It’s past time to cry foul on wealthy corporations’ unfair practices

referee-300x176While Republicans and a handful of Democrats in Congress may be filling campaign coffers and pleasing wealthy corporations to the nth degree during the current lawmaking session, regular folks have reason to be aghast at how companies are throwing around their money and weight to get their way.

The signs are evident as to how companies are maneuvering to:

  • keep prescription drug prices sky high
  • strip citizens of their constitutional rights to be protected fairly by the civil justice system
  • avoid scrutiny and oversight by federal agencies aiming to safeguard consumers.

Plenty is getting reported on these problematic corporate actions but consider a little information on each, please …

Big Pharma stomping out price reforms

President Biden and the Democrats in Congress may have created ambitious lawmaking goals beyond their slim-majority reach as they sought to deal with an array of social concerns they say Americans have gotten desperate for action on. But a central and now seemingly doomed aspect of Biden’s original, Build Back Better plan sought to address one of the public’s top health care priorities — slashing the ever-increasing and unaffordable costs of prescription drugs.

Big Pharma — and its GOP and Democratic allies — made it clear, though, that any efforts to deal with nose-bleed drug prices were not only non-negotiable but about as likely as Minority Leader Mitch McConnell singing Elvis tunes and taking a naked bubble bath in the Senate reflecting pool. As Time Magazine reported:

“Big Pharma employs roughly 1,500 lobbyists on Capitol Hill and spent more than $177 million on lobbying and campaign donations in 2021 alone. While the industry has historically given more to Republican candidates, 60% of campaign donations this year went to Democrats. The Pharmaceutical Research and Manufacturers of America (PhRMA)—the industry’s main trade group—spent $7.44 million on lobbying during the third quarter alone, a nearly 25% increase from the same period last year.”

The independent, nonpartisan Kaiser Health News service, based on data from its tracking database, reported that Big Pharma targeted lobbying, advertising, and other political-influence spending with “surgical precision” at Democrats and Republicans to block politicians from passing drug-related legislation.

Will some political miracle occur, so, after three decades of trying, a president and Congress might do something about, say, the nightmare that the same bottle of insulin that cost $39 in 2001 goes for $280 or more now? The Washington Post, noting that Big Pharma has expended more than $1 billion over two decades to protect its high profits, reported this on Oct. 29:

“Barring a last-minute reversal on Capitol Hill, the United States will continue to be an outlier among wealthy, Western nations with such a scant government role in determining the prices consumers pay for the medicines they need and, as a result, drug costs far out of line with those in other countries. Among the most expensive medications are treatments for life-threatening conditions such as Hepatitis C or cancers, a RAND Corp. report found this year, with some patients saying they must choose between paying for medicine and other necessities.”

No fair shake in the civil justice system

While doctors, hospitals, insurers, and others in the health care system may try to demonize malpractice lawyers (like me), and big companies and others pull similar counterfactual attacks on other plaintiffs’ attorneys, who else will help those who assert they have been harmed by monied interests? Rich corporations are keeping busy finding ways to circumvent citizens getting their constitutional right to receive a fair shake in the civil justice system.

Tens of thousands of companies, for example, forced customers — and more crucially their own employees — to resolves disputes and damage claims with “forced arbitration.” It is a private justice system, closed to the public, and relying on individuals and companies to resolve legal issues, even as they may conduct a big part of their business from the very enterprises who appear before them.

Here is what the Washington Post reported about this system, which companies say is faster, more efficient, and they claim as fair as constitutionally guaranteed, public cases in America’s civil courts:

“U.S. employers relied heavily on arbitration in the first months of the pandemic, pushing a record number of complaints involving discrimination, harassment, wage theft, and other grievances through a closed-door system largely weighted against consumers and workers, according to a [new] report … Companies closed nearly 14,000 arbitration cases in 2020, according to the American Association for Justice, the industry group for trial lawyers. That’s 17% more filings year over year, in a system with no path for appeal.

“Critics say arbitration overwhelmingly favors corporations while shielding them from accountability. Employees were awarded money in just 1.6% of arbitration cases in 2020, according to the AAJ report, which analyzed data reported by the nation’s two largest arbitration providers, the American Arbitration Association and JAMS. Decisions are final and cannot be appealed, as they can in court. Even when workers and consumers do win, their payouts are significantly lower than they would be in court, according to a 2015 study [by the Economic Policy Institute, a think tank.] Median damages in arbitration cases totaled $36,500, compared with $86,000 in state courts and $176,000 in federal court.”

