ThePopTort

CJ&D Does it Again! (Confidential U.S. Chamber Memo)

Someone better check the IT department at the U.S. Chamber of Commerce because someone just got hold of a “confidential memo” and leaked it to us!

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CONFIDENTIAL MEMO

To: Board of Directors, U.S. Chamber of Commerce, Institute for Legal Reform

From: ILR Leadership, Staff

Date: October 11, 2017

Re: Every single time!

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Well, the Center for Justice & Democracy is at it again. Another one of their reports is out, reviewing internal small business surveys. Yet again, it confirms that “lawsuits,” or the “cost” of lawsuits, is an issue of less importance to small businesses than almost anything else they could possibly imagine. And this time, CJ&D really decided to stick it to us by including our own small business index — which confirms the exact same thing. What is happening?! (I suppose we should at least thank CJ&D for compiling all these surveys in one place).

Look, we’ve tried everything. Using “real housewives” as bait for our “small business summit,” so at least we could ply as many as possible with disinformation. Using our own fake news outlets to push out our phony surveys, hoping to convince them to care.  Aligning with other lobby groups, only to find out their work completely undermines us. We are running out of options!

As we all know, it’s been a challenge to coax small businesses into believing we care about them, when multi-million dollar corporate donors dominate our income stream, and we keep doing things directly against their interests. When it comes to issues like “litigation” and “lawsuits,” we seem to be drifting even further apart  — no matter how many pop culture icons we pay to impress them.

As you know, in 1998, we were created ILR to pursue the Chamber’s “tort reform” agenda: protecting bad corporations from accountability, weakening the civil jury system and blocking the courthouse door for sick and injured Americans.  But let’s face it, we want to block access to court for small businesses, too. They sue big companies a lot.  Why would they want their own rights stripped away?

Of course, they don’t. That’s why, when we do surveys supporting “tort reform,” we can't ask small businesses what they think about the idea. We have to go to $100 million companies, and ask their in-house corporate lawyers who, as one expert put it, are “likely the very attorneys who experienced the professional embarrassment of losing at trial, naturally wanting to blame the states’ courts for their loss.” That’s just not honest.

Not sure what to do, but thanks for letting us vent. It’s been a frustrating few months!

HuffPo Repost: Congress Needs to End its War With the Civil Justice System

Until recently, you may have been hard pressed to find any positive news coverage of civil lawsuits. You were more likely to see a story about some supposed “jackpot” jury award than coverage of anything positive to come from a court case, such as how a lawsuit helped a family with a severely injured child or stopped illegal corporate behavior.

This was no accident, of course. For many years, large industries (like tobacco and insurance), often through Washington DC lobby groups, funded expensive public relations campaigns to deliver carefully packaged messages about the American public’s presumed obsession with suing - even though it was all factually untrue. Their goal was to turn the American public’s mind against the civil justice system and to breed fear, anger and contempt for people who use the courts. They also sought to garner sympathy for corporations, professions and institutions that harm people and communities, and which are subsequently sued in court.

Today, however, public perception of the civil justice system has taken a decided U-turn! In fact, many people now see civil court decisions as having momentous implications, acting as the last line of defense against a possibly law-breaking President and a Congress that refuses to perform its “checks and balances” function. When Trump attacks judges and judicial independence, there is bi-partisan criticism. Those who use the courts get at least respectful coverage like this New York Times story, “In Lawsuit After Lawsuit, It’s Everyday People v. Trump.” The American Civil Liberties Union not only is awash is donations but had its own Oscar ribbon this year.

This new pro-civil justice sentiment is a dilemma for House Republicans. They know full-well that voters did not send them to Washington DC to pass laws blocking constituents’ access to the courts or undermining the independence of judges. Yet many are also beholden to major industry groups like the U.S. Chamber of Commerce, which wants them to do just that. So this year, they tried a new tactic. After slapping together a bunch of major bills that wipe out people’s legal rights, the House Judiciary Committee voted them out of committee without holding a single hearing (although some degree of arm-twisting was likely involved, as this hearing shows), passed most of these bills at breakneck speed, and hoped no one would notice.

