Tag Archives: Civil Justice

Diaries & Misc.

Justice For … All?

Dave Johnson, Speak Out California

You hear a lot in the news about big corporate lawsuits.  If you closely followed this week’s business news, for example, you may have read about a jury ruling that Microsoft has to pay Alcatel-Lucent $367.4 million for violating patents.  Imagine the money that must have gone into lawyers, research and experts — even the copying bill must have been enormous.  And these cases take months to hear.

There were also court rulings about the drug Prevacid, another covering dialysis machines, and many, many others.

All of them big-money corporate cases with millions, even billions of dollars at stake.  These big companies have the money to take these cases to court.

But what if you or I need to go to court?  Are we on an equal footing?

A recent issue of The Progressive States Network’s newsletter, Stateside Dispatch, says,

According to Access to Justice: Opening the Courtroom Door [PDF file] by the Brennan Center, federal funding for legal services in real dollars has declined dramatically over the last twenty-five years.  In 2004, federally-funded programs turned away at least one person seeking help for each person served, leading to approximately one million cases per year being turned away due to lack of funding.

In fact, the Brennan Center report states that “most low-income individuals cannot obtain counsel to represent them in civil matters.”  On top of that, government-funded legal aid services are now by-and-large prohibited from helping people when they are harmed by corporations.

What do you do if you are a regular person injured by a product, or denied a job because of your age, or defrauded out of money, or any of things that can happen to people?  It used to be that a law firm might take the case based on a contingency fee, where they receive a percentage of any award resulting from your case.  But more and more these fees are restricted or awards are “capped.” So attorneys cannot afford to take your case.  Even if you can find an attorney willing to take your case “pro bono” there is still the cost of research, depositions, expert witnesses, etc. to consider.

Is this fair?  Is there anything more fundamental to our American concept of democracy than equal justice?  Access to the courthouse is an example of democracy leveling the playing field and providing fairness.  But we no longer have equal access.  And this means we no longer have fairness.

So what can we do about this?  First, we need to restore our own understanding of democracy and our individual stake in its preservation.  We must all recognize that equal justice is a fundamental requirement of a democratic society.  One reason this country was founded was to level the playing field between the rich and the poor.  So we all need to demand equal treatment under the law.  

In California we must demand a rollback of the “tort reform” measures that have taken away equal access to the courts and removed a regular person’s ability to fight back when harmed by a big company.  We must either remove the award “caps” and limits on attorney fees or implement a system of government funding for attorneys who represent regular people.  

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States Urge Environmental Protection Agency to Actually Protect Environment

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(always great to have DMI cross-posting their stuff here from Tort Deform. – promoted by Julia Rosen)

California is pressing on in its challenge against the EPA for turning down its proposed emissions rules, adopted by 12 other states and supported by three more as well. ( NYT, BBC) The proposed standards would provide tighter protections to the public against the harmful effects of vehicle emissions on the environment, an issue screaming in its relevancy these days.

From the New York Times:

“An analysis released by state air regulators showed their 2004 tailpipe regulation would be faster and tougher than the federal fuel economy rules… By 2016, California’s standard would reduce the amount of carbon dioxide that vehicles produce by 45.4 million metric tons a year in California and the 12 other states that have already adopted the rules. That’s nearly double the 23.4 million metric tons the report forecast would be cut under the federal fuel-efficiency standards, according to the analysis, which was based on EPA air pollution modeling.”

But the EPA said “no thanks” to this proposal, preferring its apparently looser standards to California’s plan. This is the EPA’s “first time denying California a waiver under the Clean Air Act since Congress gave the state the right to obtain such waivers in 1967,” according to the NYT.

The EPA’s decision has been described as a victory for the auto industry. Automakers opposed the California rules as too strict, saying they would “reduce their selection of vehicles and raise prices in states that adopted California’s standards.” So in other words, it’s better to have a ton of cheaper cars to choose from, regardless of how badly they’re polluting the air we breathe.



