Civil Justice Project News www.civiljusticeproject.org Summer/Fall 2020 Lawsuit Challenges CFPB Justice Ginsburg Rule that Undermines Anti- he nation lost a tower- Ting figure with Justice Discrimination Law Ginsburg’s death — a pioneer, n a lawsuit filed in July, to report data about mortgage pathbreaker, and crusader for IPublic Citizen is represent- loans and home equity lines of justice and equality. ing the National Commu- credit. She became a beloved and nity Reinvestment Coalition, HMDA was enacted in 1975 iconic figure because of her own Montana Fair Housing, Texas in response to widespread trailblazing biography, her break- Low Income Housing Informa- concerns about “redlining” and through lawyering for equality, tion Service, the inadequate access to credit in her fierce defense of justice and City of Toledo, certain areas, particularly urban liberty as a U.S. Empire Justice areas inhabited predominantly Supreme Court Center, and the by people of color. justice, and, not Association for As a sunshine statute, HMDA least, her wit, Neighborhood seeks to hold lending institu- panache, and and Housing tions publicly accountable by Michael readiness to tell it Kirkpatrick, Development in a for making loans responsibly like it is. The loss attorney, challenge to a new to traditionally underserved by Robert Litigation Group Weissman, of someone of Consumer Finan- populations. HMDA requires president such impact and cial Protection Bureau (CFPB) certain financial institutions moral force hits rule that undermines efforts to to collect, record, and report hard. identify — and in that way deter specific information about their It should. — housing discrimination. mortgage lending activity. As we mourn, we need to This spring, the CFPB Its main purposes are to reflect on her achievements issued a new rule under the provide the public with loan and spirit, and we need to Home Mortgage Disclosure data to assess whether financial acknowledge the pain of loss. It Act (HMDA). The rule excuses institutions are meeting the is important, too, that we take thousands of financial institu- housing needs of their commu- inspiration and honor Justice tions from reporting data that nities, to inform public-sector Ginsburg’s legacy by doubling is key to uncovering housing investment decisions, to identify down on our commitment to the discrimination, by raising the discriminatory lending patterns, values she cherished. loan-volume coverage thresh- and to enforce anti-discrimina- olds for financial institutions See CFPB, Page 10 See RBG, Page 11

INSIDE Inside the Campaign to Stop Corporate Immunity Advancing a Proactive Civil Justice Legislative Dissecting the SAFE TO WORK Act Agenda Civil Justice Project News Civil Justice Project News Advancing a Proactive Civil Justice Summer/Fall 2020

Public Citizen President Legislative Agenda Robert Weissman

Executive Vice President ver the past several decades, allows individuals to bring a Lisa Gilbert OCongress and the U.S. claim seeking injunctive relief Inc. Board of Directors Jason Adkins (chair) Supreme Court have chipped on behalf of employees or the Andrew S. Friedman away at individuals’ ability to state of California for labor Anne Galland Danny Goldberg seek legal redress for violations violations, and courts have held Jim Hightower Joy Howell of their rights. As a result, corpo- that those claims are not subject John Richard Anthony So Robert Weissman (ex officio) rations today are often immune to forced arbitration clauses in

Public Citizen Foundation Board of Directors from accountability for wrong- employment contracts. Second, Mark A. Chavez (chair) Jim Bildner doing. Public Citizen is working citizen suits bolster enforcement Robert C. Fellmeth David Halperin to flip this dynamic by putting with federal law, by permitting Annie Leonard Cynthia Renfro forth a proac- individuals to sue on behalf of Steve Skrovan Gerson H. Smoger tive agenda that the government. Robert Weissman (ex officio) puts consumers In addition, we are think- Civil Justice Project Director Amanda Fleming and workers first ing through revisions to the

