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Civil Justice Project News Civil Justice Project News www.civiljusticeproject.org Winter/Spring 2020 Public Citizen Says Oil Companies Justice and the Aren’t Federal Officers Coronavirus s the public has learned be dismissed. he coronavirus is sweeping Amore about the causes and Beginning in 2017, at least Tacross the country as we effects of global warming, it 10 state and local governments go to press and has become a has become clear that major oil sued major oil companies in genuine national public health companies have long known that state courts claiming that their emergency. the greenhouse-gas emissions activities have created a “public The pandemic is laying bare produced when their products nuisance.” The lawsuits seek profound flaws in our health are used cause potentially damages and compensation for care system, underinvestment in catastrophic damage to our the costs governments face in our public health infrastructure planet’s climate. trying to protect their residents and huge gaps in worker protec- Nonetheless, from the consequences of tions. It is likely those companies climate change. So far, suits have to wreak severe chose to conceal been brought by, among others, economic havoc, their knowledge seven cities and counties in with the worst for many years California; the city of Baltimore, pain felt by the while feeding Md.; the state of Rhode Island; most vulnerable by Scott Nelson, our fossil-fuel and Boulder County, Colo. among us, and attorney, by Robert Litigation Group addiction. When In each case, the oil compa- Weissman, it threatens to the compa- nies’ first move was to try to president interfere with our nies’ knowledge came to light, remove the case to federal court, ability to conduct lawsuits followed. where they hope their defenses the 2020 elections. Public Citizen has now will get a more friendly recep- We can’t know how the entered the battle to prevent tion. The oil companies invoked coronavirus epidemic is going to those cases from being derailed the federal statute that allows evolve, but we can exert some by a procedural maneuver: the removal when a federal officer significant effect on the damage oil companies’ effort to move the or agency, or someone acting it does. Public Citizen is advocat- cases from state to federal court. under the direction of a federal ing furiously to prompt govern- This is both a delaying tactic officer is sued in a state court for ment action to reduce the toll it and an effort to pick a forum some official action. The removal takes. they think, based on case law, statute dates back to the early Free testing, treatment, and may be more sympathetic than 1800s, when federal customs vaccines: We are pushing hard state courts to the companies’ arguments that the suits should See Oil Companies, Page 10 See Coronavirus, Page 11 INSIDE PRODUCT SAFETY — P. 4 Putting People Above Corporate Profits LITIGATION — P. 2 Public Citizen Sues Amtrak FORCED ARBITRATION — P. 6 Over Forced Arbitration Progress on the FAIR Act and Other Arbitration News Civil Justice Project News Civil Justice Project News Winter/Spring 2020 Public Citizen Sues Amtrak Public Citizen President Over Forced Arbitration Robert Weissman Vice President of Legislative Affairs n 2019, Amtrak added to all its violates the U.S. Constitution in Lisa Gilbert Itickets a provision requiring three ways. Public Citizen Inc. Board of Directors Jason Adkins (chair) anyone who purchases a ticket First, as a component of the Joan Claybrook Andrew S. Friedman or rides on Amtrak to “agree” to federal government, Amtrak may Anne Galland Danny Goldberg binding private arbitration of any not, consistent with the Consti- Jim Hightower Joy Howell disputes they might have at any tution, condition its service on John Richard Anthony So time with Amtrak. The arbitra- passengers’ consent to a waiver Robert Weissman (ex officio) tion provision is far-reaching. of their First Amendment right Public Citizen Foundation Board of Directors Mark A. Chavez (chair) It states that it is “intended to to petition the government for Jim Bildner Robert C. Fellmeth be as broad as legally possible” redress of grievances. David Halperin Annie Leonard Cynthia Renfro and specifies a litany of claims Second, because Amtrak is a Steve Skrovan Gerson H. Smoger subject to arbitra- governmental entity, it cannot Robert Weissman (ex officio) tion: negligence, constitutionally require passen- Civil Justice Project Director Amanda Fleming gross negligence, gers, as a condition for provid- Editor and Production Manager disfigurement, ing passenger rail services, to Rhoda Feng wrongful death, waive their rights to have legal Public Citizen Litigation Group Allison Zieve (director) claims for medical disputes adjudicated by a federal Nandan Joshi Michael Kirkpatrick by Nandan and hospital judge entitled to the salary and Kaitlin Leary Joshi, attorney, Paul Alan Levy expenses, discrim- tenure protections of Article III. Patrick Llewellyn Litigation Scott Nelson