Now if that ain’t like driving off a cliff in a brand new beemer, I don’t know what is…

For formality’s sake, here are some (I hope, not too annoyingly obvious) thoughts on why this lawsuit a) is important and b) further demonstrates the importance of our civil justice system as a means for checking corporate/government cronyism and the bad policies that are produced as a result:

Tort “reformers” argue that if aggrieved individuals and groups want things to change, they should change the rules of the game through legislation. First they say, “So sue me!” But if they actually get sued, they insist that the issue is better suited for the legislature than the courtroom. They paint this picture of whiney, attention-seeking plaintiffs making an overblown fuss about corporations letting off a wee bit too much smoke for their overly sensitive, air-greedy little lungs. (Geez, people can get so dramatic about their ability to breathe.)

But here’s what’s interesting in this scenario: there are clearly no whine-bags here. Here we have a bi-partisan effort, which legitimately went through the legislative process and was signed by the Governor. We have standards that have the support of at least 15 other states. Yet this effort was obstructed by the government agency charged with protecting our environment, although in the past the EPA has granted California’s waivers to impose stricter environmental standards.

This situation demonstrates clear as day how important it is to have a strong civil court system dedicated to administering justice to the public. In addition to the legislative process, we need our civil justice system as a means of providing public oversight of the federal government when its decisions conflict with the public’s interest and/or with our cherished democratic process.

According to the NYT, Schwarzenegger said that EPA officials ”are ignoring the will of millions of people who want their government to take action in the fight against global warming.” This lawsuit is California’s way of saying “We refuse to lose something we need and treasure–a right to a healthier environment–without a good fight.” Several other states are expected to join California in its claim.

Well I say sue on, Cali. Your day in court is ours, too.

California

Nice Call for T-Mobile Customers

How many of us have felt like we were in a bad, inescapable relationship with our cell phone company? So many times, I’ve sat on hold fuming, then labored to speak calmly and politely to the customer service representative who is just as blameless as the next guy for my whack, bootleg phone and its no-reception having, call-dropping, sorry-excuse-for-a-piece-of-technology self. How many of us have gotten our phone bill at the end of the month and thought, “But I work all day, how could this be correct?” And just when you think you’ve hit that boiling point and are ready to call it quits, it’s-not-you-it’s-me-style, the voice of wisdom tauntingly reminds you: “It’s cheaper to keep’er.”

Aaah!!!

There’s the early termination fees (ETFs); then there’s the fact that you might have to purchase a new phone to get new service; and then there’s the fact that switching to a new carrier is essentially a stab in the dark anyway. Who knows if the new company will provide better, worse, or equally bad service as who you’re with now? One thing that the whole industry has in common is the practice of imposing mandatory arbitration agreements (yes those lovely MBAs are back again). So, what’s the point of shopping around if there’s nothing to shop for, i.e., the right to be legally protected against a bad product?

Well, a California court made a good call for disgruntled customers, finding the arbitration agreement they had with T-Mobile to be unconscionable and unenforceable, and thus giving them the go-ahead for a class action lawsuit against the phone company.

Customers say that the company used unfair business practices in its rules surrounding early termination fees and its practice of cell phone locking. The early termination fees (ETFs) of up to $200 are applied at a flat rate (no pro-rating) and apply even to customers who have made numerous unsuccessful requests to correct problems with their service. The cell phone locking is a program in the hand set that prevents it from recognizing anything but T-Mobile Network SIM-cards, thus preventing the use of the phone with other service providers.

T-Mobile requested that the plaintiffs be forced to go to arbitration, in a motion to compel arbitration, but the trial court denied this request. The appeals court’s agreement with the lower court means that customers will now be able to take this case to a court of law as a group. The difference between the two options is often crucial, as we have seen that arbitration companies often strive to be “repeat-players” with the corporations who hire them, and so face lucrative incentives to find in favor of the company.

Here are one and two informative blogs that provide further detail on this lawsuit, and here is the court order, filed last Friday.

Things certainly could be better in the judiciary (did someone say Louisville/Seattle?) but at least some folks over in California will get to have their day in court.