What Barrett’s Pro-Business Track Record May Mean for You
If Judge Amy Coney Barrett’s history of pro-business rulings is any indication, her appointment to the U.S. Supreme Court could have implications for any number of consumer safeguards, weakening the power of regulators fighting fraud and making it more difficult to protect against abusive debt collection practices, consumer advocates say.
- Amy Coney Barrett’s decidedly pro-business track record contrasts with the consumer-friendly voice Ruth Bader Ginsburg brought to the Supreme Court.
- Barrett’s appointment will shift the balance of power on the Supreme Court and could have implications for debt collection, robocalls, and other consumer issues.
- As an appeals court judge, Barrett was involved in a controversial case, now headed to the Supreme Court, that challenges the power of the Federal Trade Commission to make fraudulent companies pay back their ill-gotten gains to consumers.
During the nearly three years she served on the U.S. Court of Appeals for the 7th Circuit Court in Chicago, Barrett established a decidedly business-friendly track record that has earned the support of pro-growth, free-market proponents eager to limit regulation.
In fact, among her opinions in cases where business interests came into conflict with employees, consumers, or other non-corporate entities, 83% favored the business interests, rivaling Justice Clarence Thomas for the highest pro-business ratio among the current justices, according to an analysis of the past two years by Rocket Lawyer, an online legal service for consumers and small businesses.
Barrett, confirmed in a 52-48 Senate vote Monday night, replaces the late Justice Ruth Bader Ginsburg, who was renowned for her pioneering influence on gender discrimination and civil rights and one of the justices most likely to rule against big business. Because Barrett’s conservative record so starkly contrasts with Ginsburg’s, her place on the court could have a particularly meaningful impact on issues expected to split along conservative-liberal lines. There are now just three justices on the nine-person court who are widely considered to be liberal: Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
“The consumer litigators of the world will be in general trying to stay away from the Supreme Court, would be my guess,” said Stephen Calkins, a law professor who was formerly general counsel at the Federal Trade Commission, a federal agency charged with protecting consumers against unfair, deceptive and fraudulent business practices.
Here’s a closer look at Barrett’s involvement in several controversial cases involving scams, debt collection, credit reporting, and robocalls. One case even gets at the core of the power of the FTC to hold fraudsters accountable, said Calkins, who now teaches at Wayne State University in Detroit.
FTC’s Consumer Protection Powers
Federal Trade Commission v. Credit Bureau Center LLC and Michael Brown
This case, which came before the 7th Circuit Court in 2019 and is now headed to the Supreme Court, has called into question one of the FTC’s most powerful legal tools—its authority to seek restitution in consumer fraud cases.
The case began when the FTC sued a credit monitoring service called Credit Bureau Center LLC, owned by Michael Brown, accusing it of scamming customers. The company had offered on its website and in Craigslist ads a “free credit report and score” while obscuring in fine print that the “free” service enrolled customers in a $29.94 monthly subscription, which they were only told about in a letter after they had already been automatically signed up.
The FTC won the case in a lower court, and the judge ruled that the company had to pay $5 million in restitution to the FTC for the ripoff.
But in the appeals court decision, a panel of three judges ruled that while the company was in fact at fault, the restitution didn’t have to be paid because the FTC doesn’t have the authority to seek restitution on behalf of victims. The FTC has misinterpreted Section 13(b) of the Federal Trade Commission Act all along, the opinion said, and restitution isn’t part of the authority it’s given to seek restraining orders and injunctions.
Barrett was not on the panel that initially ruled against the FTC, but because that opinion went against precedents set by previous rulings in other cases, the panel invoked a special rule and circulated the opinion to “all judges in active service” on the 11-judge court to determine if it should be re-heard. Barrett and seven others had the opportunity but did not vote for a re-hearing, Calkins said.
“The majority’s interpretation upends what the agency and Congress have understood to be the status quo for thirty years, and in so doing grants a needless measure of impunity to brazen scammers like the defendant in this case,” Chief Judge Diane Wood wrote on behalf of the three dissenters.
A progressive advocacy group called People for the American Way said this is among the cases showing Barrett to be a “far-right judge” who finds ways for corporations to avoid accountability for unlawful conduct. Prohibiting restitution “empowers” deceptive and fraudulent practices, the group said in a report on her judicial record.
The FTC, which coordinates with its younger regulatory cousin—the Consumer Financial Protection Bureau—relied on Section 13(b) when it sued Equifax in 2019 for a data breach affecting 147 million people, ultimately winning a $425 million settlement. In fact, the agency has recovered billions of dollars in restitution and ill-gotten gains over the years.
“This would be a major hit to how the FTC does business,” Calkins said.
Barrett’s previous involvement would probably lead her to recuse herself in any Supreme Court proceedings relating to this case, but having someone with her track record replacing Ginsburg is likely “more bad news for the FTC,” he said.
While history has shown conservative justices to generally favor business causes more than liberal justices, the liberals on the current court are "hardly anti-business" relative to previous liberal justices, a study of 36 justices by law scholars at Washington University and the University of Chicago found.
In fact, Breyer and Sotomayor have sided with business interests more often than not over the past two years, the Rocket Lawyer analysis showed.
