By Jack Cumming
Have you ever felt that you were treated unfairly? The other day, I was praising a worker who works with particular vigor and quiet diligence in the building where I live. He responded, “Workers know who among their colleagues is a worker and who are just getting by. We all get paid the same, and that’s not fair.” I agree. It’s not fair.
Judicial Injustice
The same can apply to a corporation committed to excellence that is hit with an outlandish jury verdict. Juries aren’t fair. Some jurors think that their role is to deliver rewards to people who feel disadvantaged by corporations. There are jurors who believe that all corporations are greedy and that all corporations ought to be sanctioned. Those people bring their biases into the jury room.
Justice dispensed should never be justice denied. Have we lost our sense of justice and fair play?
It’s no wonder that the plaintiffs’ bar loves jury trials. An emotional plea to a jury can bring a business to its knees. If it’s a business that harbors aging residents, an outlandish jury verdict can cause those innocent residents to have to move or to undergo some similar difficult deprivations. That’s not fair, but it’s part of the system.
Judicial Reform
The law should be different. It shouldn’t be so easy for plaintiffs to bring questionable lawsuits without consequences. In some other countries, people who sue and don’t prevail have to pay the costs of the defense. That would be a just law in our country as well, but for now the scale favors plaintiffs.
Perhaps that is a desirable bias. After all, corporations can hire fleets of first-rate lawyers to draft contracts of adhesion to favor corporate interests at the expense of consumers. Also, without the mechanism of class action lawsuits, many corporations would be able to commit nickel-and-dime scams simply because using the judicial mechanism is so daunting in the United States.
Still, there should be some penalty for unjustified, venal litigation. Some lawyers bring lawsuits against successful corporations in the hope that those they accuse will settle, unjustly, simply to avoid the costs of having to defend themselves. That’s a kind of legal extortion, and it ought to be stopped by the arbiters of the justice system in the nation.
Corporate Advantages
Corporations, though, do have classic cards that they can play in this one-sided game of defend the strong at the expense of the weak. One such card is the mandatory arbitration provision, which deprives many hapless consumers of their constitutional right to fair adjudication of their grievances. In short, many one-sided contracts of adhesion are specifically tailored to disadvantage the innocent and unwitting. That is wrong.
Pre-packaged bankruptcies are another corporate playing card in the game of whack the consumer. Consider a financially failing senior housing community. The failing provider may reassure the residents and their families that they don’t need legal representation because the state regulates the business. Residents are seldom told that they are at the bottom of the priority list when it comes to settling the debts of a failed enterprise.
Then, after a “stalking horse white knight” is found to repurpose the community as rental or whatever, or even if the original provider is seeking relief from resident “refund” obligations, the operator’s attorney may go to a bankruptcy court with a prepacked deal that voids resident contracts and favors the purchaser or even allows the failed operator to shed obligations and continue in control. That’s not justice.
Voiding Obligations
This kind of prepackaging can even go further. Imagine a situation in which a provider corporation considers litigation judgments against them as unfair. The provider can then reorganize assets among a complex of corporations, which then leaves a shell corporation with the litigation liabilities but with only minimal assets. That shell can then be prepackaged through the bankruptcy process to leave those successful plaintiff victims without recourse.
The question here for the industry and its lobbying trade associations is whether these anti-consumer outcomes are ethical. If the system is no longer fair, and if consumers are not protected, what can the industry do to make it consumer-safe and trustworthy? If the industry stands by and continues to rely on such devices, what does that say about its values?
We live in an era in which the question is growing whether the American justice system can deliver on its promise of fair, unbiased, politically neutral adjudication of disputes. Where does the senior living industry, with its consumer base of frail or failing elderly consumers, stand on that compelling question? Have the scales of justice tipped too far? Can they be righted? Or does the game go to the strong, and the unwitting and trusting are victims of their own gullibility?
By way of disclosure, I am not an attorney, so I hope that attorneys will weigh in to defend the ideals of their profession as the arbiter of justice in our nation.
Beyond Politics
Frankly, both political parties now tilt toward injustice. The Democrats claim to favor the weak over the strong with self-righteous sanctimony by advocating simplistic curative measures that substitute new injustices for past grievances. The Republicans candidly favor the strong over the weak, though the practice of using American power to bully others may backfire to weaken us.
Lost is the traditional American claim that hard work and ingenuity can lead to opportunity and success. It makes no sense to penalize success; it’s better to emulate it. Conversely, it makes no sense to favor weak American corporations over more competitive foreign businesses. Perhaps those foreign enterprises have a more business-friendly political culture. We need to find a reasoned way to restore the faith of Americans and all citizens of the world in our system of justice and our good faith and fair dealing intentions.
