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ALEC Makes Another Push For “Tort Reform”

ALEC Makes Another Push For “Tort Reform”

 

It’s still relatively early in the legislative session in most states but already the pro-corporate anti-consumer agenda of the American Legislative Exchange Council (ALEC) is well-represented and making another aggressive push for “tort reform.”

Take Minnesota, for example. In a state known for a practical, fair-minded approach to managing civil tort claims, Rep. Doug Wardlow (R-Eagan) has introduced the first ever effort at “reform” designed to undercut those protections and tilt the scales of justice decidedly in the favor of big business.

His bill might as well be called the Walmart v. Dukes bill. Wardlow’s bill delays the evidence-gathering phase of a class action lawsuit until any appeals about the legitimacy of the class have been exhausted, a proposal designed to capitalize on the Dukes decision. In Dukes, the plaintiffs spent nine years from when they first filed employment discrimination claims against Walmart fighting the legitimacy of their class. That was until 2011 when the Roberts Court told those plaintiffs to go home and come back as smaller, more cohesive interests and classes and before a single hearing on the substance of their claims.

For over nine years Walmart fought the women of Dukes not on the substance of their claims but on their right to be in court. This is exactly the kind of behavior Wardlow’s bill encourages and endorses. Wardlow’s bill would mean plaintiffs like the women of Wamart would be prohibited from interviewing witnesses, gathering documents, and generally doing anything to advance the substantive interests of their claims until a Walmart ran out every possible challenge and every possible appeal of the issue of who is allowed to sue them. That means claims go stale, witnesses memories fade, and legitimate claims become harder to prove. This is not about getting to justice, it is about preventing it.

Each component of this bill is being sold as a “job creator” and protecting business from “frivolous litigation” but the goal could not be more clear: discourage class action lawsuits, one of the only real tools consumers have left at creating a financial impact significant enough to challenge and change predatory corporate behavior.

But like other efforts at “tort reform,” and even in a progressive state like Minnesota, this bill has a deceptively cynical marketing appeal.  That’s because it’s well-tested messaging.

It’s a topic filmmaker Susan Saladoff tackles in her documentary Hot Coffee. In the film Saladoff uses the infamous McDonalds coffee case to expose the gaming of the civil justice system by corporate interests. “People like Frank Luntz were hired to word-smith terms like ‘jackpot justice’ ‘lawsuit lottery’ and ‘greedy trial lawyer’ to see how they would play to the American public, ” Saladoff said in a recent interview.  “Then front groups were set up by large corporate interests and their public relations firms to spread myths and repeat these phrases. As University of Berkeley Neurolinguistics Professor George Lakoff states in the film, when words are repeated over and over again, the brain changes, the circuitry changes, and people start to believe what is repeated.  These front groups like Citizens Against Lawsuit Abuse (which sounded like a citizen’s group, but had no citizens in it, and was started by APCO public relations) used these phrases in print media, radio and TV ads, and even had billboards up in front of court houses.  Today, it is even more blatant, but because of the Citizen’s United case, people have no idea how much money corporations are spending on elections and which front groups they are funding.”

Saladoff identifies this is just the latest of an on-going assault on individual access to justice that the Roberts Court has been all to happy to enable and that Saladoff’s film exposes. “In the area of arbitration clauses, which is highlighted in the film, the AT&T v. Concepcion case not only allows these mandatory arbitration clauses to be upheld but also allows corporations to exclude the ability to bring a class action in contracts.  This means that corporations can screw millions of us out of small amounts of money and never be held accountable.  How is that fair?  Corporations are being given immunity in many cases by the US Supreme Court in other areas, like pharmaceutical cases, prohibiting average Americans from getting access to the courts and allowing corporations to make more money.”