Keep reading.

HuffPo Repost: The Great Divide: Small Businesses, Lawsuits and Jobs

A few years ago, I sat in on some bi-partisan focus groups run by a well-known polling firm. The topic had to do with people’s views about litigation. One exchange really stuck in my head. The moderator asked the group if they thought limiting people’s ability to sue corporations that harm or cheat them would improve the economy and create jobs. Here was the general reaction: “Of course not. That’s ridiculous.” Data and studies confirm this, of course, like one from the Economic Policy Institute. EPI found that weakening people’s legal rights could actually “slow job growth.” But who needs studies when you have common sense?

I bring this up because over the next couple days, the U.S. House of Representatives is voting on a series of bills, which were just rammed through the House Judiciary Committee without a single hearing. These bills would make it nearly impossible for harmed individuals and small businesses to sue in court. It’s as if politicians think voters sent them to Washington with an urgent mandate to rig the courts against everyday people. Can’t imagine what they’re thinking.

We don’t know the type or scope of “PR spin” that will be used by proponents of these measures. “Spin” is really all you have when pushing unpopular bills that prevent harmed and defrauded people from getting into court, concocted in back rooms by lobbyists for giant corporations. Indeed, we wouldn’t be surprised to suddenly see the irresistible “J” word make an appearance. Maybe they’ll try to say that small business JOB-creators are clamoring for such legislation, which also happens to shut them out of court (like when big corporations steal their money). So let’s just shut down any spin right now.

Keep reading.

HuffPo Repost: Congress Intends to Destroy Your Rights and Hopes You Won’t Notice

If you’re wondering why Republicans in Congress seem disturbingly complacent about the unhinged President and the exploding Watergate-level (or worse) constitutional crises starting to brew, check out the February 15 Full Frontal show on TBS. As host Samantha Bee explains, while people focus their outrage on big ticket offenses like Russian interference with our elections, Congress is, as we speak, quietly destroying multiple Obama-era public protections. It’s a Koch-organized effort that has Republicans in Congress, as she puts it, going “hog wild” passing new laws to harm the public’s health, safety and economic security. For example, one new law allows “coal companies to dump debris into nearby streams. Who the f*%# asked for that?”

No one. Nor did we send politicians to Washington to rig the civil courts against everyday Americans, or strip away legal rights guaranteed by state and local governments. Yet just a couple hours before Full Frontal aired, the House Judiciary Committee finished-up a day-long session, which it began and ended by voting out two bills that would do just that - demolish our legal rights.

Keep reading.

How Ordering From Grubhub Could Weaken Your Constitutional Rights

Last week I ordered Chinese food from an online delivery site I often use- Grubhub. When the meal ended up taking a little longer than expected, I decided to look through my emails and check for any alerts or updates.

Instead of a notification that my food “was taking longer than expected,” I was surprised to open an email alerting me to Grubhub’s new “Terms of Use.” Usually I would skim right over this type of email, but the message promised new “features” that I would “love,” so I decided to check it out right then.

So as of April 6, if Grubhub allows your personal data to be stolen, releases damaging computer viruses through its software, misidentifies ingredients causing you harm, repeatedly overcharges, or is responsible for any other kind of harm, you won’t be able to take them to court. Instead, you will be forced to resolve your dispute in a private, secretive, rigged arbitration system controlled by Grubhub, with no right to appeal. What’s more, even if thousands of customers suffer the same kind of injury as you, you’ll have to bring and pay for your case all alone. You’ll be prohibited from joining with others in a class action.

As the Consumerist put it,

If you have a legal dispute with online food delivery portal GrubHub (or its Seamless subsidiary), you will soon lose the ability to resolve that matter in a court of law. And if there are others out there with the same problem as you, you’ll each have to fight GrubHub on your own because the company has decided to view all of its customers as potential litigants.

