The final panel at the ACS Convening featured a discussion on the current state of class action lawsuits and the ability of consumer protection advocates to try their clients’ cases in a court of law. Visiting HLS professor Lauren Willis moderated the conversation, and the panelists included Max Weinstein, Lauren Barnes and David Webber. Two cases that have greatly influenced this field of law are American Express Co. v. Italian Colors Restaurant and AT&T v. Concepcion, both of which upheld arbitration provisions in contracts that barred wronged consumer from litigating their complaints before a jury. The Supreme Court cited its fealty to the Federal Arbitration Act as grounds for ruling in this manner.
Mr. Weinstein kicked off the conversation by introducing the idea that the legal profession ought to disaggregate consumer protection law from traditional Contract common law. He explained that the average reader cannot possibly be expected to understand all the intricacies of a consumer contract. They also lack the voluntary nature that’s central to traditional bargained-for exchanges, and therefore wronged plaintiffs need more to stand on than simply pleading unconscionability. Ms. Barnes explained how AT&T solidified arbitration as the primary means of resolving consumer contract suits, allowing corporations to shield themselves from injunctive relief arising from a class action suit. She believes that avenues like bolstering the Consumer Protection Bureau and the Federal Rules of Civil Procedure can make an impact, and encouraged audience members to contact their representatives to demand change. Finally, Mr. Webber conducted a discussion on current shareholder litigation practices, entertaining the thought that arbitration clauses might even be introduced into corporate bylaws. He highlighted the fiduciary responsibility that these corporations have to large classes like public pensioners and suggested looking at the discovery process to drive reform.
While the panelists presented a rather gloomy picture of the circumstances at present, they were heartened by discussions happening in pockets of the progressive community. The panelists also stressed the importance of progressive action on this issue, so as not to cede any further ground.