Corporate Supreme Court

A Corporate Court

By Richard Newman & Tom Lebert

The world is becoming increasingly driven by large corporations and those who would benefit from them as wealth inequality skyrockets and antitrust law is seldom used. The tort law system we celebrate at the American Museum of Tort Law has helped to protect the people from the wrongdoings of such corporations, but the rules of this system can change based on precedent from the nation’s highest court.

For this reason, the judicial philosophy and temperament of those person selected to serve as Justices of the Supreme Court is really important. Our president and senators have some degree of control over who shapes the legal system of this country through our courts. Through the confirmation process and through the legal history of individuals nominated to the courts, we can gather an idea of how these people will rule if confirmed.

On July 22, 2018, the New York Times’ Editorial Board responded to the nomination of Brett Kavanaugh through an editorial titled “Brett Kavanaugh Will Fit Right In at the Pro-Corporate Roberts Court,” which highlights an important issue for those who have concerns about the excessive concentration of corporate power, and undue deference to corporate rights.

Corporate interests haven’t had it so good at the Supreme Court in a long time.

Under Chief Justice John Roberts Jr. the court has given big business a leg up on workers, unions, consumers and the environment — and will do so even more aggressively if the Senate confirms Brett Kavanaugh, President Trump’s choice to replace Justice Anthony Kennedy.

Corporations won the power to spend unlimited amounts of money on political campaigns in the 2010 Citizens United decision. The owners of businesses have earned the right to cite their personal religious beliefs to deprive workers of reproductive health care. At the same time, the justices have made it harder for employees and customers to sue big businesses by allowing corporations to require mandatory arbitration clauses in contracts people are forced to sign if they want jobs or want to buy goods and services. The court has also made it easier for polluters to get away with poisoning the air and water. . .

Just last month, in a blow to public-sector unions with contracts covering nearly seven million workers, their 5-to-4 ruling dismissed a unanimous 40-year-old decision that state governments and unions had long relied on. In the recent case, Janus v. American Federation of State, County and Municipal Employees, the court held that government workers covered by union contracts do not have to pay fees for collective bargaining expenses if they are not members. The ruling does not directly involve businesses. But it will hurt all workers because benefits won by unions often establish benchmarks that help improve wages and working conditions even at companies without unions. . . .

The past few decades have seen the Supreme Court greatly expand corporate power, largely at the expense of worker and consumer protections. This persistent trend has left average Americans with fewer options to defend themselves against harmful corporate actions. As the Editorial Board explains, these decisions aren’t just by chance:

Over the years, conservative groups like the Federalist Society and the Heritage Foundation have worked to make sure that Republican presidents appoint judges and justices who are reliably pro-corporate. Partly as a result, the Roberts court has been much more adamant in opposing regulation and much more expansive in establishing corporate rights. Chief Justice Roberts and Justice Samuel Alito Jr., both appointed by President George W. Bush, are the most pro-corporate justices since 1946, according to the Epstein, Landes and Posner research.

It’s no accident that the Supreme Court has shifted in recent decades to support corporations. Party politics and private organizations have infiltrated the makeup of the Court and led to this degradation in protections against corporate wrongdoing.

While the Court has often had a majority of pro-corporate justices in the recent past, the margin has at times been thin. Brett Kavanaugh may change that.

Judge Kavanaugh, who serves on the United States Court of Appeals for the District of Columbia Circuit, fits neatly into the Roberts-Alito worldview.
In 2012, Judge Kavanaugh wrote an appeals court opinion striking down an Environmental Protection Agency rule that required upwind states to reduce power plant emissions that cause smog and soot pollution in downwind states, a decision that was later struck down by a 6-to-2 majority of the Supreme Court. And in 2016, he wrote an opinion that said the leadership structure of the Consumer Financial Protection Bureau was unconstitutional because Congress decided that the president could only fire its director for cause. The full appeals court reversed that portion of his decision in January. . .

Kavanaugh is a uniquely pro-corporate judge who would serve to not only continue, but strengthen the pattern of pro-corporate decisions we’ve seen from the Supreme Court. His past decisions are not to be taken lightly; we know what his thoughts are on the relationship between the law and corporations, and these beliefs must be considered by our senators when the time comes to vote on his confirmation. A vote for Kavanaugh may be a vote for fewer legal protections for workers and consumers and a signal to corporations that their immoral conduct is perfectly fine. As the New York Times puts it:

The court’s pro-corporate decisions are widening the chasm in power and wealth between the country’s elite and everybody else. And the Roberts court is also increasingly preventing lawmakers, regulators and the public from doing anything about that growing problem.

Will Kavanaugh be confirmed?  Will he be as pro-conservative as prognosticators predict?  Stay tuned. . .

Bayer Pays Doctors Amid Birth Control Implant Scandal

By Tom Lebert

Pharmaceutical company Bayer announced on July 20, 2018 that a controversial device for permanent birth control, Essure, will be taken off the market amid reports of injury and death. The device was taken off the market in England, Canada, and France, among other countries, but has still been sold in the United States despite concerns.