Editor and Production Manager by correcting Federal Rules of Civil Procedure Rhoda Feng laws and court to counteract the U.S. Supreme Public Citizen Litigation Group Allison Zieve (director) decisions that Court’s decisions in Ashcroft v. Nandan Joshi Michael Kirkpatrick impede access to Iqbal and Bell Atlantic Corp. v. Kaitlin Leary by Remington Paul Alan Levy Scott Nelson Gregg, lobbyist the civil justice Twombly. Those cases changed Dami Obaro for Civil Justice system. longstanding federal pleading Grace Paras and Consumer Adam Pulver Adina Rosenbaum Rights Not surpris- standards in a way that enables Matthew A. Seligman Rebecca Smullin ingly, combatting defendants to obtain dismissal Martha Solt forced arbitration is on the top of of potentially meritorious cases Public Citizen’s Congress Watch Susan Harley (managing director) the priority list. We made signifi- before discovery. The impact Zachary Brown Rachel Curley cant progress last year when the on cases brought by individuals Juley Fulcher Remington Gregg U.S. House of Representatives (and, in particular, employment Alex Harman Craig Holman passed a bill banning the use of and civil rights cases) has been Eagan Kemp Matt Kent forced arbitration clauses. We especially notable. Miriam Li Taylor Lincoln will redouble our efforts in the Preemption is another area Jana Morgan Amit Narang next Congress to pass it in both where we see an opportunity Bartlett Naylor Emily Peterson-Cassin Aswar Rahman chambers. for proactive change to increase Mike Tanglis Bret Thompson Also on our agenda is expand- access to courts. Over the past

Public Citizen’s Health Research Group ing opportunities to bring few decades, Congress and the Michael Carome, M.D. (director) Sidney M. Wolfe, M.D. (founder, senior adviser) “citizen suits.” Doing so would courts have immunized numer- Michael Abrams, M.P.H., Ph.D. Azza AbuDagga, MHA, Ph.D. have two advantages. First, ous industries from liability to Diane Krauthamer Alan Levine citizen suits may offer a way consumers by making a compa- Fiona Lynn for individuals to seek some ny’s compliance with federal law Material in Civil Justice Project News may not be reprinted without permission from Public Citizen. For more information, please contact Amanda Fleming at measure of justice when they a complete defense to injured (202) 588-7734 or [email protected]. have been barred from court consumers’ state-law claims. We Visit us online at www.civiljusticeproject.org. due to forced arbitration. For plan to advocate for legislation © Public Citizen’s Civil Justice Project 2020. example, California’s Private All rights reserved. Attorneys General Act (PAGA) See Civil Justice, Page 3 2 Public Citizen Civil Justice Project News

Civil Justice, Continued from Page 2 to overturn preemption of state- revealed during litigation is for legislation providing that, law damages claims brought kept secret by broad protective in statutes that provide for an against businesses including gun orders, to which the plaintiffs award of attorney fees to the manufacturers, medical device agree in order to avoid discovery prevailing plaintiff, the plaintiff manufacturers, and cruise ship disputes and which the courts may be deemed prevailing when companies. impose without assessing the the lawsuit acted as a catalyst in Product liability cases can need for confidentiality with bringing about a goal sought in expose practices that endanger respect to specific documents. litigation. public health, and disclosure We will advocate for rules that In 2001, in a case called of information uncovered in bar enforcement of broad protec- Buckhannon Board & Care Home these cases can protect other tive orders, absent a showing of v. West Virginia Department of people, deter misconduct, and specific need for confidentiality Health and Human Services, catalyze regulatory action. Too of the documents covered. often, however, information Additionally, we will advocate See Civil Justice, Page 13

Photo of the U.S. Supreme Court courtesy of Emily Prechtl.

