News outlets have largely ignored the legal barriers that the Supreme Court has erected in between injured consumers and access to compensation - including a current case that could give big business the power to place themselves beyond the reach of federal laws by preventing consumers and small businesses from bringing class action lawsuits.

That's surprising, considering the extensive media coverage of the story of 3,000 passengers on Carnival Cruise Line's Triumph who spent five days floating in the Gulf of Mexico with no power or plumbing, and finally disembarked in Mobile, Alabama.  On February 20, attorneys for the passengers filed a class-action lawsuit against Carnival, claiming that the cruise line acted negligently by sending the Triumph to sea when they knew the ship had mechanical problems.   It was the second major crisis on a Carnival ship in a year. 

Thanks to a series of Supreme Court cases limiting class actions and upholding arbitration agreements, those passengers are facing an uphill climb with their lawsuit.  Carnival's ticket contract itself contains an arbitration clause requiring customers to waive their right to bring claims against Carnival in court.  It also includes a "class-action waiver" that states: 

This contract provides for the exclusive resolution of disputes through individual legal action on guest's own behalf instead of through any class action."

If enforced, a class-action waiver creates a David and Goliath dynamic.  As legal expert Dahlia Lithwick has explained, class actions often level the playing field between individual claimants and big defendants such as employers.  The Supreme Court has made it increasingly difficult to pursue class actions.  For example in Wal-Mart v. Dukes, the Court rejected a class-action suit brought by female Wal-Mart employees who claimed they were subjected to discrimination in pay and promotions.  The practical result:  Wal-Mart employees would have to jump over significant hurdles to pursue class action; otherwise, they are forced to go it alone against the number two corporation in the Fortune 500.  Lead plaintiff Betty Dukes explained that the Court took "an opportunity to give corporate America a huge advantage over everyday American citizens." 

These decisions, which leave plaintiffs to go it alone against corporations and waive their day in court based on agreements they didn't have an opportunity to negotiate, set the stage for an upcoming Supreme Court case that could shift the balance even further in favor of big business, allowing them to use these form agreements as an end run around federal law. 

On February 27, the Court will hear oral arguments in American Express Co v. Italian Colors Restaurant, in which it will weigh whether class-action waiver provisions in an arbitration clause are enforceable even when refusing to allow the class action to go forward would make it functionally impossible to vindicate federal statutory rights at all.   

Businesses that accept American Express charge cards must agree to a class-action waiver and waive any other means of sharing the cost of legal proceedings against the company.  American Express insists that businesses accept their unpopular credit cards if they want to accept the popular ones, which the businesses claim is a "tying arrangement"   that violates the antitrust laws.  Because pursuing antitrust claims is expensive, the cost of arbitrating an individual case would dwarf any possible recovery--meaning that if the plaintiffs cannot proceed as a class or share expenses, the antitrust claim is dead in the water.

The US Court of Appeals for the Second Circuit held that Am Ex's arbitration agreement, which includes a class-action waiver, was unenforceable because it would prevent the merchants from effectively vindicating their federal statutory rights.   Importantly, the court noted that enforcing the waiver would prevent an antitrust claim from being litigated at all:

Amex has brought no serious challenge to the plaintiffs' demonstration that their claims cannot reasonably be pursued as individual actions, whether in federal court or in arbitration, we find ourselves in agreement with the plaintiffs' contention that enforcement of the class action waiver in the Card Acceptance Agreement "flatly ensures that no small merchant may challenge American Express's tying arrangements under the federal antitrust laws."

The bottom line is this:  if the Supreme Court reverses the Second Circuit's decision, small businesses and consumers could be forced to waive--through form contracts--longstanding statutory rights in order to do businesses with large corporations.  This gives corporations significant power to evade federal law.  As the Supreme Court explained in Reiter v. Sonotone (1979), even though the Department of Justice may also enforce antitrust laws, private litigation is important because

These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations. Indeed, nearly 20 times as many private antitrust actions are currently pending in the federal courts as actions filed by the Department of Justice. 