A campaign against the device has resulted in rapidly declining sales due to worry among consumers after reports that it caused harm became public in 2013. A Netflix documentary titled “The Bleeding Edge” was released about the dangers of Essure and other medical devices, and multiple organizations have fought to expose the dangers of the product.

The FDA has also recently expressed concerns about the product, requiring labelling of potential harms in 2016 and requiring Bayer to reduce sales to doctor’s offices in April 2018. The FDA approved the usage of the device in 2002.

The device is now the subject of more than 16,000 lawsuits, as reported by Bloomberg.

One week later, on July 27, CNN released an exclusive report finding that Bayer had paid $2.5 million to 11,850 doctors for “consulting fees and similar services” related to Essure. While the payments are legal, they’re sure to anger activists who claim the device leads to injury and death.

The payments reported on by CNN occurred from August 2013 until December of 2017, during the peak of campaigns against the product. A professor at Johns Hopkins Medicine, Dr. Martin Makary, said, “That looks like a bribe. That looks like gaming the system. That looks like the pharma company is paying off doctors.”

Lawsuits are still being filed and some are being consolidated in order to provide justice for the thousands of women affected by the product.

Corporate Chickens

Legal Immunities Mock the Law

So there’s this gimmick, see? A special interest group of one sort or another goes before a legislature somewhere – a State Capital, or Washington D.C., and says, “We’re so important, but at the same time so helpless, that you must preserve and protect us, by making us immune from lawsuits.”

It’s a clever gimmick, too. It means, that instead of taking steps to make people safer, the immunized groups are just above the law – they can’t be sued for their wrongdoing. It’s not a new phenomenon – special interests having been trying this for years. Here’s a link to an article from 2004 showing actual laws that protected special interests from accepting their responsibility for harming others. Here’s one example:

In Arizona, the term “double header” has taken on a whole new meaning. The major league baseball park in Phoenix was designed so that people who leave the viewing area to buy hot dogs can still get hit in the head with foul balls coming through large openings in the walls. So, what did the ballpark owners and architects do to make the fans safer? More effectively separate the concession areas from the field of play? Of course not. Why should they, when it’s so much easier to just to make sure that if someone does get hit on the head, they can’t hold you responsible!

And this problem is still going on. Right now, for example, used car dealers are trying to get this special form of coddled protection from friendly legislatures:

Nine out of 10 Americans believe that car dealers shouldn’t sell used cars with safety defects. Despite this fact, dealers have successfully pushed in Tennessee and Pennsylvania — and are now trying to pass in New Jersey — legislation to allow used car dealers to sell used cars with unrepaired safety defects. . . . What’s more, the dealers would not be liable for resulting injuries or deaths caused by the safety defect. All the car dealer has to do is “disclose” (i.e. bury in paperwork) when selling the car that it’s under safety recall. But obviously, the whole idea is to allow these dealers to pressure and confuse customers into buying unrepaired cars, and then not be on the hook for selling them.

Doroshow, J. “’Hot Buys,’ ‘Low Mileage,’ ‘We’ll Finance!’ We’ll kill you.” July 3, 2018

These legislative immunities are dangerous: They carve out whole industries from the responsibility that tort law imposes, and give a free pass to unsafe or dangerous practices. And now, a whole new dimension in this bad business has come into play: “MGM Resorts Sues 1,000 Victims of Las Vegas Shooting, Seeking to Avoid Liability,” (by Richard A. Oppel, Jr., published in the New York Times on July 17, 2018).

You may recall the horror on October 1, 2017, In Las Vegas at the Mandalay Bay hotel, where, “from a room on the 32nd floor, Stephen Paddock shot and killed 58 people and wounded more than 500 others attending a country music concert below. It was the worst mass shooting in modern American history.”

The hotel is owned by MGM Resorts, and some of the victims have sued MGM for “what they call a failure to provide adequate security and for allowing Mr. Paddock to bring high-powered rifles and thousands of rounds of ammunition into his hotel room. Many more victims are expected to do the same.”

But here’s a twist:

Faced with potential lawsuits from hundreds of victims of last year’s mass shooting in Las Vegas, MGM Resorts International is trying an untested strategy: suing the victims first. . .
MGM is not suing for money, but the company wants a federal court to rule that it cannot be held liable for the shooting by more than 1,000 victims and others it named in the suits. The company said it named only people that have already sued or given notice that they intend to do so.

What? Why? How can this be? The possible answer is

based on a federal law passed after the Sept. 11 terror attacks, which is known as the Support Antiterrorism by Fostering Effective Technologies, or Safety, Act.

The law is intended to shield federally certified manufacturers of security equipment and providers of security services from liability should they fail to prevent a terrorist attack, which the law defines as an unlawful act that causes mass destruction to citizens or institutions of the United States. The Department of Homeland Security said in a publication that it has approved hundreds of applications for Safety Act protection for products and services including software, sensors and security planning.