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Summer/Fall 2020 3 Civil Justice Project News Inside the Campaign to Stop Corporate Immunity n May, U.S. Senate Major- witnesses who testified at a May not just a civil justice issue, Iity Leader Mitch McConnell hearing on business immunity; but as a unique racial justice (R-Ky.) said that he would not we submitted written testi- problem, we were also able to advance another coronavirus mony at that hearing; and we shine light on the situation of stimulus package to the Senate organized an opposition letter Black and Brown individuals floor unless it included a provi- from 140 organizations that who are disproportionately on sion to immunize companies represent a broad coalition of the frontlines of our economy — from coronavirus-related constituencies. We also worked as cashiers, janitors, and factory lawsuits. with student organizations workers. After months of drafting, to prepare for a June hearing Brown astutely noted that U.S. Sen. John Cornyn (R-Tex.) focused on the impact of school we have been calling frontline released a bill in July. Opposition reopenings, including the impact workers “heroes” because, while to the proposal was quick and of immunizing schools from most of us have been able to stay overwhelming liability. And we partnered with home in relative safety, they are — but the opposi- Young Invincibles and Roosevelt keeping stores open and hospitals tion to the bill Institute on a student-led forum clean. As millions marched across did not happen that heavily focused on how the country to declare that Black organically. immunizing schools would lives mattered, we wanted to Rather, Public impact students, like those with make sure that our Hill champi- Citizen played underlying health issues. ons knew that there was a direct

by Remington a key role in correlation between fighting Gregg, lobbyist convening a coali- Hill Allies for justice for Black and Brown for Civil Justice and Consumer tion of organiza- In May, we invited U.S. Sen. communities and stopping the Rights tions to oppose Sherrod Brown (D-Ohio) to our Chamber of Commerce’s push to the bill, provided kickoff coalition meeting so immunize businesses. critical analysis to Capital Hill that he could explain to coali- In addition, we worked closely allies, and educated the public tion partners, some of which with U.S. House of Represen- on the consequences of business were new to the protecting civil tatives and Senate leadership immunity. justice fight, how immuniz- to provide messaging, talking Through this work, we have ing businesses would make points, and analysis of the so far kept this dangerous workplaces less safe, especially legislation, as well as analysis proposal from becoming law. for Black and Brown communi- on the impact on consumers ties. and patients if businesses were Coalition Building Business immunity is particu- granted immunity. As soon as the business immuni- larly harmful to these communi- ty proposal was floated, we ties because they have been at Public Campaign began work to bring together higher risk of contracting and When Cornyn’s legislative text groups to oppose McConnell’s dying from COVID-19. By focus- plan. We helped to prepare ing on the liability proposal as See Immunity, Page 5

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4 Public Citizen FOR MORE INFORMATION, CALL (202) 588-7713 WWW.CITIZEN.ORG/SCAP Civil Justice Project News

Immunity, Continued from Page 4 was released in July, we were education and lobbying efforts. about the need for business one of the first organizations to And journalists routinely came immunity. Our focus on counter- review it and respond to press to us to request comments and ing the false narrative churned inquiries. But Public Citizen was analysis. out by the Chamber about an not just reactive. Some of the news outlets that oncoming “flood” of litigation Early in the fight, we began a quoted us through this fight was bolstered by two key pieces daily “tipsheet” to provide coali- include the Washington Post, of information. tion partners and the press with Bloomberg Law, CNBC, NPR, First, early in the pandemic, news and analysis on immunity- Vox, Ms. Magazine, Law.com, the defense-side firm Hunton related issues. Organizations HuffPost, and Law360. Kurth started a litigation tracker told us that the tipsheet served In addition, we published an of coronavirus-related cases as an important tool in provid- issue brief to debunk the U.S. ing information for their public Chamber of Commerce’s lies See Immunity, Page 14

Photo of a 3D print of a SARS-CoV-2 virus particle courtesy of the National Institute of Allergy and Infectious Diseases / Flickr.

