Public Citizen (www.Citizen.org) has done Americans a real service by doing the hard work of digging into the litigation factory called the US Chamber of Commerce, a major player in the unending struggle to defeat the efforts of ordinary people to hold corporations accountable. The Chamber fights against corporate accountability in three major areas:
1) Doing everything possible to defeat or derail efforts to keep enhance the ability of ordinary consumers to hold corporations to account for wrongdoing in the civil justice system;
2) Preventing ordinary people from organizing together in unions and defeating any regulations that protect workers from arbitrary managerial controls; and
3) Preserving the sacred right of corporations to profit by polluting, fighting vigorously against any regulations that require corporations to take responsibility for toxins and waste products emitted.
Reprinted in full with kind permission of Public Citizen.
In our forthcoming second report on the Chamber’s litigation, we will delve into much greater detail on the positions the Chamber has taken in many of these cases.
The “other” category contains many very large companies as the Fortune 500 list does not include companies with their headquarters overseas nor does it include many large, privately held American companies. A closer look at the “other” category reveals that in 111 of these 131 cases (85%), at least one of the corporate litigants supported by the Chamber had 2015 revenues of over $1 billion dollars. (FN16)
Shifting from the size of the companies supported by Chamber litigation to their identities, it is no surprise that the Chamber’s litigation has supported a who’s who of corporate America in addition to the huge foreign multinationals mentioned above. Ford has benefited from the Chamber’s litigation in the most cases, at 14. State Farm and Dow tie for second, with nine cases apiece. ExxonMobil is third, with eight cases while Koch Industries and Bank of America share fourth place, with seven cases each. Goldman Sachs, Reynolds American, and KBR round out the top five, with six cases each. [Table 2]
As one can see, the financial services industry (State Farm, Bank of America, Goldman Sachs, Allstate, Berkshire Hathaway, Deutsche Bank, Citigroup, Wells Fargo, AIG, and JP Morgan Chase) and the Energy & Utilities industry (ExxonMobil, Koch Industries, BP, PPL, and Shell) dominate the top spots on the list of most aided companies. Pharmaceuticals & Healthcare (Teva and Pfizer) and Tobacco (Reynolds American and Altria) are also well represented.
VII. Far More than Just the Supreme Court
With respect to the Chamber’s federal appellate court cases, distribution among the thirteen different federal circuits was very unequal. (Table 4) Perhaps not surprisingly, the Chamber litigated the most cases in the District of Columbia Circuit. The DC Circuit is where most federal regulations are challenged, and the Chamber has repeatedly railed against alleged over- regulation. (FN18)
In second place is the Ninth Circuit, which covers California and much of the West. Here, the Chamber has been particularly active arguing that California laws designed to preserve access to the court system are preempted by the Federal Arbitration Act. (FN19) Close behind in third place is the Second Circuit, based in New York. Much of the Chamber’s litigation here focused on issues of interest to the financial services sector, in particular financial reform and tax law.
In sum, the Chamber’s litigation strategy is both diversified--roughly evenly split between the state courts, the federal Circuit Courts, and the U.S. Supreme Court--and targeted in states and federal circuits that have jurisdiction over areas of particular interest or concern to the Chamber and its Big Business constituents, namely federal regulations, legal issues affecting the financial services sector, and California laws on access to the civil justice system. As was discussed in Part V, civil justice and environmental and financial regulations are some of the legal issues that the Chamber has most actively litigated.
The fact that the Chamber is a party to the lawsuit in only 5% of the cases in which it is involved should not be seen as minimizing the influence of these cases. When the Chamber sues to block regulations or legislation, these suits can have an enormous impact on policy.
With respect to the governments or government entities opposed by the Chamber, its particular focus on the EPA carried over into the cases in which it filed amicus briefs, as the EPA was targeted an additional 11 times, for a total of 26 cases.
IX. The Usual Suspects
Just as the Chamber’s litigation supported a disproportionately large number of very big companies, a disproportionately large number of the Chamber’s hired legal guns came from the very biggest law firms, with 32 of the largest 50 U.S. law firms having litigated on behalf of the Chamber and 44 of the largest 100 having done so. (FN24)
To better understand the makeup of the Chamber’s litigation coalitions, we looked at the types of groups that joined the Chamber in the 308 cases it litigated in coalition. We found that other trade associations were by far the most frequent litigation partners for the Chamber, having joined it in roughly 80% of the cases it filed in coalition. The next most common partners were industry- funded (FN25) legal advocacy groups such as the American Tort Reform Association, which joined in 29% of the cases it filed in coalition. State Chambers joined in only 16% of coalition cases. [Figure 9]
So who are these trade associations and legal advocacy groups that frequently partner with the Chamber? A total of 439 different entities joined the Chamber on at least one case. The National Association of Manufactures (NAM) was the Chamber’s most frequent partner, having joined it in a total of 96 cases, or almost 20% of the cases in the sample and fully 30% of the cases in which the Chamber litigated in coalition.
X. Win, Lose, or Draw? The Chamber’s Mixed Record of Success
While having won only 35% of the cases it litigated might at first blush seem like a disappointing outcome, it is important to keep in mind that if you remove cases settled out of court, those disposed of for other reasons, and those where the Chamber urged a court to hear an appeal and instead only analyze those 243 cases decided on a question of law, then the Chamber has won a slim majority (55%).
There are two subsidies that are universal to the American style of development.