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Strier: Class actions nearly extinct?

Credit: TMS/M. Ryder Illustration/

Frank Strier, author of two books on the legal system, is writing a book about the Roberts Supreme Court.

An iconic instrument of socio-economic justice may soon go the way of the dodo bird and the analog computer. The class action lawsuit has long been the only practical means by which large groups of employees or customers of big companies can collectively vindicate rights denied them by corporate misconduct. Without it, the cost of attorney representation to each individual would render legal recourse unattainable for legitimate claims by numerous employees or consumers.

Result: justice denied.

Class actions are used by everyday Americans to deter corporate violation of their rights and provide compensation for any resultant losses. Corporate misbehaviors involving product defects, financial fraud, toxic pollution, civil rights violations and other abuses have all been remedied by the class action. To be sure, the class action suit has been subject to some past abuses. However, it is the most powerful legal tool available to the "little guy" - especially vital in cases involving relatively small amounts individually, but huge amounts in total.

The Supreme Court has recently decided to hear two potentially momentous class actions. At stake in Wal-Mart Stores v. Dukes is whether the court will certify the largest class action suit in history - brought by 1.5 million past and present female employees of the retail giant who claim gender-based pay and promotion discrimination. Their claims exceed $1 billion. Wal-Mart argues that the court should require employees to file discrimination actions individually, contending that a class action of this size is inherently unmanageable and unduly costly.

In AT&T Mobility v. Concepcion, the class is composed of AT&T customers. They allege that AT&T's ads promising "free" cell phones were fraudulent because each buyer had to pay $30 for sales tax. AT&T's customers were required to sign waivers relinquishing their rights to bring a class action lawsuit in the event of a dispute with the corporation. Instead, they were relegated to individual arbitration actions only - the classic "take-it-or-leave-it" option. Some states have held these waivers to be unfair and, therefore, unenforceable, but their legal status will remain uncertain unless addressed by the Supreme Court.

Both classes face an uphill battle before the Supreme Court. The five-member conservative majority, headed by Chief Justice John Roberts, has been notoriously pro-business, so prospects for both class actions are decidedly grim. Predispositions matter.

In cases before the Roberts court involving the U.S. Chamber of Commerce, for example, the conservative bloc voted for the chamber 84 percent of the time; the moderate / liberal bloc sided with the chamber in only 15 percent of cases. Last year, in two cases comparable to the Wal-Mart and AT&T suits, the 5-4 majority ruled against would-be class actions.

The court can decide either case on broad or narrow grounds. In the Wal-Mart case, it may simply decide that 1.5 million past and present employees is too diverse a group to be a certifiable class, which is supposed to share significant things in common. Or, it may get into specifics, such as whether punitive damage claims are subject to class certification.

Ours is a cultural history rich with prominent, worthy class actions. Several became the subjects of celebrated books and movies. To take three examples based on real cases, in "Erin Brockovich" and "A Civil Action," the heroes successfully challenge corporate giants that had lethally contaminated the local water supplies. In "North Country," female miners fight and triumph over the brutal sexual harassment they endured from male co-workers.

As the court's decisions in the Wal-Mart and AT&T cases loom closer, the fate of an extremely popular means to justice hangs in the balance.

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