MGM contends that under the law, which Congress passed in 2002, it is immunized from liability because it met two conditions: A security company that was hired for the concert had a certification from the Department of Homeland Security, and the shooting qualified, in the company’s view, as an “act of terrorism.”

It is a new theory, and one that has never been tested in court. In fact, MGM’s lawyer has asserted that “no court opinions apply or interpret the statute.” Lawyers for those who were killed or wounded in the shooting have reacted angrily,

calling the move an unprecedented and specious attempt to protect the company no matter what the facts eventually show. ‘It’s all about immunizing themselves from liability and staying out of state courts,’ said Craig Eiland, a lawyer in Austin, Tex., who represents hundreds of shooting victims. ‘They want to say that it does not matter how negligent MGM was” in allowing Mr. Paddock to stockpile an arsenal in his Mandalay Bay hotel room.

The stakes are high. If this interpretation of the law stands, if MGM wins, then the Federal judge will throw out all of the lawsuits filed by wounded victims, and the families of those killed. They’ll never get their day in court; never have a jury decide if MGM and its security forces were negligent in letting Mr. Paddock bring high-powered rifles and thousands of rounds of ammunition into his hotel room. Is that justice? Is that fair?

But there is a larger issue here – the scope and extent to which this law might protect other so-called security companies from liability, even for gross negligence. As Attorney Eiland said in the Times article,

MGM’s effort to use the law this way, if successful, could provide a road map for other companies to escape responsibility for future mass-casualty attacks.

“Their theory is that this security company goes to D.H.S. and gets some type of certificate, and so now MGM is immune, and everybody in the future who hires the company is immune,” he said. “It’s outrageous, and that’s not what the law is, and we would all be less safe.”

Why should this be? Why should federally certified manufacturers of security equipment and providers of security services be shielded from liability? If they exist to protect us all from terrorism, and they negligently, wrongfully fail to do so, why should they get a free pass? How are we safer? Is this what Congress intended? And if so, why? Why shield companies whose negligence contributes to the death or injuries of hundreds of people?

And here’s another thought: Maybe MGM and its security forces were NOT negligent in letting Mr. Paddock to bring high-powered rifles and thousands of rounds of ammunition into his hotel room. Why shouldn’t that be a question that the jury decides? That’s exactly what juries do. That’s exactly what juries should do.

These immunity laws – well, what do you think? Good idea, or bad?

For Shame

Tort law, as noted historian Eric Foner put it, is the “weapon of the weak.”  It lets the wrongfully injured hold wrongdoers accountable.  It is a centuries–old mechanism whereby juries – regular people like you and me –  decide how much money will fairly compensate someone who has been devastated by the wrongful, harmful act of another.

Wrongdoers hate and fear tort law, because it hurts them in their pocketbook.  Wrongdoers could strive to do right, but all too often, their response is to try to mutilate the system of tort law.

In a recent article, Joanne Doroshow, head of the Center for Justice and Democracy, spells out just how one such attack on the tort system played out, and it is both heartbreaking and maddening.

In her article, “Wisconsin’s Judicial Hearbreak,” published June 29, 2018, on line on the Daily Kos, Doroshow explains a relentless attack on the integrity of the tort system in Wisconsin, in a way that clearly lays out the deliberate strategy of adding judicial insult to horrible physical injury.  Listen:

A court decision that overrules longstanding law that had protected the most vulnerable.  A political court that accepts false information as fact. A corporate court willing to overlook the obvious cruelty of an unnecessarily sweeping ruling.

On Wednesday, the Wisconsin Supreme Court told Ascaris Mayo, a 53-year-old mother of four, that despite the amputation of all four of her limbs due to medical malpractice and despite her having won her negligence case and proving before a jury that she would suffer $25.3 million in damages, she would only get a fraction of that amount due to a state law that severely caps compensation to patients like her.

Yet this is a law that should never have been.

And she goes on to clearly, and specifically, explain how and why this miscarriage of justice was implemented, step-by-deliberate step.

In a recent note, I put forth some reasons why the idea of “frivolous lawsuits” in tort cases just doesn’t make sense.  And clearly Ms. Mayo’s case was rock solid, and meritorious. And yet, we are left with a politicized State Supreme Court which has upheld a politicized legislative decision to weaken our system of jury trials.

This is shameful.

This should make you mad.

When Cops go Bad

There is an interesting article in the New York Times, today, “$16 Million vs. $4: Why Payouts in Police Shootings Vary Widely,” written by Timothy Williams and Mitch Smith, (A version of this article appears in print on June 29, 2018, on Page A10 of the New York edition with the headline: “The Value of a Life Brought to an End by a Police Officer’s Bullet.”)

The article compiles the verdicts and settlements which have been paid to the victims and next of kin of those who have died as a result of police murder or misconduct. It provides a good insight into the wide range of monetary recoveries, and the various factors that go into those settlements.

But the article is most important for this reason: It shows that tort law – the law of wrongful injuries – can provide a remedy in cases where police do wrong, even in those cases where the criminal justice systems fails to hold the police accountable.

Tort law lets you defend yourself and your family from wrongdoers.