Are consumers and employees getting a fair shake from the courts when they institute legal challenges against corporations? Many legal scholars would say no, arguing that the justice system has become skewed in favor of corporate interests and that the average American cannot expect to get a fair hearing from the court system when fighting corporate adversaries. This disparity exists at the lowest level of the court system up to the Supreme Court. The Supreme Court’s rulings on Citizens United and the McCutcheon cases are but two examples of the Court’s bias in favor of corporations and their interests, though these cases did not specifically involve consumers or employees. Corporations are considered to be “people” by the courts, and restrictions on corporate advertising or political involvement have been noted by the courts to be impediments to freedom of speech.
But it is much worse than that with corporate customers and employees who are not receiving protection from the courts when egregious actions and behavior by corporations have occurred. An example of this is the hacking that took place against Target in 2013, exposing around 110 million customers to fraud and identity theft. The failure of Target to maintain computer security was responsible for this breech. Dozens of class action lawsuits by consumers whose passwords and credit card numbers were compromised were filed against Target. But the question remains whether these will get anywhere and will Target have to reimburse customers for its negligence. Although Target’s fault appears clear-cut, it seems questionable that they will be held responsible for their negligence. The courts at every level have been absolving corporations for accountability for their actions that injured consumers in various ways.
Over the last thirty years or so, jurists have been moving to restrict individuals from using the courts to protect their rights against corporate entities. This has resulted in increased power held by corporations over consumers, allowing businesses to evade responsibility. The recent Supreme Court judgments, AT &T vs Concepcion, and American Express vs Italian Colors reveals the degree to which the courts have impinged on public rights that have century old histories. These rulings have allowed businesses to evade private lawsuits and class actions, greatly increasing their control over consumers and employees. Legal immunity for corporations has resulted from arbitration clauses in contracts, found to be valid by the courts even if the consumers were blind or illiterate, or had no understanding of the agreements that were signed. Because of this, multiple corporations have restructured contracts to provide them with legal immunity from suits, no matter how negligent or unconscionable the corporate actions had been.
The plaintiffs under these contracts are left with one alternative- mandatory binding arbitration. Unfortunately, the arbitrator is generally chosen by the corporation according to the contracts. And since the contracts themselves are written by the corporations, they greatly favor them to the point where many class action lawsuits are deemed illegal. A report by Public Citizen in 2007 showed that arbitrators ruled against consumers 94% of the time in lawsuits brought against corporations. Arbitration mainly works to help major corporations dodge accountability.
While the shift in the courts against consumers and employees in favor of corporations occurred because it was believed by many judges that America had become too litigious a society, the pendulum has now swung in the other direction. Corporations have undue power when there is conflict involving the “little guys.”- ordinary Americans, whether through class actions or individual lawsuits. Justice is not being served and change must occur to make the judicial process fairer.
Resurrecting Democracy
www.robertlevinebooks.com
Political junkie, Vietnam vet, neurologist- three books on aging and dementia. Book on health care reform in 2009- Shock Therapy for the American Health Care System. Book on the need for a centrist third party- Resurrecting Democracy- A Citizen’s Call for a Centrist Third Party published in 2011. Aging Wisely, published in August 2014 by Rowman and Littlefield. Latest book- The Uninformed Voter published May 2020