What’s not to love?

Yet Grubhub isn’t the only corporation forcing people to give up their legal rights like this. It’s happening all over the place. Buried in the fine print of many contracts are, what consumer advocated have dubbed, “rip-off clauses” that strip individuals (and often times small businesses) of their right to go to court if they are harmed by a company.

These forced arbitration clauses and class action bans are so harmful to consumers, that the Consumer Financial Protection Bureau is working on drafting a rule to address these clauses in consumer financial products, like bank accounts and credit cards. And last Friday, the Department of Education issued a proposal that “would protect from the use of mandatory arbitration provisions in [college and university] enrollment agreements.”

But while these new rules will be a step toward creating a fairer system for students and financial product consumers, there are still many areas – like food delivery- where companies continue taking away the right to jury trial, which the framers of the U.S. Constitution thought they were preserving with the 7^th Amendment.

And you may ask yourself, “What can be done other than not using these goods and services completely?”

Being informed about what is in your contract is a good starting point. But the law allowing these clauses to exist must be changed. So please contact your U.S. Senator or Representative and tell them to support legislation that works to end unfair forced arbitration, like the “Arbitration Fairness Act of 2015” or the “Restoring Statutory Rights and Interests of the States Act of 2016.”

Whatever the solution, diners should know that, like the extra soy sauce they requested, their 7^th Amendment right to jury trial many not be included with their meal.

HuffPo Repost: Small Businesses' Infinitesimal 'Tort' Problem

For years, Big Business lobby groups like the U.S. Chamber of Commerce have been advancing a legislative agenda to limit the liability of corporations that cause injuries (also known as "tort reform.") One of their principal arguments is that tort restrictions are needed to save jobs, and to allow small businesses, "the engines of job growth," to survive.

Yet internal business surveys have consistently shown this view to be utterly groundless. For years, liability issues have hardly appeared on lists of actual business concerns (as opposed to views expressed by paid lobbyists and other hired staff.) Small businesses virtually always put issues like "lawsuits" "liability" "tort reform" or the cost of "liability insurance" at the bottom of any list of concerns -- that is, if they mention them at all. They usually don't.

Keep reading.

Class Actions Provide First Class Relief!

Today, the Center for Justice & Democracy at New York Law School released a brand new study, “First Class Relief: How Class Actions Benefit Those Who Are Injured, Defrauded and Violated.”  The study is a compilation of more than 150 recent class actions that have been litigated and settled since 2005.  It's an examination of a wide array of cases, and I mean wide: cases involved predatory and discriminatory lending, like illegal auto finance and mortgage loan mark-ups, payday loans, unlawful practices targeting Servicemembers, and Ponzi schemes.  Many race and gender employment discrimination class actions.  Nine antitrust class action settlements that distributed over $1 billion to tens of thousands of consumers and small and medium-sized businesses from companies who participated in criminal price-fixing cartels!  Wow. 

Plus car defects and repossessions, sports tickets, film and television residuals, tainted pet food, contaminated drinking water, home decks and furnace defects, nursing home deficiencies, and health insurer abuses.  CJ&D found overwhelming evidence that class actions have not only helped victims of corporate law-breaking but also led to changes in corporate behavior that protect us all from many types of illegal conduct. 

The study comes in the midst of a great deal of activity aimed at fighting back against the increasing use of forced arbitration clauses and class action bans in consumer and employment contracts.  Alliance for Justice has released a new film about this problem, entitled “Lost in the Fine Print,” narrated by former U.S. Secretary of Labor Robert Reich.   And a new petition effort asking five Wall Street banks to stop using forced arbitration clauses has already gathered tens of thousands of signatures in its first week. 

We always knew that class action lawsuits were among the most important tools that cheated and violated individuals and small businesses have to recover stolen money, hold large corporations and institutions accountable and deter future misconduct.  At last, the evidence – all in one place!