When the Court strikes down or blunts the power of duly-enacted legislation, legal commentators - conservative and progressive alike-- often invoke the term "judicial activism," charging that the Court overstepped its bounds.  But in AmEx, the Court will consider whether corporations can wield that power.  While big business and consumer groups recognize what's at stake -the U.S. Chamber of Commerce and Public Citizen both filed amicus briefs- the media apparently does not.    Even The Wall Street Journal's Law Blog's post on the Carnival Triumph debacle, while accurately noting that the cruise industry has adopted mandatory arbitration clauses, didn't note that the scope of these clauses is currently before the Court.

There are exceptions, such as conservative attorney Theodore H. Frank, whose organization, which is funded by the right-wing Donors Trust, is dedicated to limiting access to class actions. In an Investor's Business Daily op-ed, Frank attempts to turn attention away from the problem of illegal tying arrangements, pointing out that the real problem is class actions themselves.  He writes "[i]n reality, consumers would be better off if they had the right to promise that they would avoid bringing the class action in the first place."   According to Frank, lawyers who pursue class actions are interested because these cases are lucrative for them.

Former Solicitor General Paul Clement, who is representing the merchants in AmEx, doesn't see it that way.  His firm often represents big corporate clients like Exxon Mobil.  Clement, whose strong oral argument performance attacking the Affordable Care Act was the talk of the last Court term, and who is in the headlines again for defending the Defense of Marriage Act before the Court this term, is not a class-action attorney. He has made clear that the case is not about attacking arbitration provisions, but preserving the merchants' statutory rights:  "This is thus truly a case in which the alternative to litigation is not arbitration, but nothing."

Frank also claims that those who are concerned about the dangers of reversing the Second Circuit's decision are "Chicken Littles," and recasts the AmEx case as a struggle to preserve arbitration itself.  That would probably come as a surprise to the group of professional arbitrators, mediators, and arbitration professors who filed an amicus brief in support of the merchants.  They state that

[American Express's] argument that the [Federal Arbitration Act] requires enforcement of an arbitration clause even where it is undisputed that the consequence is that the resolution of the underlying claims in arbitration is impossible, if adopted, will reduce public confidence in the arbitration system and leave it a more weakened institution.

With less than a week left until oral argument, AmEx is something of a sleeper case.  But that has everything to do with inadequate media coverage and nothing to do with how much is at stake.

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Deepak Chopra, one of the world’s most acclaimed holistic physicians, once told followers: “Instead of thinking outside the box, get rid of it.”

Several mesothelioma therapies currently under investigation fall outside the box of conventional treatments. Cancer stem cell research, biomarker research and developments in gene therapy are inspiring an ever-increasing range of options beyond surgery, chemotherapy and radiation therapy.

But while those treatments fall outside the box, a new treatment destroys its boundaries.

The therapy? A fowlpox vaccination.

Yes, that fowlpox vaccination – the shot that farmers traditionally give chickens and turkeys to prevent viral outbreaks of contagious lesions.

Recently, researchers have found a way to take the vaccine from the farmyard to the cancer center – and with surprisingly encouraging results.

Pox viruses are considered some of the most ideal agents for targeted cancer treatment. The viruses are considered safe to modify into a vaccine that help the body’s own immune system kill off cancer cells.

The fowlpox virus is especially easy to modify. Lab workers can design it to enter healthy cells and deposit a set of specific proteins that can trigger an immune response.

Once inside the body, the vaccine may also generate additional white blood cells that can continue carrying out the mission.

This concept lies at the heart of a new study, conducted by researchers at the University of Hawaii.

The study, which will appear in a future issue of the International Journal of Cancer, tested a fowlpox vaccination that was adapted to contain the protein known as survivin.

