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Will the US Supreme Court let Corporations Get Away with Murder?

The facts.

Corporate America will bend the rules, lie, cheat, and deceive for profit . . . if you let them. New changes in the law were proposed to allow big businesses to lie and hurt the public without repercussion. These laws were not proposed by our elected representatives in Congress, but instead, by Republican appointed federal judges. The Supreme Court will ultimately decide on whether to revamp the entire federal civil justice system and allow corporations to conceal information when they cause harm to the public.

In the 2014 headlines are 3 examples of corporate lies that caused human deaths. These lies were only exposed through the civil justice system.

1) Toyota Motor Corp. in March, 2014 agreed to a 1.2 Billion dollar settlement to avoid criminal prosecution stemming for concealing safety issues with their cars that have led to several deaths. The settlement between the Justice Department and Toyota includes an admission that they lied to American consumers about two different problems that caused cars to accelerate, even as drivers tried to slow the vehicle down.

2) The Tobacco industry in 2014 will finally publicly admit to lying to the public about the risks of cigarette smoking. In 2006, the Tobacco industry was found by a federal judge to have violated anti-racketeering laws when conspiring to hide cigarettes risks to the public. U.S. District Judge Gladys Kessler ordered the company to advertise about the truth of their deception, and the Tobacco industry delayed this ruling with appeals, until now. In 2014, there will be ads by the Tobacco industry admitting they lied to the American public, and now giving the truth about their product, with the quote, here is the truth.

3) General Motors was exposed in a civil lawsuit, revealing that the auto manufacturer knew in 2004, a decade before it issued a recall that its Chevrolet Cobalt had a problem with the ignition switch that could cause the engine to shut down while driving. The stall would cut off the driver’s power steering, the power brakes, and safety systems such as airbags and anti-lock brakes. The lawsuit involved a pediatric nurse living in Georgia who died while driving the Chevrolet Cobalt on her 29th birthday from a car crash. GM settled the lawsuit by her estate but would not provide any comment. It is believed that at least 13 other people have died in accidents linked to this ignition-switch defect from the automakers cars.

The problem.

The Republican appointed judges want to change the rules in federal court to insulate corporations from the lies that harm the public. The judges want to do this by changing the federal civil court procedural rules that were designed to be neutral, and have them favor the corporate defendants, allowing big businesses to hide and destroy relevant information.

The Federal Rules of Civil Procedure (FRCP) are the play book rules on how civil (non-criminal) cases are litigated in the federal courts. The rules are supposed to be neutral to both sides, allowing each to fairly defend or prosecute the claim. However, in 2013 federal judges appointed by Republicans made proposals to change the rules to protect big businesses.

Imagine if the Tobacco industry never had to give away its business records showing they knew cigarettes were dangerous and highly addictive.Imagine if automakers never had to turn over their records showing they knew their cars were dangerous and killing people. The civil law for over 100 years has protected the American public by allowing for the liberal exchange of information in a lawsuit. In other words, no games are allowed and you must produce the relevant records. Certain federal judges who were nominated by the Republican party want to protect corporate America from their wrongdoings. Without the ability to obtain evidence from your adversary, there is no chance for a fair trial. Corporations and their defense attorneys pushed for these proposals and now rally hard in support.

It is not just one type of lawsuit that will be affected, but every type of action brought in federal court. The people that will be most affected will be those who require information from their adversaries to prove their case. This includes actions for civil rights violations, discrimination suits, personal injury actions, anti-trust suits, employment actions, and disability cases.

The proposed amendments were justified by claiming the civil justice system is in crisis. The corporations claim that the costs of giving and storing information is so high that corporations are losing their international competitive edge. However, no one could find statistics or records supporting their arguments, so the corporations and their lawyers created them. They did this by sending out a few opinion surveys to their own members, and then called the responses empirical data. These opinion surveys were enough for the Republican judges to lay their hats on.

Which specific judges are behind these proposed changes?

Two judges are primarily responsible. Justice John Roberts is the current Chief Justice of the U.S. Supreme Court, nominated by President George W. Bush. Justice Roberts appointed a very conservative jurist, Judge David Campbell, to chair a committee that is responsible for reviewing the civil procedural rules from time to time.

Justice Campbell was also appointed by George W. Bush., and presides in Arizona, a state that repeatedly tries to legalize different forms of discrimination. Other Republican nominated judges were also placed onto this Advisory Committee by Justice Roberts. One lawyer on a popular website that reviews judges said this about Justice Campbell.

Pleasant to deal with but a corporate man by instinct. Plaintiffs beware – expect unfriendly rulings on discovery, motions to dismiss, etc, and a bench trial (trial decided by a judge) is asking for trouble.

Three hearings were held by Justice Campbell’s committee about these proposed changes in the law. Speaker after speaker talked about the inherent unfairness of the proposed amendments. These same complaints were made in written comments submitted on-line. However, the Republican appointed judges on the committee would not back down, each time feigning how everyone must be misreading the rules.

The U.S. Supreme Court justices will ultimately decide on whether to approve or disapprove the rule changes and Justice Roberts will play a major role. The Supreme Court is supposed to protect all citizens, not create laws to help one class of persons or businesses. These proposed laws violate the 7th Amendment of the Constitution which allows all citizens the right to a fair civil trial.

What do we know about Chief Justice Roberts?

In September 2005 when Barack Obama was still in the Senate, he had to decide whether or not to support President Bush’s nomination of Justice Roberts to be the next Chief of the U.S. Supreme court. This is what President Obama said about Justice Roberts when refusing to support Justice Roberts nomination.

Judge Roberts confessed that, unlike many professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn’t like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General’s Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.”

