Having proven unable to sway Congress into delaying the rule that will reform debit card swipe fees and end monopolistic practices, the banking industry will do what it normally does as an alternative: they’ll take the issue to court. They will allege that the Federal Reserve, in setting a cap on the fees that banks can charge for handling debit-card purchases, misinterpreted the law. This is contradicted by the fact that all the Congressional supporters of the law support the Fed’s action. But the banks have the money and power to make a go of this theory.
That’s because they’re part of the class of citizens that actually gets access to the courts. A new study shows the difficulty of US citizens to get equal treatment from the judicial system, especially compared to Western Europe.
“In the United States, rich individuals take their disputes to courts, whereas poor and low-income individuals normally don’t use the formal dispute resolution mechanisms. They simply either negotiate, do nothing or resort to violence in the worst case scenario,” said Juan Botero, the director of the index.
Rebekah Diller, deputy director of the Justice Program at New York University’s Brennan Center for Justice, who wasn’t affiliated with the report, echoed Botero’s concerns about the U.S. legal system.
“We have suffered from the death by a thousand cuts in terms of our civil legal services programs that are designed to help folks who face legal issues,” she said.
“This is a country of equal justice for all. … As a nation, we’re not meeting our responsibilities.”
No, we’re not. And this works in a variety of ways. At one level, poor people cannot get redress through the courts, or they are discriminated against by law enforcement, with little recourse in terms of legal representation. At another level, the rich and powerful who commit crimes get the kind of representation needed to avoid prosecution. Even the revived investigations on torture by a federal prosecutor and grand jury seem focused on contractors rather than those who authorized the practice. And in another case just decided by the Supreme Court, investment advisers cannot be sued for misstatements of fact.
The 5-to-4 decision split along ideological lines. Justice Clarence Thomas, writing for the majority, said that only the fund itself could be held liable for violating a Securities and Exchange Commission rule that makes it unlawful for “any person, directly or indirectly” to “make any untrue statement of material fact” in connection with buying or selling securities.
As is typical in the mutual fund industry, the fund and its adviser were closely linked. A public company, the Janus Capital Group, created the fund, Janus Investment Fund. The fund then hired Janus Capital Management, a wholly owned subsidiary of the company, to handle investment, management and administrative services.
The plaintiffs in Janus Capital Group v. First Derivative Traders, No. 09-525, contended that the fund’s disclosure documents falsely indicated that the adviser would put in place policies to curb trading strategies based on delays in fund valuations. After New York’s attorney general sued the adviser in 2003 over such market-timing strategies, investors sued the adviser for securities fraud.
These securities fraud cases are byzantine, but essentially you have here an investment advisor protected from his own false statements. Just look at the lack of prosecutions for fraud during the financial crisis and you see a pattern emerge.
There are two tiers of justice in America. The rich get access to the courts and the ability to avoid accountability if they commit wrongdoing. The poor don’t.