I do hate taking any focus off Prop 8 and DOMA today. To quote that famous legal scholar George Clooney, “At some point in our lifetime, gay marriage won't be an issue, and everyone who stood against this civil right will look as outdated as George Wallace standing on the school steps keeping James Hood from entering the University of Alabama because he was black.” (“Outdated” being a polite euphemism here.)
However, also this week, there was a Supreme Court argument to which few paid any attention. The case was Oxford Health Plans LLC v. Sutter. We thought it worth mentioning for a couple of reasons. First, it is one in a series of cases constituting the Supreme Court’s long march to eradicate class actions, and for that matter, to eradicate access to the civil courts. (See more in the Center for Justice & Democracy’s new FAQ, “Vanishing Rights and Remedies Under Forced Arbitration.")
Second, because of the 2011, 5-4 decision, AT&T Mobility LLC. v. Concepcion, which upheld contracts with forced arbitration clauses and class action bans, Oxford involves what may be one of the last class action lawsuits by doctors against a managed care company – a device that physicians have made widespread and somewhat hypocritical use of. But likely, not for long. Maybe now organized medicine will understand what it means to have one’s legal rights stripped away.
Here’s how Daniel Fisher at Forbes explained the case:
The Oxford case involves a dispute between doctors and the insurance company over payments. …
In Oxford, the judges must decide whether an arbitrator was out of line by allowing a class action to proceed on behalf of some 20,000 doctors even though there was no provision for class actions in the arbitration agreement between doctors and Oxford. The court seemingly decided this question three years ago in Stolt-Nielsen vs. Animal Feeds, when it held class arbitration couldn’t be forced on parties if they didn’t agree to it. The decision, by Justice Samuel Alito, left open a very slim question over whether under different circumstances an arbitrator could determine that the parties might have agreed to class actions although not in the explicit terms of the agreement.
Court observers believe Oxford will win this. Of course, the impact of the decision will extend far beyond these 20,000 doctors. Fisher again: “One of the biggest impacts may come in employment law, where class-action attorneys are pressing lawsuits on behalf of thousands and even millions of employees over wages, hours, discrimination and working conditions.”
So, you know those civil rights that Mr. Clooney was talking about? Just watch.UPDATE: Wow, as if by clockwork, the Court today threw out yet another class action in a 5 to 4 Scalia-written decision, drawing strong dissents.