Access to Justice in Danger Before U.S. Supreme Court

by Arthur H. Bryant, Public Justice Executive Director
 
Six years ago, Public Justice launched the Access to Justice Campaign to “expose, fight, and defeat the frontal assault now taking place on the right to a day in court.”  It has made an enormous difference – educating the public and winning major victories against federal preemption, mandatory arbitration, class action bans, and attacks on the Constitution, right to counsel, and right to jury trial.  Now, however, especially in the first three areas, access to justice is in danger before the U.S. Supreme Court.
 
Federal Preemption
When the Access to Justice Campaign began, few knew that the Court could grant corporate wrongdoers total immunity and eliminate injured consumers’ rights by ruling that a federal law “preempts” and wipes out all state laws that could hold the company accountable.  In early 2008, however, the Court held in Riegel v. Medtronic that, because of federal preemption, millions injured by defectively designed medical devices could not sue the manufacturers at all.  Those people are now barred from court, unless Congress acts.
 
Since then, only a slim margin in the Court has held back federal preemption.  In late 2008, in Altria Group, Inc. v. Good, the Court reaffirmed 5-to-4 the “presumption against preemption” and held that federal law does not preempt lawsuits against tobacco companies for misleading the public about the health benefits of “light” cigarettes.  In 2009, in Wyeth v. Levine, the Court held that federal law does not preempt failure-to-warn lawsuits against prescription drug manufacturers. 
 
But the battle is still raging.  On October 12, the Court heard argument in Bruesewitz v. Wyeth on whether federal law preempts claims against vaccine manufacturers for injuring people with defectively designed vaccines.  New Justice Elena Kagan will not vote because, while Solicitor General, she filed an amicus brief for the government arguing that it does. 
 
We disagree.  The Vaccine Act says, “No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death... if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.” 
 
We think this language shows – and our amicus brief argues – that Congress did not preempt claims for injuries that were avoidable if a different, better design was used.   With Justice Kagan not voting, a 4-to-4 split decision would uphold the ruling by the U.S. Court of Appeals for the Third Circuit that vaccine design defect claims are preempted. 
 
The Court will also decide this term, in Williamson v. Mazda, whether federal law preempts claims against auto manufacturers by passengers injured because their rear center seats lacked shoulder harnesses.  The government says it does not – and that the lower courts are finding far too many claims preempted.  We agree, but do not think the government’s brief goes far enough. 
 
Our amicus brief argues that the National Highway and Transportation Safety Act – which says, “Compliance with any federal motor vehicle safety standard shall not exempt any person from any liability under the common law” – precludes a finding that common law claims are preempted.  It also urges the Court to rule, as Justice Thomas has argued, that the Constitution does not allow courts to find state law “implicitly preempted” by federal law when Congress has not explicitly preempted state law and the requirements of state law and federal law do not conflict.
 
Finally, in Mensing v. Wyeth, in which we are co-counsel, the Court has asked the federal government’s views on whether federal law preempts failure to warn claims against generic drug manufacturers.  We are urging the Solicitor General to agree with us that there is no preemption.  And the Supreme Court’s term has just yet started.
 
Mandatory Arbitration
Public Justice is the acknowledged national leader in the fight against corporate attempts to force consumers, workers, and investors out of court and into arbitration.  Our Access to Justice Campaign and Mandatory Arbitration Abuse Prevention Project have won more cases overturning unfair arbitration provisions than anyone in the country. Our legal treatise on the subject, Consumer Arbitration Agreements, is now in its fifth edition.  But companies are still revising their agreements – and trying to impose arbitration on more and more people.
 
The Supreme Court has consistently issued rulings advancing arbitration and limiting access to the courts.  In 2006, in Buckeye Check Cashing, Inc. v. Cardegna, the Court overturned our Florida Supreme Court victory striking down the mandatory arbitration clause in a payday lender’s contract and held that, when an entire contact is challenged as illegal, the arbitrator, and not the court, must decide that challenge. 
 
In Rent-A-Center, decided June 21, 2010, the Court gave corporations another way to expand arbitration and contract court access.  It held 5-to-4 that companies can force their employees and customers into mandatory arbitration using form agreements with a “delegation clause” that delegates decisions on whether the arbitration clause is valid to the arbitrator. 
 
Our most successful strategy for overturning unfair mandatory arbitration clauses and class action bans, see below, has been proving to courts that they are unconscionable, invalid, and unenforceable under state law.  In Rent-A-Center, however, the Court changed the rules – allowing corporations to prevent courts from reviewing the validity of arbitration agreements. 
 
Now companies can write their arbitration agreements to assign only the arbitrator, and not the court, the power to decide whether the agreements are legally valid.  Unless consumers and workers specifically argue and prove to the court that the “delegation clause” assigning that power to the arbitrator is legally invalid, the court has no role at all.  We are now working daily with consumers, workers, investors, and their attorneys to challenge improper “delegation” clauses, as well as mandatory arbitration.
 
Class Action Bans
Public Justice has also won more cases in more courts preserving class actions than any law firm in the country.  Our Class Action Preservation Project has argued and won precedent-setting decisions overturning class action bans in California, Florida, New Jersey, New Mexico, Washington, West Virginia, and federal courts throughout the nation. But, again, corporate wrongdoers are hoping the Court will make them immune.
 
Earlier this year, our amicus brief in Shady Grove v. Allstate Insurance helped persuade the Court that Allstate Insurance cannot use state law to bar a class action against it in federal court.  But in Stolt-Nielsen v. Animal Feeds, the Court held, despite our amicus urging, that class actions cannot take place when sophisticated parties arbitrate their disputes if their agreement is silent on the subject.  And on November 9, the Court will hear a case that could determine whether corporations will be able to ban nearly all class actions against them.
 
In AT&T v. Concepcion, the companies are arguing that the Federal Arbitration Act preempts all state laws that stop them from banning class actions, including the state laws we have been relying on to prove these bans unconscionable, invalid, and unenforceable.  If the Court accepts that argument, then unscrupulous corporations could steal millions in small individual amounts from their customers, workers, and investors and simply walk away with the money.  As our brief demonstrates, neither the facts nor the law permit allow such a result.
 
The Crucial Battles Ahead
In mid-June, Columbia Law School Professor Jamal Green, a former law clerk to Justice Stevens, wrote in The National Law Journal:
 
“In areas ranging from federal pre-emption of state tort suits to the rights of state prisoners to raise federal constitutional challenges through writs of habeas corpus to the right of private investors to sue those who aid and abet securities fraud, the Court’s conservatives have consistently sought to limit the opportunity of potential victims of wrongdoing to make their case before a judge or jury.  [The issue is] nothing less than the right to have rights. … The next several weeks will involve a prolonged effort to excavate the jurisprudence of Stevens’ likely replacement, Elena Kagan.  I hope she is asked what may be the most important question for any judge to answer:  Will she keep the courthouse doors open?”
 
The U.S. Supreme Court is now being asked that most important question in case after case.  Will it keep the courthouse doors open?   The battles ahead – and the Court’s answer – are crucial to our nation and our system of justice.   

 About the Author

Arthur H. Bryant, Executive Director of Public Justice and the Public Justice Foundation, has won major victories and established new precedents in several areas of the law, including constitutional law, toxic torts, civil rights, consumer protection, and mass torts.  The National Law Journal has named him one of the 100 Most Influential Attorneys in America.