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AT&T MOBILITY LLC, PETITIONER v. VINCENT CONCEPCION ET UX.
April 27, 2011 3:23 PM   Subscribe

Third, class arbitration greatly increases risks to defendants. Informal procedures do of course have a cost: The absence of multilayered review makes it more likely that errors will go uncorrected. Defendants are willing to accept the costs of these errors in arbitration, since their impact is limited to the size of individual disputes, and presumably outweighed by savings from avoiding the courts. But when damages allegedly owed to tens of thousands of potential claimants are aggregated and decided at once, the risk of an error will often become unacceptable. Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims.
Justice Scalia delivers the opinion of the Court, and a knife in the back of class-action suits.

Breyer dissents for plaintiffs everywhere: “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?”

The SCOTUSblog case page.
posted by kipmanley (107 comments total) 14 users marked this as a favorite

 
This court decision was bought to you by AT&T .
posted by CitoyenK at 3:31 PM on April 27, 2011 [38 favorites]


Justice Scalia delivers the opinion of the Court, and a knife in the back of class-action suits [in which consumer plaintiffs seek to assert claims against a corporation with which they have a contract disallowing classwide arbitration].
posted by monju_bosatsu at 3:31 PM on April 27, 2011 [1 favorite]


Anything that reins in the class action plaintiff's bar a little can't be all bad.
posted by eugenen at 3:32 PM on April 27, 2011 [1 favorite]


Breyer dissents for plaintiffs everywhere: “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?”

isn't that the rub though? Complaintants get 30 bucks lawyers walk off with ( depending on the size of the suit) potentially millions? Who is getting served?
posted by Max Power at 3:32 PM on April 27, 2011 [4 favorites]


Thank god someone was looking out for the rights of our Corporate-American Citizens!
posted by vibrotronica at 3:33 PM on April 27, 2011 [8 favorites]


Justice Scalia delivers the opinion of the Court, and a knife in the back of class-action suits [in which consumer plaintiffs seek to assert claims against a corporation with which they have a contract disallowing classwide arbitration].

...which is every customer of a cellphone, utility, insurance, medical billing, credit card, bank, finance broker, product manufacturor, retail sales or healthcare provider company.
posted by T.D. Strange at 3:34 PM on April 27, 2011 [36 favorites]


Just in time for that Wal-Mart case too. Wonder which side of the bed Kennedy will fall off of that morning.
posted by Slackermagee at 3:35 PM on April 27, 2011 [1 favorite]


"To get around this, Scalia essentially relies on some highly contestable anti-consumer policy arguments [snip] .... the Court has made it easier for corporations to get away with rip off their customers based on a highly strained reading of federal law."

It's just vintage Scalia. It's like a very special wine, it never gets old.

Kennedy, of course, sided with the majority.
posted by blucevalo at 3:36 PM on April 27, 2011 [4 favorites]


Kennedy, of course, sided with the majority.

This term has really put the nail in the coffin of the Kennedy as O'Conner 2.0 theory. He's the fifth vote of the Roberts junta, through and through.
posted by T.D. Strange at 3:38 PM on April 27, 2011 [7 favorites]


isn't that the rub though? Complaintants get 30 bucks lawyers walk off with ( depending on the size of the suit) potentially millions? Who is getting served?

All the customers who are not ripped off by virtue of deterrence.
posted by a robot made out of meat at 3:38 PM on April 27, 2011 [38 favorites]


isn't that the rub though? Complaintants get 30 bucks lawyers walk off with ( depending on the size of the suit) potentially millions? Who is getting served?

Honestly, lawyers making millions off class-action lawsuits doesn't bother me anywhere near as much as the fact that now it's de facto okay for a corporation to literally defraud millions of people for $20-$50 each on the basis that they could never be sued by those people through a class action. Class action lawyers were serving a valuable (albeit rent-seeking) role of deterring widespread fraudulent nickel-and-diming.

Prepare to start seeing all kinds of new illegal fees on your cell phone bills, cable bills, car loan applications, rent, and so forth. Who cares if it's illegal if it's uneconomical for your customers to sue you for it? It's open fucking season on consumers, courtesy of the Roberts court.
posted by 0xFCAF at 3:40 PM on April 27, 2011 [98 favorites]


If the consumer only *lost* $30 but a thousand of them did the same, and the lawyers spent years putting the case through, I think it's generally quite fair. Lawyers as an aggregate would make just as much money if you paid them a market rate to litigate every single one of those claims individually, if not considerably more. Companies should not get free reign to screw consumers over as long as they do it a penny at a time and put arbitration clauses into everybody's adhesion contracts.
posted by gracedissolved at 3:41 PM on April 27, 2011 [5 favorites]


Something tells me that if I were to emboss "cashing of this check constitutes an ending of our previous agreement and an agreement on the part of the casher to settle any and all disagreement between the payer and casher through mandatory arbitration by Metafilter, Metafilter, and Metafilter" wouldn't carry the same weight as their "agreements" do, though.

Capitulation to corporate power has become such utter, blattant bullshit. Why do we even pretend, anymore?
posted by Benny Andajetz at 3:41 PM on April 27, 2011 [6 favorites]


... emboss on my checks, that is.

.... and blatant.
posted by Benny Andajetz at 3:42 PM on April 27, 2011


The problems with the class action plaintiffs bar are with the attorneys themselves, i.e. that they're not doing enough to represent their clients. That problem is not solved by having fewer class action suits.
posted by Bulgaroktonos at 3:43 PM on April 27, 2011 [1 favorite]


I read through the ruling earlier, and it pains me that Justice Silent Dipshit said in his concurring opinion that he thought the majority's opinion was essentially crap, but had to side with them due to the fact that the two laws (Discover Bank Rule and Federal Arbitration Act) contradicted each other.

Under this reading, I would reverse the Court of Appeals because a district court cannot follow both the FAA and the Discover Bank rule, which does not relate to defects in the making of an agreement.
This reading of the text, however, has not been fully developed by any party, cf. Brief for Petitioner 41, n. 12, and could benefit from briefing and argument in an appropriate case. Moreover, I think that the Court’s test will often lead to the same outcome as my textual interpretation and that, when possible, it is important in interpreting statutes to give lower courts guidance from a majority of the Court. ... I reluctantly join the Court’s opinion.

posted by Mister Fabulous at 3:47 PM on April 27, 2011 [3 favorites]


isn't that the rub though? Complaintants get 30 bucks lawyers walk off with ( depending on the size of the suit) potentially millions? Who is getting served?

What exactly is the problem with this? So a lawyer walks away with a huge chunk of cash while thousands of people get a few bucks each. The whole point is that the corporation doing the fucking-over is out the money, which is the only thing that means shit to a corporation, after all.
posted by odinsdream at 3:47 PM on April 27, 2011 [28 favorites]


: isn't that the rub though? Complaintants get 30 bucks lawyers walk off with ( depending on the size of the suit) potentially millions? Who is getting served?

It's meant, at best, to return to the plaintiffs some of the money they lost in the ripoff, but the effective outcome is to punish the company with a multimillion dollar fine for doing wrong. Who really gives a rat's ass what the lawyers make on it?

Since meaningful consumer protection laws and their enforcement have been steadily overturned, defunded and dissolved over the past few decades, this was about the only meaningful disincentive to do wrong we had left.

If you have a good idea for something to fill the breach, we're all ears here. Honestly.
posted by at by at 3:47 PM on April 27, 2011 [8 favorites]


Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims.defendants who are usually pressured into settling.
posted by Ironmouth at 3:49 PM on April 27, 2011 [1 favorite]


Yeah, right on Scalia! Nowhere in the constitution does it say that an abstract legal entity representing a plurality of stakeholders with common economic interests should be treated the same way as a person for legal matters, or otherwise assigned "personhood".

Oh, wait...
posted by qvantamon at 3:50 PM on April 27, 2011 [16 favorites]


I fucking hate Scalia.
posted by stoneweaver at 3:51 PM on April 27, 2011 [14 favorites]


isn't that the rub though? Complainants get 30 bucks lawyers walk off with ( depending on the size of the suit) potentially millions? Who is getting served?

