Paying attention?

The Administration and the Supreme Court’s latest attacks on consumers

2018 July

Are you paying attention to what the Administration and the U.S. Supreme Court are doing?

That’s a rhetorical question. Since you are trial lawyers, I already know your answer. How can you not be paying attention to what the President, his Administration and the U.S. Supreme Court are doing?

We are all aware of the daily attacks on a list of targets too numerous to count. In this column, I’d like to focus on just two targets and one attack. The targets are consumers and employees and the attack is on class-action lawsuits

Regardless of the subject, this Administration and the conservative justices on the Supreme Court have made it clear that if it’s business versus consumers or employees, business wins. The latest example came in May when the U.S. Supreme Court ruled that employment agreements that ban class actions are lawful.

The 5-4 decision came in three cases and the opinion was authored by the newest conservative Supreme Court justice, Neil Gorsuch. During his confirmation hearings, we feared that Justice Gorsuch would be an unabashed advocate for business; now we know for sure.

That was the way Gorsuch’s opinion was viewed by Elizabeth Wydra, president of the Constitutional Accountability Center. She said in a law.com article, “Make no mistake, working people in this country will be hurt by today’s ruling, while the U.S. Chamber of Commerce will surely consider this an early return on their investment in President Trump’s highest profile judicial nomination.”

In his opinion upholding forced arbitration clauses, Justice Gorsuch wrote “The policy may be debatable, but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written.”

Justice Ruth Bader Ginsburg and the Court’s liberal minority didn’t see it the same way as Gorsuch, calling the majority decision “egregiously wrong” and calling on Congress to counter the decision.

Not surprisingly, the decision was applauded by the President, who has made it clear that one of the top priorities of his Administration is to overturn any Obama Administration actions that support consumers or employees against businesses.

Twenty-five million private sector employees have employment agreements that include arbitration clauses that force them to give up the right to class-action litigation. Those clauses are now upheld, and the current Administration couldn’t be happier. I imagine a lot of those 25 million are also registered to vote. Hopefully, they’ll remember in November when the mid-term elections come around with the entire House and much of the Senate up for re-election.

Not every trial lawyer is directly affected by this opinion and only a small number practice this type of law. But every trial lawyer knows that the denial of access to justice is counter to democracy.

The issue of forced arbitration agreements is more visible than ever in hot-topic issues such as privacy and workplace sexual harassment. The media is now regularly reporting about employees complaining of sexual harassment who are forced to an arbitrator rather than to a courtroom because of arbitration clauses in their employment agreements.

While the U.S. Chamber of Commerce advocates for pro-business legislation nationally, in our state it’s the California Chamber of Commerce that leads the fight to oppose legislation that benefits consumers and employees.

Any legislation that protects consumers is quickly slapped with the ubiquitous Chamber label of “job killer.” It’s just the opposite. More jobs are created when companies are incentivized to behave appropriately.

Not all elected officials agree with the Chamber.

State Senator Bill Dodd (D-Napa) had a simple answer to business’s concerns about a perceived threat of litigation. “If they do what they should be doing,” he said, “this shouldn’t be a problem.”

In addition to the Chamber labeling all pro-consumer bills as “job killers” they also tirelessly find ways to demonize the attorneys who represent consumers.

L.A. Times columnist David Lazarus was writing about a California Senate bill to safeguard the privacy of personal data, when he quoted from a California Chamber of Commerce letter against the privacy protection bill that stated, “(The bill) would unquestionably result in a barrage of shakedown data breach cases in California and would inevitably result in enormous payouts to consumer attorneys.”

Lazarus disagreed, and wrote a statement on behalf of trial attorneys when he said, “Got that? Good for attorneys = bad for consumers. It’s a tiresome argument. Yes, there would be class-action lawyers seeking to profit. Routine corporate settlements of legal disputes encourage such behavior. But the undeniable fact is that class actions represent consumers’ single most-powerful tool in holding businesses accountable for their actions (or non-
actions) in the case of providing (consumer safeguards).”

Access to justice for consumers and employees is not a priority for the current Administration, the U.S. or California Chamber of Commerce or the U.S. Supreme Court. But it is the number one priority for trial attorneys and the consumers and employees they represent.