the green light to engage in nearly limitless wrongdoing against others, so long as they do it in relatively small dollar amounts, which ensures that no one can afford to challenge the misconduct without a class action.
A sudden demise of class actions will shock the markets and the legal system. It will dramatically increase the market power of major corporations over ordinary Americans and small business owners, who are already outmatched. Innumerable laws that protect the public will become irrelevant because few people can enforce them.
Yet for all these far-reaching implications, AT&T's achievement is remarkably ordinary. The company has secured a state of lawlessness similar to the one that allowed banks to foreclose on millions of homeowners without showing evidence that they had the right to do so. It has achieved a deregulatory regime similar to those that tanked the economy and destroyed millions of jobs, devastated the Gulf of Mexico with oil, allow thousands of preventable workplace deaths every year and threaten untold upheaval through climate change. Like the big banks, the oil and coal companies and the mine operators, AT&T simply wants to write its own rules. It's doing just that, through a practice that has become so ordinary we hardly notice the absurdity and injustice anymore: writing one-sided contracts and imposing them on others.
Why corporations are permitted to do anything important through standard-form contracts is somewhat of a mystery. Companies hire armies of lawyers to draft and redraft these contracts, claiming every new advantage they can wring out of legal developments. They secure "consent" by holding our credit cards or cell phones for ransom, saying we must submit to the new terms or immediately stop using them. Some companies even do this with people's jobs, telling employees they must sign new contracts or be fired (never mind that contract law is supposed to be based on mutual consent).
The average American is deluged with hundreds of thousands of fine-print words each year that no one reads and no one understands -- but that everyone is bound by. Avoiding these contracts is impossible unless one eschews most consumer products and services. Courts uphold adhesion contracts with a breeziness that is astonishing, especially since judges themselves don't read the fine print (John Roberts, chief justice of the U.S. Supreme Court, has said he doesn't read it). The effect is nothing short of privatization of the law, with major corporations writing the rules and imposing them on the rest of us.
If recent crises have taught us anything, it's that disaster follows quickly when companies have too little oversight. AT&T is pushing the outer limits of deregulation, seeking a world in which companies can use one-sided contracts to grant themselves immunity from accountability for a vast range of wrongdoing. Concepcion represents a giant leap toward a dystopian legal system that the Supreme Court should have rejected out of hand -- lawlessness for major corporations and corporate-made law for the rest of us.
But the Court rubber-stamped AT&T's scheme, so we need the Congress and administrative agencies to protect us. The Dodd-Frank Wall Street Reform and Consumer Protection Act gives the new Consumer Financial Protection Bureau (CFPB) and the Securities and Exchange Commission (SEC) the authority to eliminate abuses like AT&T's within their jurisdictions. The CFPB and SEC should get to work quickly. To solve the problem in every industry, not just financial services, Congress should pass the Arbitration Fairness Act, which Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) and Rep. Hank Johnson (D-Ga.) plan to introduce next week.
Sign a petition to support the Arbitration Fairness Act.