Class actions are the way the market corrects for wrongdoing by companies in the absence of effective regulation. They are a major part of the "self-regulation" of markets that conservatives love to talk about. That's one of the major reasons conservatives want to get rid of them or at least blunt them. It's all part of the overall strategy of dismantling the regulation of businesses.

If you've got a $30 complaint, even if you wring the $30 out of the company in small claims or arbitration, the company isn't going to change the way it does business (heck, they may take punitive out-of-court action against a successful plaintiff). It's highly unlikely that you can organize thousands of similarly situated people to do likewise. It's an insurmountable collective action problem and too expensive for the plaintiffs.

Even if it did work it would be extremely expensive for the defendant as well, which isn't what we want. What we want is just, fair, fast, efficient dispute resolution. Massive bilateral actions would be none of those things.

For all their faults, class actions are uniformly superior to some theoretical massive set of bilateral arbitration actions or lawsuits, for both plaintiffs and defendants. A large defendant would much rather defend one class action than literally tens of thousands of arbitrations. But the big defendants know that's never going to happen; that's why they put the bilateral arbitration clauses in the contracts. They know it's tantamount to a waiver of any right to sue.
posted by jedicus at 3:52 PM on April 27, 2011 [29 favorites]


Third, class arbitration greatly increases risks to defendants.

What a load of nonsense. It's somehow more risky for corporations to have their case tried before a paid shill of their choosing than before a judge or jury? Surprisingly enough, the companies have a lot of control over the selection of the arbitrator, and it just so happens that the ones who keep getting hired are the ones who tend to rule for the defendants.

If mandatory binding arbitration with no possibility of further review is such a fair and wonderful dispute resolution process, how come we don't hear about more megacorps taking their multimillion dollar lawsuits amongst themselves to arbitration? Heck, why not just "privatize" away the entire civil court system entirely and let it all be handled through arbitration?
posted by zachlipton at 3:54 PM on April 27, 2011 [6 favorites]


Too bad that blog post is so riddled with typos. Makes it hard to read.
posted by John Cohen at 3:58 PM on April 27, 2011 [1 favorite]


For those wondering about the problems with class actions, let me amplify what I said earlier a bit. The problem is that in class action litigation, it is harder to ensure that lawyers won't settle cases just to get their cut of the fee, even when settling is not in the clients interest. A common example of this is when customers receive a coupon in the amount that they lost to use at the company their suing. Obviously, this benefits the lawyers(whose cut comes as actual money) and the defendant corporation more than it benefits he plaintiffs.
posted by Bulgaroktonos at 3:59 PM on April 27, 2011 [1 favorite]


There are already significant constraints on filing class action lawsuits.

Ford Motor Company dodged a bullet a few years ago through some legal wrangling that excluded a class action lawsuit stemming from failures on their aluminum head Triton engines. They would have almost certainly lost, and they would have been bankrupted.

As OxFCAF put it, "Who cares if it's illegal if it's uneconomical for your customers to sue you for it?"

Phone companies and other large businesses that serve retail level consumers have been doing this kind of crap for years, under the old rules. There is no conceivable way this is good news for consumers.
posted by Xoebe at 3:59 PM on April 27, 2011 [2 favorites]


Wait a tick -- correct me if I'm wrong, but I'm not seeing where this ruins class action suits, just class action arbitration.

It may seem like a fine distinction but I think it's important.
posted by chimaera at 4:01 PM on April 27, 2011


I mean, consider the sheer economics here. Verizon is a multi million (billion?) dollar company. The vast majority of its customers entire incomes are slivers of a fraction in comparison. They pay Verizon dollars a month individually.

What other conceivable method would there be for any dispute resolution at all?
posted by odinsdream at 4:01 PM on April 27, 2011 [1 favorite]


What other conceivable method would there be for any dispute resolution at all?

One alternative would be if the $30 plaintiff could also be awarded an injunction preventing the defendant from engaging in the same behavior with any other customers. No class action or overpaid lawyers necessary.

Except AT&T's contract already forbids that (as do most such form contracts):

"The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim."
posted by jedicus at 4:08 PM on April 27, 2011 [3 favorites]


Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims.

When he rules the same way on IP suits, I'll take him seriously.
posted by ChurchHatesTucker at 4:12 PM on April 27, 2011 [6 favorites]


This decision is breathtaking in its twin hallmarks: excessive obsequiousness to business interests and jackboot-on-neck contempt for the consumer to fight back against the arrogance of those business interests. To characterize the main problem as consumers scamming businesses as opposed to the unequal legal power relationship between well funded corporate lawyers and an average citizen is blindingly stupid and arrogant.
posted by Mental Wimp at 4:24 PM on April 27, 2011 [15 favorites]


One alternative would be if the $30 plaintiff could also be awarded an injunction preventing the defendant from engaging in the same behavior with any other customers. No class action or overpaid lawyers necessary.

And even if the contracts didn't forbid injunctive relief, why would a lawyer take on the $30 plantiff's case? I don't believe you can get an injunction in small claims court, at least in most states, and a large corporation can easily swamp a single lawyer chipping in a few hours of pro-bono time with piles of discovery documents and motions. Non-profits might take on a few such cases with a big public advocacy angle, but for most of these cases, it's an awfully big fight to take on just to change an unfair business practice.

Besides, if the company manages to require binding arbitration for individual actions, you don't even have much of a way to request the injunction in the first place.
posted by zachlipton at 4:26 PM on April 27, 2011


The last two guys I despised as much as Scalia and Roberts were Bobby "The Brain" Heenan and the Iron Sheik. Except, with those guys, their evil was more nuanced and I doubt highly that Justices Heenan and Sheik could have cocked this ruling up any worse.
posted by EatTheWeak at 4:38 PM on April 27, 2011 [3 favorites]


I love it. States should have the right to enforce the will of their citizens as they see fit, unhindered by an overbearing federal presence -- UNLESS a state decides to enact progressive legislation, in which case federal law unquestionably reigns supreme.
posted by brain_drain at 4:38 PM on April 27, 2011 [7 favorites]


Ive always been under the impression that you cannot sign away your rights, regardless of what a contract says. Why is denying someone their day in court through some blatantly unequal boilerplate "agreement" acceptable in any way at all?

Unless big corporations face big resolve against them when they do something wrong, equity will never be realized.
posted by Benny Andajetz at 4:42 PM on April 27, 2011 [1 favorite]


I am really, really not advocating some googleronpaul "vote with your dollar" freemarket bullshit here, but I would never in a million billion skarillion years knowingly do business with a phone or loan or cable company that put shitty language like that in their contracts.

(And in fact, I'd stab myself in the eye with a shrimp fork before getting phone or cable service from a company on anything other than a pay-as-you-go basis.)

It's never been clear to me how, after 100 years of phone service universally being billed month to month, an entire nation of people just rolled over and let these phonecorp bastards make them sign extended agreements. I guess maybe because for the vast majority of mobile device users now, it's always been that way.
posted by FelliniBlank at 4:48 PM on April 27, 2011 [1 favorite]


...then he crushed a kitten with his gavel.
posted by Artw at 4:50 PM on April 27, 2011 [7 favorites]


I am really, really not advocating some googleronpaul "vote with your dollar" freemarket bullshit here, but I would never in a million billion skarillion years knowingly do business with a phone or loan or cable company that put shitty language like that in their contracts.

In which quaint village hamlet are you the blacksmith?
posted by odinsdream at 4:51 PM on April 27, 2011 [56 favorites]


I would never in a million billion skarillion years knowingly do business with a phone or loan or cable company that put shitty language like that in their contracts.

I get where you're coming from and would like to think that this could work, BUT, what are we to do when EVERY carrier includes such abuse in their terms of service?
posted by EatTheWeak at 4:51 PM on April 27, 2011 [3 favorites]


It's never been clear to me how, after 100 years of phone service universally being billed month to month, an entire nation of people just rolled over and let these phonecorp bastards make them sign extended agreements.

