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. Frank is an adjunct fellow at the Manhattan Institute's Center for Legal Policy, which according to its website "has been a leader in analyzing class action abuses and developing solutions."* 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.
*This post previously linked to reports that Mr. Frank's organization, the Center for Class Action Fairness, was funded by Donors Trust that Media Matters for America did not independently verify.
As the State Department nears a decision on whether or not to approve the Keystone XL pipeline, the media is exaggerating its economic benefits and downplaying environmental risks to advocate for the project. Here, Media Matters takes on five of the prevailing media myths about Keystone XL.
Conservative media have denigrated solar energy by denying its sustainability, ignoring its successes, and arguing the U.S. should simply cede the solar market to China. Yet this booming industry has made great strides, and with the right policies can become a major source of our power.
Conservative media outlets are claiming that a leaked draft of the UN climate panel's upcoming report undermines previous predictions of rapid warming driven by rising CO2 emissions. But scientists say these claims are "nonsense" and that the draft report only adds to the existing body of evidence that manmade climate change is a serious problem.
A draft of the Intergovernmental Panel on Climate Change (IPCC) fifth assessment report, due to be published in fall 2013, was leaked by Alec Rawls, a blogger who volunteered to review the report despite having no scientific expertise. In a blog post on Watts Up With That, Rawls claimed that the draft report contains a "game-changing admission" that galactic cosmic rays have significantly contributed to global warming, undermining the scientific consensus that climate change is driven by human activity. But experts say Rawls "completely misrepresented the IPCC report," noting that he ignored a paragraph that explicitly states there is "high agreement" among scientists that cosmic rays do not have a meaningful impact on global temperatures. Dr. Steve Sherwood -- a lead author of the chapter in question -- told Australia's ABC News that Rawls' claim is "ridiculous," adding: "we conclude exactly the opposite, that this cosmic ray effect that the paragraph is discussing appears to be negligible."
Furthermore, as Skeptical Science pointed out, even if cosmic rays did influence global temperatures, "they would currently be having a cooling effect." Dr. John Abraham of the Climate Science Rapid Response Team told Media Matters:
The IPCC report certainly was not saying the changes in the sun were causing the earth to warm. In fact, if the leaker was correct in his interpretation, the earth should be cooling right now!
But that didn't stop Investor's Business Daily from echoing his misinformation, claiming that the leaked draft "indicates the IPCC is actually admitting that a factor outside man's activities is playing a significant role in our climate." IBD quoted Rawls' claim that the section on cosmic rays "completely undercuts" the IPCC's conclusion that manmade climate change poses a significant threat, without noting that Rawls is not a scientist and has been thoroughly discredited.
Meanwhile, climate contrarian blogger Anthony Watts claimed to have discovered the real "bombshell" in the draft report: a chart comparing observed changes in global average surface temperatures with projections from the four previous IPCC reports. The chart indicates that early UN projections may have slightly overestimated warming because they did not take into account natural factors like solar forcing or aerosols, which tend to have a cooling effect. But the draft notes that "observations through 2010 generally fall well within the projections made in all of the past assessments."
The Drudge Report hyped an Investor's Business Daily claim that President Obama has hired an average 101 new federal employees a day. But federal employment is not keeping pace with population growth and a significant number of those new jobs are necessary to handle the care of returning and wounded veterans.
A headline on the Drudge Report linked to an Investor's Business Daily article by Andrew Malcolm under the headline "Obama has hired 101 new federal employees A DAY since taking office..." The article claimed that during the Obama administration, "the federal government has daily hired on average 101 new employees. Every day. Seven days a week. All 202 weeks":
But both Drudge and Malcolm ignored that a significant portion of the increase in federal jobs are a result of defense spending, including an increase in hiring associated with caring for military personnel returning from the wars in Iraq and Afghanistan.
Examining claims about increased federal employment, PolitiFact found that "all told, national defense, assisting veterans, and protecting the national borders account for close to 90% of all federal civilian employee growth." PolitiFact quoted John Palguta, vice president for policy at the Partnership for Public Service, a nonpartisan group that studies the federal workforce, as saying, "Just about all of the increases are at the Defense Department, Veterans Affairs, Homeland Security and the Department of Justice."
Conservative media outlets pushed at least eleven misleading attacks on President Obama's energy policies that have become talking points used by Mitt Romney's campaign. The conservative media bubble has largely prevented voters from hearing the facts about clean energy programs, fossil fuel production and environmental regulation under the Obama administration.
