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TLPJ Launches Special Project To Preserve Class Actions

Corporations Banning Class Actions To Avoid Accountability for
Cheating and Discriminating Against Consumers and Employees

Arthur H. Bryant

Trial Lawyers for Public Justice (TLPJ), a national public interest law firm, is launching a major new project The Class Action Preservation Project to fight a growing attempt by corporations to deprive consumers and employees of their legal rights.

Throughout America, corporations are trying to avoid accountability for cheating and discriminating against their customers and workers by slipping class actions bans into the fine print of their form agreements. The Class Action Preservation Project will battle this growing threat to Americans’ rights.

"Corporations are trying to write their own ‘get out of jail free’ cards by slipping class action bans into their form agreements," said TLPJ Foundation President Thomas M. Dempsey of Los Angeles. "They hope no one will notice until it’s too late. We all have to stop them or justice can never be done."

"Preserving class actions is essential," said TLPJ Executive Director Arthur H. Bryant. "In many cases, class actions are the only way justice can be done. Brown v. Board of Education was a class action. So are numerous consumers’ rights, civil rights, workers’ rights, antitrust, securities, anti-discrimination, and toxic pollution cases. If class actions are eliminated, many of our rights will be lost."

Class actions are lawsuits brought on behalf of hundreds, thousands, or even millions of people cheated, discriminated against, or mistreated in the same way by corporations or the government. In most such cases, if class actions are barred, the wrongdoers will get away scot-free and the victims will receive nothing at all.

Recognizing this fact, employers, credit card companies, banks, phone companies, cell phone providers, mortgage companies, insurers, companies selling on the Internet, and others are increasingly inserting class action bans into their form agreements. They claim that people "agree" to these bans which they call "class action waivers" simply by using their credit cards, cell phones, or keeping their jobs.

This growing threat to Americans’ rights was documented last year in "Opting Out of Liability: The Forthcoming Near-Total Demise of the Modern Class Action," by Benjamin N. Cardozo Law School Professor Myriam Gilles in The Michigan Law Review.

"In the ongoing and ever-mutating battle between plaintiffs’ lawyers and the protectors of corporate interests, the corporate guys are winning because they have developed a new set of tools powerful enough to imperil the very viability at class actions in many – actually, most – areas of the law," wrote Professor Gilles. "In fact, I believe it is likely that, with a handful of exceptions, class actions will soon be virtually extinct."

TLPJ’s Class Action Preservation Project will (1) challenge attempts to ban class actions; (2) fight efforts to improperly limit class actions, including through court decisions, legal rule changes, and mandatory arbitration; (3) educate the public about the value of class actions and the dangers to them; and (4) battle illegal settlements and other abuses that threaten class actions' integrity or preservation. Professor Gilles will advise the Class Action Preservation Project.

TLPJ has already won the two leading cases striking down class action bans, Ting v. AT&T before the U.S. Court of Appeals for the Ninth Circuit in 2003 and Discover Bank v. Superior Court before the Supreme Court of California in 2005. In the last two months, TLPJ argued challenges to class action bans before the Supreme Court of Washington in Scott v. Cingular Wireless and the Supreme Court of New Jersey in Muhammad v. County Bank. The U.S. Court of Appeals for the First Circuit and courts in Alabama, California, Florida, Illinois, Massachusetts, Missouri, Ohio, Pennsylvania, and Washington have also thrown out class action bans in other cases.

In contrast, the highest courts of Hawaii, Maryland, North Dakota, and Washington, D.C., have all enforced class action bans. So have lower courts interpreting the law of Alabama, Arizona, Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Michigan, Nevada, New Hampshire, New York, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, and Washington. And last month, Utah passed the first law in the nation validating class action bans in consumer credit agreements.

TLPJ prosecutes a broad range of individual and class action cases. For the past decade, it has also operated a special project to prevent class action abuse – recently challenging a proposed Netflix nationwide class action settlement that would have left Netflix better off – and many of its customers worse off – than if no suit had ever been filed. That work will continue as part of the Class Action Preservation Project.

The Class Action Preservation Project is part of TLPJ’s Access to Justice Campaign, designed to expose, fight, and defeat the wide-ranging attacks on the right to a day in court in America – including federal preemption, mandatory arbitration, class action bans and abuses, court secrecy, attacks on the right to counsel and jury trial, and unconstitutional legislation and Administration actions. For information about the Access to Justice Campaign, the law review article quoted above, articles and press releases about the cases cited above, and briefs in those cases, visit

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