Fact-checking American Express claims about forced arbitration

March 31, 2015

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A recent article by Orange County Register Watchdog Columnist Teri Sforza explains some of the harm done to consumers and employees from forced arbitration, drawing in part on AFJ’s short documentary Lost in the Fine Print. The film details the story of Alan Carlson, the owner of Italian Colors restaurant in Oakland, California, who tried to challenge American Express’s high “swipe fees” in court. A forced arbitration clause buried in the fine print of American Express’s terms of service kept Alan from being able to vindicate his rights.

Alan Carlson

Marina Hoffmann Norville, a vice president at American Express, told the paper her company recently made changes to its forced arbitration policy to keep customers satisfied.

But how significant are the changes for consumers?

For the past decade, companies have been free to make claims about their arbitration policies with little factual support or scrutiny. There was no way to know what the typical arbitration process looked like, if customers were able to take advantage of seemingly consumer-friendly clauses, and whether consumers were actually winning cases in arbitration. But all that changed earlier this month, when the Consumer Financial Protection Bureau released its comprehensive, in-depth study of forced arbitration. Now, consumers are able to fact-check company claims.

So we decided to fact-check American Express. Is its arbitration clause as consumer-friendly as the company implies?

The answer is a resounding no.

American Express touts its new opt-out policy, which gives customers 45 days from when they first use a new card to opt out of the agreement’s arbitration provision. While “agreeing” to forced arbitration is as easy as swiping your Amex card, opting out is a bit more onerous. To even find the provision, customers have to get to one of the last pages of the cardmember agreement—just past the “governing law” and “assigning the agreement” sections. Customers then have to print, sign, and snail mail a rejection notice to a P.O. box in El Paso.

It’s unsurprising that consumers rarely take advantage of these opt-out provisions. According to the CFPB’s study, though over a quarter of credit card contracts include a similar provision, not a single consumer of the 570 interviewed had opted out. Only three consumers reported being given an opportunity to do so—but those three were mistaken. None of them actually had a contract which would have allowed them to opt out.

We did find one place where American Express is an industry leader: conducting forced arbitration in secret.

 Only two credit card issuers of the 66 examined by the CFPB expressly includes a confidentiality or non-disclosure clause in its forced arbitration provision. American Express, which mandates that “[t]he arbitration will be confidential,” is presumably one of them. These clauses prevent wrongdoing from being exposed and remedied on a large scale. Consumer laws, which protect us all from fraud and discrimination, vindicate critically important societal goals. They should be enforced in the full sunlight of the courtroom—not in a private tribunal that American Express closes off to the public.

The rest of Amex’s arbitration clause is similarly unfriendly to consumers. The company provides a carve-out from forced arbitration for small claims court, as do 99 percent of credit card contracts. But like the opt-out clauses, these provisions rarely help consumers; they are more likely to be used by companies trying to collect debt. In 2012, looking at selected states and large cities, the CFPB was only able to identify—at most—39 small claims cases brought against American Express by a consumer.

Like 40.9 percent of credit card forced arbitration clauses, American Express’s includes a right to appeal an arbitrator’s decision—but only to three more arbitrators. The company is also unusual in that it “will consider in good faith making a temporary advance of your share of any arbitration fees.” Over 40 percent of credit card contracts require the issuer to do so.

If American Express truly wants a consumer-friendly arbitration policy, it should give its customers the right to choose whether or not they arbitrate—not in the form of an arcane opt-out policy, but after a dispute arises. If arbitration is as fair, quick, and affordable as proponents claim, it’s hard to imagine why customers would turn it down.

• Tell the CFPB to prohibit forced arbitration in consumer financial products
• Tell the music streaming service Spotify to stop using forced arbitration

How Spotify Lets Your Rights Get Lost in the Fine Print - and What You Can Do About It

March 26, 2015

Nan Aron | President, Alliance for Justice

The moment you sign up for the music streaming service Spotify, you lose some very important rights - and Spotify wants to bury what you're losing in the fine print.

Spotify specifies that when listeners click "sign up," they agree to its terms and conditions - found on a separate page of the Spotify website. Buried in the fine print of those "terms and conditions of use" is a forced arbitration clause. As the ad says, that means if you have a dispute with Spotify, you have to take your case to a decision-maker at a firm they choose - not a judge or jury. In addition, if Spotify violates the rights of thousands, even millions of its listeners, they can't band together to seek justice.