Still, it’s worth noting that if Barrett were to recuse herself, there is the possibility of a 4-4 split vote in this case, should Chief Justice John Roberts align with Breyer, Sotomayor, and Kagan and side with the FTC, according to Calkins.
Whenever a Supreme Court vote is tied, the lower court’s ruling stands. But there’s yet another wrinkle in this case, Calkins explained. Because the Supreme Court has combined FTC vs. Credit Bureau Center with a separate case in which the ruling favored the FTC (a different circuit court found the FTC was in fact able to use section 13(b) to seek restitution for victims) a split vote would create the unusual situation where opposing rulings from different lower courts are upheld simultaneously, he said.
Debt Collection Cases
Paula Casillas v. Madison Avenue Associates Inc.
In 2019, Barrett was among three judges who ruled in favor of a debt collector that had violated the Fair Debt Collection Practices Act (FDCPA), but only on a technicality, they said. The company, Madison Avenue Associates, had sent a collection letter to a customer, Paula Casillas, that failed to mention that in order to invoke certain legal protections, the customer needed to communicate with the company in writing.
Barrett wrote that the customer was not entitled to redress because the violation of the law was a procedural one that did not hurt her.
“No harm, no foul. Madison Avenue Associates, Inc. made a mistake,” Barrett wrote. Casillas “did not allege that she tried—or even planned to try—to dispute the debt” or verify the creditor mentioned was actually her creditor.
But when the remaining judges were asked whether the case should be reheard, those who said yes argued that by excusing the omission as a harmless error, Barrett’s ruling would “make it much more difficult for consumers to enforce the protections against abusive debt collection practices” provided by the FDCPA.
Rocket Lawyer wrote in its analysis of Barrett’s record that the ruling “undoubtedly sets a precedent that will make it more difficult for consumers to bring successful class actions against abusive debt collectors.”
Deborah Walton v. EOS CCA
In another debt collection case, decided in 2018, Barrett and two other judges ruled in favor of EOS, a debt collector, despite an error in the listed account number of the alleged debtor, Deborah Walton. AT&T said Walton owed $268.47, but gave the wrong account number to EOS, and despite the error, the debt was reported to two credit bureaus.
The judges wrote that it would be “burdensome” to interpret the law as “requiring a debt collector to undertake an investigation into whether the creditor is actually entitled to the money it seeks.”
Ali Gadelhak v. AT&T Services Inc.
Earlier this year, Barrett and two other judges ruled against Ali Gadelhak, a Chicago man who had sued AT&T for sending him spam text messages. They said the company could not be held accountable because AT&T’s automated texting system did not meet a narrow definition of an “automatic telephone dialing system” given in the Telephone Consumer Protection Act, which was enacted in 1991 to address intrusive telemarketing or “robocalls.”
Barrett’s interpretation of the law has weakened the restrictions against robocalls, according to the Electronic Privacy Information Center, a consumer advocacy group that filed an amicus brief in the case. And another robocall case, Facebook v. Noah Duguid, is set to be heard by the Supreme Court soon.
To be sure, each case has its own facts, according to Carl Tobias, a law professor at the University of Richmond.
“I think that her record suggests that she has generally been pro-business in her rulings on the Seventh Circuit,” he wrote in an email. “However, how a judge rules when on a lower court does not necessarily show how she might rule on the Supreme Court.”
ALEC Action. "ALEC Action Letter in Support of Amy Coney Barrett's SCOTUS Confirmation." Accessed Oct. 26, 2020.
Club for Growth. "Key Vote Alert - Confirmation of Amy Coney Barrett." Accessed Oct. 26, 2020.
Charley Moore. "Is Amy Coney Barrett Really the Next Clarence Thomas (for Business?)" Accessed Oct. 26, 2020.
Washington University. "When it Comes to Business, the Right and Left Sides of the Court Agree." Page 54. Accessed Oct. 26, 2020.
Washington University in St. Louis. "Replacing Justice Ginsburg." Page 12. Accessed Oct. 26, 2020.
United States Court of Appeals for the Seventh Circuit. "Federal Trade Commission v. Credit Bureau Center, LLC, and Michael Brown." Accessed Oct. 26, 2020.
People for the American Way. "Confirmed Fears: The Judicial Record of Amy Coney Barrett." Accessed Oct. 26, 2020.
Federal Trade Commission. "Stats & Data 2019." Accessed Oct. 26, 2020.
Washington University. "When it Comes to Business, the Right and Left Sides of the Court Agree." Accessed Oct. 26, 2020.
United States Court of Appeals for the Seventh Circuit. "Paula Casillas v. Madison Avenue Associates, Inc." Accessed Oct. 26, 2020.
United States Court of Appeals for the Seventh Circuit. "Deborah Walton v. EOS CCA." Accessed Oct. 26, 2020.
United States Court of Appeals for the Seventh Circuit. "Ali Gadelhak, on Behalf of Himself and All Others Similarly Situated v. AT&T Services, Inc." Accessed Oct. 26, 2020.
Electronic Privacy Information Center. "EPIC Analysis: Supreme Court Nominee Amy Coney Barrett's Record on Privacy." Accessed Oct. 26, 2020.