Evening cable and network news have almost completely ignored the Supreme Court's sweeping decision in American Express v. Italian Colors, a 5-3 decision that further privatizes and restricts access to justice for everyday Americans by allowing corporations to immunize themselves from judicial review.
Despite the fact that American Express was a highly contentious pro-business opinion by the conservative bloc of the Supreme Court - even by their extremely corporate-friendly standards - a Media Matters search of Nexis transcripts reveals that with the exception of one brief non-primetime mention on PBS, not one cable or network evening news show addressed the decision.
Contract law has long held that certain unconscionable agreements are unenforceable. Contractual clauses are traditionally voided if they eliminate victims' ability to enforce their statutory rights, making Justice Antonin Scalia's American Express opinion to the contrary "a betrayal of our precedents, and of federal statutes like the antitrust laws," according to Justice Elena Kagan's scathing dissent.
In this case, American Express used its monopoly powers over a group of small business owners to force them to accept exorbitant credit card fees in a seemingly blatant violation of antitrust statutes. When these small businesses grouped together to pursue a class action protecting their consumer rights, American Express pointed to a clause in the card agreement that not only blocked access to the courts in favor of forced arbitration, it also prohibited plaintiffs from joining together in this mandatory forum.
But because of the high cost of bringing actions against this well-defended corporation, individual claims are financially prohibitive, leaving the small businesses without “effective vindication” of their federal rights under antitrust law. Not only are these mandatory arbitration clauses forcing victims of corporate abuse to forego the courts in favor of privatized (and confidential) justice, they are barred from making it remotely affordable. From Justice Kagan's dissent:
Here is the nutshell version of this case, unfortunately obscured in the Court's decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract's arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool's errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability--even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.
And here is the nutshell version of today's opinion, admirably flaunted rather than camouflaged: Too darn bad.
Unfortunately, American Express is yet another example of the conservative justices' extreme and continued favorability toward corporate interests, especially those pushed by the U.S. Chamber of Commerce, and utter hostility toward class action lawsuits and the consumers and workers who bring them. And these decisions - AT&T v. Concepcion, Comcast v. Behrend, Wal-Mart v. Dukes - are piling up at an alarming rate.
American Express will only add fuel to the fire by underscoring new ways that corporations can now insulate themselves from a vast range of federal laws. From Mother Jones:
In an amicus brief submitted in this case on the side of the small businesses, lawyers for AARP, Public Justice, and the American Association for Justice warned that if the court sided with Amex, “statutes intended by Congress to protect weaker parties against stronger parties will essentially be gutted. Small businesses might as well move to a different country where they no longer enjoy the protection of the antitrust laws. At the whim of an employer, workers could be required to prospectively waive their Title VII [anti-discrimination] rights. Consumer protection laws such as the Truth in Lending Act could be silently, but inescapably, repealed by corporations with the stroke of a pen.”
Indeed, if the court ruled that Amex could use an arbitration clause in a contract with a much less powerful party to escape punishment under the Sherman Antitrust Act, there's no reason why a big company couldn't create contracts that prevent people from filing sex discrimination, consumer fraud, or other similar claims in any venue. Laws that Congress passed to protect the public could simply be voided through artfully written arbitration clauses that create expensive hurdles to pressing a claim.
As Kagan observed, conservative justices are aggressively stretching for appellate decisions they can overrule - "[t]o a hammer, everything looks like a nail" - as they relentlessly create new ways to close off what has traditionally been one of the most effective ways for plaintiffs to defend their rights against more powerful corporate defendants. This obvious right-wing campaign with so many angles - corporate dominance of a Roberts Court unconcerned with overruling precedent, backroom justice for big business at the expense of the little guy - makes the media blackout on this Supreme Court case baffling.
Ultimately, if those anchors and producers who chose to ignore American Express are lucky enough to not be parties to these unfair contracts, good for them. Their viewers, however, are increasingly not this lucky as one-sided arbitration clauses and class action waivers gain in popularity among corporations seeking to insulate themselves from liability for their bad behavior.
In fact, maybe television news employees should look at the fine print of their contracts as well. They might already be part of the story they're ignoring.
Media Matters conducted a keyword search of evening weekday television transcripts available on Nexis that included “american express” or arbitration or “class action” in conjunction with “supreme court.” Evening was defined as occurring between 5:00 p.m. and 11:00 p.m. and news transcripts for PBS, ABC, CBS, NBC, CNN, Fox News, and MSNBC were examined. The time period surveyed was from June 19 through July 2.