Interested in learning more, see the full text of Nan's piece at the Huffington Post.

GUEST BLOG: The Supreme Court should protect Muslim worker from job discrimination for wearing a headscarf

February 24, 2015

The Supreme Court will hear oral arguments tomorrow in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., a case testing the rights of job applicants who need a religious accommodation from their would-be employer.

The plaintiff is a 17-year-old Muslim woman, Samantha Elauf, whose job offer to work at an Abercrombie & Fitch store in a mall in Tulsa, Oklahoma was revoked when managers discovered that she intended to wear a religious headscarf while at work.  Doing so, they said, would violate the corporate “look policy” for employees.

A federal district court ruled in Samantha’s favor, finding that she had been subject to illegal discrimination because of her religion in violation of Title VII of the Civil Rights Act of 1964, the federal statute that bars employment discrimination.  The Tenth Circuit Court of Appeals, however, reversed this ruling.  It found that, even though she had worn her hijabto the job interview, she had not explicitly told Abercrombie that she wore a headscarf for religious reasons and expressly requested an accommodation under Title VII.  The Tenth Circuit’s ruling on this issue differed from other federal appeals courts, which have found that the notice element of a plaintiff’s prima facie claim is met if the employer has actual knowledge of a job applicant’s religious practice even if an express request for an accommodation is not made.

The particular issue raised on appeal in the Supreme Court is not the underlying substantive one of whether Samantha has the right to an exception from Abercrombie’s dress policy for religious reasons under Title VII, though her case is a strong one.  Employers are required to “reasonably” accommodate an employee’s religious practices, meaning that they must do so when it does not impose an “undue burden” on them.  The expense associated with allowing an employee to wear a headscarf (i.e. the harm created by a slight deviation from its dress code) is minimal, and her practice would not impose on burden on her co-workers.

In this case, however, the Supreme Court is considering the narrower issue of whether “explicit notice” should be required.  Samantha did not expressly request an accommodation in part because she had no idea she would need one.  After all, it is employers, not job applicants, who know what corporate policies the employer has established governing employees.  How was she to know that she would need an exception to a rule that she didn’t know even existed?

For that matter, how can Abercrombie plead ignorance of Samantha’s need for an accommodation that was as plain as the scarf on her head?

As the Supreme Court hears arguments, the justices should focus on the difficult situation that job applicants would be placed in if it adopts the Tenth Circuit’s explicit notice rule.  In a job interview, a moment when the employer has the upper hand, an applicant should not be forced to raise the issue of a need for special treatment.  Employers would be tempted simply to hire someone without any such needs, leading to increased illegal discrimination against religious minorities.

The Supreme Court should not permit an employer to discriminate against a job applicant on the basis of her religion without legal consequence just because the applicant does not expressly state her need for a religious accommodation and is unaware of employer policies that would require it.  When an employer actually knows someone will need an accommodation, the applicant should not be punished for failing to say the right magic words.

William Burgess is the Senior Staff Attorney at the Council on American-Islamic Relations, which filed an amicus brief with the Supreme Court in this case in support of the EEOC.  CAIR’s Oklahoma chapter assisted the plaintiff in this case in preparing her complaint to the EEOC. 

CAIR is the largest American Muslim civil rights organization in the country, dedicated to protecting the civil rights and liberties of all Americans and fostering a greater understanding of Islam in the U.S.

Benched! The more things change…

February 12, 2015 | 

In an interview with Iowa Public Radio, shortly after being named chair of the Senate Judiciary Committee, Senator Chuck Grassley, R-Iowa, said, “I have no reason to believe that the future is any different” for the committee.

He was right. Even with Senator Grassley as chair, Republican obstructionism continues in the Senate Judiciary Committee.

In a previous edition of Benched!, we explained how, when Democrats controlled the Senate,  Republicans would routinely and needlessly “hold over” judicial and executive nominees rather than allowing the committee to vote at the first opportunity. This procedural tactic, normally reserved as a courtesy to senators who need more time to examine a candidate’s record, allowed Republicans to take an extra week before sending nominees to the Senate floor.

But now it’s the Republicans, not Democrats, who are setting the committee schedule. And while it might be reasonable in some cases for the minority party to need more time on a nominee, it is plainly a pretext for the majority party to claim it needs more time than it has given itself. Paul Gordon at People for the American Way explained this yesterday, writing that today we would find out “whether Republicans will continue one of the indefensible forms of obstruction that they engaged in for six years while in the minority.”

