The end of class action lawsuits?

Didn’t I just write about my check for eight bucks and change, from a class action lawsuit against American Express? And didn’t I mention, sadly, that given recent Supreme Court rulings, we individuals may be losing the great benefits of class action?

Then I picked up yesterday’s Times and saw Dean Erwin Chemerinsky’s essay ominously entitled “Justice for Big Business,” in the New York Times:  Justice for Big Business –

Did Big Business need justice and protection against the likes of little old me? Well, no.

And Mr. Chemerinsky does an exemplary job of bringing these big-sounding, this-doesn’t-affect-me lawsuits into a personal, human context, when he describes Vincent and Liza Concepcion’s efforts to sue AT&T, and other individual lawsuits, including Lilly Ledbetter’s.

Throughout his essay, Mr. Chemerinsky makes it awfully clear how valuable these lawsuits can be to, oh, say, someone like me. And you. And how the

…disquieting theme about the conservative majority of the Roberts court…[which] obviously believes, and sometimes expressly says, that there is a need to protect big business from litigation. But in discrimination, product liability and arbitration, it has left injured employees, consumers and small businesses without recourse.

He also writes:

But the reality is that class actions are essential when a large number of people suffer damage, especially when the amounts are small: no one will sue, or even go to arbitration, for $30.22.

On June 20, the court again restricted class actions, in American Express v. Italian Colors Restaurant. The restaurant and other small businesses had brought a class-action suit accusing American Express of violating antitrust law in imposing excessive fees on merchants. The individual plaintiffs could have each recovered just $38,000 under the antitrust statute, but proving an antitrust violation would have cost exponentially more. Therefore, denying a class action meant that the suit could not realistically go forward. The result: a company can violate antitrust law yet immunize itself from liability through an arbitration clause.

This is wrong, a wrong that could be righted by Congress. But, as Mr. Chemerinsky says at the end of his essay:

Congress could revise these statutes to allow the suits to go forward, and in the discrimination case, Justice Ruth Bader Ginsburg called on Congress to do just that. But deadlock in Washington does not leave much confidence that Congress will reopen the courthouse doors.

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