We sold our souls for free Nokias.
posted by auto-correct at 4:51 PM on April 27, 2011 [5 favorites]


I get where you're coming from and would like to think that this could work, BUT, what are we to do when EVERY carrier includes such abuse in their terms of service?

I understand that people have gotten really used to fancy mobile tech., but it wouldn't kill 94% of folks to have a crappy TracFone burner and limit their yakking for 6 or 12 months to teach these fuckers a lesson.

But no, this isn't a realistic grassroots possibility because we are, of course, unequalled in our inertia (me included). Jesus, you'd think that people being wired into everything everywhere all the time would make grassroots stuff unbelievably simple, but nooooooooooooo.
posted by FelliniBlank at 4:56 PM on April 27, 2011 [1 favorite]


Here's a scary line from ATT's service agreement:

You agree that, by entering into this Agreement, you and AT&T are each waiving the right to a trial by jury or to participate in a class action.

Now, I know that sometimes folks put clauses in contracts that courts later find non-binding. Would this clause survive legal review?
posted by nathan v at 4:56 PM on April 27, 2011


Hooray for Fascism!
posted by TrialByMedia at 5:00 PM on April 27, 2011


I am really, really not advocating some googleronpaul "vote with your dollar" freemarket bullshit here, but I would never in a million billion skarillion years knowingly do business with a phone or loan or cable company that put shitty language like that in their contracts.

If you can manage that, then more power to you. Almost any contract or TOS you sign these days is going to have such shitty language in it. Most people sign dozens of them without even knowing it, because they don't have the time or the legal training to read and analyze several pages of small print every time they get a phone, have their cable connected, or buy a piece of software. In fact, sometimes they don't even have to sign -- many credit card companies routinely send out notices changing their terms of service, specifying that using your card after the date of the alteration constitutes agreement. Most of these notices end up in the shredder, or sitting on the coffee table waiting to be read when the recipient isn't busy taking his kids to soccer practice.

Corporations have managed, as they so often do, a neat trick: they dictate the terms of every piece of business we transact with them, and all we have to do to stop them is take a class in consumer law and then spend all our free time parsing their onslaught of paperwork. The only other choice is to get off the grid and live on nuts and berries. I'd do that, but then I'd miss the royal wedding...
posted by steambadger at 5:03 PM on April 27, 2011 [8 favorites]


What other conceivable method would there be for any dispute resolution at all?

Sabotage. Revolution. History is full of examples really.
posted by Kid Charlemagne at 5:05 PM on April 27, 2011 [6 favorites]


Now, I know that sometimes folks put clauses in contracts that courts later find non-binding. Would this clause survive legal review?

That's basically what this very case is about. The Supreme Court ruled that AT&T Mobility's arbitration clause that bans all class actions is valid despite California's law that basically says the opposite. There may be other hurdles that could cause a court to strike a waiver like this depending on the exact case and the circumstances, but the reason this ruling is so scary is that it's more or less answering "yes" to the question you asked here.
posted by zachlipton at 5:07 PM on April 27, 2011 [6 favorites]


Most people sign dozens of them without even knowing it, because they don't have the time or the legal training to read and analyze several pages of small print every time they get a phone, have their cable connected, or buy a piece of software.

I used to try to read all of these, but I'll tell you, it is pretty difficult when I get an e-mail every couple of months informing me that some contract or policy or another has been updated without telling me what the change is. Do I have to then re-read a mind-numbing privacy policy again?
posted by grouse at 5:11 PM on April 27, 2011 [1 favorite]


If you can manage that, then more power to you.

Yeah, I think the "knowingly" in my original comment is the sticking point. There probably is some of this appalling verbiage buried in my car loan paperwork and 40 other obscure places I just haven't noticed, and obviously there are situations for many people where there are absolutely no other options.
posted by FelliniBlank at 5:12 PM on April 27, 2011


I get where you're coming from and would like to think that this could work, BUT, what are we to do when EVERY carrier includes such abuse in their terms of service?

Well you could just buy the phone outright instead of going for the freebie offer. Yes, this costs more up front, but it almost always works out cheaper over the life of the phone andavoids all kinds of potentially expensive early-termination clauses. I held onto my last phone for well over a year after I had become sick of it so as to save up for the phone that I wanted to replace it with, instead of entering into a ripoff free-with-bloodsucking-contract agreement. As is stated early in the opinion (which predictably few people seem to have read), the complaint about the consumer having been billed for California sales tax on what the retail value of the free phone would have been. So basically they tried to launch a class action lawsuit because they didn't want to pay taxes on a heavily discounted promotional item.

I can't speak for this particular consumer offer, but every time I have ever looked at a 'Free!*' offer it has always come with certain terms and conditions attached, such as being eligible, still owing the sales tax and so on. I don't think this is a knife in the back of class action lawsuits or anything like it. The lawsuit is such an obvious shakedown that I don't really have any sympathy for the plaintiffs.
posted by anigbrowl at 5:18 PM on April 27, 2011 [1 favorite]


I used to try to read all of these, but I'll tell you, it is pretty difficult when I get an e-mail every couple of months informing me that some contract or policy or another has been updated without telling me what the change is. Do I have to then re-read a mind-numbing privacy policy again?

Typically, a material change to your service agreement means you can take an early exit from the contract without paying an outrageous termination fee. IANAL, IANYL.
posted by anigbrowl at 5:21 PM on April 27, 2011 [1 favorite]


Yes, but what if I don't want to take an early exit from the contract?
posted by grouse at 5:23 PM on April 27, 2011


That's basically what this very case is about. The Supreme Court ruled that AT&T Mobility's arbitration clause that bans all class actions is valid despite California's law that basically says the opposite.

That's not how I'm reading it, but I'm no lawyer. It seems to me that the Supreme Court ruled that ATT's restriction on class action arbitration is valid. This does involve discrepancies between state and federal law, but other discrepancies would have to be decided seperately, right?

But what I'm curious about is if a clause forbidding any kind of lawsuit, relying instead of arbitration, is valid. (ATT's clause doesn't quite do this, as it permits small claims court actions, but it seems like that's not very relevant as to whether the clause is valid or not.)
posted by nathan v at 5:26 PM on April 27, 2011


Yes, but what if I don't want to take an early exit from the contract?

Then it's reasonable to conclude you find the terms satisfactory, and no dispute exists.
posted by anigbrowl at 5:31 PM on April 27, 2011


But what I'm curious about is if a clause forbidding any kind of lawsuit, relying instead of arbitration, is valid.

A contract can't keep you from filing a lawsuit. It can, however, require that you go through arbitration before filing a suit; and, in practice, the results of arbitration are very rarely overturned.

So technically, the answer to your question is "no". Practically, the answer is "yes".

Disclaimer: I am not a lawyer. Reading this disclaimer past this point constitutes agreement with the entire disclaimer. Firstborn issue of the reader may be held as chattel by the poster for a term not longer than fifteen years. Nothing in this disclaimer shall be held to obligate the poster in any way. The reader agrees to a monthly payment of $100US, to be deposited to the paypal account of the poster. Any disputes arising from this disclaimer shall be settled solely by Sharia law. If you've read this far, you have agreed to jump up and down on one foot for a period of fifteen minutes, chanting "I am rubber, you are glue". Get to it.
posted by steambadger at 5:37 PM on April 27, 2011 [6 favorites]


You know, even if you complain and the telco just rolls over and let's you keep your old agreement, you're still screwed. Since nearly all the other customers will be under the new contracts, there won't be enough people left to constitute a viable class. It would be too small a case to interest lawyers.
posted by ryanrs at 5:40 PM on April 27, 2011


Come to think of it, the dynamics are a bit like vaccination and the spread of disease. The new contract is the vaccine, and class action lawsuits are a disease that spreads through your population of customers.
posted by ryanrs at 5:45 PM on April 27, 2011 [1 favorite]


Can I really waive my right to trial by jury? Non-lawyer, honestly curious.
posted by benito.strauss at 5:46 PM on April 27, 2011


Just a note, the arbitration process is not free. Most arbitration procedures that i have been involved with cost in the range of hundreds to thousands of dollars for access to the arbitration forum.

