ThePopTort

I-Feel-Like-I’m-Fixin-To-Die-Small-Business-Rag

Long long before Tik Tok there was Woodstock, that 3-day music festival in 1969 featuring 32 acts before nearly a million people. In addition to all the peace and love at Woodstock, there were some serious protest performances. One sticks in my head right now, Country Joe and the Fish’s anti-war diddy I-Feel-Like-I’m-Fixin-To-Die-Rag: “Ain't no time to wonder why, whoopee we're all gonna die.”

If I were a small business today, that’s exactly how I’d feel right now. So many have already died, and many more will also die if government aide doesn’t come quick. The U.S. House keeps trying to do that, while the Trump Administration and Senate Leader Mitch McConnell keep trying to nickel and dime the lifeblood out of the U.S. economy.

There’s plenty of blame to go around. Here are some top contenders.

Big businesses lobbyists including the U.S. Chamber of Commerce.  Thanks to these guys, Mitch McConnell got it into his trippy brain that money to help small businesses survive must be contingent on giving big corporations immunity for killing or sickening workers and customers. What’s more, they claim small businesses demand such a thing. In fact, they absolutely do not. They never have.

The Center for Justice & Democracy’s new study, Limiting Lawsuits: Small Businesses’ Least Concern, shows this clearly, noting “as we have reported for years and do so again, internal small business surveys consistently show that restricting lawsuits, or the ‘cost’ of lawsuits, is an issue of less importance to small businesses than almost any issue they could possibly face, or on which they want lawmakers to focus.” CJ&D even reports on surveys done since the pandemic hit, including one by Wells Fargo over the last two quarters:

Q2 2020 Survey. When over 1,475 small business owners were asked to indicate challenges experienced as a result of COVID-19, lawsuits wasn’t among the list of 14 options. When asked, “Thinking ahead to the next 12 months, as a small business owner, what do you need to feel confident you could recover from the economic impact of COVID-19?” limiting lawsuits was not mentioned.

Q3 2020 Survey. When 600 small business owners were asked, “What do you think is the most important challenge facing you as a small business owner today?” lawsuits were not mentioned. When asked to “select the reason why you feel you might have to close” as a result of the pandemic, lawsuits wasn’t on the list.

Incredibly, the U.S. Chamber’s  own surveys show that small businesses could hardly care less about their lobbyists’ obsessive focus on limiting lawsuits. For example, according to the Chamber’s own push poll, only 22 percent of “Mom and Pop” stores, i.e. those with 1 to 5 employees, believe that limiting lawsuits is an important issue.

The Insurance Industry. As CJ&D also notes,

The property/casualty insurance is an industry with vast power and economic control over the ability of small businesses to survive the pandemic.… Many small businesses dutifully paid premiums for “business interruption” insurance coverage, expecting claims would be paid when they were forced to close due to lockdown. Instead, insurers have denied all of these claims and fought small businesses in court, which has resulted in the single largest category of COVID-related litigation to date. The U.S. Chamber is actively supporting the denial of these claims.

TBD: The U.S. Supreme Court

As if things couldn’t get worse for small businesses, a case being argued Wednesday (tomorrow), called Ford Motor Company v. Montana Eighth Judicial District and Ford Motor Company v. Bandemer, has the potential to do enormous further damage to them. Let’s hope not. 

As the small business advocacy group, Main Street Alliance, wrote in a recent op ed, the case  will determine “whether victims of alleged car defects can sue the auto manufacturer in states outside its home state. … If Ford prevails, it may be the first of many big, future losses for small businesses."

The case does not hinge on Ford’s guilt, but how difficult the corporation thinks it should be for someone to hold them accountable. … The added barrier to hold corporations accountable will ultimately mean small businesses are taking on the burden of corporate malfeasance.…

In this case, despite the polarized nature of our courts, a bipartisan group of more than 40 state attorneys general have filed a brief with the U.S. Supreme Court against Ford in this case. They agree that corporations should not be allowed to invent new procedures to avoid lawsuits, and small businesses should not have to worry about being sued for a defective product they didn’t create.

There’s a new poll out, which sorta summarizes all of these points at once. It shows that “an overwhelming majority [74%] of voters believe the Senate should prioritize coronavirus relief over confirming Supreme Court nominee Amy Coney Barrett,” whose confirmation would push the court into an even greater anti-small business direction. As Country Joe may have put it back when Mitch McConnell was a mere 26-year-old (I know, hard to imagine), “Yeah come on all of your big strong men, Small Businesses need your help again.” Take it away Joe.

NFIB Says, Once Again, that “Lawsuits” Are of Small Concern For Small Businesses

Dunno, somehow we thought it might be different this year.

Every four years, the National Federation of Independent Business (NFIB), which fashions itself as the nation’s largest small business lobby group (and indeed, it spends millions lobbying Congress and states each year), publishes a member survey. This is to present an accurate picture of current small-business problems. It’s called Small Business Problems & Priorities. It includes the most important and least important concerns out of 75 possible problems faced by small businesses. This is supposed to inform NFIB’s lobbying priorities because, they allege, “NFIB was founded on the principle that the membership governs.”

