Tort 'Reform' Triumphs

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Fri, 18 Feb 2005 10:10:05 -0800 (PST)

Tort 'Reform' Triumphs

 

 

 

Bush just signed this bill into law. The reason this is such a

setback for consumers and workers is that class action lawsuits can no

longer be brought into state courts. They have to be filed in federal

courts where the judges are appointed at the federal level, and put on

the bench by Washington insiders and political hacks, and those courts

are very slow and unsympathetic to consumers. Also, that requires

citizens to travel for court cases if they wish to attend as opposed

to their local court system. We got screwed, once again, by the

federal government on this on.

 

 

Tort 'Reform' Triumphs

 

by DAN ZEGART

 

[from the March 7, 2005 issue]

 

Nothing could better illustrate the pending extinction of civil action

as a tool for fighting corporate criminality than a measure that will

effectively do away with many types of class-action lawsuits. With

passage all but assured in the House following a lopsided 72-to-26

vote in the Senate on February 10, the Class Action Fairness Act was

expected to be quickly signed by George W. Bush, who campaigned for it

ardently. The bill is the first significant Congressional tort

" reform " victory for the radical right and a catastrophe for workers

and consumers. The GOP is hoping the almost total collapse of the

Democrats on the Senate bill--eight Democrats co-sponsored it--means

improved chances of passing a bill curbing asbestos suits and a

reworked medical malpractice measure that caps damages for pain and

suffering and drastically limits suits over dangerous drugs like Vioxx.

 

Not satisfied with nibbling away at the welfare state, already the

thinnest in the industrialized West, conservatives have spent more

than twenty years demonizing lawyers and ridiculing victims in order

to eliminate a uniquely American right, rooted in the Seventh

Amendment, that allows juries to assess damages in civil courts for

corporate misbehavior. In Europe and Japan, governments compensate

victims; in this country, it is often done, haphazardly, by

entrepreneur-lawyers. The same lawyers are more successful in another,

quite accidental way: regulating and punishing companies that pollute,

maim or cheat--a critical function at a time when government does less

and less to force them to act responsibly. Fifteen state attorneys

general recognized this when they called on the Senate to dump or

amend the class-action bill.

 

The bill, like the other anticipated tort " reforms, " was produced by

the same right-wing think tanks that gave us the proposed Social

Security overhaul and Medicare privatization and was marketed by the

US Chamber of Commerce, which along with a coalition of businesses has

spent tens of millions of dollars on the effort. Much of that money

has gone to support like-minded elected officials. In the 2004

election, for example, the Chamber helped spend millions in seven

battleground states to pay for ads urging voters to support lawsuit

restrictions endorsed by Bush and opposed by John Kerry [see Zegart,

" The Right Wing's Drive for 'Tort Reform,' " October 25, 2004]. Such

efforts are part of a strategy embraced by Bush guru Karl Rove to

drain cash from tort lawyers, who overwhelmingly support Democrats.

 

The class-action bill is premised on the need to end supposedly

rampant litigation abuses in state courts, where, it is claimed,

plaintiff-friendly juries and corrupt judges team up to award damage

" jackpots " that drive up consumer prices. But numerous studies have

shown no spike in tort filings, including class actions; reports by

the American Tort Reform Association, tort reform's flagship group,

could find data for only two judicial jurisdictions out of 3,141

nationwide where abuses allegedly take place.

 

On its face, the class-action bill is mere procedural tinkering,

transferring from state to federal court actions involving more than

$5 million where any plaintiff is from a different state from the

defendant company. But federal courts are much more hostile to class

actions than their state counterparts; such cases tend to be rooted in

the finer points of state law, in which federal judges are reluctant

to dabble. And even if federal judges do take on these suits, with

only 678 of them on the bench (compared with 9,200 state judges),

already overburdened dockets will grow. Thus, the bill will make class

actions--most of which involve discrimination, consumer fraud and

wage-and-hour violations--all but impossible. One example: After forty

lawsuits were filed against Wal-Mart for allegedly forcing employees

to work " off the clock, " four state courts certified these suits as

class actions. Not a single federal court did so, although the

practice probably involves hundreds of thousands of employees nationwide.

 

In one such case in Washington State, attorney Toby Marshall is

representing 40,000 workers, each of whom stands to gain, on average,

a couple of hundred dollars in unpaid wages. While this may be a

significant sum for people making just over minimum wage, it's far too

little to merit a lawyer's filing an individual claim, especially

given the cost of suing the nation's largest retailer, which Marshall

estimated at several hundred thousand dollars. That would mean

Wal-Mart would never have to pay Georgie Hartwig for the meal and rest

breaks she says she wasn't allowed to take over the seven years she

worked for the chain. Hartwig said that if she protested, she was

told, " You're on Wal-Mart time. "

 

The right's success with the class-action bill is the story of how a

group of legal extremists crafted a message, brought almost every

Fortune 500 corporation on board and then pumped money into organizing

and seeding the culture with that message. If progressives don't match

their tenacity, one of the last effective levers for social and

economic justice will cease to function. At that point, people like

Georgie Hartwig--or, potentially, any one of us--will be on Wal-Mart

time for good.

 

http://www.thenation.com/doc.mhtml?i=20050307 & s=zegart