This morning, we got our answer. Without explanation, Senator Grassley held over the nominations of four federal judges and Attorney General nominee Loretta Lynch.

All four of the judicial nominees are uncontroversial. They would fill district court seats in Utah and Texas, and have the support of their home-state Republican senators on the committee. Lynch has the support of many Republicans on the committee, including Senator Lindsey Graham (R-S.C.), who told reporters “I’m ready to vote.”

For no apparent reason, Texans will now have to wait an extra week until two vacancies deemed “judicial emergencies” by the U.S. Courts—seats that have been empty for over 700 days each—will be filled. The country will have to wait an extra week for a new attorney general, whose confirmation has already taken the longest of any attorney general nominee in the past 30 years.

Republican obstructionism stays the same.

Abe Lincoln in a skirt; Ruth Bader Ginsburg with a beard

Michelle D. Schwartz

Director of Justice Programs

As I read Mike Sacks’s piece in the National Law Journal yesterday on Attorney General nominee Loretta Lynch, I was struck with a bout of déjà vu.

It hit me when I saw this gem from Gun Owners of America president Larry Pratt:

“She’s kind of like Eric Holder in a skirt.”

Where have I heard that before?

Ah, yes. In November 2013, Ed Whelan of National Review Online had this to say about then-D.C. Circuit nominee (now D.C. Circuit Judge, thanks to Senate rules reform) Nina Pillard:

“[F]olks who know Pillard well have described her to me as ‘[Ninth Circuit Judge Stephen] Reinhardt in a skirt but less moderate.’”

It’s a safe bet that neither Pratt nor Whelan meant these comparisons as compliments. Pratt’s group calls Holder “a committed anti-gun radical” and Whelan calls Reinhardt an “arch-activist.” Nor can I recall a time when I’ve seen the “in a skirt” construction used with a name the speaker revered. “That talented female debater is like Abe Lincoln in a skirt,” said nobody ever.

But even if you do like Eric Holder and Stephen Reinhardt (and I do), these statements are insulting, not only to Lynch and Pillard, but to all women. They demean women by implying that they do not have thoughts, ideas, or accomplishments of their own, but are merely dressed up versions of men. They focus on women’s appearance and dress rather than their experiences and intellect. In short, they seek to put women in their place.

For those who think I’m being overly sensitive, I challenge you to come up with a single example where a man has similarly been compared to a woman (“Ruth Bader Ginsburg with a beard”?). Until then, please stop skirting the issues and start judging women on their own merits.

Benched! Keeping Credit 
Where Credit is Due

January 13, 2015

A little over a week into the new Congress, and Senate Judiciary Chairman Chuck Grassley, R-Iowa, has already begun laying the groundwork to limit the number of President Obama’s judicial nominees the Senate will confirm.

As we detailed earlier this week, presidents have historically continued filling judicial vacancies even with an opposition Senate in their final two years of office. On average, 20 percent of a president’s total judicial confirmations—which would be 76 judges for President Obama—are confirmed in the final two years of office.

The Senate has not yet confirmed any nominees this year. Nonetheless, in a recent article, a Grassley spokeswoman said that the Senator has already started tallying his confirmations for the 114th Congress, presumably to limit the number of additional nominees the Senate will confirm.

Under Grassley’s version of new math,  the current Senate has already confirmed 11 judges.  Grassley counts these judges even though they were reported out of committee and confirmed not in the current Senate, the one in which Republicans are in the majority, but by the last Senate during its “lame duck” session.

Of course,  these confirmations were not the accomplishments of Senator Grassley or Senate Republicans. In fact, Senator Grassley delayed the confirmations for which he now seeks credit and opposed confirming any nominees reported out of committee during the lame duck session. Senate Republicans even blocked their own states’ nominees and forced Democratic leadership to file cloture motions on uncontroversial judges, all while many argued that confirmations should be shut down entirely during the lame duck.

Manipulating confirmation numbers and claiming credit where it isn’t due does nothing to fill the 44 current judicial vacancies and many more (25 already announced) that will open in 2015. It does nothing for people living in Pennsylvania and Texas, where numerous, longstanding vacancies and rising caseloads have left individuals waiting in line for justice.

