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Flatow reports: "In case it wasn't clear already, the U.S. Supreme Court hammered home Thursday morning that it will protect the rights of corporations to force arbitration over the individuals' access to the court system at any expense."

Adbusters flag. (photo: Adbusters)
Adbusters flag. (photo: Adbusters)

Big Corporations Get Big Protection From Supreme Court

By Nicole Flatow, ThinkProgress

24 June 13


n case it wasn't clear already, the U.S. Supreme Court hammered home Thursday morning that it will protect the rights of corporations to force arbitration over the individuals' access to the court system at any expense.

In a 5-3 ruling with Justice Sonia Sotomayor recused, Justice Antonin Scalia eviscerated almost any opportunity small merchants have to challenge alleged monopolistic practices by American Express in their credit card agreements.

Sound familiar? Earlier this term, the court turned back on procedural grounds a lawsuit alleging monopolistic practices by Comcast. A week after that, they turned back the claims of workers to challenge employer practices as a class. And in 2011, they issued one of the worst blows to consumer rights in years when they held that consumers challenging $30 fees could not sue together as a class. In each of these cases, the court's procedural rulings mean the parties may never get to argue about whether these corporations actually violated the law. And as a consequence, these corporations may never be held accountable.

With Thursday's ruling, the court added small businesses to the list of aggrieved parties whose access to the courthouse has been foreclosed by boilerplate contracts that prohibit parties from filing their challenge as a class, or from otherwise alleviating the immense cost of filing their claims individually. This time, the litigants were small businesses taking on American Express, and their lawyer was none other than conservative powerhouse Paul Clement. Clement has argued many of the major conservative court wins of the past few years, and his argument on the side of the plaintiffs was probably the last best shot at curbing the Roberts Court's total perversion of the Federal Arbitration Act.

As in the AT&T case, the plaintiffs here argued that the only way they could challenge the policy of mega-corporation American Express was by banding together as a class and pooling their resources. But consumers' claims in AT&T were struck down on a different rationale, that their state law claims were preempted by the Federal Arbitration Act. This time, the plaintiffs argued that because their antitrust claims are federal , they are protected by the principle of "effective vindication," meaning that where an arbitration clause effectively immunizes otherwise meritorious federal claims, plaintiffs are entitled to vindication of their actual rights. To show that that the arbitration clause would make any challenge prohibitively expensive, they deployed formal affidavits by economists attesting to the immense cost of these claims - "'at least several hundred thousand dollars, and might exceed $1 million'," while the maximum recovery for an individual plaintiff would be $12,850, or $38,549 when trebled," meaning they could not afford to launch their claims without the ability to file them together.

No matter, said the majority. In AT&T, "[w]e specifically rejected the argument that class arbitration was necessary to prosecute claims 'that might otherwise slip through the legal system'." This case is about federal law vindication and AT&T was about state law preemption, but as Justice Elena Kagan wrote in dissent, "to a hammer everything looks like a nail." Joined by Justices Ruth Bader Ginsburg and Stephen Breyer, Kagan explains the case this way:

Here is the nutshell version of this case, unfortunately obscured in the Court's decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract's arbitration clause prevents him from doing so.

That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool's errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability-even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.

And here is the nutshell version of today's opinion, admirably flaunted rather than camouflaged: Too darn bad.

That answer is a betrayal of our precedents, and of federal statutes like the antitrust laws.

Today's ruling was yet another point in the Chamber of Commerce's remarkable tally of wins before the Roberts Court, and another chance for the most business-friendly justices in 65 years to side with their friends. your social media marketing partner


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+23 # Third_stone 2013-06-24 16:08
The beginning of this story was the disappearance of the $100 bill, which would have made it practical to go without a credit card. In small bills we cannot carry a week's cash in one pocket. What makes it possible for these banks to rape us and to buy supreme court decisions is that you will use it. If we all punished those who rob us so freely, they would learn not to do it. If we all bought only from ethical merchants, there would be more of them very quickly. When the most profit is made by being unethical, that is where the herd will be.
+5 # Walter J Smith 2013-06-25 07:00
It is a common refrain across the US Political Spectrum to say some variation of, "if everyone thinks like I do then we can all get along and do fine."

That is no way to build trust with the majority of people who do not think like you or I.

Just because an idea or proposal is easy to think does not make it a viable response to a challenge.

First we must build trust.

We cannot build trust with people, like bankers and Wall Street investors who want to plunder us, and can easily buy the political support to make that plundering legal.

The elected bipartisan majority has no problem with that plundering, and they have no problem selling (or leasing, one vote at a time) their votes to the highest bidders. Why not help pointing out the obvious, so we can all see that we are radically in need of different parties to elect?
+21 # Anarchist 23 2013-06-24 17:45
SCOTUS: upholding the motto 'The Greatest Evil For the Greatest Number' with their decision of 'Heads I win, Tails you lose.'

