The implosion of the housing bubble and resulting Great Recession, BP’s disaster in the Gulf, and Toyota’s delinquent response to Camry brake failures, have all served as powerful reminders of the danger of relying on businesses to respect anything that lies beyond their own interests. Americans depend on the judicial system to protect individuals and society as a whole from the consequences of corporate greed, but decisions from the just-completed Supreme Court term suggest that reliance may be misplaced.
Several recent decisions show that the Roberts Court is deepening its bent of privileging big businesses over public safety. In Pliva v. Mensing,1 Dukes v. Wal-Mart2 and AT&T Mobility v. Concepcion, 3 the Roberts Court showed deference to corporate interests in ways that will endanger consumers and workers for years to come.
In the most recently decided of these cases, Pliva v. Mensing, the Court relieved manufacturers of generic drugs from res-ponsibility to warn physicians and patients about new evidence of adverse effects caused by their products. The pharmaceutical corporations in this case made no attempts to update labels to warn consumers about their products’ recently-discovered dangers. Still, the Court unquestioningly accepted the manufacturers’ unsupported assertion that the FDA would not have approved stronger warning labels. The dissent noted that this amounted to determining preemption based on “the mere possibility of impossibility.”
The Court also ignored the dangerous public-health consequences of its decision. Now, brand-name drug manufacturers have a duty to warn of newly-discovered dangers while makers of generics do not. It should alarm every consumer that a pharmacist’s substitution of a generic drug for a branded one now denies consumers the right to obtain relief from harm caused by outdated or insufficient manufacturers’ warnings.
The Court’s decision in Dukes v. Wal-Mart also tipped the scales toward corporate power by denying class recognition to women who had been employed by—and allegedly discriminated against by—Wal-Mart. As in the Pliva decision, the majority opinion in Dukes gave the benefit of the doubt to the corporation, ruling that just the possibility that disparate employment outcomes for women might not have been the result of companywide discrimination was sufficient to block the class suit from moving forward.
The Dukes decision erodes hard-won anti-discrimination precedents by requiring plaintiffs seeking class certification to prove that they have all been discriminated against in the same way. This shift is a blow to workers in any organization where harmful policies have permeated the corporate culture. By narrowing the basis on which a class can be certified, the Court allows only singular harmful actions—one manager’s decision, a phrase in a company handbook—to be challenged, while placing a pervasive culture of inequality like Wal-Mart’s out of litigation’s reach.
The Dukes ruling was preceded by another decision in which the Roberts Court limited access to class actions. In AT&T Mobility v. Concepcion, as my predecessor as president of the New York Trial Lawyers Association, Nicholas Timko, wrote in these pages, the Court shifted a small but significant area of law to favor corporations over consumers by ruling that the Federal Arbitration Act (FAA) preempts state unconscionability doctrines that would otherwise apply to contractual waivers of class action claims. This decision opens the door for corporations to insulate themselves by inserting class arbitration waiver clauses in the “contracts” consumers must accept to do everything from joining a gym to registering for a Gmail account.
The Dukes and AT&T limitations on workers’ and consumers’ ability to form classes run completely counter to the ways our economy is evolving. As the internet eliminates the geographic boundaries that once limited corporate markets and labor pools, a single corporation’s policies will touch—and potentially harm—increasingly large numbers of individuals.
In this era of economic change, where legislative regulation struggles to keep pace with the evolution of business and society, we cannot afford for the Supreme Court to abandon its duty to public safety as it has this term. But there is still reason for hope for those of us who believe that American workers and consumers deserve an equal opportunity to take on big business when their rights are run over. The crucial holdings in each of these cases were supported by only five of the Court’s nine justices, and thus may not survive the next wave of changes in the Court’s composition. And, in each instance, Congress has the ability—and I suggest the responsibility—to right the wrongs that the Roberts Court has wrought.
Leslie Kelmachter, a partner at The Jacob D. Fuchsberg Law Firm, is the president of the New York State Trial Lawyers Association.
1. —U.S.— (June 23, 2011).
2. —U.S.— (June 20, 2011).
3. 131 S.Ct. 1740 (2011)