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Summer/Fall 2020 5 Civil Justice Project News CY PRES AWARDS Dissecting the SAFE TO WORK Act merica has now raised legal and practical Cy pres awards can have a Asurpassed more than questions about the concept. transformative effect on our ability to 200,000 deaths from COVID- Nonetheless, in July, U.S. advocate for consumers. 19. Yet the nation has taken Sen. John Cornyn (R-Tex.) We welcome cy pres distributions to few steps to address the introduced the ironically help us continue and enhance our economic and health calam- named SAFE TO WORK Act work on behalf of consumers. For ity that we face. Instead of (Safeguarding America’s more information, please contact Amanda Fleming, director of Public working on a bipartisan basis Frontline Employees To Offer Citizen’s Civil Justice Project, at (202) on a package to help strug- Work Opportunities Required 588-7734 or [email protected]. gling workers and families, to Kickstart the Economy), Our thanks to these advocates for U.S. Senate Republicans which would impose signifi- recent cy pres awards to Public are block- cant restrictions on such Citizen. ing relief by lawsuits. The bill would erect insisting that numerous hurdles to make Jason B. Adkins Nancy Barron any bill grant it effectively impossible for Daniel E. Birkhaeuser businesses workers, consumers, and David E. Bower immunity patients to pursue claims. Robert M. Bramson from a broad Among other things, the David E. Breskin range of bill allows defendants faced James E. Butler by Remington Mark A. Chavez Gregg, lobbyist potential with coronavirus-related Elliot Conn for Civil Justice liability. lawsuits to remove cases to and Consumer William H. Crowder For federal court. The bill bars Jeff Fazio Rights Andrew S. Friedman months, U.S. joint and several liability. Agnieszka Fryszman Senate Majority Leader Mitch And it limits compensa- Steve Gardner McConnell (R-Ky.) has held tory damages to economic Melissa Hartnett up a bill, passed by the U.S. losses: It thus bars compen- Travis Hodgkins Scott R. Jeeves House of Representatives, satory damages for pain and Ray W. Kahler that would provide addition- suffering, and for emotional Bryan Kemnitzer al relief for families and distress caused by the death Taras Kick businesses. He has stated of a loved one, who, for Richard Koffman Barry L. Kramer that he will not allow any example, contracted COVID- Steve D. Larson relief bill to move forward 19 from exposure in a nursing Dina Micheletti unless it includes a provision home. Brad J. Moore immunizing businesses from The bill also imposes Jennifer Rosenberg Craig E. Rothburd coronavirus-related lawsuits. various restrictions on class Thomas G. Shapiro The provision McCon- actions, for example, by Daniel Shih nell seeks would impose allowing only opt-in class Roger M. Townsend a far-reaching prohibition actions. Another provision Janet Varnell Anthony Vozzolo on state-law coronavirus of the SAFE TO WORK Act Brian Warwick lawsuits. At a May hearing includes a requirement that Theodore “Todd” S. Wickersham Jr. in the U.S. Senate Judiciary the plaintiff file an affidavit William Wickersham Committee, Public Citizen Joel O. Wooten alum Prof. See SAFE TO WORK, Page 7

6 Public Citizen Civil Justice Project News

SAFE TO WORK, Continued from Page 6

(WARN) Act; shield themselves from liability from a medical professional who • Title VII of the Civil Rights by raising defenses provided did not treat the plaintiff attest- Act of 1964; under this bill.” ing that the plaintiff suffered the • Title II of the Genetic Infor- The immunity provision tort alleged. The bill also would mation Nondiscrimination would also give employers an require the plaintiff to provide Act (GINA); and exemption from laws prohibiting a complete listing of the people • Title I of the Americans with discrimination in public accom- and places visited for the last Disabilities Act (ADA). modations during any public 14 days before the first onset of health emergency period — not symptoms and to detail reasons Opposing the bill, civil rights only during the coronavirus why those people and places groups noted that this provision pandemic. And the bill would were not the cause of the injury. could “[p]otentially immunize block federal agencies, like the In addition to the provisions an employer that denies a retail Equal Employment Opportu- addressing lawsuits under state worker with a disability, who nity Commission and the U.S. tort law, the bill would allow is at heightened risk of compli- Occupational Safety and Health employers to skirt compliance cations because of COVID-19, Administration, from investi- with important federal laws a reasonable accommodation gating or bringing enforcement merely by showing that they under federal law, like working actions on behalf of workers who “attempted” to follow some in the back of a store rather than have been harmed. type of safety guideline. That in a customer-facing capacity. The U.S. Chamber of provision would effectively give Warehouse workers who are not Commerce lobbied from the start a free pass to non-compliance paid for the time spent putting of the pandemic for Congress with labor and employment laws on and taking off personal and state legislatures to grant including: protective equipment may find businesses immunity from liabil- • The U.S. Occupational Safety that this bill could exempt their ity for a broad range of poten- and Health Act (OSHA); employer from federal wage and tial claims. The Chamber said • The Fair Labor Standards Act hour laws. And employers who that it wanted “timely, limited, (FLSA); disproportionately furlough and targeted” protections. The • The Age Discrimination in African-American workers or McConnell/Cornyn bill would Employment Act (ADEA); give African-American workers offer the opposite. The sweep- • The Worker Adjustment suboptimal jobs may seek to and Retraining Notification See SAFE TO WORK, Page 13