Nihilism-"the devaluation of all values" Nietzsche

What else can you expect of 'justices' nominated by the party of the 3 down-ward pointing pentagrams (5-pointed stars) on Official GOP elephant Logo?

Is it Fascism yet?
+7 # Walter J Smith 2013-06-25 07:05
It is fascist anarchy. And the GOP doesn't have the White House or the Senate. Yet the White House and the Senate go along with the fascist anarchy as if there were no difference on that issue between the leaderships of the two parties.

Maybe there is no difference between them. Obama talks a good line.

But remember, he hate and is obsessed with eradicating truth-telling, and he is supported by Nancy Pelosi and Diane Feinstein and Chuck Schumer, all of whom, along with an apparent agreeing silent majority of elected Democrats who agree that telling the truth about our government's anarchic & fascistic spying on everyone is treason, terrorism, spying (as if the official spying were perfectly appropriate).

The Democrats are in the sleazy cheezy along with the GOP. Denial of that is not helpful
+7 # ligonlaw 2013-06-25 00:05
Judges, as a group, are mathematically impaired. Few judges have enough education in economics to be qualified to make essentially economic decisions. Justice Scalia may be unaware of the extent to which his ignorance of economics causes real harm to a competitive market or it may be that Scalia and his right-wing colleagues are comfortable with an economy dominated by a few monopolies. The pattern of decisions by the right wing shows an indifference to the creation of powerful monopolies. The concentration of power into a few vast multinational corporate entities along with the willingness of the Congress to sell themselves to these corporations sets the stage for a trend toward a marriage of big business and big government. Add to that marriage, a superstructure of unfettered surveillance. Heck of a job, Tony!
+6 # maddave 2013-06-25 00:35
I submit that a national boycott of American Express (or any other fat cat corporation) by both retail establishments and customers would bring the giant to its knees.

This is a project that is right up the Occupy folk's alley! They need of a victory, and AmExp's cash-cow cards are a prime target.

My AmExp card will get cut in half & mailed back immediately upon hearing/seeing a boycott announcement . In the interim it lies, unsued, in a drawer.
+1 # RLF 2013-06-25 05:34
Sotomayor is recusing herself half of the time. Scalia and Thomas never. The timidity of the Obama appointee is a real credit to Obama...just the kind of people he likes. You know she won't recuse herself if it is a leaker decision!
+8 # Harbinger 2013-06-25 05:36
Does this mean that Clarence Thomas will not be able to sue the Coca Cola company for that pubic hair on his Coke can?

Or has the statute of limitation run on that one?
+4 # Walter J Smith 2013-06-25 06:56
The most irresponsible, most reckless, most ignorant, most dangerous, most arrogant, most unworthy, most inconsiderate, most disrespectful, and least capable ethos the civilized world has ever seen in power, and it is in the most powerful empire every created, now rules.

Obama the spineless bully just goes along as if he never learned anything about decency. All that campaign rhetoric was just designer rhetoric the purpose of which was to sell a smiling, 'good speaking' version of Dick Cheney.

And he is still popular among Democrats.

Both parties are suppported by oblivious majorities in their own ranks.

The good news: the GOP is obliviou to its electoral prospects nationwide. The Democrats are oblivious to their own constituency. If we are honest, decent, forthright citizens, we are terrorists, spies, traitors, or worse.

Just ask Nancy Pelosi, or Diane Feinstein, or Barack Obama or Chuck Schumer. Only about 90% of the elected democrats agree with those extremists who favor the ruling ethos that made Hitler powerful.

The primary difference between today's bipartisan chieftains and Hitler, is that unlike Hitler, our nazis don't want to exterminate the Jews.

A good consolation, but not enough.
0 # Mannstein 2013-06-25 19:44
They don't want to exterminate the Jews because they fear them.
+4 # tuandon 2013-06-25 08:47
Well, it's just one more nail in the coffin of Democracy (if we ever actually HAD one in this country) and it opens the lid of the coffin to the Corporate Fascism that seems to be thundering down on us. Anyone who thinks these corporations are concerned with OUR freedom is naive at best and stupid at worst.
+2 # Merschrod 2013-06-25 09:05
This is an interesting case becasue it pitted mainstreet chamber of commerce against wall street chamber of commerce. It should be clear to the samll folks (the heart of middle class business - sort of like farmers and GMO) that the system is no longer one of equal opportunity and that théy'd better get their act together and form a new party of Lincoln - suggestion, call on Ralph Nader he is mobilizing for two new parties to replace the jokers who put the SCOTUS into those robes.

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