Last July, the Interior Department suspended one of its employees, Arctic biologist Charles Monnett, pending an investigation into allegations of scientific misconduct by an anonymous Interior Department employee. Monnett was best known for co-authoring a peer-reviewed paper on drowned polar bears that was cited in the 2008 decision to list the polar bear as a threatened species, along with many other papers establishing the threat that climate change poses for polar bears.
The right-wing media used the investigation not only to reject Monnett's findings, but also to dismiss all the science on polar bears and global warming. Fox Nation promoted an Investor's Business Daily editorial claiming the Monnett investigation was exposing "the global warming fraud" with the headline "Global Warming Industry Rocked by Polar Bear Fraud." Fox Nation also promoted a New York Post op-ed on the Monnett investigation with the headline "Global Warming Theory Faces Sudden Collapse."
But the Interior Department cleared Monnett of all scientific wrongdoing. Monnett was officially reprimanded for an unrelated issue: forwarding government emails to local government and university officials that "ended up being used in litigation against the government." Jeff Ruch of Public Employees for Environmental Responsibility, which provided Monnett legal representation, said that Monnett leaked the emails under the Bush administration to expose suppression of scientists' concerns about the environmental risks of offshore drilling in the Arctic.
Steve Doocy promised last year on Fox & Friends to "keep [viewers] posted" on Monnett's case. But so far Fox News remains silent not only on Monnett's case but also on the record arctic sea ice loss this summer that portends danger for polar bears.
In order to distract from the announcement this week that Arctic sea ice is at a record low, right-wing media are pointing to Antarctic sea ice as proof that climate change isn't occurring. But Antarctic sea ice gains have been slight, whereas Arctic ice decline -- a key indicator of climate change -- has been extreme. Furthermore, scientists have long expected the Arctic to experience the first impacts of climate change, and still project that in the long run, sea ice in both regions will decline as greenhouse gas concentrations increase.
On September 16, the National Snow and Ice Data Center announced that Arctic sea ice reached its minimum extent for the year and the lowest seasonal minimum measured since record keeping began in 1979. But in a blog post published the day of that record low, climate contrarian Steven Goddard changed the subject, asserting that Antarctic ice on "day 256" (September 12 in a leap year) was the highest ever recorded for that date, and the eighth highest daily recording ever. A few days earlier, contrarian Anthony Watts cited satellite readings showing "mass gains of the Antarctic ice sheet" to similar end.
Heartland Institute fellow and Forbes contributor James Taylor quickly seized on the argument, complaining that instead of covering the Antarctic, news reporters were "breathlessly spreading fear and warning of calamity because Arctic sea ice recently set a 33-year low." Investor's Business Daily used the Antarctic ice growth to pass judgment on "global warming alarmists" for noting record summer temperatures across much of the U.S. and concluded " The alarmists' bible has turned out to be full of false prophets."
But the low Arctic sea ice came on the heels of a "record-breaking summer," and it is lower than any since observation began "by a wide margin." According to a NASA release on the record, the difference between the new Arctic sea ice extent and the old mark is larger than the state of Texas, whereas, as National Snow & Ice Date Center [NSIDC] Director Mark Serreze told LiveScience, "Antarctic sea ice hasn't seen these big reductions we've seen in the Arctic."
Indeed, the daily sea ice extent for the Arctic is well outside of two standard deviations from the 1997-2000 average, while the Antarctic daily sea ice extent is only slightly outside of this range for 2012:
And according to a study published in Nature of 69 sites around the Arctic, the drop in late summer sea ice in the Arctic is unprecedented in over a thousand years:
Conservative media have claimed that the Obama administration is waging a "war" on "cheap," "clean" coal that will cause blackouts and massive layoffs. In fact, the Obama administration has simply implemented long overdue and legally required clean air regulations to protect public health without hurting electric reliability or employment, and much of the transition away from coal is due to the rise of cheaper, cleaner natural gas.
Conservative media outlets are claiming that the military is purchasing more electric vehicles in an attempt to "prop up the Obama administration's green agenda." But military leaders across the political spectrum say that the Pentagon's green initiatives will enhance military effectiveness and strengthen national security.
Last month, Stars and Stripes reported that the Defense Department plans to add about 1,500 "road-capable" electric cars to its fleet over the next few years. So far, the military has purchased 168 plug-in electric vehicles -- including some Chevy Volts. Thomas Hicks, the Navy's Deputy Assistant Secretary for Energy, recently told Scientific American that the goal of the military's green initiatives is "improving our combat capability, improving our mission effectiveness, and reducing our vulnerabilities to foreign sources of fossil fuel."
