Consumer Protection Faces a 'Tsunami' in Court

By Karen Weise on April 27, 2012

A year ago today, a split Supreme Court issued a ruling that fundamentally changed the way consumers can pursue claims of corporate wrongdoing. In a 5-4 ruling in AT&T Mobility v. Concepcion, the Supreme Court said companies have the right to force consumers who sign contracts—like debit-card agreements and cell phone plans—to accept terms that require them to settle all disputes in private arbitration and waive their right to band together in class actions.

In just the first year, the ruling’s impact has been dramatic. “There is no case in the history of consumer law as harmful as Concepcion,” says Paul Bland, a senior attorney at the public interest law firm Public Justice. In a report released this week, the National Association of Consumer Advocates and the legal advocacy group Public Citizen, which represented the Concepcions before the Supreme Court, said they have identified 76 cases in the past year where potential class actions were shot down by judges citing Concepcion.

Companies have rushed to add class action waivers into the contracts or make existing clauses more bulletproof. Wells Fargo, for example, tightened up the language in its contracts in February to make clear that the only exception to arbitration is small claims courts. (The bank told the Berger Record that is policies are “are consistent with the industry.”) “There is a realistic possibility that the decision will lead to a virtual end of class actions against businesses,”  READ MORE

Court Weighs Revisions in Cocaine-Case Sentences

By ADAM LIPTAK

Published: April 17, 2012 

WASHINGTON — The Supreme Court heard arguments on Tuesday about an aspect of one of the greatest controversies in American criminal law: the differing treatment of crack and powder cocaine.

“I’ve been a judge for nearly 20 years,” said Justice Sonia Sotomayor, the only member of the current court who has served as a trial judge, “and I don’t know that there’s one law that has created more controversy or more discussion about its racial impact than this one.”

Crack and powder cocaine are two forms of the same drug. But, until recently, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.

In 2010, Congress enacted the Fair Sentencing Act, which reduced the disparity to 18 to 1, at least for people who committed their crimes after the law became effective that Aug. 3. That means many defendants caught with small amounts of crack are no longer subject to mandatory 5- or 10-year prison sentences.

The question on Tuesday was whether the new, lesser punishments also applied to people who committed crimes before the law became effective but were not sentenced until afterward.

The usual rule, set out in an 1871 law, is that new laws do not apply retroactively unless Congress expressly says so. Here Congress said nothing, or at least nothing in so many words. It did instruct the United States Sentencing Commission to act quickly to revise its discretionary sentencing guidelines to reflect the new ratios.  READ MORE

=====Obwon says:===========

Let's see if the Justices can get something right this time!

These laws that are passed do not exist in a vacuum,  there are more tests and rules that apply,  than the simple matter of retroactive or not.  Like,  for example,  "equal protection of law".  Where, as the courts own discussions show it accepts the unfair racial bias argument,  that prompted Congress to act.  They must also feel a pressing need to enforce "equal protection of law" for all who have suffered racial injustice under the "travesty" of the old law.  Such that,  if it is right and mete to correct some racial discrimination suffered under the old law by some.  Then is it not necessary to save others from that same racial discrimination?   

To be clear,  the issue at hand is not: "When was the crime committed",  because racial discriminatory suffering has been found.  The law is not modified merely because of some whimsical,  statistical,  statutory or other limit able needs,  but because it has been found to be "racially discriminatory",  something that other laws [civil rights laws] have demanded be changed.  Thus we arrive at a point whereby the court is all but forced to lift the limits on how this remedial action may be applied.

Or...  Are we to approve of racial inequity,  merely because of when it happened,  and not at all because of what it was about?  We shall see what these Justices think of the law and their own powers to enforce it.