But if the principle is important enough, I'm sure that consumers will fork that over to recover their $30.00.
posted by mygoditsbob at 5:48 PM on April 27, 2011


benito.strauss: If you have a cell phone or a major credit card you already have.
posted by mygoditsbob at 5:49 PM on April 27, 2011 [1 favorite]


Then it's reasonable to conclude you find the terms satisfactory, and no dispute exists.

Always reasonable for the other party, perhaps, but not always reasonable for the person who has to agree to the new terms.

Just because you don't want to take an early exit from the old contract doesn't mean you automatically find the new contract acceptable.
posted by Blazecock Pileon at 5:54 PM on April 27, 2011


Yes you can waive your right to a trial by jury. IAAL IANYL, or even this kind of lawyer but it happens all the time.
posted by goneill at 5:55 PM on April 27, 2011


eugenen: "Anything that reins in the class action plaintiff's bar a little can't be all bad"

Yeah, it's just so bad that large corporations can't run roughshod over people because the individual claims are too small to be worth pursuing. Evil, I tell you.

</hamburger>
posted by wierdo at 5:59 PM on April 27, 2011


This is shit, like so much that's come from Scalia, Thomas and now Roberts/Alito. And it's going to harm our country for as long as the conservatives have their grip on the high court.

The composition of the SCOTUS has always been my number one concern in Presidential elections. It's the reason that, no matter how disappointed I might be about any foot-dragging or half-measures by Obama on other issues I might be passionate about, I will still dutifully head to the polls in 2012 and vote for him without hesitation.

Making it clear I'm not advocating for violence or death of anyone, but it's one of my great political hopes that Obama gets to appoint one or two more SCOTUS justices to fill slots left by a retiring Scalia and/or Thomas before his second term is over.
posted by darkstar at 5:59 PM on April 27, 2011 [8 favorites]


Can I really waive my right to trial by jury? Non-lawyer, honestly curious.

Yes, and you can waive your right to a lawyer and to a speedy trial too. Sometimes the court will hold a special hearing in a case like that to ensure you're aware of what you're doing. A trial without a jury is called a bench trial. It might be a better option if you have a truly watertight defense, the other side is too thick/stubborn to settle, and you want to get the process over with as quickly as possible.

Just a note, the arbitration process is not free. Most arbitration procedures that i have been involved with cost in the range of hundreds to thousands of dollars for access to the arbitration forum. But if the principle is important enough, I'm sure that consumers will fork that over to recover their $30.00.
From paragraph 2 of the court's opinion; emphasis added
In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submissions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, moreover, denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer receives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.
Sounds quite customer-friendly if you ask me. If it was really about the $30 fee, the plaintiff could potentially have got the fee, costs, and damages in small claims court, for which the filing fee is only $30. It went up recently, I think it was $25 when this case was first filed.
posted by anigbrowl at 6:05 PM on April 27, 2011 [1 favorite]


Signore Scalia, vai a fare un culo!
posted by Vibrissae at 6:18 PM on April 27, 2011 [1 favorite]


Always reasonable for the other party, perhaps, but not always reasonable for the person who has to agree to the new terms. Just because you don't want to take an early exit from the old contract doesn't mean you automatically find the new contract acceptable.

But you don't have to agree to the new terms. If you do find the new contract acceptable, you do nothing. Otherwise, you can walk away from it with no penalty. You can't force another party to adhere to a particular set of terms forever, only seek remedy for a breach. Otherwise you'd never be able to get out of the contract either.

I don't like phone service contracts, because I had a problem with the first one I ever signed onto and ended up having to pay an annoying termination fee. Which is why I've always relied on prepaid monthly service ever since. Unless you're the sort of person who must have a hot new phone every year, it's cheaper too. I find it rather ironic that so many people are cheering for a plaintiff whose complaint amounted to 'you made me pay taxes.'
posted by anigbrowl at 6:31 PM on April 27, 2011


Man, SCOTUS really has a hate-on for the Ninth Circuit.
posted by Gator at 6:36 PM on April 27, 2011


Yes you can waive your right to a trial by jury. IAAL IANYL, or even this kind of lawyer but it happens all the time.

I just had the pleasure of speaking to the smartest contract lawyer I know (the only one I know, but that doesn't stop her from being super smart anyways :) )

She had a good and interesting example of waiving the right to sue: settlements. They are just contractual agreements where one party says "I will not sue you for x."

One could dispute the validity of the clause in ATTs case, arguing that it was unconscionable in an adhesion contract (a non-negotiable boilerplate contract). Arguments of unconscionability are decided by juries rather than judges, so it doesn't sound like there's a lot to be said about how successful you would be in your argument.

Arguments of unconscionability didn't enter into the SC decision; doesn't sound like they were advanced.
posted by nathan v at 6:37 PM on April 27, 2011


Sounds quite customer-friendly if you ask me. If it was really about the $30 fee, the plaintiff could potentially have got the fee, costs, and damages in small claims court, for which the filing fee is only $30.

So it might seem at first blush, but obviously customers don't go that route. So why not, if it's apparently so attractive?

1. AT&T is a classic 'repeat player,' so that $7500 minimum plus double attorney's fees clause is almost never going to come into play. AT&T knows what the possible damages are, so their last written settlement offer will probably always beat the arbitration award. Or AT&T just won't put the offers in writing if it's a risky case.

2. This is a cell phone business, so the actual damages are going to be pretty limited, at least on an individual basis (e.g. the $30 at play here). So no attorney is going to take the case on contingency. Which means the plaintiffs still have to front the attorney's fees. A lot of people can't afford that, certainly not over such a small amount.

3. Another thing people can't afford is taking the time off of work and away from life to handle an arbitration proceeding or a self-represented small claims case. By contrast, class actions are basically zero effort for most of the class, and the representative plaintiffs are usually given extra compensation for their time and effort.
posted by jedicus at 6:39 PM on April 27, 2011 [2 favorites]


I find it rather ironic that so many people are cheering for a plaintiff whose complaint amounted to 'you made me pay taxes.'

I don't care about the merits of the plaintiff's claim. I care about the right to bring claims as a class action.
posted by jedicus at 6:40 PM on April 27, 2011 [5 favorites]


Disclaimer: I am not a lawyer. Reading this disclaimer past this point constitutes agreement with the entire disclaimer. Firstborn issue of the reader may be held as chattel by the poster for a term not longer than fifteen years. Nothing in this disclaimer shall be held to obligate the poster in any way. The reader agrees to a monthly payment of $100US, to be deposited to the paypal account of the poster. Any disputes arising from this disclaimer shall be settled solely by Sharia law. If you've read this far, you have agreed to jump up and down on one foot for a period of fifteen minutes, chanting "I am rubber, you are glue". Get to it.

It shows. Otherwise you would have situated your claims within a disclaimer, thereby disavowing their validity. Autobots, litigate!

posted by anigbrowl at 6:42 PM on April 27, 2011


Arguments of unconscionability are decided by juries rather than judges

This is inaccurate at best. I don't know about every state, but it appears that in California at least unconscionability is a matter of law for the judge to decide. Cal. Civ. Code § 1670.5; See also Armendariz v. Foundation Health Psychcare, 6 P. 3d 669 (Cal. 2000).