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Jason Adkins Cole Portis Greg Allen Bernard Gross Jack Scarola American Association for Justice J. Gary Gwilliam Christian D. Searcy The Attorneys Information Charles LaDuca Joseph M. Sellers Exchange Group Patrick A. Malone John Shipley Mark Bronson Cyrus Mehri Steve Skalet Jere Beasley Thomas J. Meltvin Thomas M. Sobol Tim Becker Dee Miles Christine D. Spagnoli Robert Bramson Alan and Anne Morrison Marc Stanley Stephen R. Bruce Diane Nast Steven Tillery Jeffrey A. Burns Peter Nicholl Gibson Vance James C. Causey Robert E. Paul Jonathan Cuneo Kit A. Pierson Tim Dollar Bruce Pfaff

Summer/Fall 2020 7 Civil Justice Project News Public Citizen FOIA Request ­Reveals USDA’s ­Collaboration with Meatpacking Industry rom the earliest days of The U.S. Department of unsuccessful. As a result of a Fthe pandemic, several of Agriculture (USDA) and the U.S. Public Citizen Freedom of Infor- the nation’s largest outbreaks Department of Labor both have mation Act request to USDA, we of COVID-19 have occurred in authority over aspects of work at now know some of the details meatpacking plants. The working meatpacking plants. Yet neither about why. conditions in these plants — has taken any meaningful steps On April 28, 2020, the presi- already one of the most danger- to protect the workers from the dent signed an executive order ous industries in America — pose spread of COVID-19, leading to purporting to invoke the Defense an increased risk continuing spread in the plants Production Act, which is aimed of virus transmis- and the surrounding communi- at ensuring that the military has sion, as workers ties. Although some state and access to needed supplies and work long shifts local public health and worker equipment during wartime. The in close proximity safety agencies have tried to take to one another, in action, they have been largely See Meatpacking, Page 9 by Adam grueling tasks at Pulver, attorney, Litigation intense paces. Group Now, tens of thousands of meatpacking workers across the country have tested positive for COVID-19, with racial and ethnic minority workers suffer- ing disproportionate impact: Although racial and ethnic minority workers make up only 61% of the workforce, they have experienced 87% of COVID-19 cases in meatpacking plants, according to the U.S. Centers for Disease Control and Prevention (CDC). Photo courtesy of Emily Prechtl.

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Roy Barnes Deepak Gupta Adam McNeile Greg Barnhart Robert L. Habush Frank M. Pitre Nancy Barron Scott Jeeves Joseph Sellers John C. Bell Debra Katz George Sinas Anne Bloom Michael A. Kelly Hezekiah Sistrunk Steven M. Birnbaum Bryan Kemnitzer Paul Stritmatter Michael Donahue Kristin Kemnitzer John Vail Jeffrey D. Eisenberg & Seth Lesser Bill Wagner Tasha Savage Michael Lewis Arthur and Charlotte Zitrin J. Kent Emison Missouri Association of Trial ­Foundation Cary Flitter ­Attorneys