A New Kind of Enemies List, Courtesy the U.S. Chamber of Commerce!

Since we don't have Richard Nixon to kick around anymore, I'll talk about Ann Coulter instead.  She recently called the nonsensical government shutdown “magnificent” and “run beautifully.”  With shrewd political insights like that, I’m thinking she might be the exact audience for the U.S. Chamber of Commerce’s new 164-page report identifying all that’s supposedly wrong with attorneys who represent the nation’s sick, injured, defrauded and otherwise violated people, listing these attorneys by name! (By way of full disclosure, the Center for Justice & Democracy made the list too!  Woo hoo!) 

Let’s hope Ann weighs in. Although frankly, given the fact that even the massive business lobby group, that National Federation of Independent Businesses, puts the "lawsuit" issue practically dead last on their list of 75 concerns, maybe even Ann Coulter would call the Chamber "nuts" thinking their views are in sycn with rank and file businesses, let alone the American public. 

For example, the Chamber doesn't think banks should be sued for mortgage fraud.  I'm sure they're just kicking themselves that yesterday's jury verdict against Bank of America came too late for inclusion in their report.

In addition to mortage fraud, however, there are many types of corporate wrongdoing for which the Chamber apparently doesn’t believe its corporate members should be held accountable in court.  These include:

Producing unsafe food

Invading people’s privacy

Marketing unsafe drugs

Marketing energy drinks that kill children

Poisoning workers with lethal amounts of asbestos

Defrauding investors

Defrauding health care consumers

Overcharging drug purchases

Defrauding bank customers

Defrauding energy consumers

Causing nerve damage and paralysis with defective medical devices

Swindling Superstorm Sandy victims

Marketing defective hip implants

Contaminating drinking water with methane gas or gasoline additives

Producing gas cans that explode

Causing the worst environmental disaster in U.S. history

Ripping off taxpayers by the billions of dollars.

Meanwhile, the Chamber seem to think that class actions are a growing problem, especially in the employment area.  Are they nuts?  No really.  Anyone doing those cases knows that the 2011 SCOTUS case, Wal-Mart vs. Dukes, has already allowed companies to defeat or devalue tons of employment discrimination class actions.  Wrote Reuters in 2012,

Since the Dukes decision, defendants in a variety of class actions have flooded courts with motions challenging discrimination and violation of labor laws.  The defendants have argued that claims made by plaintiffs lacked commonality.  Some defendants have also used the ruling as a tool to have class claims dismissed even before the issue of class certification is addressed.  

What’s more, employers have not even taken full advantage of forced arbitration and class action bans, which they can now place in every consumer and employment contract thanks to the 2011 SCOTUS case, AT&T v. Concepcion.  That case allows corporations to immunize themselves with forced arbitration clauses containing class action waivers.  As a result of that case, class actions everywhere are now in free-fall.  I guess the Chamber never got the memo on that. 

Meanwhile as we’ve pointed out before, while saying that consumer lawyers are insensitive to the importance of keeping companies “litigation-free,” corporate lawyers run to court at the smallest provocation.  The U.S. Chamber of Commerce itself sues the U.S. government on average three times a week!

By the way, each chapter of this new Chamber report was written by the very corporate lawyers who lost cases for their negligent or reckless corporate clients.  Ya lost, guys! Let it go!!

Civil Justice in Bizarro Land

The Google Doodle recently celebrated Yosemite on the very day that all national parks closed.  This was either a clever joke or the worst timing ever.

Speaking of bad timing, the PR firms that run the corporate “tort reform” front groups known as “Citizens Against Lawsuit Abuse” have apparently deemed this week “Lawsuit Abuse Awareness Week.”  Mind you, when they speak of “lawsuit abuse” problems, they aren’t referencing the fact that the largest “tort reform” corporate lobby in the nation – the U.S. Chamber of Commerce - itself sues the U.S. government on average three times a week.

Or the fact that while personal injury cases are tanking around the country, harassing debt collections are skyrocketing and in fact, dominate the civil justice system today.  