Once again this year, what NFIB dubs, “Cost and Frequency of Lawsuits/Threatened Lawsuits,” is an issue of less importance to small businesses than almost any issue they could possibly face, or on which they want lawmakers to focus. According to the NFIB’s 2020 small business survey (just released), this issue ranks 69 out of 75 possible small business concerns. That’s an even lower rank than it was four years ago. It is of less concern to them than, say, “Access to High-Speed Internet” (#63).  Perhaps even more telling, when NFIB broke down the results into “clusters” of issues looking specifically at “Costs,” the topic “Cost and Frequency of Lawsuits/Threatened Lawsuits” ranked dead last.

Drilling down to business size, it is also clear that for “Mom and Pop” establishments, this issue is even less important to them. For small businesses with 1 to 4 employees, the issue came in at #70. For those with 5 to 9 employees as well as 10 to 19, the issue ranked #72.

And it doesn’t matter the state. Here are the state “Cost and Frequency of Lawsuits/Threatened Lawsuits” rankings, all out of 75 possible concerns:

Texas: #64

California: #65

Ohio: #70

New York: #71

For years, NFIB has devoted its substantial lobbying muscle to limiting lawsuits, arguing that this is an urgent issue for small businesses. It obviously isn’t yet it remains an important priority for NFIB lobbyists. 

NFIB’s disconnect from its own members when it comes to liability issues has been going on for years. 

NFIB says it has “an ear to the ground on what’s happening in Washington, D.C., and the state capitals.” Maybe it needs to put those ears near the voices of its own members. It is clearly not hearing them.

Immunity Backlash

Well that didn’t take long. Our last PopTort, Immunity Madness, focused on the push to immunize the nursing home industry from liability, removing the financial incentive for nursing home owners – including for-profit companies –  to maintain safety. No sooner did we post this than Big Business lobbyists started pushing hard to immunize all unsafe businesses, with Senate Majority Leader Mitch McConnell demanding that the next federal stimulus bill contain complete immunity for negligent companies. But his “red line,” as he called it, is now being called a “pipe dream.” (Malaphor alert!)

Starting with nursing homes, a New York Times article skewered Governor Andrew Cuomo for slipping nursing industry immunity into his budget, writing,

In New York, 5,300 nursing home residents have died of Covid-19. The nursing home lobby pressed for a provision that makes it hard for their families to sue.…

Advocates for nursing home residents said there were three longstanding safeguards against bad homes: family members who frequently visit; regular inspections by government regulators; and, as a last resort, lawsuits that can hold negligent homes accountable. But families can no longer visit. Regulators have largely stopped inspecting.

“All of the systems there to protect people are gone,” said Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy. “To me, the combination — rules are waived, protections are waived, nobody is going in to check. And now immunity? That is a lethal combination.”

As if that weren’t enough, Nils Lofgren, E Street Band guitarist for New Jersey’s “pre-eminent hero,” came to realize that his neglected and infected mother-in-law was in a facility that had also been granted immunity by New Jersey’s Governor. Not giving up, he said,

We’re just horrified that people’s first reaction is, ‘Well we’re making a lot of money, but now let’s make sure we’re not liable for what we promised to do, in writing’.…Don’t forget, they look you in the eye and say your loved one will be cared for.… It’s unconscionable and immoral and disgusting.…It’s like their true colors are coming out, and I hope we can hold them accountable.

Editorials in other states started popping up urging lawmakers not to grant nursing home immunity. 

Then in Utah, which actually did go the next step and grant immunity to unsafe businesses, the impact of rewarding bad actors with immunity quickly became pretty obvious: 

Nearly half of the employees of a Utah County business tested positive for COVID-19 after the business instructed employees to not follow quarantine guidelines and required staff who had tested positive to report to work, according to a written statement from county executives.

The statement, which was released Monday evening and was signed by Utah County Commissioners Tanner Ainge, Bill Lee and Nathan Ivie and the mayors of each city in the county, said that 48% of employees of the unnamed business tested positive for COVID-19. 

Then, the Republican-led U.S. Senate Judiciary Committee held a hearing on the immunity issue. But rather than providing a forum to discuss McConnell’s “red line,” everyone rather chose to emphasize the far more urgent need for clear, science-based, and enforceable reopening guidelines. If that were done, liability – a red herring issue anyway - would take care of itself.

Unfortunately, so far all we have seen from the Trump administration is a politicized guidelines process, resulting in weak and biased guidelines. Even the CDC has been forced to step back from its public health recommendations.  

But the good news is, these immunity developments have now crystalized thought and analysis about it, leading to strong “anti- immunity, pro-strong regulation” editorials. See, for example, the New York Times. The Boston Globe. The Orlando Sun-Sentinel. The San Francisco Chronicle. The Waco Tribune-Herald. 

It also appears that the nursing home immunity issue was a bit of a bellwether, showing both the tragic public health impact and the potential political cost for politicians thinking about business immunity. In fact, when the issue of business immunity came up at Cuomo’s press conference last week, he punted to Congress and fell back on the message made clear at the Senate hearing: businesses should just comply with the regs.

Q: if businesses start to reopen, is there liability if there is an outbreak and should that we waived?

Cuomo: There is federal legislation now pending that is going to deal with this liability issue all across the board but it is a big question. If I’m advising the business owners, I say make sure you take all the required guidance and you follow the guidance. And the guidance is quite specific. So I would urge that they all do that. 

Mitch McConnell, you’re gonna lose on this. Move on.

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!