Further, in a case like this, where the argument is that the arbitration clause is unconscionable, the argument would be raised pre-trial and the judge would rule on it, no jury involved.
posted by jedicus at 6:52 PM on April 27, 2011 [1 favorite]


Four reasons why we need a Democrat in the White House for at least eight more years:

Scalia - age 75
Kennedy - age 72
Ginsburg - age 78
Breyer - age 72

As deeply disappointed in Obama as I am, this is why I'll vote for him come 2012. The idea of a Republican conservative President and a Senate full of Democratic capitulators choosing our next several Supreme Court justices is too horrible to consider.
posted by Pants McCracky at 6:56 PM on April 27, 2011 [13 favorites]


Thanks jedicus, I must have misunderstood.
posted by nathan v at 6:58 PM on April 27, 2011


Has anybody mentioned the case pending before the court that would effectively neutralize every state legislature's ethics policies, giving state lawmakers the protected right to take bribes in return for their votes, as votes would be considered protected political speech in the same way that cash donations to third-party political organizations is? Hearing the court's glib arguments on the merits of the case really hurt. Logic was broken in so many ways in just the first few exchanges it made my brain ache.
posted by saulgoodman at 7:01 PM on April 27, 2011


erm, i mean 'are'. tiny subject/verb agreement issue there.
posted by saulgoodman at 7:02 PM on April 27, 2011


Perfect timing! I bet Sony rises nicely in after-hours trading.
posted by seanmpuckett at 7:03 PM on April 27, 2011


I find it rather ironic that so many people are cheering for a plaintiff whose complaint amounted to 'you made me pay taxes.'

I'm not sure that word means what you think it means.

But, in any case, I don't think people are cheering for this specific plaintiff. Rather, recognizing that the game is severely gaffed against the individual consumer, they're cheering any breach in the enemy lines.
posted by steambadger at 7:12 PM on April 27, 2011 [1 favorite]


Has anybody mentioned the case pending before the court that would effectively neutralize every state legislature's ethics policies, giving state lawmakers the protected right to take bribes in return for their votes, as votes would be considered protected political speech in the same way that cash donations to third-party political organizations is?

That would be Nevada Ethics Commission v. Carrigan.
posted by jedicus at 7:14 PM on April 27, 2011 [2 favorites]


Jedicus, I have nothing against class action lawsuits; if I understand you correctly, your underlying point is that contractual language is now more likely to involve mandatory arbitration provisions and manufacturers and retailers will rely on such provisions to insulate themselves from potential liability. I would agree with you about that being a problem.

However, I do think the merits are important. This claim seems rather frivolous to me, and the outcome of a class action would have been to drive up the cost for future consumers on behalf of plaintiffs who had suffered little, if any, injury and who chose not to exercise any of their other available remedies. To be honest, I feel the plaintiffs have muddied the waters for more legitimate class action claims.

I haven't read the CA statute in question and I'm not familiar with the FAA, so I'm not necessarily saying I agree with the judgment. But let's face it, most of the comments started out as 'Scalia, therefore it sucks,' which isn't a very good argument either.
posted by anigbrowl at 7:25 PM on April 27, 2011


THERE IS NO RIGHT WING JUDICIAL ACTIVISM IN THE SUPREME COURT, YOU HEAR ME?!?!?!
posted by liza at 7:32 PM on April 27, 2011 [2 favorites]


However, I do think the merits are important

Perhaps, but the merits were not at issue here. This was a procedural case, not a substantive one. The Supreme Court was not ruling on the merits of the case; indeed, the factual record hadn't even been developed yet.

This claim seems rather frivolous to me

That's a separate issue that AT&T could raise at the arbitration stage. It would mean not having to pay the costs of arbitration, so it's an argument AT&T might well make.

To be honest, I feel the plaintiffs have muddied the waters for more legitimate class action claims.

The answer to problematic class actions is to use mechanisms like motions to dismiss, summary judgments, fee-shifting (i.e. making the plaintiff pay the defendant's attorney's fees), and even attorney sanctions in more extreme cases. Effectively banning class actions outright is a really coarse, over-inclusive mechanism that throws the baby out with the bathwater.
posted by jedicus at 7:36 PM on April 27, 2011 [7 favorites]


Fuck. That's all.
posted by outlandishmarxist at 7:39 PM on April 27, 2011


steambadger: "But what I'm curious about is if a clause forbidding any kind of lawsuit, relying instead of arbitration, is valid.

A contract can't keep you from filing a lawsuit. It can, however, require that you go through arbitration before filing a suit; and, in practice, the results of arbitration are very rarely overturned.

So technically, the answer to your question is "no". Practically, the answer is "yes".

Disclaimer: I am not a lawyer. Reading this disclaimer past this point constitutes agreement with the entire disclaimer. Firstborn issue of the reader may be held as chattel by the poster for a term not longer than fifteen years. Nothing in this disclaimer shall be held to obligate the poster in any way. The reader agrees to a monthly payment of $100US, to be deposited to the paypal account of the poster. Any disputes arising from this disclaimer shall be settled solely by Sharia law. If you've read this far, you have agreed to jump up and down on one foot for a period of fifteen minutes, chanting "I am rubber, you are glue". Get to it.
"

Unfortunately, I am going to have to lodge a counter suit. Your clause stating that one foot must be jumped upon is prejudiced against those of us with joint problems that preclude jumping on one foot for any length of time. Also, I think we may have grounds for a ADA case, based on the idea of readers having latex allergies being exacerbated by the chant.

See you in court, bucko. Bring plenty of coal for yourself, it's going to be a long one.
posted by Samizdata at 8:01 PM on April 27, 2011


I find it rather ironic that so many people are cheering for a plaintiff whose complaint amounted to 'you made me pay taxes.

Others have pointed out that the issue here is whether any class actions can be brought, not whether this particular case is so virtuous, but I don't get the knee-jerk reaction to condemn it out of hand. Presumably, their case is basically a false advertising claim: AT&T advertised a free phone, but it turns out you have to pay $30.22 in taxes to get that supposedly free phone. Most customers do not expect to be billed for sales tax when they didn't spend any money, and these customers almost certainly had no awareness of the true retail price of the phone, which is used to calculate the amount of tax. AT&T certainly could have chosen to cover the tax for their customers too, but they choose not to. This advertising practice puts them at a competitive advantage over another cell phone company that truthfully advertised a $30 phone offer or that paid the sales tax themselves to actually provide a free phone.

Again, none of us know whether this case can truly succeed on its merits, but that's exactly what lawsuits designed to figure out. My point is simply that it's really not so absurd on its face that someone call AT&T out on this advertising practice. The only practical way to do so is through a class action lawsuit, and now that avenue is closed off too.

Note: this is why Apple's fine print on the iPhone page has this disclosure: "for those who are not qualified customers, are not eligible for an early upgrade, or wish to buy iPhone as a gift, the prices are $499 (8GB), $599 (16GB), or $699 (32GB). In CA, MA, and RI, sales tax is collected on the unbundled price of iPhone."
posted by zachlipton at 8:14 PM on April 27, 2011


Sounds quite customer-friendly if you ask me. If it was really about the $30 fee, the plaintiff could potentially have got the fee, costs, and damages in small claims court, for which the filing fee is only $30. It went up recently, I think it was $25 when this case was first filed.

Yeah right. Because a lot of people are going to go to small claims court over a $30 fee. Even if I'm an expert at small claims cases so it only takes a couple hours of my time to get all the documents together, research the relevant law, prepare a complaint, front the court fee, file and serve it, go to court, present my case, win, collect my judgement, and file the necessary paperwork to close out the case, that's still not worth my time. To do something like that for so little compensation, you either have to be a megalomaniac, have a really big grudge against someone, or have truly nothing else you could possibly do with your time.

That's why individual small claims court cases (or individual arbitration) aren't a meaningful remedy. If a company wrongs a large number of people but each individual wrong is slight, how else do you propose to address the issue besides a class action? The company can easily afford to pay off the couple of people who will bother to file individual claims. Small claims court also can't provide injunctive relief and the arbitrator can't issue an injunction that goes beyond the individual plantiff's case, so without a class action lawsuit, there's no way to get an order to prevent future illegal conduct.

To emphasize the point I made in an earlier comment, when is the last time you heard someone talk about a landmark arbitration ruling or an arbitration decision that was a major loss for a company? When has anyone said "I'll see you in arbitration?" If arbitration was such a fair and great process, wouldn't there be at least a single partial victory for the little guy that could point to here?

