Lucas,
Everyone is entitled to a day in court.
That adage expresses a basic American belief about how our system of justice should work.
But while business litigation clogs up the courts, for three decades or more corporations have pursued a relentless campaign to deny victims of corporate wrongdoing access to the justice system.
In the last few months, the Supreme Court has gifted Corporate America a pair of decisions that dramatically restrict the ability of victims to join together in class-action litigation, denying many access to justice altogether.
In April, the court issued AT&T Mobility LLC v. Concepcion. Last week, it handed down Wal-Mart Stores, Inc. v. Dukes. In Concepcion, a case Public Citizen argued before the Supreme Court, five justices* held that corporations could use fine-print provisions in contracts to deny consumers and employees the right to bring class actions. And in Dukes, a case in which we filed a friend-of-the-court brief, the same five justices not only shut down the largest employment class action ever filed, they established rules that will make it more difficult to for employees to join together in class-action suits.
These decisions are an affront to core American values and the rights of victims of corporate wrongdoing and violence.
Less well appreciated is how the civil justice system serves as a crucial system of corporate accountability. Restricting victims' rights not only denies justice to those directly injured by corporations, it removes vital checks on corporate power.
That's why the U.S. Chamber of Commerce and the Big Business lobby spend so much money propagandizing about the purported costs of the civil justice system, and why they have worked so hard for more than three decades to dismantle it.
That's also why fighting to keep the courthouse doors open is crucial not just to protect the rights of victims, but to sustain our democracy.
These are the reasons Public Citizen places so much importance on preserving the civil justice system and preserving and expanding access to justice.
Despite Concepcion and Dukes, there's no time for despair. The severity of the situation only makes it that much more important that we ratchet up our work to preserve and advance access to justice, using all available tools. You'll be hearing more from us in the months ahead about our plans and how we can work together.
Briefly, here's how we're going to proceed.
First, in the short and long term, we will intensify our education efforts on the role and importance of the civil justice system. Decades of propaganda from Big Business have confused many people about what is at stake and tricked many people into thinking frivolous litigation is imposing substantial costs on the economy. One small piece: I've included some notes below on the importance of the civil justice system in advancing corporate accountability. On a bigger scale: We are excited that an extraordinary new documentary, Hot Coffee , now showing on HBO, will help explain the issues to a mass audience. Joan Claybrook, Public Citizen's immediate past president, features prominently in the film.
Second, we will work to stop state and federal legislative efforts to implement Big Business-friendly legislation designed to strip victims' rights to redress. A top threat right now is H.R. 5 , which would impose caps on claims by victims of medical malpractice and otherwise limit the rights of victims of medical malpractice.
Third, we have to pursue sophisticated litigation strategies. We have to identify the limits of the Court's decisions and pursue litigation strategies that push up to their edges. The Dukes decision in particular leaves many questions unanswered.
Additionally, and mindful of the inherent difficulties we face, we must guard against further Supreme Court limitations on the functioning of the civil justice system. Our Supreme Court Assistance Project will work to further this objective.
Last, we are very aware that our fights are not -- and cannot be -- all defensive. We are strongly supporting the Arbitration Fairness Act, introduced by U.S. Senators Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) and U.S. Rep. Hank Johnson (D-Ga.), which would prohibit forced arbitration provisions in employment and consumer contracts. (Forced arbitration clauses are the fine-print terms that the Supreme Court says corporations can use to prevent class actions, as well as to strip away other rights of victims of corporate wrongdoing.) Winning passage of that legislation will be an uphill fight in the current Congress, but we have to build momentum now for eventual victory.
We are working hard to score nearer-term wins, as well. Thanks in considerable part to Public Citizen's work, the newly created Consumer Financial Protection Bureau and the Securities Exchange Commission have authority to ban forced arbitration provisions in contracts under their areas of jurisdiction. Whether they act on that authority will depend in significant part on how hard they are pushed.
You can be sure we intend to push hard on these and other matters, and we know we can count on you to be part of this effort.
We certainly face tough challenges. But together, we can do hard things. And we will.
Onward,
Robert Weissman
President, Public Citizen
*In case you were wondering, that would be Chief Justice Roberts and Justices Thomas, Scalia, Kennedy and Alito.
The Civil Justice System and Corporate Accountability
The Court's rulings in Concepcion and Dukes undermine the first and most direct function of the civil justice system: to give victims the right to seek redress for the injuries they suffer due to negligence or intentional wrongdoing. The system is supposed to afford victims the guarantee of individualized justice and impose a basic level of accountability on those with the power to inflict harm. Do wrong to someone, and you must pay for the damage you cause. But if it's not practically possible to bring class-action lawsuits -- as will be the case in a great number of instances, thanks to the twin decisions -- then this promise of justice is betrayed.
The social value of the civil justice system reaches far beyond the provision of individual justice, however. The civil justice system is a non-regulatory, self-generating system, not easily open to cooptation, that establishes rules for appropriate conduct, forces corporations to internalize the costs of the harms they cause, punishes those who behave egregiously, and drives other systems to restrain corporate power.
Any person injured by a corporation's product, practices, pollution or actions may file a suit against the company. They do not have to wait for a regulator to act.
Under the contingency fee system, plaintiffs can find lawyers who do not demand up-front payment. The lawyers face the risk of no recovery, in exchange for payment if the case succeeds. In such cases, individuals do not need deep pockets to file a case. The courts thus deliver an egalitarianism absent from other branches of government.
Victims have a right to demand their case be heard by a jury of their peers. Corporate defendants can bring in expert witnesses, and they can present mumbo-jumbo studies, but they ultimately have to convince a group of regular people, a cross-section of society, that what they did was okay. Lobbyists can't help them, nor will writing large campaign contribution checks. The jury hears facts and specific stories, and relates to real people; and then the jury arrives at a decision based on the evidence presented, not abstractions.
In the course of preparing for trial, plaintiffs may employ the discovery process, which gives them the power to demand internal documents and other information from the defendants. In corporate abuse after corporate abuse, the discovery process has played a key role in showing what corporations knew and when they knew it. The information then drives public opinion, gives insight to regulators, and pushes the regulators to act.
When plaintiffs prevail, and corporations are forced to pay for the harm they caused, they are forced to internalize the costs of their actions. This result works directly contrary to one of the overriding principles of the profit-seeking corporation, which is to foist the costs of its actions on someone else.
Finally, in cases of serious and knowing wrongdoing, juries may impose punitive damages on corporations. Punitive damages can change the cost-benefit analysis of corporate decision-makers, so that harms that seemed cost-effective no longer seem in the company's bottom-line interest. Whether juries will impose punitive damages, and how much, is unpredictable (though increasingly limited by courts and legislatures). That unpredictability further disturbs a corporate calculus that would otherwise authorize knowingly endangering people as "worth it."