by Nicole Flatow
This week, the U.S. Supreme Court heard oral argument in a case about whether a consumer protection law that explicitly says “you have a right to sue” can be overridden by the fine print in a credit card contract.
The case, in which plaintiffs are challenging hidden fees of as much as $257 on a card with a $300 limit, is the latest to test individuals’ ability to hold corporations accountable in the courts.
Over the past few years, several important decisions have limited that right. In Wal-Mart v. Dukes, the court limited the scope of class actions in discrimination cases. In AT&T Mobility v. Concepcion, the court upheld a provision prohibiting class action lawsuits in a phone service contract. And in Ashcroft v. Iqbal and Bell Atlantic Corps v. Twombly, the court made it more difficult to initiate a civil lawsuit in court.
But these are just a few of the decisions in which the Supreme Court has empowered corporations through “seemingly small” procedural rulings, explains Alan B. Morrison in his new ACS Issue Brief, “Saved by the Supreme Court: Rescuing Corporate America.” In fact, “[s]ince the late 1980s, on almost every occasion where big corporations have had a case of major significance in the High Court, the Court has ruled in their favor.” He explains:
The Court proceeds boldly when caution seems the wiser course, and it is apparently quite unconcerned with the victims of corporate abuse or with allowing alleged wrongdoing to go unremedied. Its distaste for lawsuits by consumers and employees that seek to recover money damages is evident, and its desire to slow down the use of the courts rarely checked.
In the case now before the court, subprime credit card marketer CompuCredit is arguing that the Credit Repair Organizations Act provision that guarantees individuals the right to sue is satisfied by giving individuals the option to go to arbitration. As a New York Times editorial describes it, this challenge is the latest in a “wide corporate effort to have a privatized system of justice barring people from their day in court.”
In explaining how this type of procedural hurdle erodes the rights of individuals, Morrison’s Issue Brief borrows a quote from Rep. John Dingell:
I’ll let you write the substance of a statute and you let me write the procedure, and I’ll screw you every time.
Read Morrison’s Issue Brief here, and read another recent Issue Brief on corporations’ high win rate at the Supreme Court here. For more resources on this issue, visit the American Constitution Society’s Corporations and the Courts page.
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