Or, to sum it up: "In the more than 19,000 cases in which the National Arbitration Forum appointed an arbitrator, 94 percent of the decisions were in favor of the business and against the consumer."
posted by zachlipton at 8:37 PM on April 27, 2011 [7 favorites]


"In the more than 19,000 cases in which the National Arbitration Forum appointed an arbitrator, 94 percent of the decisions were in favor of the business and against the consumer."

Yeah, no shit. The arbitrators are hired by the business, and dependent on the business for their livelihood. Arbitrators who rule in favor of the consumer too often simply aren't hired any more. It's a fundamentally corrupt system.
posted by steambadger at 8:57 PM on April 27, 2011 [7 favorites]


In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed...

Remember, all of that can be changed at will by AT&T. It's not law, just their contract, which itself specifies they can change it at any time.
posted by Nothing at 9:04 PM on April 27, 2011


Nevada Ethics Commission

Something about that title hurts my brain.

Here's a scary line from ATT's service agreement:

'You agree that, by entering into this Agreement, you and AT&T are each waiving the right to a trial by jury or to participate in a class action.'

I always attach a rider to contracts I sign:
'By entering into this agreement, Smedleyman and you or your judicially sanctioned defendant agreed champion will settle all disputes by wager of battel under the common law of the United States which has precedent in pre-colonial English law. The contest will take place in the county in which the complainant resides but will be unbounded in distance for purposes of engagement. Defendant has choice of three weapons: bare hands, knives, or RPA Rangemaster .50's.
Combatants must swear: "Hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither phone, laptop, nor palm; nor any enchantment, technology, or witchcraft, whereby the law of God may be abased, or the law of the Devil exalted. So help me God and his saints."
Either combatant may end the fight (and lose the case) by crying out "Craven," acknowledging they are vanquished and will waive their right to citizenship and be deported. Otherwise fighting will continue until one party is dead."

I read that since independence no court in the United States has addressed the issue of whether the right to trial by combat remains a valid alternative to a civil action.

I'm pretty sure I can take an arbitrator. I don't sit behind a desk all day.
posted by Smedleyman at 10:14 PM on April 27, 2011 [17 favorites]


Perhaps, but the merits were not at issue here. This was a procedural case, not a substantive one.

I know that, I'm not trying to endorse the court's opinion. As I said, I'm not familiar with the statutes in question and haven't yet developed a view on whether it's a good legal decision or not. I'm mentioning the merits because there's an informal conversation about the substantive issues going on in this thread as well.

After having spent an hour rereading the opinion, the dissent, and the FAA, I find myself tentatively agreeing with Scalia in having a problem with Discover Bank. The rule in that case says that a class-action waiver in an arbitration clause may be unconscionable where there's an imbalance between the parties (big corporation v. small consumer), the individual sums in dispute are small (like $30), and there's an allegation that the big corporation has deliberately engaged in a plan to cheat large numbers of consumers. It's the last part I have a problem with, for two reasons - one procedural and one substantive - and although you said this is a purely procedural question, 'unconscionability' in California has both a procedural and a substantive component, as observed in the opinion. Now I'm pretty ignorant of civil procedure so these observations might be hopelessly naive, but it seems to me that that neither requirement is satisfied here.

First, anyone can make an allegation that someone else is out to cheat large numbers of consumers. You, Jedicus - I allege that your comment above is designed to swindle regular folks out of their hard-earned savings. That's a stupid, insubstantial allegation, but I've made it all the same. Perhaps there's an extant definition of what constitutes an allegation in California, too well known for the court to cite, but if not I understand an allegation to mean a formal assertion of legal liability. Shouldn't the allegation mentioned as part of the Discover Bank holding have to meet some threshold of credibility, plausibility, specificity or justiciability? Without such, how is it any different from my empty allegation above?

Second, is an allegation that billing the consumer for the sales tax on a 'free (with contract)' cellphone constitutes an episode of fraud even credible? I mean, almost any retail price you see displayed in California is exclusive of sales tax. Unless it says 'out the door!' or 'Special offer - we pay the sales tax!' it's safe to assume that whatever price is displayed will increase by 9.5% (or whatever the sales tax in your county happens to be) when you take the item up to the counter for purchase. Does this mean that every retailer in California is engaged in a conspiracy to defraud the public? Hardly. It's confusing for people arriving from other states or outside the US (like me), who are not used to having prices displayed exclusive of tax, but it's common knowledge for most people. Likewise, if you see 'FREE (with contract),' almost everyone is aware that the contract is for a mixture of service and payment-by-installment. If you say you just want the free phone and no contract, the sales representative will quickly explain that you'll need to pay the full retail price.

Now, I haven't read the plaintiff's brief. Maybe Cingular (the company which was marketing the phone and which was later bought by AT&T) published adverts, issued contracts, and instructed sales staff with dishonest and inaccurate claims that the consumer would not be liable for any sales tax at all, ever. If so, then the allegation is fair enough; if you say I'm not going to be liable for any sales tax, and later you send me a bill for sales tax, then you lied to me. But if you don't say I'm off the hook for sales tax, and instead your advertising, contracts, and sales patter contains standard disclaimers like '* terms and conditions apply, buyer is responsible for all taxes, fees, and whatnot' - which is usually the case here in California, and has been for a long time - then there isn't really an intent to defraud. True, it's 'FREE*' rather than 'FREE,' but is that rider* an attempt to cheat the consumer, or is the word 'free' part of the invitation to treat, and 'mere puffery' rather than a cast-iron contractual provision that must be construed in favor of the offeree under all circumstances?

I think Discover Bank was probably a good decision (I just skimmed it this evening, though I recall being pleased at the time). But whereas that was about misrepresentations from a credit card provider about how late fees would be calculated - a complex and potentially very expensive issue for consumers - in this case the plaintiffs were saying that any offer of 'free stuff (if you sign a contract wink wink)' was just as bad. Again, I'd have to see the details of the allegation they made, but they're not in the dissent and I don't really feel like spending the whole night looking for them on PACER.

As an aside, consider also that the allegation of intent to cheat consumers required by Discover Bank is being applied in this case to a company's collection of sales tax on behalf of the state of California. Cingular/AT&T are not alleged to have gained a single cent of consumers' money, but (apparently) to have enticed consumers to sign a service contract by tempting them with a 'free' phone and allowing consumers to think that not only were they going to get a ~$300 cellphone for nothing, but they weren't going to incur any tax liability in the process. I'm shocked - shocked - to find that this too-good-to-be-true offer has a catch it in it!
posted by anigbrowl at 11:10 PM on April 27, 2011 [2 favorites]


Out of curiosity, would a group of people filing a class action together qualify to be considered a person the way a corporation is (maybe by becoming an association)? And if so, wouldn't that suit no longer be considered a class action?
posted by cali at 11:20 PM on April 27, 2011


To emphasize the point I made in an earlier comment, when is the last time you heard someone talk about a landmark arbitration ruling or an arbitration decision that was a major loss for a company?

Arbitration rulings can't be landmarks because they don't set precedent for anything. As for a major loss for a company, two investors won ~$50 million from Citibank just last week.

Or, to sum it up: "In the more than 19,000 cases in which the National Arbitration Forum appointed an arbitrator, 94 percent of the decisions were in favor of the business and against the consumer."

That's one specific arbitration company (NAF), which has since agreed to withdraw from the consumer arbitration marketplace after it was shown that it had provided arbitration services to clients that were also shareholders, thereby compromising its neutrality. I notice you didn't bother to mention those facts, although they were clearly explained in the Wikipedia article you linked to.

Has it occurred to you that maybe, just maybe, you don't know very much about arbitration, because since most arbitration cases end in settlements they attract much less news coverage than litigation? OK, I admit I am subscribed to a bunch of legal blogs so I actually keep up with arbitration news whereas most people don't, but there you go.
posted by anigbrowl at 11:27 PM on April 27, 2011


Out of curiosity, would a group of people filing a class action together qualify to be considered a person the way a corporation is (maybe by becoming an association)? And if so, wouldn't that suit no longer be considered a class action?

