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The Supreme Court’s One Thousandth Cut Against Consumers

A tragic pattern in the Supreme Court’s docket is the frequency of cases where corporate interest groups press new and increasingly more creative ways to kick ordinary Americans out of court. Their most recent push towards total lawsuit immunity is a case called AT&T v. Concepcion, which the justices will hear today. If corporate America wins Concepcion, they could win the power to cheat millions of Americans out of a few dollars every day:

In AT&T Mobility v. Concepcion the Court will decide whether corporations can also force consumers to sign away their right to bring a class-action lawsuit before the arbitrator in addition to forcing consumers into a privatized justice system.

Class-action lawsuits are especially important in cases like Concepcion, where the amount of money at stake is very small — in this case only about $30. If a company cheats one person out of $30,000 that person is likely to sue and the company is likely to be held accountable for its actions. If the company cheats 1,000 people out of $30, however, most of these individuals will decide that the small loss is not worth a lawsuit — and the company will get off nearly scot free. Class-action lawsuits enable many people with small dollar losses to join together in a single suit, and they make sure that corporate America cannot continuously break the law a few dollars at a time.

Stephanie Mencimer labels ConcepcionConsumer Protection’s Citizens United,” but this label probably does not go far enough. Citizens United was an earthquake because it broke the backbone of campaign finance regulation overnight — tossing out an unbroken 63 year-old consensus in the process.

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Concepcion is part of something much more subtle, but no less insidious. In the 1980s, the justices started to rewrite a 60-year old law enacted to allow sophisticated merchants to arbitrate their disputes in fair and neutral forums — creating an abusive practice known as “forced arbitration.” Before many banks, cell phone companies, employers, or even nursing homes will do business with a consumer, worker, or patient they force that individual to sign away their right to sue the company in a real court, requiring that any disputes be brought in a secretive, privatized arbitration system that overwhelming favors corporate parties. Moreover, as Stephanie explains, the Court has made it nearly impossible to escape forced arbitration:

The court has issued a string of recent rulings upholding the right of corporations to do an array of things under the guise of arbitration clauses. Most recently, in Rent-a-Center West v. Jackson, the court ruled that companies can even write arbitration clauses that force employees who think the provision is illegal to ask an arbitrator, not a judge, to make that determination. In effect, an aggrieved employee could be in the absurd situation of having to ask an arbitrator whether hiring the arbitrator is unfair.

And forced arbitration is just one of the many tools the Court has given corporations to help them escape accountability for their actions. In a case called Ashcroft v. Iqbal, the Court gave right-wing trial judges very broad discretion to toss out cases they deem “implausible.” In a series of cases dealing with medical devices and employer benefits, the justice gave device manufacturers and employer-provide health insurers almost complete immunity from the law. Just months after Congress smacked down the Court’s egregiously anti-worker decision in Ledbetter v. Goodyear Tire, the justices responded by creating a totally new way to kick older workers out of court.

Make no mistake, if Concepcion turns out badly it will be a disaster for millions of American consumers and a greenlight for corporate America to scam us all a few dollars at a time. But such a decision would not be anything new — it would just be the latest episode in the Roberts Court’s crusade for corporate immunity.