19. Big Business Corrupts The Judicial System by
"Buying a Clean Record"
Source: MULTINATIONAL MONITOR,
Date: July/August 1993, Title: "Justice for Sale," Author: Holley Knaus
Censored Researcher: Gerald Austin
SYNOPSIS: While big corporations have, for years, pressured
all areas of government to limit the corporate sector's level of responsibility
for wrongdoing, they have developed a new practice that goes beyond
simply stalling the legal process. Rather than denying the plaintiff
an opportunity to be heard in court by costly long delays and pre-trial
bluster, corporations are now using the dubious legal process of vacatur.
process not only allows corporations to appear squeaky clean but more seriously
undermines the fundamental issue of precedential law. Despite the significant
impact that a vacatur ruling can have, the process seems remarkably simple. According
to an editorial in Multinational Monitor, "Justice for Sale," it is
a little-publicized but growing phenomenon in corporate lawsuits.
the vacatur process allows a corporation found guilty in a lower court action
to make a settlement with the plaintiff so that the case will not be appealed
to a higher court. Both plaintiff and defendant request that the presiding appeals
judge "vacate" the decision and strike the previous finding from the
record, ultimately eliminating the precedential value of the ruling.
1992 settlement between U.S. Philips, a manufacturer of rotary electric shavers,
and Windmere, a U.S. distributor for the Japanese firm Izumi, also a manufacturer
of rotary shavers, illustrates how easy it is for powerful business groups to
corrupt the judicial system. Locked in a battle over patent infringement and antitrust
violations, the court awarded Philips $6,500 in damages for the patent complaint.
However, in a counter-suit charging anti-trust violations, a jury found in Windmere's
favor and awarded Windmere $89 million on the antitrust claim. Faced with an appeal
that might confirm Philips' wrongdoing, Philips struck a deal with Windmere.
The deal was for Philips to give Windmere an additional $57 million
-- on one condition: Windmere was required to join with Philips in requesting
a federal appeals court to vacate the lower court jury's verdict. Philips'
motivation was made clear in the agreement which said, "Windmere's
anti-trust claim will be of no force and effect and shall have no precedential
or other value."
that Philips was able to buy a clean record, Izumi filed suit in the Supreme Court
raising the issue of whether a corporation can justifiably erase wrongdoing by
simply paying off the plaintiff. Supporting Izumi's application for review of
the decision to grant vacatur, the Washington, D.C.-based Trial Lawyers for Public
Justice (TLPJ) has clearly outlined areas of real concern.
The amicus curiae filed by TLPJ notes that the granting of vacatur
undermines the legal process, "It reduces respect for the judiciary
by permitting a judicial decision to be bought and sold." The brief
notes that the process favors wealthy corporate interests, particularly
those that often land in court. "Certain types of litigation, including
products liability, illegal toxic dumping cases, and employment discrimination
claims, frequently pit an individual plaintiff with limited litigation
experience ... against an institutional defendant with repeated exposure
to the litigation process. The defendants in these cases have both the
reason and the resources to 'roll the dice' and then, if the gamble
fails to pay off, to buy out unfavorable decisions. The plaintiffs do
COMMENTS: Holley Knaus, author of the Multinational Monitor
editorial, said the issue of corporate manip-ulation of the Judicial
system does not receive the media exposure it deserves. "I learned
about the subject from a very good article that ran in the Legal Times,"
Knaus said, "but I am unaware of any other coverage in the mainstream
"Part of the problem is that the large papers and the networks
tend to cover 'events' rather than exposing and examining on-going institutional
problems. And I suppose a challenge to a legal process (even before
the Supreme Court) does not qualify as an event in the minds of the
corporate media shapers."
that corporations are using the vacatur process to erase prior offenses and shape
U.S. case law, Knaus feels that the "general public needs to know about a
process that is undermining the public value of court decisions and rulings."
She assumes that most of the public would agree that corporations have no place
in shaping the law in any manner.
"Corporations are the only ones benefiting
from the limited coverage given this issue," Knaus said. "As with so
many other issues, corporations are benefiting not from any active form of information
suppression, but from mass media's failures to point out and analyze systemic