Iowa’s largest newspaper has called on Senator Grassley to end obstructionist policies and confirm qualified judges to the bench, and Grassley himself has promised to hold hearings soon on pending nominees. We hope he chooses to do so.

Call your senators and tell them: Do your job before leaving Washington!

The Senate is getting ready to leave on a three-week vacation.  But dozens of nominees to judicial and executive branch posts are still waiting to start the jobs for which they’ve been nominated.

It’s not right for senators to leave Washington for the year before their job is done.

With your help, we’ve been keeping the pressure on the Senate to do its job and confirm nominees.  Since the November election, the Senate has confirmed 15 judges.  But there still are at least a dozen more who can and should be confirmed this year.  And many executive branch nominees have been waiting months and even years for yes-or-no votes.

As AFJ President Nan Aron said: “When judgeships sit vacant, all Americans suffer. Judicial vacancies mean small businesses struggle with uncertainty, injured individuals drown under the weight of medical bills, and victims of discrimination must wait for justice.”

Please take a moment to call the Capitol switchboard at 202-224-3121.  Ask for your senators’ offices and tell them why it is so important to confirm these nominees.

 Find out more about why we need to confirm judges now

Nan Aron: It’s time to stop tinkering with the machinery of death

Alliance for Justice President Nan Aron was among the speakers today at the launch of 90 Million Strong, a new campaign to abolish the death penalty.  She spoke at a news conference at the National Press Club.  These are her prepared remarks:

My name is Nan Aron.  I am President of Alliance for Justice. On behalf of the more than 100 groups that make up the Alliance, I would like to thank the National Coalition to Abolish the Death Penalty for organizing this campaign and this event and for inviting us to participate.

AFJ works to promote a fair and independent judiciary.  There can be no clearer reminder of the importance of who sits on our courts than that these jurists are called upon to make life and death decisions.  For decades the Supreme Court has tried to reconcile state-sanctioned killing with the Constitution of the United States.  That cannot be done.

Justice William Brennan wrote that

“moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.  

Justice Thurgood Marshall, who believed most Americans were uninformed about the death penalty, wrote that

Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice.

But today, instead of a Brennan or a Marshall, the life of an accused might be in the hands of a judge like Edith Jones of the Fifth Circuit Court of Appeals.

Judge Jones has said that capital defendants’ claims of racism, arbitrariness and even claims of innocence are nothing more than – her words – red herrings.

She also has declared that,

a killer is only likely to make peace with God and the victim’s family in that moment when the killer faces imminent execution, recognizing that he or she is about to face imminent judgment.          

I don’t know how one makes peace with upholding the execution of someone who may be innocent.  And I don’t know how one makes peace with using the mechanism of the state to punish people by taking their lives.

Justice Harry Blackmun struggled with the death penalty.  At first, he thought there might be some way to reconcile it with the Constitution.  But in 1994, he wrote:

“I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. …”

Declared Blackmun: “From this day forward, I no longer shall tinker with the machinery of death.”

Alliance for Justice agrees: It is time to stop tinkering with the machinery of death.

We look forward to the day when we have a Supreme Court that will rule, once and for all, that the death penalty is unconstitutional.

We look forward to being a part of the 90 Million Strong campaign, and mobilizing our more than 100 members to act on this vital issue.

Thank you.

Find out more at the 90 Million Strong campaign website.

Retailer tries to hold customer’s money hostage to forced arbitration

By Trevor Boeckmann
AFJ Dorot Fellow
As we detail in our short documentary Lost in the Fine Print, forced arbitration clauses have become omnipresent in American society.  They’re used by companies to prevent consumers from having the chance to stand up for their rights in court when they’re harmed.  Yet most of these clauses are buried deep in the fine print of contracts and terms of service.

Now Walmart, already a corporate bad actor in so many ways, has taken this strategy to a whole new level.  They found a way to hold a customer’s money hostage until she agreed to forced arbitration.

KTRK-TV in Houston reports that on Black Friday, local shopper Maria Selva tried to buy a new TV at the big-box retailer. Walmart had sold out of the TV by the time Selva came to purchase it, but employees gave her a coupon, and had her pay in full.

She thought she could just pick up the TV at a later date.  But after she’d already paid, she was given a notice telling her she had to register online.  When she went online, she found that registering the coupon meant agreeing to forced arbitration.  She refused to accept the terms, and contacted Walmart to ask for a refund.

