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.

View the original article here

Mesothelioma cancer patients utilizing marijuana for medicinal purposes were dealt a setback earlier this month when a federal appeals court in Washington D.C. ruled in favor of the government’s long-standing classification of cannabis as a top-tier, dangerous drug.

The ruling dismissed a challenge to the Drug Enforcement Agency’s refusal to reclassify marijuana and loosen the restrictions that mostly prohibit the production, sale and use of it.

Many cancer patients have been using marijuana to combat the nausea and appetite loss that typically comes with chemotherapy treatments – and to help with pain management –, but the appeals court still sided with the DEA, making it much more difficult to obtain legally.

Although voters or legislators in 18 states have enacted laws in recent years making medicinal marijuana legal (under strict controls) – and two states have legalized it for recreational use – the federal designation remains unchanged after the court ruling.

The DEA, under the Controlled Substance Act of 1970, still classifies marijuana as a Schedule 1 drug, with no accepted medical uses, placing it alongside heroin and LSD.

“To establish accepted medical use, the effectiveness of a drug must be established in well-controlled, well-designed, well-conducted and well-documented scientific studies with a large number of patients. To date, such studies have not been performed,” the DEA stated in defense of its decision, which was used in the appeals court opinion.

Americans for Safe Access, a marijuana advocacy group, and several disabled American veterans, brought the case in October 2012 before a three-judge panel.  The DEA has rejected a similar petition in 2011.

More than 200 published studies were cited by Americans for Safe Access – including one by the Institute of Medicine (IOM), a governmental health advisor – to demonstrate the medical efficacy of marijuana, but the overall reasoning was rejected by the court.

“The IOM report does indeed suggest that marijuana might have medicinal benefits. However, the DEA fairly construed this report as calling for ‘more and better studies to determine potential medical applications of marijuana,’ and not as sufficient proof of medical efficacy itself,” the court opinion read.

The Americans for Safe Access has organized a conference called Bridging the Gap between Public and Policy, for Washington, D.C. on Feb. 25. It will include a Congressional lobbying effort that day.

The chief counsel for the ASA already has said it will seek another hearing before the full, nine-person appeals court, and a possible appeal to the United States Supreme Court on the matter.

“We’re disappointed, but not surprised,” Steph Sherer, ASA executive director, told the Los Angeles Times of the recent ruling. Sherer told the Times that more than one million patients have used marijuana for medicinal purposes.

The use of medicinal marijuana in Western countries can be traced back to the 19th century when it was used to relieve inflammation and pain. It was shown to help with convulsions and spasms, providing quick relief for a number of symptoms associated with physical ailments.

Mesothelioma patients in states where it is legal for medicinal purposes must have a prescription from a physician and a registration card to use the plant. The laws vary from state to state.

Although smoking marijuana provides the quickest relief from pain, patients already with lung problems can consume it through the digestive process by eating it in baked goods. Drug companies also have developed synthetic versions that can be taken in pill form.

Patients in various trials have reported its usefulness in improving sleep quality and increasing appetite, which are common problems with cancer patients. It also has helped with nausea, pain and anxiety relief. Additionally, it has shown to have fewer lasting side effects compared to many opiates that are prescribed to cancer patients by doctors.

An award winning reporter and writer, Tim Povtak is a senior content writer for the Mesothelioma Center. He previously worked at the Orlando Sentinel and then at AOL. You can contact him directly tpovtak@asbestos.com with any story ideas or comments. Twitter Facebook Reddit Delicious Stumbleupon

View the original article here

Mesothelioma cancer patients utilizing marijuana for medicinal purposes were dealt a setback earlier this month when a federal appeals court in Washington D.C. ruled in favor of the government’s long-standing classification of cannabis as a top-tier, dangerous drug.

The ruling dismissed a challenge to the Drug Enforcement Agency’s refusal to reclassify marijuana and loosen the restrictions that mostly prohibit the production, sale and use of it.

Many cancer patients have been using marijuana to combat the nausea and appetite loss that typically comes with chemotherapy treatments – and to help with pain management –, but the appeals court still sided with the DEA, making it much more difficult to obtain legally.

Although voters or legislators in 18 states have enacted laws in recent years making medicinal marijuana legal (under strict controls) – and two states have legalized it for recreational use – the federal designation remains unchanged after the court ruling.

The DEA, under the Controlled Substance Act of 1970, still classifies marijuana as a Schedule 1 drug, with no accepted medical uses, placing it alongside heroin and LSD.

“To establish accepted medical use, the effectiveness of a drug must be established in well-controlled, well-designed, well-conducted and well-documented scientific studies with a large number of patients. To date, such studies have not been performed,” the DEA stated in defense of its decision, which was used in the appeals court opinion.

Americans for Safe Access, a marijuana advocacy group, and several disabled American veterans, brought the case in October 2012 before a three-judge panel.  The DEA has rejected a similar petition in 2011.

More than 200 published studies were cited by Americans for Safe Access – including one by the Institute of Medicine (IOM), a governmental health advisor – to demonstrate the medical efficacy of marijuana, but the overall reasoning was rejected by the court.

“The IOM report does indeed suggest that marijuana might have medicinal benefits. However, the DEA fairly construed this report as calling for ‘more and better studies to determine potential medical applications of marijuana,’ and not as sufficient proof of medical efficacy itself,” the court opinion read.

The Americans for Safe Access has organized a conference called Bridging the Gap between Public and Policy, for Washington, D.C. on Feb. 25. It will include a Congressional lobbying effort that day.

The chief counsel for the ASA already has said it will seek another hearing before the full, nine-person appeals court, and a possible appeal to the United States Supreme Court on the matter.

“We’re disappointed, but not surprised,” Steph Sherer, ASA executive director, told the Los Angeles Times of the recent ruling. Sherer told the Times that more than one million patients have used marijuana for medicinal purposes.

The use of medicinal marijuana in Western countries can be traced back to the 19th century when it was used to relieve inflammation and pain. It was shown to help with convulsions and spasms, providing quick relief for a number of symptoms associated with physical ailments.

Mesothelioma patients in states where it is legal for medicinal purposes must have a prescription from a physician and a registration card to use the plant. The laws vary from state to state.

Although smoking marijuana provides the quickest relief from pain, patients already with lung problems can consume it through the digestive process by eating it in baked goods. Drug companies also have developed synthetic versions that can be taken in pill form.

Patients in various trials have reported its usefulness in improving sleep quality and increasing appetite, which are common problems with cancer patients. It also has helped with nausea, pain and anxiety relief. Additionally, it has shown to have fewer lasting side effects compared to many opiates that are prescribed to cancer patients by doctors.

An award winning reporter and writer, Tim Povtak is a senior content writer for the Mesothelioma Center. He previously worked at the Orlando Sentinel and then at AOL. You can contact him directly tpovtak@asbestos.com with any story ideas or comments. Twitter Facebook Reddit Delicious Stumbleupon

View the original article here