Justice Roberts can be persuaded to not bow down to the Republican platform. In 2012, Justice Roberts caused surprise by providing the swing vote to uphold Obamacare. This in turn caused Republican leadership to go into a state of frenzy. Republicans cried that the Supreme Court was going beyond its constitutional authority by engaging in judicial activism. In other words, the judges were making laws which is the role of Congress.

However, judicial activism is exactly what is taking place with the proposed amendments to the Federal Rules of Civil Procedure. The Republican nominated judges are trying to make the procedural rules favor big business, which is a major policy decision in the purview of Congress to make, not non-elected federal judges.

What is the legal community saying about the new rules?

Over 2,300 comments were submitted online to the federal court website by attorneys, judges, and other groups either adamantly for, or adamantly against the proposed changes. Those for the proposed changes are corporations and their defense attorneys, and those against are civil rights groups, plaintiffs attorneys, and respected judges and law professors.

Below are 10 excerpts of statements by lawyers, judges, professors, and lawmakers opposing the proposed amendments.


While the Advisory Committee claims these changes are warranted in order to reduce costs and delays in civil litigation, they will, in essence, not only undermine the principles that led to the creation of the Federal Rules, but also adversely impact the ability of civil rights litigants to obtain the redress they deserve.

Sherrilyn Ifill, President of NAACP


The ability of a citizen to get a meaningful day in federal court is now in question. A number of the Justices, and other federal judges, appear to have a definite (or subliminal) predilection that favors business and governmental interests. And I do not think it unfair to say that the current [Supreme] Court and some members of the federal judiciary (and perhaps some of the rulemakers) wish to limit litigation-in a sense they are lawsuit-phobic-which negatively impacts citizen access and works against those in our lower and middle classes seeking enter to the system.

Professor Arthur R. Miller, NYU School of Law, distinguished author and scholar of American Civil Law, Former Reporter to the Advisory Committee on Civil Rules


This change appears to be weighted in favor of defendants (generally the producing party) and against plaintiffs (generally the requesting parties) and does not have the appearance of fairness and neutrality. I view it as a continued and systematic effort to respond to a big business complaint that the American system of litigation is somehow bad for American business and reduces are competitive position in the world of international commerce.

Hon. Shira A. Scheindlin, United States District Judge, Manhattan


I think there is an underlying purpose that was expressed to me by the Qualye Commission, which was to make American business more competitive by protecting it from liability. And I think its not always candidly presented that way, but I think thats a lot of what were talking about.

Professor Paul D. Carrington, Duke Law, Former Reporter to the Advisory Committee on Civil Rules


The system works because people know that when they enter an American courtroom, they do so on a level playing field. Whatever inequities of status, class, or money exist on the outside do not matter before an impartial judge and jury. This ideal is inscribed on the U.S. Supreme Court: equal justice under the law. The system only works as long as the American people believe they can in fact have their day in court if they are wronged . . . .

Michelle Scwartz, Alliance for Justice


Proposed Rule 37(e) would radically alter the standards for remedying spoliation. In the process, it would curtail the ability of innocent parties to obtain relief when they are prejudiced by the destruction of information potentially relevant to litigation. The proposed Rule does not solve the problems it purports to address.

Hon. James C. Francis IV, United States District Judge, Manhattan


Everyone inside the rules’ bubble had already come to accept that the proposed discovery amendments are highly skewed in favor of large corporate defendants. And so I pose this question: Should the Committee consider enacting a package of amendments that so clearly favors one group of litigants over another, as evidenced by the comments of both the favored and disfavored groups? I would suggest that if the public comment process means anything, the intensely polarized response to the proposed amendments limiting discovery should raise a caution flag at the very least.

Henry Kelston, partner at Milberg LLP, New York.


I am not surprised that the defense bar largely supports all of the proposed changes that restrict discovery further. However, I do find it ironic that they rely on the cost arguments to support their position. Because in my personal experience, many of the inflated discovery costs are inflicted by the defendants on themselves.

Jennie Lee Anderson, partner at Law Firm of Andrus Anderson, San Francisco


If the Committee believes the opinions of corporation CEOs and their lawyers via surveys is “empirical evidence”, then they should also accept the overwhelming contrary empirical evidence submitted by civil rights groups, civil law professors, federal judges, and plaintiffs lawyers of every field of litigation finding that the proposed rule changes will unjustly change the playing field in favor of corporate defendants, will increase litigation costs, and will delay cases further with more motion practice.

Brett J. Nomberg, Brand Brand Nomberg & Rosenbaum, LLP, New York


As explained below, we are very concerned that these proposed changes may preclude plaintiffs with meritorious claims from having access to justice. . . . When considering changes to the Federal Rules of Civil Procedure, we urge you to tread lightly.

Congress of the United States, House of Representatives, Members of the Committee on the Judiciary

Why should I care?

Under the current rules, businesses are compelled to turn over their records and answer questions about the harm they cause others. The only reason corporate wrongdoings are exposed and stopped is because lawyers and judges can compel these corporations to turn over their business records, answer questions at depositions, and be sanctioned when they fail to comply with court orders or destroy records. However, U.S. Supreme Court judges, the guardians of the Constitution, are about to decide on whether to take away our civil rights and insulate corporate America from accountability.

What can I do?

Call your local congressional leader. Forward this link and ask your legislator to Stop the lies. Protect my Civil Right to a Fair Trial. Share this article, tweet, spread the message. If you have never heard of this before, it is because the federal judges do not want this to be public knowledge. Make it public knowledge!

What can Congress do?

Besides writing laws to override the Supreme Court judges, legislators have the power to investigate, and even impeach federal judges who abuse their power.

Select A Practice Area

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