Walmart said no.

Instead, the company told her she would have to agree to forced arbitration, receive the TV, and return the TV.  Only then could she receive a refund.

It wasn’t until KTRK contacted the company that Walmart finally relented and issued a refund.

The consequences of forced arbitration can be great.  In Lost in the Fine Print we document the stories of Nicole Mitchell and Debbie Brenner, victims of discrimination and fraud who were never allowed to defend their rights in court.

Walmart isn’t the only company that has tried to find creative ways to impose forced arbitration.

Take General Mills, for example.  Last spring, we told you about their new arbitration policy, which purported to force consumers into arbitration if they entered a company contest, printed a General Mills coupon, or even “liked” Cheerios on Facebook.

But public pressure forced General Mills to back down.  Now we’re putting the pressure on other companies.  Join our campaign to end forced arbitration and protect everyday Americans.

Watch one consumer’s battle against Walmart and forced arbitration

Scalia on retirees losing their health insurance: “I can’t feel bad about it.”

By Trevor Boeckmann

AFJ Dorot Fellow

It’s no surprise to see the majority on the United States Supreme Court siding against consumers, employees, and everyday Americans. In the past, we’ve told you about the Court upholding forced arbitration clauses that keep those harmed by big businesses out of court, preventing women from banding together to stop employment discrimination, and allowing employers to impose their religious views on employees.

At some point, one would think the majority would start to feel bad about how their actions affect us. Apparently not.

This week, the Court heard oral arguments in a case involving health insurance for retirees.

 M&G Polymers USA, LLC v. Tackett involves a chemical company in West Virginia that had a series of collective bargaining agreements with its employees’ union. At issue was a clause in the agreement that said retired employees “will receive a full company contribution towards the cost of [health] benefits.” The union argued the benefits were guaranteed for life. The company argued it could take away these benefits whenever it chose—which it did in 2007.

As Professors Susan Cancelosi and Charlotte Garden wrote in a previous post: “The equitable case for retirees is compelling: they devoted their working lives to their employer with the expectation that they would then have health insurance to see them through their retirement.” Compelling, unless you’re Justice Antonin Scalia.

During oral argument, Justice Scalia mused:

 You know, the nice thing about a contract case of this sort is you can’t feel bad about it.  Whoever loses deserves to lose. I mean, this thing [the duration of the health benefits] is obviously an important feature.  Both sides knew it was left unaddressed, so, you know, whoever loses deserves to lose for casting this upon us when it could have been said very clearly in the contract.  Such an important feature.  So I hope we’ll get it right, but, you know, I can’t feel bad about it.

 Justice Stephen Breyer was quick to disagree:

Well, you know, the workers who discover they’ve been retired for five years and don’t have any health benefits might feel a little bad about it.

Listen to the comments of Justice Scalia and Justice Breyer:

This is nothing new for Justice Scalia.  Last year, he compared the LGBT community to “child abusers” and referred to the Voting Rights Acts as a “perpetuation of racial entitlement.”

And if the majority sides with the chemical company, that won’t be anything new either.

Nan Aron in The Huffington Post: Supreme Court to women: Father knows best

From AFJ President Nan Aron's latest column in The Huffington Post:

This is a very bad time for American women in the Supreme Court.

Three big cases were decided right at the end of its term that will profoundly affect women’s lives, subject them to conditions that are never applied to men, and damage their ability to control their own lives and health.

In McCullen v. Coakley, the Court in a “faux-nanimous” decision in which the four moderate-liberals clearly played defense, found that a 35-foot buffer zone around the entrance to abortion clinics in Massachusetts was a violation of the First Amendment. The Commonwealth had established the zones in reaction to the brutal murder of two people at a Boston clinic in 1994 and the endless harassment of women and their families attempting to enter reproductive health clinics.

But Chief Justice John Roberts, writing for the Court, swept aside reality, superimposed his own view of what happens outside clinics, and somehow found that so-called “sidewalk counselors” need to be protected more than the people who work at or make use of the clinics.

Read the full column here

Don't let Microsoft clip our rights

 The computer giant is trying to force us into forced arbitration

Microsoft, the company that gave us Vista, Ctrl-Alt-Delete and Clippy, has something in store for us that’s even worse.  The company has been phasing in forced arbitration clauses in its “services agreement.”