8 Public Citizen Civil Justice Project News

Meatpacking, Continued from Page 8 executive order directed the U.S. FOIA Secretary of Agriculture to take “necessary or appropriate” steps Public Citizen submitted a Freedom of Information Act to ensure meat slaughter and (FOIA) request to USDA, requesting communications be- production continued during the tween the meatpacking industry and USDA regarding pandemic. COVID-19. In September, USDA finally began producing Although the order did not responsive documents. actually require meatpack- ing plants to do anything, and although the Act does not give The documents show that the that USDA “order” the plant the president authority to order executive order was issued at the to reopen. At the same time, meatpacking plants to remain request of the North American Smithfield was resisting OSHA’s open, the industry and many Meat Institute, the meatpacking attempt to investigate working reporters portrayed it as directing industry’s lobbying group. The conditions at that very plant. the plants to stay open or reopen. group even submitted a draft of (Smithfield eventually filed a At the time the president the order to the White House and lawsuit in federal district court to issued the order, according to the USDA one week before the order quash OSHA’s subpoena, which CDC, nearly 5,000 meatpacking was issued. it settled in July 2020 on undis- workers had contracted COVID- In addition, the documents closed terms.) 19. The executive order, however, show that the industry repeat- Public Citizen has also submit- did not require plants to take any edly sought intervention from ted FOIA requests to the Depart- steps to protect workers or other- USDA officials when state and ment of Labor about its commu- wise minimize the spread of the local agencies sought to enforce nications with the meatpacking virus, and no worker representa- their own laws to protect public industry regarding the pandemic. tives were consulted before the health, and that top political We recently filed a lawsuit in order was issued. appointees at USDA tried to stop the District Court Soon after the president these agencies from doing their for the District of Columbia signed the executive order, jobs. challenging that agency’s failure Public Citizen submitted a One company, Smithfield, to respond to our FOIA request. Freedom of Information Act was particularly forceful in its Public Citizen is also collabo- (FOIA) request to USDA, request- requests for USDA intervention. rating with lawyers across the ing communications between the In May 2020, just weeks after its country in their efforts to protect meatpacking industry and USDA Sioux Falls, South Dakota plant meatpacking workers and their regarding COVID-19. In Septem- shut down because more than communities, and to seek relief ber, USDA finally began produc- 25% of its workers contracted where industry apathy and greed ing responsive documents. COVID-19, Smithfield requested harm workers.

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Summer/Fall 2020 9 Civil Justice Project News

CFPB, Continued from Page 1 tion statutes. LITIGATION The CFPB is responsible for issuing regulations to imple- As a sunshine statute, HMDA seeks to hold lending insti- ment HMDA. In 2015, the CFPB tutions publicly accountable for making loans responsibly issued a rule requiring lenders to to traditionally underserved populations. HMDA requires report if they originated at least certain financial institutions to collect, record, and report 25 closed-end mortgage loans or specific information about their mortgage lending activity. 100 open-end lines of credit in each of the two preceding calen- dar years. whether financial institutions communities. Raising the report- The rule issued this May are meeting the housing needs ing thresholds will compromise raises those thresholds to 100 of their communities. enforcement work against unfair and 200, respectively. It exempts The CFPB’s new rule reduces and deceptive lending because 40% of financial institutions the availability of data that the there will be less data available that currently report data about public has used to uncover and to monitor such activity. their closed-end mortgages from address redlining and other fair Our clients in the lawsuit, having to do so beginning in lending and fair housing viola- National Community Reinvest- 2021. tions and make identifying such ment Coalition v. CFPB, No. The increased reporting practices more difficult. 20-2074 (D.D.C.), depend on thresholds reduce the amount of The loss of information will information available to assess be felt most acutely in minority See CFPB, Page 14

Graphic courtesy of CafeCredit / Flickr.

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10 Public Citizen Civil Justice Project News