No, unless they were constituted as an association or other legal 'person' before the injury occurred, or unless they could persuade a court to approve a motion of nunc pro tunc (now for then) extending their legal personhood retroactively, which a court would be unlikely to do without a compelling reason (eg the injury occurred right before the persons involved had signed their names to the articles of association).

I have a hunch that low-ticket consumer class-action suits will continue to exist. Unfortunately, almost everyone will forget about this case between now and the next time they read about one, so hardly anyone will say to themselves 'hmm, perhaps that Supreme Court decision wasn't quite as evil as I thought it was back in April.'

If When I become Chief Justice, I'm bringing in a new rule: opinions and dissents will continue to be published as before, but the identity of the justices involved will be sealed for a year after publication, which means people will have to evaluate decisions of the Court based on their content instead of who wrote them, and will be forced to actually think about the issues. A hideous prospect, I know. It's part of my Plan to Destroy America, available free* on request.

* except insofar as all your base are belong to us. You have no chance to survive make your time.
posted by anigbrowl at 11:47 PM on April 27, 2011 [1 favorite]


First, anyone can make an allegation that someone else is out to cheat large numbers of consumers. You, Jedicus - I allege that your comment above is designed to swindle regular folks out of their hard-earned savings. That's a stupid, insubstantial allegation, but I've made it all the same. Perhaps there's an extant definition of what constitutes an allegation in California, too well known for the court to cite, but if not I understand an allegation to mean a formal assertion of legal liability. Shouldn't the allegation mentioned as part of the Discover Bank holding have to meet some threshold of credibility, plausibility, specificity or justiciability? Without such, how is it any different from my empty allegation above?


Up here in the frozen north, to certify a class action, there is a five-part test. One of the parts is that the pleadings disclose a cause of action. It's a low threshold, but it exists.

However, I'm not sure I understand your point. Anyone can bring a frivolous claim, for any amount, big or small. Are you saying that class proceedings are more prone to frivolous claims? Considering the major investment made by plaintiff-side firms which acts as a filter, and the many, many non-class frivolous claims brought by individual litigants, I'm not sure what the foundation for this claim is. What am I missing about your point? Can you can rephrase it?

If you are saying what I think you are saying: class proceedings aren't suppose to weed out frivolous claims. That's what summary judgment motions and similar legal tools are for, as Jedicus (I think) mentioned. Class proceedings are about creating access to justice for serial torts or breaches of contract or what-have-you, each of which is not sufficient to merit pursuing for the injured party. Some of these claims will be frivolous, just as some fraction of all legal claims are, and defence bar lawyers are pretty good at getting them thrown out.
posted by girlpublisher at 4:37 AM on April 28, 2011 [2 favorites]



If When I become Chief Justice, I'm bringing in a new rule: opinions and dissents will continue to be published as before, but the identity of the justices involved will be sealed for a year after publication, which means people will have to evaluate decisions of the Court based on their content instead of who wrote them, and will be forced to actually think about the issues. A hideous prospect, I know. It's part of my Plan to Destroy America, available free* on request.


Hold up. Do you seriously think people are knocking Scalia because of his name, rather than the actual content of his arguments? I'm thinking back to the times when Nina Totenberg reads from the transcript... It's dead easy to pick out Scalia's bullshit arguments.
posted by odinsdream at 6:08 AM on April 28, 2011 [6 favorites]


It's all about poor, misunderstood but oh-so-clever Scalia.

Pitiful. That our highest court has become such a vacuous farcical political cover for the extreme Right's desire to see corporations and corrupt politicians put above all legal impediments to their profit motives is tragic and disgusting. The mere fact that the court in it's arguments in this case and that other case--the one to decide, in effect, whether legislators are free to accept bribes for their votes--completely shucks and jives away the most obvious economic and political injustices that would result from their rulings in these cases is proof enough: the majority in this current court either does not care about the practical consequences of its decisions for the American people, or knowingly means to privilege wealth above all else in our society. The Robert's court is a regressive, historical embarrassment.
posted by saulgoodman at 7:16 AM on April 28, 2011 [3 favorites]


When I become Chief Justice, I'm bringing in a new rule: opinions and dissents will continue to be published as before, but the identity of the justices involved will be sealed for a year after publication, which means people will have to evaluate decisions of the Court based on their content instead of who wrote them, and will be forced to actually think about the issues. A hideous prospect, I know. It's part of my Plan to Destroy America, available free* on request.

And I'll bring in a new rule that Supreme Court justices won't be able to be nominated and appointed based on the transparent political agenda that they're smuggling into the highest court in the land, in which case it'll seldom be easy to determine "who" a justice is by reading his or her opinions (which in Scalia's case, are almost always the same ideology masquerading as legal decisionmaking).

In other words, it'll be more like the way it was in the days when justices occasionally bothered to at least put on the pretense of jurisprudential impartiality.
posted by blucevalo at 7:49 AM on April 28, 2011


And of course that applies to people who say things like "Four reasons why we need a Democrat in the White House for at least eight more years" too.
posted by smackfu at 8:14 AM on April 28, 2011


Sens. Franken, Blumenthal, Rep. Hank Johnson announce legislation giving consumers more power in courts vs. corporations
“This ruling is another example of the Supreme Court favoring corporations over consumers,” said Sen. Franken. “The Arbitration Fairness Act would help rectify the Court’s most recent wrong by restoring consumer rights. Consumers play an important role in holding corporations accountable, and this legislation will ensure that consumers in Minnesota and nationwide can continue to play this crucial role.”
posted by odinsdream at 8:37 AM on April 28, 2011 [3 favorites]


It is cute and all, to argue to a bunch of progressive folks, that this lawsuit was from people who didn't want to pay taxes. The point remains, they advertised a "free phone".

But I suppose, maybe, we could say that AT&T was new at this, and didn't know they were supposed to point out the thing about paying sales tax on free merchandise? Oh, wait. AT&T has been doing business forever. Of course they know the rules. Hmm, WTF?

Mind you, the discovery suddenly got costly. Now I need to see proof that the claimed "tax" was actually accounted as tax, and paid to the appropriate government office in the usual fashion. Not something called "tax" on a bill that is really no different than "handling fees".

But these contracts stink, and are mostly unavoidable. Unpleasant situation, to be sure. Since they make it difficult to avoid such contracts, I think it behoves us all to do what we can to make it more difficult for businesses to operate in this manner. Somehow, if they are playing the game that way, we have to play back in ways that cost them more than they save. Lost business, whatever can be managed. Simple equations.
posted by Goofyy at 8:40 AM on April 28, 2011 [1 favorite]


at by : ...this was about the only meaningful disincentive to do wrong we had left.

If you have a good idea for something to fill the breach, we're all ears here. Honestly.


Let me draw your attention to this lovely antique guillotine. Please notice that the blade is still razor sharp...

Kidding. But at some point, when the class warfare by corporate proxy actually comes to real violence, I can promise that someone else out there will think of this idea and they won't be in a joking frame of mind.
posted by quin at 8:45 AM on April 28, 2011


anigbrowl: Arbitration rulings can't be landmarks because they don't set precedent for anything. As for a major loss for a company, two investors won ~$50 million from Citibank just last week.

The arbitration cases filed by Wall Street investors seem to be a different beast- in the Citibank case "landmark" in the legal sense isn't correct, but "unprecedented" is a better word choice as it was "the largest amount ever awarded to individuals in such a case". According to the NYTimes article "Since April 2010, his lawyer, Mr. Aidikoff, has argued 16 other arbitrations involving the same type of investment. Mr. Aidikoff and the lawyers who assist him have won every one." Compare that to the 94% find-in-favor-of-the-business rate of NAF or the San Francisco lawsuit where it was found that "between January 2003 and March 2007 NAF heard 18,075 credit card cases, and ruled in favor of consumers on just 30 occasions" (.001%!!!). Apparently when your losses are in the millions you get to go to "real" arbitration.
posted by Challahtronix at 8:54 AM on April 28, 2011


I've always wanted someone to run a black box experiment with all the SCOTUS justices. Here's how it would work.