That means if you are harmed by a Microsoft product or service, you can’t stand up for your rights in court.  Instead, you have to take your case to an arbitrator hired by Microsoft.  Arbitrators do not need to be lawyers or follow precedent, yet their word is nearly always final and unappealable.  One study found that such arbitrators rule for the businesses that hire them 94 percent of the time.

Microsoft also won’t let you band together with others the company has wronged and bring a class-action suit – often the only way to stop a corporation from cheating millions of consumers.  The latest version of the services agreement makes this ban even more strict.

One can see why Microsoft might be fond of forced arbitration.  In a 2003 e-mail, company founder Bill Gates used the following terms to describe what it was like to use one of his own products:

 disappointed, backwards, unusable, totally confusing, strange, pathetic, completely odd, weird, scary, crazy, slow, garbage, not usable, crapped up, crap, absolute mess, craziness, terrible.

Microsoft joins a lengthening list of big businesses that are taking away our rights when we’re harmed by their products and services.  Public outrage forced General Mills to back down.  But odds are you’ve clicked through at least one contract with a forced arbitration clause in the fine print. They are showing up everywhere, from credit card contracts to the Instagram terms of use.  And in the case of Microsoft, using one of the affected products means you’ve consented to surrendering your rights.

Perhaps the best indicator of just how bad a deal forced arbitration is for consumers is the sneaky way big businesses force it on us.

Take Microsoft’s latest email announcing the changes.  “Our users' needs are at the center of everything we do,” says the happy little email. “That's why we are updating the Microsoft Services Agreement.”  But there’s no mention of forced arbitration in the email itself.  And there’s no mention of it in the FAQ that supposedly offers the “highlights.”

No, you have to click on the link to the fine print and scroll down to Section 10 before you find out what Microsoft is taking away.  If forced arbitration is so great, why does it have to be forced?  Why not offer it on a voluntary basis?  And why aren’t companies bragging about it instead of tucking it away in those long, long “agreements” that few of us have the time to read?

There is a solution.  The Arbitration Fairness Act would put an end to these outrages.  If you don’t want your rights “clipped” by the company that gave us Clippy – or by all the other corporations on the forced arbitration bandwagon – tell your Members of Congress to pass the Arbitration Fairness Act.

 Read more about forced arbitration

AFJ to host reception for filmmaker Abby Ginzberg

Join us to preview the new film, Soft Vengeance: Albie Sachs and the New South Africa

By Julius Goldberg-Lewis, AFJ Outreach Intern

 “All revolutions are impossible until they happen.  Then they become inevitable.”
--Albie Sachs

On Friday, June 20^th, Alliance for Justice will host a reception for Abby Ginzberg.  During the reception Abby will present clips of her new film, Soft Vengeance: Albie Sachs and the New South Africa. The film chronicles the extraordinary story of Albie Sachs’ journey through imprisonment, assassination attempts, his place on the South African Constitutional Court, and his authorship of a new South African Constitution. RSVP here.

 The story of Albie Sachsis one of struggle and triumph against Apartheid South Africa, where violence, oppression and injustice were a daily reality. A lawyer by trade, Sachs defended his clients against the racial laws that existed at the time. He continuously fought against apartheid and because of this, was tortured, imprisoned in solitary confinement, and eventually exiled. During his exile in Mozambique,  South African security forces planted a bomb in his car.  He survived, but lost  an eye and an arm.

There were those who promised vengeance against the perpetrators of the attack, but Sachs had a different end in mind. After the release of Nelson Mandela, Sachs was able to return to South Africa and exact his ‘soft vengeance.’ The vengeance that Albie Sachs sought was not harm to those who tried to kill him, but a new constitution enshrining the egalitarian values, which apartheid  sought to destroy. Sachs was nominated by Mandela to be one of the first 11 justices on the South African Constitutional court.  Serving on that  Court for 15 years, Sachs had the opportunity to continue to shape the constitution and direction of South Africa.

In telling the story of Albie Sachs, award-winning filmmaker Abby Ginzberg presents not only the story of Sachs’ fight for justice and equality, but also a personal narrative of how Sachs viewed his work as a form of art. 

Ginzberg highlights Sachs’ lifelong love of art and music, which drove him to be the Chief Curator for the Constitutional Court and dramatically influenced what he hoped to see in the new South Africa. For Sachs, human dignity, equality, art and music all come from the same wellspring, and Ginzberg’s film presents a unique picture of how that philosophy was able to shape the future of South Africa.