RBG, Continued from Page 1

With RBG’s passing, we know nomination to move forward. that he had no intention of exactly what to do, because she No vote, no hearings. The honoring her dying wish or gave us the road map: ensure people must have their say at consistently applying the her successor is chosen by the voting booth, McConnell purported principle he had the winner of the November proclaimed. professed just four years earlier. election. Well, less than 50 days before But this is not a decision that There is a backdrop to this, Election Day in 2020 — and with McConnell gets to make unilat- of course. When President early voting already underway erally. He can’t confirm a new nominated Judge in more than a half dozen states justice if four Senate Repub- Merrick Garland to fill Justice — that standard requires a delay licans refuse to go along with Antonin Scalia’s seat 269 days in filling RBG’s seat. his scheme. At least two Senate before the 2016 election, U.S. Of course, it took McCon- Republicans have already said Senate Majority Leader Mitch nell only a couple hours after they won’t aid and abet McCon- McConnell refused to allow the Ginsburg’s death to announce nell’s plot. It’s up to us to mobilize to hold them to their statements — and to pressure at least two other Republican senators to join them. For good reason, much of the public discussion about the Supreme Court focuses on basic questions of equality and individual rights. The choice of Ginsburg’s replacement will have profound import for racial justice, women’s rights — including the right to choose — LGBTQ equal- ity, and more. The choice of her replacement also will influence the jurisprudence over another category of fundamental issues that receive less widespread

Photo of Justice Ginsburg courtesy of Camilo Schaser-Hughes / Flickr. See RBG, Page 12

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Robert Metcalf Seth Price Gregory Vanni Robert Michael Michael Putman Alex Weatherby Michele Mirman Jonathan Rosenfeld Brian White Albert Nestico Richard D. Schuler Gary Wilson Victoria Nugent Girardeau Spann Andrew Wolf Jerry Paul Beth Terrell Steve Yerrid James Pietz Monica Touesnard Ryan Zavodnick Michael and Peggy Pitt John Vail Winter/Spring 2020 11 Civil Justice Project News

RBG, Continued from Page 11 attention: the rights of human SUPREME COURT beings as against those of corporations. The choice of Ginsburg’s replacement will have profound This conflict is epitomized import for racial justice, women’s rights — including the most famously in Citizens United right to choose — LGBTQ equality, and more. v. FEC, which sabotaged our democracy by conferring on corporations the power to spend • How much power does the about what kind of society we whatever they want to influence government have to break up want to live in and what our elections. monopolies and stop monop- democracy will look like — or The issues reach far beyond olistic practices? whether we will even have one. Citizens United, however: • Can corporations invoke the I want to acknowledge this: • How easy or difficult is it for First Amendment — intended We are living through a hard and workers to join together in to protect the political and scary time, and RBG’s untimely unions to demand corpora- expressive interests of real, death makes it more so. tions establish reasonable live people — to prevent We feel isolated — we are working conditions and pay a government from adopting isolated — because of the decent wage? public health measures and pandemic. That’s why it is so • Can corporations escape consumer protections? important that we mark RBG’s accountability for defective • Do corporations have more passing by joining together, products, rip offs, employ- rights to sue over govern- building our collective power, ment discrimination, and mental action than citizens? and working together to fight for more just by inserting justice. fine-print language in form The list goes on and on. Together, we will find our way contracts? These are central questions to brighter days ahead.

12 Public Citizen Civil Justice Project News

Civil Justice, Continued from Page 3 the Supreme Court reversed reading the plain language of the violations. longstanding appellate court statute, were nearly unanimous So we are thinking through precedent applicable to scores of in restricting the awards of costs amendments to consumer federal fee-shifting statutes. to prevailing defendant costs. protection statutes to include The Court held that statutes In 2013, the Supreme Court congressional findings regarding that provide for an award of ruled in Marx. v. General the noneconomic harms and the attorney fees to a “prevail- Revenue Corp. that prevail- risks of future harms to consum- ing plaintiff” do not authorize ing defendants in FDCPA cases ers that result from statu- a fee award when the lawsuit should be awarded costs in most tory violations, with the goal of achieved the desired result by cases. This decision created a bolstering consumers’ ability to prompting the defendant to deterrent to suits against debt show standing. change its conduct. We seek to collectors who harass or abuse We will begin working soon in restore the law as it was under- consumers. We will work with earnest to build a coalition that stood for decades until the Congress to revise the statute to supports this agenda. The next Buckhannon decision. override the court’s decision. steps will be finding congres- In 2018, the Consumer Finan- Many existing consumer sional champions, helping to cial Protection Bureau received protection statutes were enacted draft legislation, and making it more than 81,000 complaints before current standing doctrine a priority to pass this agenda in about debt collectors. Yet court was developed. As a result, the next Congress. decisions have made consum- although these statutes contain Advancing this agenda will ers’ ability to hold debt collec- private rights of actions for not be easy — not when corpo- tors accountable for abusive and plaintiffs who were the victims rate America has lobbyists on harassing conduct more difficult. of statutory violations, recent speed dial to stop reforms that For example, from the time court decisions make it harder may impact their profits— but it that the FDCPA was enacted for consumers to bring claims is past time to get started. in 1977 until 2013, the courts, to enforce a range of statutory