But conservative media outlets have conjured up another motive, accusing the Obama administration of using taxpayer dollars to boost GM's sales numbers -- even though the military is buying several types of electric vehicles. A Breitbart post said: "The Obama administration is helping General Motors again by buying up its struggling line of electric cars." And a Washington Free Beacon article stated: "The Pentagon's massive car-buying scheme is the latest example of government trying to help GM raise its sales volumes."
Other conservative outlets are calling the purchases a "political statement," and an attempt to "prop up the Obama administration's green agenda." And Fox News, which never misses an opportunity to lambast the Volt, issued the self-fulfilling prophecy that the military's purchase will become "the latest controversy in the Volt's short life."
Several conservative outlets cited a Reuters report that GM is losing up to $49,000 on every Volt sold to suggest that electric vehicles are a waste of taxpayer money. But as the International Business Times pointed out, this figure does not take into account future Volt sales or the application of its technology to other products, which will lower per-vehicle costs. GM called the Reuters figure "grossly wrong," and said that it expects to break even by the time the second-generation Volt is introduced in a few years. Former GM Vice Chairman Bob Lutz wrote in Forbes that "[m]aybe the Volt, a first-generation technology masterpiece and the most-awarded car in automotive history, will never make a really decent profit. But succeeding generations of the same technology will."
International Business Times noted that the Volt is a forward-looking investment by GM, which "should be reassuring to investors and the market." Likewise, the military's investment in electric vehicles is part of a long-term strategy to reduce its dependence on oil, mitigate the risks of climate change and enhance national security.
Conservative media outlets are praising Mitt Romney's newly released energy plan, claiming it will lower gas prices, create jobs, and "make America an energy superpower." But experts say Romney's goal of energy independence by 2020 is a "pipe dream" and that his plan overlooks environmental consequences and fails to address the real obstacle to U.S. energy security: our dependence on oil.
Right-wing media outlets have been in full freak-out mode this week, fabricating a myth that the Environmental Protection Agency (EPA) has been using drones to spy on Midwestern ranchers. In fact, the EPA has been utilizing manned flyovers -- not drones -- to investigate potential polluters since the Bush administration, in an effort to save money and enforce clean water regulations efficiently.
For the past ten years, the EPA has conducted intermittent flyovers "to verify compliance with environmental laws on watersheds," as Reuters reported:
"EPA uses over-flights, state records and other publicly available sources of information to identify discharges of pollution," said a statement issued by the EPA's Kansas City regional office. "In no case has EPA taken an enforcement action solely on the basis of these over-flights."
EPA has for 10 years used flyovers to verify compliance with environmental laws on watersheds as a "cost-effective" tool to minimize inspection costs, according to the statement.
This article originally said that the EPA was using drones to monitor feedlots, but a representative from Senator Johanns office has alerted us that in actuality manned aircraft have been used to monitor the feedlots. We apologize for the error.
Nevertheless, right-wing commentators began falsely throwing the word "drone" into their reports about the EPA's enforcement mechanisms. For example, Fox News anchor Megyn Kelly:
KELLY: You know, you gotta picture yourself, right, as one of these Midwestern farmers, because what's been in the news lately? The fact that President Obama's killed more terrorists with drones than any other president. That President Obama has a so-called "kill list." And that on that kill list, sometimes civilian casualties go as well, because if you're near an al-Qaeda terrorist, they assume if you're of an adult male age in a certain community, you also are a terrorist.
Even an American terrorist, an American al-Qaeda, was killed by a drone. So now you're in the Midwest, and you know you're not a terrorist, but nonetheless, you gotta get a little squeamish when you see a drone going overhead.
Republicans in Congress are attempting to prevent the military from purchasing alternative fuels, which Senator Inhofe (R-OK) believes are merely "perpetrating President Obama's global warming fantasies and his war on affordable energy." And conservative media are backing the attacks on climate change and clean energy programs, suggesting that these investments come at the expense of national security. But experts across the political spectrum agree that climate change poses a serious threat to our national security, and that transitioning to alternative energy will enhance military effectiveness. Here are 15 current and former national security officials in their own words on the threat of climate change:
The Pentagon recognizes that our dependence on oil is problematic not only because of the threat of climate change, but also because of volatile oil prices and supply disruptions that can threaten the military's energy supply. It's Operational Energy Strategy states:
Conservative media are once again hyping the amount of oil in the U.S. by including oil shale, ignoring that oil companies have found no profitable way to develop that resource.