Ginzberg will be screening Soft Vengance at AFI Docs in Silver Spring, MD on June 10.  Afterwards she will screen excerpts  at Alliance for Justice headquarters in Washington, D.C., during a reception cosponsored by The Institute for Policy Studies and the Leadership Conference on Civil and Human Rights.  Refreshments will be served during the reception and guests will have a special opportunity to chat with the filmmaker.   The reception is free and open to the public, but guests are asked to rsvp.

AFJ report: Bold action by Senate Democrats reduces number of judicial vacancies to lowest in five years

But early stage Republican obstruction still delays justice as scores of judgeships remain vacant

WASHINGTON, D.C., June 10, 2014: Bold action by Senate Democrats has reduced the number of judicial vacancies to a five-year low, according to a new report from Alliance for Justice.  But even as President Obama has picked up the pace of nominations, and Senate rules reform and a commitment to moving confirmations have significantly reduced the backlog of nominees on the Senate floor, Republican obstruction continues at earlier stages in the process often hidden from public view, the report said.

AFJ’s State of the Judiciary report also found significant improvement in the professional diversity of judicial nominees sent to the Senate by President Obama in the months since AFJ issued a report and hosted a Capitol Hill forum on the topic.  

Read the full release 

Read the full report 

AFJ commends Senate for changing rules

So many people wanted to know our take on this that it crashed our website for awhile, so we posted our statement on today's rules reform victory here.  But the site is back up and you can find out more about Senate rules reform and the D.C. Circuit at www.afj.org

WASHINGTON, D.C., November 21, 2013 – Alliance for Justice President Nan Aron issued the following statement in response to today’s vote to change the rules of the Senate: 

Alliance for Justice commends Senate Majority Leader Harry Reid and the Senators who voted to change Senate rules today for their courageous decision to end the unprecedented abuse of Senate rules by a Republican minority dedicated to obstruction-at-all-costs.

This was not a decision made easily or taken lightly. There was no choice. The Republican minority had turned the existing rules into weapons of mass obstruction. Most recently, they acknowledged that they had no grounds to oppose on the merits President Obama’s supremely-qualified nominees for the D.C. Circuit Court of Appeals. But they filibustered those nominees anyway.

This change in the rules is the only way to return the Senate to its place as the world’s greatest deliberative body; it is the only way to ensure that the Senate can put the well-being of the American people ahead of the political interests of an extremist minority.

Now that the rules have changed, the Senate must move quickly to confirm President Obama’s D.C. Circuit nominees, and all of the other nominees that, until now, have been held hostage to obstruction. Those nominees include 14 more nominees for judgeships who are currently awaiting Senate floor votes, and executive branch nominees such as Rep. Mel Watt, D-N.C., whose nomination to run the Federal Housing Finance Agency was filibustered last month.

GUEST BLOG: Will the Supreme Court Further Roll Back Accountability and Immunize Foreign Corporations from Judicial Scrutiny?

By Michelle Harrison, Human Rights Attorney and Bertha Foundation Fellow, EarthRights International

This week, the Supreme Court will hear oral argument in DaimlerChrysler v. Bauman (docket 11-965), a case that has received little attention despite the fact that it has the potential to dramatically alter the ability of federal and state courts to assert jurisdiction over foreign corporations.

The case involves claims brought by former employees and family members of deceased employees of a Mercedes-Benz plant in Argentina who were violently kidnapped, tortured, and killed against DaimlerChrysler AG (now Daimler AG), a German corporation that owns the plant.  The company’s wholly-owned subsidiary, Mercedes-Benz Argentina, is accused of conspiring with, directing, and aiding and abetting state security forces to carry out egregious human rights violations during Argentina’s  “Dirty War” in order to silence union activism and maintain the company’s production levels.

The plaintiffs filed suit in 2004 in federal district court in California, asserting that jurisdiction was proper due to the substantial and systematic business Daimler conducts in the state through another wholly owned subsidiary, Mercedes-Benz USA (MBUSA).  Technically, MBUSA and Daimler are “separate” corporate entities; however, they shared the same chairman, MBUSA sold cars solely for Daimler, Daimler set prices for the cars, had authority over virtually all aspects of MBUSA’s operations, and received all of MBUSA’s profits.

