Supreme Court Term In Review For Consumers, Employees and Injured Persons

It’s that time of year again. The United States Supreme Court, the least productive court in the nation, is back on summer recess until October. Let’s review what they imposed upon us over the past nine months.

I’ve written before about the problems with the Supreme Court. They change the rules of their own games to reach preferred results. They brush off facts they don’t want to deal with. Even if they get things right, they write opinions of minimal use to lower courts, much less practicing attorneys. To add insult to injury, they give out hypocritical and erroneous advice to attorneys on how to write briefs.

So how did we — as in, We the People – do this year? I’m a civil lawyer, so I’ll set aside criminal law, except to point out that criminal defendants had a mixed bag. For example, Skinner v. Switzer will help ensure that the people in jail actually committed crimes, but Kentucky v. King cuts yet another hole in the Swiss cheese we call the Fourth Amendment. I’ll also put aside for another day the business cases, and focus today on consumers, employees, and injured persons.

The big news was, of course, Wal-Mart v. Dukes and AT&T v. Concepcion, which hammered a few more nails in the class action coffin, giving big corporations even more leverage to cheat their employees and consumers. Litigation is expensive, so, without class actions, big corporations can reap billions in profit by skimming anywhere from pennies to thousands from individuals without worrying about each cheated person bringing a lawsuit. As Justice Breyer dissented in the Concepcion case:

What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim? The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.

The Washington Post has the prettiest of the term-in-review pages. Here’s what a couple court-watchers had to say about the 2010-2011 term:

  • Dahlia Lithwick concludes “The Supreme Court show[ed] corporate America how to screw over its customers and employees without breaking the law” in Wal-Mart v. Dukes, AT&T v. Concepcion, and Janus Capital Group, Inc. v. First Derivative Traders. (I also discussed the Janus opinion.)
  • Andrew Cohen pulls together the best dissents of the term and drew his own conclusions from the overall opinions, including “There is a dogged majority on the Court — all conservatives — who continue to bend over backward to help corporations at the expense of individuals. We saw it earlier this month in the Court’s Walmart class-action ruling. And we saw it earlier this year in the Court’s [Concepcion] arbitration ruling, which devastated the rights of consumers.”
  • Ian Millhiser has a five-part review, beginning here, also focusing on Wal-Mart v. Dukes and AT&T v. Concepcion, “The single most significant development this term is a pair of 5-4 decisions that will effectively eliminate millions of consumers and workers ability to bring class actions in the future.”

Beyond Wal-Mart v. Dukes, AT&T v. Concepcion, and Janus, there are other, lower-profile opinions that nonetheless directly affected We the People.

There were, thankfully, two bright spots: employees who were retaliated against for filing discrimination claims didn’t lose any more protections and car manufacturers can’t always dismiss crashworthiness lawsuits merely by meeting the federal minimum safety standards.

In other fields, though, wrongful conviction civil rights cases became even harder, accident victims can’t sue foreign corporations — even subsidiaries of U.S. companies — unless the foreign companies’ conduct in the victims’ state caused the accident, and, whistleblowers can’t use FOIA to investigate government fraud claims.

Here are the specific cases, with links to the opinions:

  • Connick v. Thompson, which threw out a civil rights claim based upon a district attorney’s office’s failure to ensure its prosecutors knew and followed the basic constitutional under Brady to turn over exculpatory evidence to criminal defenses. As I called it, Ignorance of the Law is No Excuse, Unless You’re A Prosecutor. This case further lowers the bar for district attorneys and makes it harder for the wrongfully convicted to recover compensation.
  • Synder v. Phelps, which threw out an intentional infliction of emotional distress verdict against the Westboro Baptist Church on First Amendment grounds because, as the Court summarized, “Simply put, the church members had the right to be where they were.” The opinion was hailed as a victory for free speech, but I dissented. Protestors are routinely intimidated, arrested, and jailed by police despite having a “right to be where they were” without the Supreme Court batting an eyelash. The difference here, IMHO, was that the case involved a civil judgment arising from a tort claim, and we can expect to see all sorts of bad actors — jilted lovers, stalkers, marketing scammers, and the like — claiming “free speech” under the Synder opinion.
  • Kasten v. Saint-Gobain, which held that, under the anti-retaliation provisions of the Fair Labor Standards Act, employers could not fire employees for orally complaining about the employer’s violation of the Act. It was well-accepted that employees could not be fired over written complaints; Kasten is a good opinion that recognizes the obvious reality that most employment complaints are oral, not written, and those complaints should be protected just the same.
  • Williamson v. Mazda Motor, which held that Federal Motor Vehicle Safety Standard 208, which requires seat belts in the rear seats of passenger vehicles, does not preempt a state tort suit alleging that a minivan should have had not just a lap belt, but a lap-and-shoulder belt in a rear inner seat. Williamson is another good opinion which recognizes, at least in this circumstance, that federal regulations usually proscribe a certain minimum level of safety required for federal approval, rather than imposing a maximum level of safety that no state court can ever say should be higher. This is good for consumers: unless you trust the federal government agencies to be all-knowing and free from lobbying influence, civil tort suits need to remain an option both for compensation and to encourage safer products.
  • Thompson v. North American Stainless, which held that employees may bring retaliation claims under Title VII when they suffer an adverse employment action due to a relative or close associate’s filing of a discrimination complaint. Good for employees: corporations can’t strike at your family members and friends after you stand up to discrimination.
  • Goodyear Lux. Tires, SA v. Brown, which held that state courts don’t have jurisdiction to hear tort lawsuits against a foreign subsidiary of a U.S. company unless that foreign company’s conduct within the state was related to the accident. (Before the opinion, I wrote a little bit about the case here — it’s an example of corporations outsourcing responsibility alongside jobs.)
  • J. McIntyre Machinery v. Nicastro, which held that state courts don’t have jurisdiction to hear tort lawsuits against foreign companies whose products end up causing injuries in those states unless the foreign company specifically directed its marketing or business activities at that state. Along with Goodyear, this case makes it harder for hold foreign companies accountable for dangerous products, since the foreign companies typically conduct their activities through distributors — even distributors they own can offer protection, as in the Goodyear case above.
  • FCC v. AT&T, which held that corporations can’t invoke the “personal privacy” exemption under the Freedom of Information Act (“FOIA”). I wrote about the case before the opinion here, and was quoted in an article about it here.
  • Schindler Elvtr Corp. v. US ex rel. Kirk, which held that a relator in a False Claims Act case can’t rely on information obtained through FOIA to support their qui tam claim. This case makes it harder to investigate and prevail in whistleblower cases, which were already among the most expensive and riskiest cases around.
  • CSX Transportation v. McBride, which held that the Federal Employers’ Liability Act incorporates a broad view of factual causation, i.e. that an employer can be held liable if they contributed in any way to the accident, rather than being able to defend the action by claiming their contribution wasn’t significant enough (“proximate causation).

Other than Kasten, Williamson, and Thompson, consumers, employees and accident victims all lost a lot of ground this term. The real winners this year were again big corporations. The bigger your corporation, the more you won; opinions like Dukes and Concepcion and Goodyear don’t mean anything to small businesses, but are worth billions to the Fortune 500.

Let’s keep our fingers crossed the damage next year isn’t so bad.

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  • Michael Carin

    The CSX v. McBride offers a fascinating illustration of the mental gymnastics of Justice Roberts, Scalia, Alito, and Kennedy. The decision also turns on Justice Thomas rather than Justice Kennedy. The Corporate 5 typically wrap their decisions around “originalism”, which Scalia fondly defines as “if its not in the Constitution, then Congress should act.” Here, Congress acts and creates a statutory based tort as that which “results in whole or in part from [railroad company] neligence.” Incredibly, Justice Thomas defects and sides with the majority – although offers no opinion as to his legal reasoning. Justice Ginsburg writes the majority opinion and embraces the statutory language. The remaining Corporate 4, however, argue common law interpretation! The only conclusion to draw, in my humble opinion, is that judicial activism exists in the eye of the beholder.

  • Mimi

    OK , I see your point , but as I am not from the branch, could you please specify , what a citizen can do about that? And also would like to ask you , if I am a normal consumer , what can I do? Thanks and Regards
    Removal and Storage

  • Kay L Van Wey

    Great article. I think the Pliva v. Mensing case was the biggest blow to consumers. Justice Thomas sidelined consumers’ ability to hold generic drug manufacturer’s responsible for failure to warn of the known dangers of their prescription drugs. As Justice Sotomayor wrote in her dissent, the decision could have “…troubling consequences for drug safety”.