The most recent flood of misinformation came after testimony by the Government Accountability Office's Anu Mittal about "oil shale," a sedimentary rock that when heated at high temperatures can produce liquid fuels (except gasoline) with a larger carbon footprint than conventional liquid fuels. While some conservative outlets claimed it was major news, the testimony -- which was based on an October 2010 GAO report -- contained no positive developments for oil shale, which has long been known to exist in large amounts in the U.S. but is not commercially viable. Earlier this year, energy expert Robert Rapier wrote, "It is not at all clear that even at $100 oil the shale in the Green River formation will be commercialized to produce oil." Even an editor at the right-wing blog The American Thinker acknowledged that "any large scale operations" for oil shale development would be "prohibitively expensive at this time." And just recently, Chevron gave up its oil shale lease in Colorado.
Mittal noted in her testimony that no technology to develop oil shale "has been shown to be economically or environmentally viable at a commercial scale." But Fox News' nightly news show and CNSNews.com, a project of the conservative Media Research Center, failed to mention that oil shale is not currently commercially viable. Breitbart.com and Investor's Business Daily incorrectly suggested that oil shale is not being developed because of Obama administration policies, rather than economic considerations. And Powerline suggested that oil shale is in fact viable because of the "advance of extraction technology," seemingly confusing oil shale with tight oil from shale rock, which can be extracted via horizontal drilling and hydrofracking.
It's interesting to see that the same people who dismiss the enormous potential of solar and wind power and attack investment in renewable energy are hyping the potential of oil shale. A December 2011 Congressional Research Service report, which classified oil shale as a "sub-economic" resource, stated that "despite government programs in the 1970s and early 1980s to stimulate development of the resource, production of oil shale is not yet commercially viable."
Conservative media figures are suggesting that a recently released memo from Leon Panetta shows that President Obama doesn't deserve credit for ordering the raid on Osama bin Laden's compound in Pakistan. In fact, the memo fits the previously reported timeline of the decision to raid the compound and confirms Obama's role in making that decision.
Last August, The New Yorker reported the details of Obama's decision to order Vice Adm. Bill McRaven, who is in charge of the Joint Special Operations Command, to carry out the raid:
Late on Thursday afternoon [April 28, 2011], Panetta and the rest of the national-security team met with the President. For the next few nights, there would be virtually no moonlight over Abbottabad -- the ideal condition for a raid. After that, it would be another month until the lunar cycle was in its darkest phase. Several analysts from the National Counterterrorism Center were invited to critique the C.I.A.'s analysis; their confidence in the intelligence ranged between forty and sixty per cent. The center's director, Michael Leiter, said that it would be preferable to wait for stronger confirmation of bin Laden's presence in Abbottabad. Yet, as Ben Rhodes, a deputy national-security adviser, put it to me recently, the longer things dragged on, the greater the risk of a leak, "which would have upended the thing." Obama adjourned the meeting just after 7 P.M. and said that he would sleep on it.
The next morning [April 29, 2011], the President met in the Map Room with Tom Donilon, his national-security adviser, Denis McDonough, a deputy adviser, and Brennan. Obama had decided to go with a DEVGRU [SEAL team] assault, with McRaven choosing the night. It was too late for a Friday attack, and on Saturday there was excessive cloud cover. On Saturday afternoon, McRaven and Obama spoke on the phone, and McRaven said that the raid would occur on Sunday night. "Godspeed to you and your forces," Obama told him. "Please pass on to them my personal thanks for their service and the message that I personally will be following this mission very closely." [emphasis added]
For a recent cover article, Time magazine released a memo written by then-CIA director Panetta on the morning of April 29, 2011. Time transcribed the handwritten note:
MEMO FOR THE RECORD Apr. 29, 2011, 10:35 a.m.
Received phone call from Tom Donilon who stated that the President made a decision with regard to AC1 [Abbottabad Compound 1]. The decision is to proceed with the assault. The timing, operational decision making and control are in Admiral McRaven's hands. The approval is provided on the risk profile presented to the President. Any additional risks are to be brought back to the President for his consideration. The direction is to go in and get bin Laden and if he is not there, to get out. Those instructions were conveyed to Admiral McRaven at approximately 10:45 am. [emphasis added]
So, the memo confirms that Obama met with national security adviser Tom Donilon and others on the morning of April 29. Donilon then called Panetta on the phone and told him that Obama had decided to go forward with the raid, and that McRaven was in charge of operational decision-making, as one would expect with any major military operation.
The right-wing media are twisting this final detail -- that McRaven was in control of the operational decisions -- into a suggestion that there was no "gutsy call" by Obama to go forward with the raid.