The district court initially dismissed the case, agreeing with Daimler that it lacked jurisdiction.  On appeal, the Ninth Circuit reversed the decision, holding that a court may exercise general jurisdiction over a foreign corporation when its subsidiary acts as its agent in the forum state, performing a role important enough that, if the subsidiary went out of business or otherwise could not perform that role, the parent corporation would sell the product itself or through a new representative.  The Ninth Circuit found that because MBUSA acted as an agent for Daimler in California, jurisdiction was reasonable.

Now before the Supreme Court, the question presented is whether a U.S. court can assert jurisdiction over a foreign corporation on the basis of services performed in the forum state by the corporation’s wholly owned subsidiary.

The Supreme Court agreed to hear the case just days after issuing its decision in Kiobel v. Royal Dutch Petroleum, which limited the ability of victims of human rights abuse to bring cases against foreign corporations under the Alien Tort Statute (ATS) when the abuse occurred outside the U.S.  Many commentators see Bauman as a sequel to that case because, like Kiobel, Bauman is a case against a foreign corporation, under the ATS, for human rights abuses that occurred in another country.  The issue here, however, is actually much broader.  While Kiobel considered only the narrow question of whether an ATS claim could be brought in a case involving foreign conduct, Bauman is not limited to claims brought under the ATS, and will raise questions about the ability to bring claims against a foreign corporation at all.

Daimler—and the Chamber of Commerce—have made a number of sweeping arguments that, if accepted, could fundamentally alter the jurisdictional reach of U.S. courts.  According to Daimler, the Due Process Clause prevents a court from exercising jurisdiction over it on the basis of its U.S. subsidiaries, even where the subsidiary carries out the parent’s business, on the parent’s behalf, and for the parent’s benefit.  Daimler and the Chamber have gone so far as to argue that there is a constitutional right for a parent corporation to be treated as separate from its subsidiary—an argument that has never before been recognized and is fundamentally at odds with the history of the corporate form.

Indeed, the Supreme Court has already rejected the notion that due process requires separate treatment of a parent and its subsidiary.  In Mobil Oil Corp v. Comm’r of Taxes of Vermont, the Supreme Court considered Vermont’s tax on companies doing business within the state, which was based upon a share of their total income earned inside and outside of the state.  Mobil argued that due process required that dividends from subsidiaries that were not incorporated in that state, did no business in the state, and were not managed in that state must be excluded from the calculation of total income because they lacked a sufficient nexus to Vermont.  The Supreme Court, however, concluded there was no due process problem because, irrespective of corporate formalities, Vermont’s tax treated a “functionally integrated enterprise” as a unitary business.

Such treatment is consistent with the fact that federal and state laws often treat corporations and their subsidiaries as single entities for purposes of attributing civil liability or other obligations.  Corporations are, and always have been, the creation of states, possessing only such rights as were expressly granted.  No corporation has a constitutional right to be a corporation, let alone a constitutional right to a particular organizational structure.

Daimler’s sweeping constitutional arguments are also contradicted by the historical understanding of corporate personality at the time of the passage of both the Fifth and Fourteenth Amendments. Corporations were in fact expressly prohibited from owning other companies until the end of the nineteenth century.  The parent-subsidiary relationship was unheard of; only the simple, single entity corporate structure was permitted.

Due process requires only that the maintenance of a suit not offend “traditional notions of fair play and substantial justice.”  Corporations purposefully avail themselves of the privileges of doing business within a forum state by virtue of their subsidiaries.  Under Daimler’s view, however, that privilege does not come with any responsibilities.

The case deserves far more attention than it has received.  If the Court accepts Daimler’s position, it would call into question existing laws in areas as diverse as tax, labor, and antitrust.  Worse, it would effectively insulate foreign corporations from lawsuits anywhere in the United States—even when the plaintiffs are U.S. citizens.  As long as they keep a separation, on paper, from their U.S. subsidiaries, foreign corporations would be able to enjoy all of the privileges of doing business in the United States with the guarantee that their operations will not be subjected to scrutiny by U.S. courts.

Michelle Harrison is a Human Rights Attorney and Bertha Foundation Fellow at EarthRights International, a Washington-D.C. based non-profit organization specializing in legal actions against perpetrators of human rights abuses. EarthRights International submitted an amicus brief in this case.