Nan Aron


AT&T Mobility v. Concepcion: The Corporate Court Does it Again

Posted: 04/29/11 11:46 AM ET
The Corporate Court is at it again. This time the case is AT&T Mobility v. Concepcion, and this week's 5-4 decision in favor of the cell-phone giant is yet another far-reaching betrayal of some of the most fundamental principles of American justice.
In this case, big business, with AT&T as its stalking horse, asked the Supreme Court to protect it from all those cheeky consumers and impudent employees who might have the temerity to complain that they're being ripped off or discriminated against. The ultra-conservative majority on the Court found a way to keep all those annoying individuals from banding together in group arbitration or in the courts, where they would have the benefit of lawyers and all those pesky constitutional rights and rules of civil procedure.
The result of the decision by Justices Scalia, Roberts, Thomas, Alito, and Kennedy is to make sure that when people like you enter the legal arena against a corporation, you go all by yourself into a system that's rigged against you.
Even if your name isn't Concepcion or you don't have an AT&T cell phone, this case is about you. Almost all of us operate in a world filled with employment agreements or corporate contracts for things like cell phones, credit cards, or online accounts. But if at some point you discover you've been cheated or your civil rights have been violated, you'll find that that you've signed away your ability to enter a courthouse to fight back. In this country, you can't buy a cell phone or take a job without agreeing to disempower yourself.
The culprit is right there in the fine-print or in the lengthy agreement you scroll through without reading before you click on the button that says, "I agree." The contract mandates that if the company does you wrong, you're absolutely forbidden to get together with others similarly harmed and sue in court or demand group arbitration. If you still want to complain, you have to submit to binding arbitration for your case alone. And who sets up the arbitration system? Why, the corporation, of course!
California had a rule that agreements that compel consumers or employees to give up their rights to form class actions are "unconscionable," and therefore invalid, when they protect companies that try to cheat lots of people out of small sums. The Supreme Court this week said that the Federal Arbitration Act was in conflict with California's rule, even though all of the Court's past rulings and the long-standing interpretation of the statute said otherwise. (So much for conservatives' belief in states' rights. When the conflict is between profits and principles, this Court has a clear favorite.)
Thanks to the Court, corporations are now free to write contracts that legally bar you from challenging them in class-action lawsuits or even group arbitration, no matter what they do to harm you. There is no mystery why the Chamber of Commerce and several large corporations filed briefs in this case.
The upshot is that corporations will now be able to decide on their own which civil rights and consumer protections they want to obey, knowing that there will be no effective means available to their victims to find redress. Even worse, not only has the radical conservative majority damaged the ability of consumers or employees to find justice, it has effectively removed any incentive for corporations to behave within the law in the first place. Why act lawfully if your victims are helpless, especially in cases like this when the harm to each individual is small but the potential for profit is huge?
This case, after all, was about a $30.22 charge for a "free" cell phone. That amount is so small that almost no one would go through the hassle and expense of fighting it out with the company one-on-one, especially in a system that's rigged by the corporation. AT&T counted on that. You can make a lot of money taking $30 at a time from hundreds of thousands of people. But if those people are able to unite with others who were similarly ripped off, suddenly the cost/benefit equation changes. With enough money at stake to make a class-action suit feasible, not only can lots of consumers get justice who otherwise might not bother, but the prospect of a big payout provides an incentive for the company to act responsibly.
But as of yesterday, that possibility is gone.
This Corporate Court, at the behest of big-business interests, is systematically draining away the rights of everyday Americans. This misguided decision must not be allowed to stand. Congress should act swiftly to end forced arbitration in civil rights, consumer, and employment disputes and restore the ability of every citizen to use the courts to find justice.

An Alliance for Justice report summarizing the facts and issues of the case, "AT&T Mobility v. Concepcion: Will the Supreme Court Give AT&T a License to Steal?" can be downloaded here.
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Supreme Court ruling is bad news for consumers

It went nearly unnoticed in a week of royal matrimony and birth certificates. The Republican-appointed majority on the Supreme Court gave corporations a major victory at the expense of consumers. The ruling bars class action lawsuits that allow unhappy customers to band together to fight unfair business practices.
The case came from California, where a couple had bought a discount cell phone and were surprised by a $30 fee based on the full purchase price. They sued on behalf of other ill-treated customers, but the cell phone firm, AT&T Mobility, fought it all the way to the high court, which ruled in favor of the company.
Not to worry, said the court majority, because each case can go to arbitration, as provided by a 1925 federal law. The bundling of complaints into class action lawsuits isn't allowed under the statute.
But that reading was simplistic and naive, the dissenting judges said. The law allowed for exceptions to the arbitration-only rule. More important, it put consumers in an impossible position: spend time and effort to go through arbitration for a small sum, knowing that no lawyer will take a case for the measly amount at stake.
The case blesses shady business tactics. Firms can get away with credit card overcharges, unauthorized fees or a phony bill because a showdown class action lawsuit isn't allowed. The ruling casts a shadow on another case before the high court in which 1.5 million women are seeking to bring a class action case against Wal-Mart for sex discrimination.
Congress could fix the situation by mending the arbitration law to allow for group lawsuits. But that's hard to imagine given the pro-business GOP majority in the House, no doubt delighted by the ruling.
Another path could be rules put forward by the new federal Consumer Financial Protection Bureau, created as part of a package of Wall Street reforms. That route will take time as the new agency, appointed by the Obama White House, establishes itself.
But the need should be clear. Consumers demand protections, not a runaround, when unfair treatment occurs. The court decision shouldn't be the last word.
This article appeared on page A - 9 of the San Francisco Chronicle

Read more:

Supreme Court: AT&T can force arbitration, block class-action suits

The Supreme Court on Wednesday ruled that AT&T—and indeed, any company—could block class-action suits arising from disputes with customers and instead force those customers into binding arbitration. The ruling reverses previous lower-court decisions that classified stipulations in AT&T's service contract which barred class arbitration as "unconscionable."
The particular case at hand, AT&T Mobility LLC v. Concepcion, stemmed from a California couple (the Concepcions) that had been charged sales tax on mobile phones that AT&T had advertised as "free." The couple believed the charges were unfair and constituted false advertising and fraud on the part of AT&T. They filed a lawsuit against AT&T, which was later promoted to class-action status. AT&T attempted to have the case dismissed on the grounds that its service contract requires individual arbitration and bars "any purported class or representative proceeding."
AT&T and others have similarly tried to have class-action cases dismissed on these grounds, though state supreme courts in both California and Washington have held that contractual waivers for class arbitration or litigation are "unconscionable" and therefore void based on those states' consumer protection laws. Using this reasoning, courts have allowed class-action lawsuits to proceed despite the contractual requirement for individual arbitration.
AT&T appealed the case to the Ninth Circuit, though the court noted that section 2 of the Federal Arbitration Act states that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." Since California consumer protection laws allow "unconscionable" contract clauses to be vacated, and the FAA includes the provision that arbitration agreements could be ruled unenforceable if law provided for the revocation of the contract, the Ninth Circuit ruled that the class-action case could proceed.
In a 5-4 ruling, the Supreme Court disagreed with the lower court's decision. In his majority opinion, Justice Scalia argued that the purpose of the FAA was designed to promote arbitration over more costly and lengthy litigation. Quoting an earlier ruling by the court, Scalia explained that "[a] prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and expeditious results,'" and that requiring the class-action litigation to proceed would be at odds with the intent of the FAA and the benefits that arbitration agreements ostensibly provide.
Justice Breyer, in his dissenting opinion, noted that the saving clause in the FAA left ground for individual states to determine how a contract or its clauses may be revoked. "[R]ecognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California's law, not to strike it down," he wrote.
The decision, which fell precisely along ideological lines, could have far-reaching effects on consumers' ability to challenge corporations in court over future disputes. In cases where an unfair practice affects large numbers of customers, AT&T or other companies could quietly settle a few individual claims instead of being faced with larger class-action settlements which might include punitive awards designed to discourage future bad practices.
Tried to find someone to defennd this injustice but couldn't. Please email me if you can find rational defense of the onion. Soo here is WSJ, best I can do right now.

After AT&T Ruling, Should We Say Goodbye to Consumer Class Actions?

goodbyepartyLast November, we ginned up this blog post about a Supreme Court case that, were it ruled on in favor of AT&T, could spell the death-knell of consumer class actions.
Well, on Wednesday, the Supreme Court rendered its decision in the case, AT&T Mobility v. Concepcion, with AT&T garnering a winning five votes.
And should we prepare that going-away party? It’s too soon to know, of course, but this is the outcome predicted by Vanderbilt Law Professor Brian Fitzpatrick last year. Wrote Fitzpatrick:
If the court goes down AT&T’s path, the consequences could be staggering. It could be the end of class action litigation. . . . [V]irtually all class actions today occur between parties who are in transactional relationships with one another: shareholders and corporations, consumers and merchants, employees and employers. Because they are in transactional relationships, they are able to enter arbitration agreements with class action waivers.
Once given the green light, it is hard to imagine any company would not want its shareholders, consumers and employees to agree to such provisions.
Okay, okay. But we just might be getting ahead of ourselves. Let’s back up.
Vincent and Liza Concepcion sued AT&T for deceptive practices because the company allegedly advertised discounted cell phones but charged sales tax on the full retail price. So the Concepcions sued on behalf of a class of consumers who’d also allegedly overpaid.
Thing is, the contract with AT&T, as such contracts typically do, required all claims to be resolved through arbitration, and that the arbitration could not move forward as a class.
Both a California federal district court and the Ninth Circuit struck down the contract, ruling that it was imposed upon consumers and therefore violated public policy.
AT&T appealed, arguing that that the Federal Arbitration Act pre-empts state contract law and allows class-action exemptions when they’re combined with arbitration.
On Wednesday, the Supreme Court, in an opinion written by Justice Antonin Scalia, agreed with that analysis, ruling that the company can enforce a contract provision that requires customers to arbitrate their disputes individually. Click here for the 39-page opinion (18 of which compose Scalia’s opinion); here for the WSJ story; here for Scotusblog’s page on the case.
Joining Scalia were Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito. Justice Stephen Breyer penned a dissent, which was joined by Justices Ruth Bader Ginbsurg, Sonia Sotomayor and Elena Kagan.
Scalia said allowing the case to proceed as a class action would run afoul of a federal law that promotes arbitration. “States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons,” Justice Scalia wrote.
In his dissent, however, Breyer said requiring consumers to arbitrate cases on an individual basis could lead claimants to abandon small-money cases rather than litigate.
“What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?”

Bet some of you nonlawyers are looking at the cable bill contract, huh. We lawyers know it is there. (LOL)

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