Big Pharma, in the meantime, has found its way to try to shield itself from damage claims, with the health care giant Johnson & Johnson following a path that has provided a huge shield for the plutocratic Sackler family that enriched itself with a risky and lethal prescription painkiller. J&J, the Sacklers and their family-run corporation Purdue Pharmaceuticals, as well as the Boy Scouts of America, all have ducked into federal bankruptcy court when confronted with giant damage claims.

J&J is a wealthy, well-known, and continuing enterprise. But confronted with major legal challenges over decades of its sales, marketing, advertising of its iconic baby powder, including issues as to whether the company knew its talc was tainted with problematic asbestos and may have contributed to women’s reproductive cancers, J&J spun off its talc business into a subsidiary. It now claims that the subsidiary alone should bear legal and financial challenges for thousands of talc lawsuits. J&J also wants the bankruptcy court to bar new claims from being filed against the subsidiary. The court is still deciding.

The Sacklers and Purdue took legal advantage of a bankruptcy move to pay a small filing fee to pick their own judge and court, finding a jurist well-known for wanting to protect companies and to parse their assets and liabilities so the businesses could get back to business — not to weigh, necessarily, the calamities they may have caused and determine whether they should pay for them. In moving to bankruptcy court, the family and its company kept a sizable part of their personal fortune and escaped individual responsibility for wrongdoing publicly conceded by the family-run firm. They haggled for months over a settlement, declining to give victims of opioid abuse and drug overdoses the basic, human closure of conceding that they had done anything wrong (which they insist they didn’t).

Plaintiffs in the Sackler-Purdue bankruptcy are deciding whether to appeal the judge’s ruling in the case, arguing his was never the appropriate court to hear and decide a complex challenge that involved thousands of state and local governments, Indian tribes, and others.

The Boy Scouts, who insist they are trying to keep a redeemable youth movement alive, are dickering in bankruptcy still with tens of thousands of plaintiffs. They assert they were harmed because the legendary organization knew its ranks were filled with sexual perverts and molesters and did not do enough to protect young scouts from them.

Defanging a top U.S. consumer watchdog

Congressional Democrats, safety advocates, and media investigations already had put in their crosshairs the U.S. Consumer Product Safety Commission, a top watchdog for the safety and well-being of Americans.

Critics provided evidence, including with congressional studies, showing how pro-business Republican appointees stymied the commission’s inquiries and blocked efforts to pull defective and dangerous products off the market before consumers, especially children, could be harmed by them.

Safety advocates had high hopes that the Biden Administration would get the commission back on track, not just by reducing the partisanship on the panel but by fulfilling its legislated duties.

But as the Washington Post reported, the usual churn of appointees has been stalled by GOP senators’ refusal to consider and affirm Biden’s commission picks. And, while waiting for their successors, the pro-business Republican commissioners in September targeted commission planning, derailing staff recommendations about work in important areas to protect consumers:

“A short-lived Republican majority atop the nation’s product safety regulator — the result of Senate delays in confirming Democratic nominees — recently pushed through dozens of last-minute changes to the agency’s annual plan, slowing work on some safety rules and abandoning at least one enforcement effort altogether. The changes mean the Consumer Product Safety Commission no longer plans in the coming year to draw up new mandatory rules for preventing suffocation in infant nursing pillows or carbon monoxide poisoning from gas appliances. The amended plan also canceled a pilot project looking at the growing concern over the safety of products found online, rather than in brick-and-mortar stores.”

The newspaper has published blow-by-blow details on GOP efforts to stall nominees and the commission’s oversight of 15,000-plus products consumers use and rely on daily. The Democrats have gotten the panel membership to a 2-2 deadlock versus being outnumbered as they were in September at 2-1.

The GOP slow-walking tactic affects not only Biden nominees at the consumer commission but also across the federal government, most notably at the State Department, the newspaper reported.

Not good. In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them and their loved ones by defective and dangerous products.

Plaintiffs must muster incredible fortitude if they seek justice through malpractice suits and other civil actions. Contrary to the destructive myths that naysayers spread about trial lawyers and the civil justice system, far fewer cases that people might imagine, including malpractice lawsuits, ever get to court. Large jury awards are rare, though they get a lot of media attention. The sums awarded by judges and juries to plaintiffs may need to pay for a lifetime of costly care and treatment. It can be highly stressful for regular folks to seek justice, including getting big companies and institutions to deal with poor performers and systemic wrongs.

Still, brave individuals soldier on and improve their world. They deserve more, not less support — including less skullduggery by corporations and pro-business politicians — as they seek the justice that the nation’s founders in the Constitution assured them would be theirs in our civil courts.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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