Survivin is “a protein … that makes cancer cells resistant to chemotherapy,” the study’s lead researcher, Pietro Bertino, told Asbestos.com. The protein also regulates programmed cell death, a process known as apoptosis.

“My hypothesis was that, by survivin inhibition, all mechanisms that force the cancer cell to stay alive during chemotherapy could be turned off,” Bertino explained.

After he realized this protein could potentially play a major role in mesothelioma treatment, he had to find a way to get it into the body. An immunotherapy approach turned out to be the key. This is where the fowlpox vaccine comes in handy – it was the perfect vehicle to deliver the survivin to the tumors.

Bertino’s research team injected mice with malignant mesothelioma cells. They then provided a dose of the survivin-laced fowlpox vaccine. Some mice received the vaccine under the skin, while others received it directly into the peritoneum.

Both delivery methods produced a “significant immune response.” This response correlated with delayed tumor growth and improved overall survival. Better yet, none of the mice developed potentially serious side effects – like autoimmune conditions or infertility – after treatment.

Bertino’s team is now considering future directions for the vaccine.

“The fowlpox vaccine is our first attempt to induce an immune response against mesothelioma cells that can be used for both therapeutic and preventive purposes. We recently started collaborating with EpiVax … [and together] we identified a list of very immunogenic survivin peptides that should generate high responses in human subjects.”

When fully developed, this vaccine may have a distinct edge over other therapies.

“Successful immunotherapies have the advantage [of inducing] an immune response … that may persist years after vaccination. Chemotherapy, on the other hand, has an affect limited to a few days,” Bertino explained.

Because chemotherapy offers such a short response, patients have to participate in several cycles of the treatment.

“Repeating chemotherapy cycles usually induces high toxicity,” Bertino adds. The fowlpox vaccine could help patients avoid those serious side effects, which often include severe nausea and hair loss.

Certain vaccines also show more promising results than chemotherapy drugs, which rarely put mesothelioma into remission.

“With immunotherapy, our group induced complete tumor regression in animal models of mesothelioma. We never achieved a similar result in studies with chemotherapy.”

Since it is still in its animal testing phase, the fowlpox vaccine still has a long way to go before it is approved for human use. But Bertino feels that the promising results from his study can justify future clinical trials in due time.

As research teams continue to take the fowlpox vaccine to the next level, other vaccination options are already available through clinical trials.

In 2010, researchers tested a vaccine made from a patient’s own immune cells and tumor antigens. The trial – the first human trial of its kind – found that the vaccine could help “jump-start” the immune system’s response to the tumors.

Early last year, a UK-based research group announced another vaccination trial, this time for the TroVax® shot. Once the study officially begins, the researchers will see if this virus-based vaccine can stimulate the immune system to attack cancerous cells.

Our clinical trial database can help interested patients find a vaccine trial near them. For more updates on the fowlpox vaccine – including notifications when it advances to human studies – be sure to check back for future news posts.

Bertino, P. (4 February 2013.) Pietro Bertino, PhD., email interview with Asbestos.com. Bertino, P., Panigada, M., Soprana, E., Bianchi, V., Bertilaccio, S., Sanvito, F., … & Carbone, M. (2013). Fowlpox-based survivin vaccination for malignant mesothelioma therapy. International Journal of Cancer. Retrieved from http://onlinelibrary.wiley.com/doi/10.1002/ijc.28048/abstract American Thoracic Society. Possible vaccine for mesothelioma proven safe. (4 March 2010). Retrieved from http://www.eurekalert.org/pub_releases/2010-03/ats-pvf030210.php National Institutes of Health: A phase II trial to assess TroVax® plus chemotherapy in patients with malignant pleural mesothelioma (SKOPOS). (30 March 2012). Retrieved from http://clinicaltrials.gov/show/NCT01569919 Faith Franz is a content writer for the Mesothelioma Center. She joined the team in January 2011 to help mesothelioma patients empower themselves through knowledge about their diagnosis. Twitter Facebook Reddit Delicious Stumbleupon

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