New Report Highlights Strategic Litigation by Progressive Activists

A recent report from the Alliance for Consumers (AFC) reveals that attorneys collaborating with progressive, often climate-focused activists are increasingly employing litigation as a means to drive significant societal changes rather than pursuing financial gains. This shift appears to have intensified since the decline of the Obama administration, with courts becoming a “battleground” where the political left aims to reshape American society through what they term “strategic litigation.”

The AFC’s analysis of various lawsuits, including those concerning employment discrimination, environmental issues, and corporate governance, indicates a deliberate pattern among left-leaning entities to use court cases to push policy changes that aren’t achievable via state or federal law—particularly in areas like diversity, equity, and inclusion (DEI) and climate change.

“If you want to grasp why corporate America became more alert, there’s a narrative there,” stated AFC Executive Director O.H. Skinner.

Skinner suggests that corporate America might follow a path resembling that of President Obama, leading people transitioning from public service roles to corporate human resources and legal teams, carrying their policy aspirations into the corporate world. He also mentioned that Washington insiders hint that companies could face increased scrutiny if they fail to align with new DEI initiatives.

“This reflects a landscape where significant pressure is placed on American companies, not only through government lawsuits but also private litigation,” Skinner noted. His experience includes working for the Arizona Attorney General’s Office during a major consumer protection lawsuit against Google.

Skinner elaborated that this approach is akin to “plaintiff shopping” within class action lawsuits, where companies might secure substantial settlements while granting plaintiffs minimal compensation. One of the companies presented in the report had filed a lawsuit against former President Trump and ex-New York City Mayor Giuliani based on the Ku Klux Klan Act.

The report also highlighted a shareholder lawsuit from 2019 against Alphabet, Google’s parent company, which alleged breaches of fiduciary duty, including covering up data breaches and charges of sexual harassment. Critics argue that the lawsuit served as an advocacy tool, propelling the DEI agenda within a large corporation through litigation rather than legislative means.

One noteworthy case involved the Equal Employment Opportunity Commission (EEOC) under President Obama, which purportedly sidestepped legislative channels to impose new DEI standards on Bass Pro Shops in response to an employment discrimination suit. The settlement led to training and policies designed to foster diversity in the workplace.

In another instance, the City of Honolulu is pursuing legal action against Sunoco relating to climate change damages, with claims for financial compensation aimed at addressing climate-related infrastructural costs. According to the AFC, these lawsuits are trying to implement climate policies through the courts, effectively placing judges in roles typically occupied by legislatures and executive branches.

Skinner’s analysis brought attention to a situation in Georgia where litigation led to significant changes in state health care policies for transgender individuals, circumventing typical legislative processes. The AFC reported that such “strategic litigation” enables activist groups to achieve their aims via judicial decision-making rather than democratic pathways.

While advocacy through litigation has been utilized by various political factions, Skinner noted a shift at the EEOC under new chair Andrea Lucas, who plans to enforce DEI initiatives more rigorously. The AFC’s report concludes that litigation is increasingly being used as a mechanism for activists to impose broad policy changes without electoral engagement, posing challenges to democratic governance.

“This signifies a fundamental challenge to democratic governance,” the report states. It argues that when activists and their legal representatives can enforce widespread changes without public input, everyday consumers lose their power to influence decisions affecting their lives.