SAFE TO WORK, Continued from Page 7 ing bill throws up numerous SAFE ACT roadblocks to bar plaintiffs from being able to vindicate their The U.S. Chamber of Commerce lobbied from the start of rights and to hold corporate the pandemic for Congress and state legislatures to grant actors accountable. businesses immunity from liability for a broad range po- In an attempt to counter tential claims. The Chamber said that it wanted “timely, the narrative that they took no limited, and targeted” protections. action on passing additional relief packages, Senate Repub- licans recently voted on a pared including the harmful liability no action, Democratic leaders down version of the SAFE Act immunity provisions. The bill recently asked the White House that would allocate a small was resoundingly rejected by all to return to the negotiating amount of economic aid and Senate Democrats — not a small table. So, like the pandemic, this health resources, while still feat. After several weeks with story continues. Summer/Fall 2020 13 Civil Justice Project News

Immunity, Continued from Page 5 filed. This tracker proved invalu- CORPORATE IMMUNITY able to debunk the Chamber’s oft-repeated rhetoric that allow- Public Citizen played a key role in convening a coalition ing individuals to sue businesses of organizations to oppose the bill, provided critical would ruin them because it analysis to Hill allies, and educated the public on the showed that most of the cases consequences of business immunity. Through this work, filed were not filed by individu- we have so far kept this dangerous proposal from als, but other businesses. becoming law. Second, our messaging was reinforced by polling showing that the public does not support to hold wrongdoers accountable At their core, though, people immunizing businesses from for causing harm. It is a fight understand that cutting off accountability. Sixty-four to preserve access to the civil a person’s right to access the percent of voters oppose letting justice system for all people, so courts is cutting off their right to corporations off the hook by that workers, consumers, and justice. giving them immunity from patients have the tools long As it has for nearly 50 years, liability if it is proved that a provided by our legal system to Public Citizen will continue to company “engaged in unsafe get a fair shake. fight to protect individuals’ right practices.” That includes 72% We are optimistic about to access the courts. In a time of Democrats, 64% of Indepen- prevailing on this issue because of #METOO and #BLM, where dents, and 56% of Republicans. people care about access to social justice and civil justice These numbers are not justice issues. They may not are increasingly intertwined, surprising because the fight over understand legalese, or frankly our fight to protect access to the immunity from state-law liabil- care about the wonky details of courts remains as important as ity is a fight over people’s ability the civil justice system. ever.

CFPB, Continued from Page 10

HMDA data for their research discriminatory lending or areas ing into redlining and housing into illegal lending discrimina- in need of public sector invest- discrimination. tion and advocacy to promote ment. And the rule reverses much fair housing. In summary judgment brief- of the increased transparency The CFPB attempts to justify ing this fall, we will argue that into housing discrimination that the 2020 Rule based on its claim the new HMDA rule reflects resulted from new disclosure that the benefit of reducing the CFPB’s refusal to consider provisions in the 2010 Dodd- the reporting burden on small public comments on the impact Frank Wall Street Reform and lenders outweighs the cost of the of its 2020 rule on visibility into Consumer Protection Act. new rule — loss of data. lending practices in traditionally Indeed, the rule contra- We argue, though, that the underserved communities. dicts previous findings by the burden of reporting is modest It also cuts off the source CFPB itself that higher thresh- but the loss of information will of data that, as commenters olds would preclude effective have a substantial negative explained, has fueled ground- monitoring of housing discrimi- impact on the ability to identify breaking investigative report- nation. 14 Public Citizen