THE
SUPREME COURT – NOTHING BUT SLUTS FOR WALL STREET! ABOUT LIKE THE WHITE HOUSE
AND CONGRESS!
..in American, it's ALWAYS about the BIG GUY fucking over the average person that spends his life struggling against Wall Street's looting!
The Supreme Court
Just Made It Easier for Big Business to Screw the Little Guy
The
far-reaching consequences of the American Express v. Italian Colors decision.
In
a little-known case called American Express v. Italian Colors Restaurant,
the Supreme Court today issued yet another decision [1] making it easier for big
corporations to use their market power to screw over consumers and small
businesses. Thursday's 5-3 decision affirmed the right of big corporations to
use mandatory arbitration clauses in contracts to force small businesses to
challenge monopolistic practices in private arbitration rather than through
class actions in court. The case shows once again that the conservative
majority, led by Chief Justice John Roberts, has no problem with judicial
activism when it comes to bolstering corporate power.
The
case, Italian
Colors v. American Express [3],was brought by a California Italian
restaurant and a group of other small businesses that tried to sue the credit
card behemoth for antitrust violations. They allege Amex used its monopoly
power to force them to accept its bank-issued knock-off credit cards as a
condition of taking regular, more elite American Express cards—and then
charging them 30 percent higher fees for the privilege.
The
small businesses’ claims were pretty small individually, not more than around
$5,000 per shop. So, to make their case worth enough for a lawyer to take it,
they banded together to file a class action on behalf of all small businesses
affected by the practice. In response, Amex invoked the small print in its
contract with them: a clause that not only banned the companies from suing
individually but also prevented them from bringing a class action. Instead,
Amex insisted the contract required each little businesses to submit
to the decision of a private arbitrator paid by Amex, and individually press
their claims. (Arbitration is heavily stacked in favor of the big companies, as
you can read more about here [4] and here [5].)
The
restaurants estimated, with good evidence, that because of the market research
required to press an antitrust case, arbitration would cost each of them
almost $1 million to collect a possible maximum of $38,000, making it
impossible to bring their claims at all. After a lot of litigation, the little
guys prevailed in the 2nd Circuit Court of Appeals, which found that
the arbitration clause was unconscionable because it prevented the plaintiffs
from having their claims heard in any forum. The court said the arbitration
contract should be invalidated and that the class action should go forward in a
regular courtroom. (Sonia Sotomayor sat on one of the appeals before
heading to the high court and is recusing herself from the case as a
result.)
The
2nd Circuit repeatedly voted in favor of the merchants. It heard the case at
least three times, including once after the high court reversed its original
decision in favor of the restaurants, and it seemed fairly united in its belief
that the Amex contract was unenforceable. But the Roberts Court has been
no friend of small businesses or consumers, particularly those seeking to bring
class actions against big companies. The court's conservative majority has made
class action litigation much harder to bring, mostly notably in 2011 when it
struck down a huge sex discrimination case brought by 1.5 million women working
at Walmart.
That's
one reason public interest lawyers have sounded the alarm about the Amex
case for a year, noting that, given the court's current makeup, the case had
potentially awful implications for anyone ripped off while using a credit card
or cellphone and for small businesses trying to fend off corporate
monopolies.
In
an amicus brief submitted in this case on the side of the small businesses,
lawyers for AARP, Public Justice, and the American Association for Justice
[6] warned that if the court sided with Amex, "statutes intended by
Congress to protect weaker parties against stronger parties will essentially be
gutted. Small businesses might as well move to a different country where they
no longer enjoy the protection of the antitrust laws. At the whim of an
employer, workers could be required to prospectively waive their Title VII
[anti-discrimination] rights. Consumer protection laws such as the Truth in
Lending Act could be silently, but inescapably, repealed by corporations with
the stroke of a pen.”
Indeed,
if the court ruled that Amex could use an arbitration clause in a contract
with a much less powerful party to escape punishment under the Sherman
Antitrust Act, there's no reason why a big company couldn't create contracts
that prevent people from filing sex discrimination, consumer fraud, or
other similar claims in any venue. Laws that Congress passed to protect the
public could simply be voided through artfully written arbitration clauses that
create expensive hurdles to pressing a claim.
Justice
Antonin Scalia, who wrote the majority opinion in the Amex case, seems to
believe that this isn't a problem. He said that the law doesn't entitle every
potential plaintiff a cheap route into court, noting that litigation outside
arbitration is expensive, too, a fact that can keep people from exercising
their legal rights. His argument boils down to this: The Federal Arbitration
Act, a 1925 maritime law that the court has broadened to cover just about
everything, trumps every other law on the books. So if a big company breaks the
law and screws you, but you signed a contract with an arbitration clause giving
away your right to sue or bring class action, you don't have a case, even if
federal law says you do.
In
a concurring opinion, Justice Clarence Thomas invoked the fiction that the
contract Italian Colors signed agreeing to arbitrate its claims individually
with Amex was voluntary. But anyone who's ever tried to open a bank account
knows it's virtually impossible to engage in commerce these days without being
forced to sign a contract in which you forego your right to sue the company if
it rips you off.
Justice
Elena Kagan gets this point. In her biting dissent aimed squarely at Scalia,
she called the majority opinion a "betrayal of our precedents and of
federal statutes like antitrust laws." She observed that the court would
never uphold an arbitration agreement that explicitly banned merchants from
bringing an antitrust claim, yet that's effectively what the Amex contract does
by compelling merchants to give up the option of class actions in court. She
noted that by ignoring several precedents, the majority is providing companies
"every incentive to draft their agreements to extract backdoor waivers of
statutory rights." That is, they will use contracts to immunize themselves
from laws they don't like.
Kagan
was blunt: "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."
*
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ASSAULTING AMERICAN WORKERS AND EASING MORE ILLEGALS INTO OUR JOBS BUY THE LA
RAZA SUPREMACY VOTE?
Obama and Justice Sotomayor (A LA
RAZA PARTY MEMBER) Vow to Illegals to SABOTAGE E-verify!
VIVA LA RAZA SUPREMACY?
Arrests of illegal immigrant workers have
dropped precipitously under President Obama, according to figures released
Wednesday. Criminal arrests, administrative arrests, indictments and
convictions of illegal immigrants at work sites all fell by more than 50 percent from fiscal 2008 to fiscal
2009. REP. LAMAR SMITH