No, they’re talking about adding to the misery of the sick, injured, defrauded and violated who struggle to even get into civil court today.  Their specific goal is to add to the hundreds if not thousands of so-called “tort reform” laws that have already passed around the country in the last 30 years, supplemented and enhanced by a series of recent Supreme Court decisions that have stripped everyday people of their legal rights (including providing corporations with the ability to ban all class actions).

Perhaps even more startling, these “CALA” groups do not seem to care that rank and file businesses, whom they supposedly represent, don’t even care about this issue – according to their own surveys!  In case you missed it, the National Federal of Independent Businesses’ latest survey Small Business Problems and Priorities (August 2012) ranks "Costs and Frequency of Lawsuits/Threatened Lawsuits" at #71 out of 75 issues, a lower rank than how to use Twitter.  In looking only at concerns about costs as a problem cluster, “Costs and Frequency of Lawsuits/Threatened Lawsuits” ranked last among cost issues.  In fact, NFIB calls this issue, one of the “10 least severe problems for small-business owners of the 75 business problems assessed...”

But back to the timing issue.  While these corporate PR firms and lobbyists have decided that this is the ideal week to dump on our access to the civil courts, the entire civil docket in the federal court system is now in jeopardy.  As we’ve noted before, civil cases are always the first to go when court budgets are cut.  Same’s true at the federal level, where the Dept. of Justice has even asked that its own cases prosecuting corporate wrongdoing be stayed.

But there’s more to it than that.  Today (Tuesday), Congressman John Conyers, Jr. (D-Mich.) and Democratic Members of the House Judiciary Committee are having a “forum on the impact of the federal shutdown and sequestration on the provision of justice in the U.S.”  Among speakers will be the President of the American Bar Association, a retired federal judge, Nan Aron, President of the Alliance for Justice and a great civil justice advocate, and lawyers for all kinds of people needing court access, from voting rights to sexual assault victims.

This shutdown is having a devastating impact on court access and justice for victims of both criminal and civil violations.  That’s how I’d define “lawsuit abuse.”  And my timing, by the way, is perfect.  

Small Business’s Infinitesimal “Tort Reform” Problem

Have you ever joined a non-profit group and received a survey asking for your top priority issues, as if the group wanted your advice on where to devote their time and resources?  I think most of us expect surveys like this to end up in the trash heep, let alone published on their web site.  But not the National Federation of Independent Businesses.  This “small business lobby group” is constantly asking members about their concerns – and publishing the results!  That's a good thing, don't get me wrong.  The problem is that NFIB staff are spending a significant chunk of time and resources on an issue so far down the survey list that well, sometimes it doesn’t even make the list at all.  That issue would be “tort reform.”

The NFIB makes no bones about the fact that their lobbyists and staffers consider “tort reform” a very top priority.  In tracking lobbying money for them, the Center for Responsive Politics takes them at their word, describing NFIB as “particularly focus[ing] on reducing taxes and regulation and instituting tort reform,” also noting, “NFIB-related contributions strongly support Republicans."

Indeed, check out their 2011 legislative victories, two out of five of which have to do with limiting victims’ legal rights (plus limiting worker benefits.)  

Yet their members could apparently care less about "tort reform" and they’ve told NFIB this many times.  For example, today the group released its November Small Business Economic Trends survey.  None listed lawsuits, litigation, tort reform or anything like that as their “single most important problem.”  In a post we wrote a few months back about the issue of “tort reform” and jobs, we talked about another more detailed NFIB survey.  Here is what we wrote then:

We started to look down the list of 75 issues that are important to NFIB’s members.  And we looked.  And we looked.  Finally, we hit #65: “Cost and Frequency of Lawsuits/Threatened Lawsuits.”  That’s right, this issue ranked 65 out of a possible 75 matters that small businesses care about, just below "Solid and Hazardous Waste Disposal."

(Personally, I think solid waste disposal deserves far more attention.)