The U.S. Supreme Court is hearing another case regarding the enforceability of mandatory arbitration agreements and class action bans following its devastating decision in AT&T v. Concepcion in 2011. This one involves a suit by merchants over whether they must accept all American Express cards or only the traditional Amex cards that require full payment at the end of the month. The liberals on the Court are a vote down because Justice Sotomayor participated in the decision at the Court of Appeals and will not participate in the Supreme Court case. Not good.

Mandatory arbitration agreements and bans on class action bans often prevent consumers, including Kentucky consumers from vindicating their rights when businesses do wrong by them. The question in this case is whether the cost of arbitration or an individual action (when compared to the dollar amount at stake in the case) is enough to invalidate a mandatory arbitration provision or a provision banning class actions in a contract. 

Important.

The merchants told the Supreme Court that the most any of them could hope to recover in damages is $38,549, far less than what it would cost to marshal the evidence to prove their case.

I didn’t think practicing law was going to be fun. This weekend, I am at the National Consumer Rights Litigation Conference, hosted in Chicago this year by the National Consumer Law Center (NCLC). Three years ago, at their conference in Portland, the NCLC showed me just how much fun being an attorney was going to be.

I could sue banks. I could defend homeowners. I could pursue creditors who pursued my clients. I could make them pay. Wow.

If you went to an Occupy Wall Street gathering and found the prevailing attitude towards banks a little tame, this conference is for you.

I’m learning about consumer arbitration agreements, consumer class actions after Concepcion, credit reporting, loan modifications, payday loans, predatory lending, auto fraud, expert witnesses, lemon laws, foreclosure mediation programs around the nation. The speakers include the great Paul Bland and Deepak Gupta (who argued Concepcion and who shared 30 minutes of his time with me in his office while he was at Public Justice. Last night, Matt Taibbi addressed the members of the National Association of Consumer Advocates (NACA); we gave him our annual Media Award for his work publicizing the dastardly deeds of foreclosing servicers, banks, and attorneys. Today, we’ll hear from Susan Saladoff, director of Hot Coffee and I’m spending all morning with Ron Burge. Tomorrow, I’m attending the Consumer Class Action Symposium.

I like so much about this conference. So much. I like that I learn about both the substance and procedure of practicing consumer law. I like that this conference gives me big ideas about expanding what I can do for my clients and big ideas about what I can do to change the terms of debates in the public sphere: debates about our civil justice system, mandatory arbitration, the utility of foreclosure mediation. Each year, I come away energized and inspired. These attorneys are so good.

The odds we face are enormous. The monied interests have bought our politicians, they’ve funded aggressive public relations campaigns that seek to close the courthouse doors to you and me. But, the NCLC and NACA and Public Justice (and KJA) are working hard to make us better attorneys for our clients and better advocates for the system of justice for which our founders fought.