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The Judicial Wing of the Chamber of Commerce


A company called Lamps Plus blundered and revealed the tax filings of 1,300 employees, causing at least one employee to be a victim of identity theft. The firm’s employees were bound by a mandatory arbitration clause, but the clause was ambiguous about whether cases could be arbitrated as a class. Under California law, ambiguities have to be resolved against the party that drew up the contract, so the answer was straightforward — the employees whose privacy was violated could file as a class, and hence have a better chance of getting a reasonable remedy for having their rights violated.

Alas, the Roberts Family is still not respecting old arrangements:

The Supreme Court ruled on Wednesday that workers at a California business could not band together to seek compensation for what they said was their employer’s failure to protect their data.

The vote was 5 to 4, with the court’s conservative members in the majority.

The decision was the latest in a line of rulings allowing companies to use arbitration provisions to bar both class actions in court and class-wide arbitration proceedings. In earlier 5-to-4 decisions concerning fine-print contracts with consumers and employment agreements, the court ruled that arbitration provisions can require disputes to be resolved one by one.

Those rulings can make it difficult for consumers and workers to pursue minor claims even where their collective harm was substantial.

The problem with this entire line of cases remains straightforward: absolutely nothing in the text, structure, legislative purpose, or legislative history of the Federal Arbitration Act suggests any of the reactionary anti-employee and consumer policy preferences the Roberts Family has re-written the statute to include:

The last point is also an important one. The Roberts Court has (inter many alia) gutted the most important civil rights statute passed since Reconstruction (with zero textual or doctrinal support) and taken away health insurance from millions of poor people (with zero textual and scant doctrinal support) in the name of the Sacred Sovereign Dignitude of the States, something they don’t care about at all. Those decisions reflect Republican hostility to voting rights and public health insurance for the poor, and absolutely nothing else.

I recommend reading the dissents in this case — which are collectively three times longer because there’s actual law in them. RBG sums it up:

Notwithstanding recent steps to counter the Court’s current jurisprudence, mandatory individual arbitration continues to thwart “effective access to justice” for those encountering diverse violations of their legal rights. The Court, paradoxically reciting the mantra that “[c]onsent is essential,” has facilitated companies’ efforts to deny employees and consumers the “important right” to sue in court, and to do so collectively, by inserting solo-arbitration-only clauses that parties lacking bargaining clout cannot remove. When companies can “muffl[e] grievance[s] in the cloakroom of arbitration,” the result is inevitable: curtailed enforcement of laws “designed to advance the well-being of [the] vulnerable.” 

Basically, these cases are Lochner redux — based on the laughably false assumption that employees and consumers are on equal bargaining ground with corporations. And they have written these Gilded Age preferences into a statute that simply does not express these preferences. In conclusion, the election of Donald Trump was a crushing blow to the neoliberal elite.

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