Group ination, and Third, Amtrak’s mandatory Adam Pulver Adina Rosenbaum failure to accom- arbitration provision threatens Martha Solt Rebecca Smullin modate an actual or perceived the institutional integrity of Public Citizen’s Congress Watch Susan Harley (deputy director) disability. It also bars individuals the judicial branch by creat- Rachel Curley Remington Gregg from litigating against Amtrak in ing a wholly separate, private Alex Harman Craig Holman a class action. litigation process that lacks Eagan Kemp Matt Kent In a lawsuit filed on Jan. 7 in meaningful judicial oversight. As Taylor Lincoln Jana Morgan the U.S. District Court for the a creature of Congress, Amtrak Amit Narang Bartlett Naylor District of Columbia, Public must adhere to the constitu- Emily Peterson-Cassin Mike Tanglis Citizen challenged Amtrak’s tional separation of powers, Bret Thompson forced arbitration clause. The including the role of the judicial Public Citizen’s Health Research Group Michael Carome, M.D. (director) lawsuit was filed on behalf of branch as the final arbiter of Sidney M. Wolfe, M.D. (founder, senior adviser) Azza AbuDagga, Ph.D. Public Citizen President Robert disputes. Diane Krauthamer Alan Levine Weissman and attorney Patrick If Amtrak can compel millions Fiona Lynn Material in Civil Justice Project News may not be Llewellyn, both of whom plan of passengers into a private reprinted without permission from Public Citizen. For more information, please contact Amanda Fleming at to use Amtrak for travel, but arbitration system, then nothing (202) 588-7734 or [email protected]. want to buy tickets that are not prevents Congress from mandat- Visit us online at www.civiljusticeproject.org. subject to an arbitration clause. ing private arbitration for a host Amtrak is a governmental of claims against the govern- corporation, created by statute. ment, which would undermine The lawsuit alleges that Amtrak’s the role of Article III courts in © Public Citizen’s Civil Justice Project 2020. forced arbitration clause exceeds All rights reserved. Amtrak’s statutory authority and See Amtrak, Page 3 2 Public Citizen Civil Justice Project News Amtrak, Continued from Page 2 our constitutional system. LITIGATION In December, Public Citizen spearheaded a petition and In a lawsuit filed on Jan. 7 in the U.S. District Court letter, signed by 31 other groups for the District of Columbia, Public Citizen challenged and more than 4,700 Public Amtrak’s forced arbitration clause. The lawsuit was filed Citizen members, calling on on behalf of Public Citizen President Robert Weissman Amtrak and Congress to remove and attorney Patrick Llewellyn, both of whom plan to forced arbitration clauses from use Amtrak for travel, but want to buy tickets that are Amtrak’s ticketing. Amtrak did not subject to an arbitration clause. not respond. In February, Amtrak filed a motion to dismiss the lawsuit. ings would have been hidden to join others in a class-action The motion attacks the stand- from the public. lawsuit. Yet public sentiment ing of Weissman and Llewelyn, The number of forced arbitra- is overwhelmingly against characterizes Amtrak as a private tion agreements in effect in the use of forced arbitration entity not subject to constitu- the U.S. is at least 2.5 times the clauses: 84% of voters want to tional constraints, and contends population, and the overwhelm- stop corporations from forcing that the constitutional claims ing majority of these agree- consumers and workers into lack merit because passen- ments waive a person’s right arbitration. gers consent to the arbitration clause by purchasing or using an Amtrak ticket. In late March, we filed an opposition to the motion to dismiss and cross-motion for summary judgment, explaining the flaws in Amtrak’s arguments and asking the court to enter judgment in our favor. In 2016, Amtrak agreed to pay up to $265 million under a court- supervised settlement of claims arising from a 2015 crash that killed eight people and injured more than 200. Had the forced arbitration clauses been in place at the time, Amtrak could have forced all of the victims into arbitration, where the proceed- Graphic courtesy of Marty Bernard / Flickr. THANK YOU TO OUR SUPPORTERS — CIVIL JUSTICE TRUSTEES (Annual Support of $25,000+) Caragh Fay Taras Kick Brian Warwick Thomas Fortune Fay Gerson H. Smoger Andrew S. Friedman Janet Varnell Winter/Spring 2020 3 Civil Justice Project News Putting People Above Corporate Profits he U.S. Consumer Product name — as companies routinely the recall. Yet it failed to tell the TSafety Commission (CPSC), do — the agency has to initi- public. the nation’s chief product safety ate litigation to overcome the As this example shows, the regulator, is barred by law company’s objection. The secrecy caused by section 6(b) from releasing a wide swath CPSC’s default workaround for is problematic for two reasons. of information about product this provision is simply to issue First, it hinders the CPSC’s abili- safety hazards.
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