Take any case, X. Break it down along ideological grounds. So for example what would an opinion/ruling look like if it favored a corporation over the consumer or the other way around; or expanded/upheld/restricted civil rights; expanded/restricted government power vs citizen rights, labor vs owners etc., etc., etc., etc.,.

Now we assign Justice Scalia (or whoever) a certain profile - say, we assume that really, at bottom, Scalia is a social conservative with an authoritarian complex (for the sake of argument).

Then, without looking at the legal arguments at all we therefore can project how Scalia will fall on the ruling along the ideological fault lines. So it's like a black box - feed Scalia on one end, and at the other end you get the ideological outcome. If it obtains for a vast majority of time then, we see that really, legal reasoning is irrelevant, completely and wholly - it's what happens inside the black box, and of no interest, because the outcome is already pre-determined by the input.

I've sort of privately run that for myself with Scalia - and I must say, it's been right in the overwhelming majority of the instances (I think I was surprised only twice, and I've done this for years and years). A case comes up. I think to myself - "OK, how would someone rule in this case, so that they can stick it to the little guy, or favor a corporation over the consumer, or restrict civil rights, or have a negative outcome for women, gays etc." - and then I say to myself: I put this in my magic black box, and I already know how Scalia is going to rule/opine - and darn, it, it's right!

So then I have only a sophists interest in what the actual legal arguments are - it's like listening to an alcoholic give reasons why another drink is just a splendid idea... the argument doesn't matter, it may be clever, it may be moronic, it certainly will be twisted, but you already know what the outcome will be - more drink. So with Scalia - he may find these grounds or those grounds, but I know one thing, it'll be more torture, bigger government power (if in the interest of oppression), smaller government power (if in the interest of protecting the little guy), fewer civil rights, more oppression for gay people, women, minorities, more power for corporations and those who are well off at the cost of the weakest and the poorest, in favor of magical thinking/religion and against free inquiry.

The black box works, folks. Tell me what's the worst possible outcome for the little guy and I'll tell you how Scalia rules - all without even glancing at whatever legal "reasoning" he provides... because it's never about that.
posted by VikingSword at 12:43 PM on April 28, 2011 [26 favorites]


Hold up. Do you seriously think people are knocking Scalia because of his name, rather than the actual content of his arguments?

Yes. When he makes a ruling people here agree with, it receives only the most grudging acknowledgement. I'm not here to praise Scalia, but to challenge confirmation bias.

I've always wanted someone to run a black box experiment with all the SCOTUS justices. Here's how it would work.

I have to go out soon so it'll be this evening or tomorrow before I can pick up this conversation, but most of the groundwork for what you are thinking of has been done already; statistical analysis of Supreme Court jurisprudence is quite popular. dig into the Supreme Court Database for starters.

but I know one thing, it'll be more torture, bigger government power (if in the interest of oppression), smaller government power (if in the interest of protecting the little guy)

You don't see any tension between those two assumptions? That's kind of trying to have your cake and eat it: he's authoritarian! and subversive, too!

I actually don't care for most of Scalia's decisions, and think that originalism is a figleaf for a great deal of conservative judicial activism on the current court. but complaining that he's bad because he sometimes wants to expand government power and also because he sometimes wants to reduce it seems irrational. Take a case like Kyllo v. US for example. There he's arguing for limits on police power under the 4th amendment. The beneficiary of this ruling? A pot grower.

Tell me how this fits into your theory. If you answer that it's an exception, I have many other examples. I'm not arguing for Scalia being a great guy, but for jurisprudence in general being more nuanced than most people are willing to admit.
posted by anigbrowl at 1:30 PM on April 28, 2011 [1 favorite]


anigbrowl, I understood VikingSword to mean that Scalia tends to support the expansion of government power when the purpose is to oppress the little guy, but that he does not support the expansion of government power when the purpose is to protect the little guy. That's not contradictory.
posted by prefpara at 1:41 PM on April 28, 2011


You don't see any tension between those two assumptions? That's kind of trying to have your cake and eat it: he's authoritarian! and subversive, too!

Well, no. Perhaps I didn't phrase it clearly enough, but if a given person is in favor of expanding government powers when those powers can be used to for example restrict civil rights, or suppress dissent, then it's authoritarian; now, when the government has powers that can be used to protect the less powerful, the consumer, etc., and now the same person is all for limiting those powers, then it strikes me as continuing in authoritarianism, because the ultimate outcome is to entrench the powerful and their power against those in an inferior power position. It's continuing to be in the corner of the bully, by hook or by crook.

Take a case like Kyllo v. US for example. There he's arguing for limits on police power under the 4th amendment. The beneficiary of this ruling? A pot grower.

Tell me how this fits into your theory. If you answer that it's an exception, I have many other examples.


It would be a rare creature that falls along an ideological line 100% of the time - it may even be strategically advantageous in the long term to occasionally depart from this. And indeed - as I indicated - Scalia (and every other justice who ever lived) departed from his usual bias, and so ruled in unexpected ways. Now you say, "well, I've got may more such examples". The real issue is not one example, or many examples. The issue is: is your bias so prominent that it can be counted on to regularly predict your behavior for a substantial majority of the cases (statistically speaking). And incidentally, I used Scalia, because he's the subject of this thread, but I as interested in any justice of any ideology, certainly including prominent liberals. I think one could construct a sort of index, where the more often you confirm a bias the higher you are on the index. I expect that nobody truly shows zero bias - so everyone's score will be somewhere along the index. I suspect, Scalia is pretty high up there, for the current court - even though I'm sure historically, these rankings would shift. Incidentally, let us also agree that not every case is relevant, because not every case has an ideological axis, further, not every case that has one, can be cleanly broken into "obviously liberal position would be X, whereas the conservative one would be NOTX". But to answer your question... it's in the very link you provided:

"The decision did not break along the traditional "conservative" and "liberal" wings of the court: the majority opinion was written by Scalia, joined by Souter, Thomas, Ginsburg and Breyer, while Rehnquist, O'Connor, Kennedy and Stevens dissented."

Why is it, that if legal reasoning is supposed to determine the outcome, you get such any consistent breakdowns for any justice, so that you can group them into "liberals" or "conservatives"? If it was purely down to legal reasoning, you'd expect a random distribution, and therefore any justice could concur with any other in about the same proportion... there would be no "wings" to the court.

Which is my point. I lose a lot of enthusiasm for carefully reading legal reasoning by a justice if I think that the outcome is going to be predetermined by the bias. Because then the reasoning will be more likely to simply be a big pile of rationalizations - the interest then is "how did s/he manage to smuggle this horseshit to make it pass the smell test of the average person - what slight of hand techniques did s/he use". And the higher along the bias index the justice is, the less interest I have in the particulars of that "reasoning".

Ultimately, we all know that as long as human beings are going to be involved, bias is impossible to avoid. That's granted. But it still becomes a matter of degree. And Scalia strikes me as pretty high up there; way back when, I used to actually read his opinions pretty carefully, but after too many wtf moments and repeated instances of where I thought his reasoning was blatantly and not particularly interestingly flawed, I lost interest. Now it's just "yeah, it's Scalia, what a surprise".

Further, I think that if at least an effort is not made by justices to try and control their biases, the court loses respect with the public. It should never be the case that we cynically start looking at how many conservatives vs liberals there are on the court in order to predict how the case is going to go. Who wants a judge who will determine the outcome based mostly on his/her blatant bias? That's banana republic territory - a sad thought that's occurred to people quite often during the Bush II years.
posted by VikingSword at 2:01 PM on April 28, 2011 [1 favorite]


VikingSword, prepara, anigbrowl:

What you're talking about are basically Martin-Quinn ideal point estimates.
posted by ROU_Xenophobe at 2:51 PM on May 23, 2011 [1 favorite]


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