Last of the Huge Civil Settlements?
By Marshall H. Tanick
June 8, 2018
LAST OF THE BIG SETTLEMENTS?
The historic $210 million settlement last week by the Archdiocese of St. Paul and Minneapolis was a testament to the persistence and resilience of the 443 victims of clergy sex abuse, the skills of their St. Paul attorney Jeff Anderson and his estimable legal team and the elongation of the statute of limitations by the Legislature five years ago.
But one key feature in forging the deal was the ability of the victims to pursue their claims in civil lawsuits. The varied litigation they brought propelled the archdiocese into bankruptcy, which provided a vehicle, albeit a slow-moving one, to reach the record-breaking resolution.
But arrangements of this size, or of any magnitude at all, for victims of massive wrongdoing may be an endangered species as a result of a ruling the previous week by the U.S. Supreme Court. The justices, by a narrow 5-4 vote, ruled that members of labor unions may be barred from pursuing lawsuits in a collective manner, or class actions, and required to arbitrate their disputes with management.
The ruling came in Epic Systems Corp. v. Lewis, a trio of consolidated labor law cases involving workplace claims by members of labor unions. It was the latest in a series of decisions by the conservative wing of the high court preventing victims of claimed wrongdoing from seeking redress through the judicial system, including consumers claiming fraudulent sales practices and rank-and-file workers who are not in unions.
The court rulings, mostly split on 5-4 ideological grounds, allow large and well-heeled organizations to require that all claimants eschew litigation, channeling them instead to arbitral forums that generally are more favorable to the powerful interests. These can be cost-prohibitive for individuals with small or modest claims, reduce any strategic advantages they may have by banding together, and cast the claims and their outcomes in confidentiality without any transparency.
Barring access to the courts magnifies an imbalance that further contributes to inequities unfavorable to victims of wrongdoing in the workplace, corporate boardrooms and elsewhere. Erecting these barriers also makes it less likely that future victims, like those encountering clergy sexual abuse or other wrongdoing, will be able to obtain redress and heightens the probability that wrongdoers, like predatory clerics, will get away with it.
The message from the Epic Systems decision in late May and its forerunners by the Supreme Court under Chief Justice John Roberts is that businesses and other organizations can achieve this favorable status by having individuals sign boilerplate take-it-or leave-it arbitration arrangements, which they have little ability or power to resist. Doing so can preclude litigation and thereby render potential claims toothless.
Taking a page from these cases, churches and other religious organizations may require congregants, parishioners, altar boys and girls and others to sign no-suit arbitration agreements.
It might make the Twin Cities archdiocese settlement not only the largest ever but also the last of its kind.