And there’s no sign the attack will end any time soon, thanks in large part to the ability of corporations to literally flood the democratic process with cash. “This is the biggest problem that exists in our democracy right now,” said Saladoff.  “We are already seeing it in the Republican primary races and it will get worse with the general election. The Citizens United case that gave corporations the ability to give unlimited amounts of money in races and without disclosing where the money is coming from AND the establishment of SuperPACs (which are a farce in terms of their connection to the campaigns) is ruining democracy as we know it.  Obscene amounts of money are going to be spent, but most Americans will have no idea who is behind the public relations ads.  Moreover, public interest groups, consumer groups, unions and individuals cannot compete with the money that corporate interests have, which will translate into elections won simply because corporations can outspend everyone else. This country will be run by corporations.”

The outlook may be bleak, but according to Saladoff that doesn’t mean as consumers we are totally powerless, nor is the way out of this mess unknown.  “First, we must be savvy consumers of the media and question whether we are getting the full story.  Second, we must oppose caps on damages and vote against candidates trying to take away our rights to our 7th amendment right to trial by jury.  Third, we must try to find out who is behind campaign ads for or against judges.  Fourth, we must cross out mandatory arbitration clauses in contracts, if possible, and contact our Congresspeople and Senators and ask them to support the Arbitration Fairness Act pending in the House and Senate.”

We can expect of wave of these ALEC-sponsored copy-cat bills all across the country and the goal of everyone of them is clear: advance corporate profits at the expense of all else. This begs the question of whose democracy is it anyways?

More of how to take action is is found at www.HotCoffeethemovie.com/TakeAction.

 

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Photo from eflon via flickr.

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56 comments

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1:49PM PST on Mar 1, 2012

Tort reform only applies to punitive damages, not compensatory damages.
Limiting punitive damages to $250,000 is necessary and reasonable.
Insurance companies get their money from premiums collected.
The greater the damage awards, the greater the insurance premiums.
Just remember folks, every cause has a counter-balancing effect.

1:49PM PST on Mar 1, 2012

Tort reform only applies to punitive damages, not compensatory damages.
Limiting punitive damages to $250,000 is necessary and reasonable.
Insurance companies get their money from premiums collected.
The greater the damage awards, the greater the insurance premiums.
Just remember folks, every cause has a counter-balancing effect.

12:55PM PST on Mar 1, 2012

Saladoff is correct in her assessment that consumers have the power to take back our 7th amendment rights to a trial by jury by electing politicians who are against damage caps and other forms of so-called “tort reform.” Her documentary exposes the propaganda and misinformation spread by corporations and the politicians they bankroll. Many people who are for the idea of “tort reform” would change their minds very quickly if an accident or serious injury happened to someone in their family and they realize that damage caps affect all lawsuits, not just ones deemed “frivolous.”

7:34PM PST on Feb 23, 2012

Noted.

10:54PM PST on Feb 8, 2012

For the record, none of the four bills passed by the Minnesota House last week or the Senate today were "ALEC" bills. ALEC may have model bills similar to this legislation but ALEC had absolutely nothing to do with these bills whatsoever. It's just that the opponents of tort reform, who have very few legitimate arguments to make on these bills, throw the ALEC card out to confuse and obfuscate the truth.
The bills are simply common sense reforms to bring Minnesota's laws more in line with the rest of the country.
A 6-year general statute of limitations is unreasonably long and it should be shorter.
Minnesota should conform its state law to that in the federal courts and in many other states to allow an interlocutory appeal of class certification as a matter of right. Right now its out of balance.
A 10% prejudgment interest rate is unreasonably high and allows plaintiffs to slow down the process to make more money. That's unfair and costly to our courts.
And encouraging a fair settlement offer is very wise public policy.
These bills are pretty mild attempts at bringing Minnesota back toward the middle of the pack in terms of our state's laws.
There are no caps on damages and there is nothing here that will deny a legitimate case from being heard.
But the personal injury attorneys who profit handsomely from the abuse of the system try to throw up smoke and make wild accusations, hoping you won't notice that they are actually trying to game the system in their own

7:12PM PST on Feb 8, 2012

Most states have a Rule 11 or similar provision to sanction attorneys who file frivolous suits.
Caps on damages tend to tend to punish victims while shielding the powerful from punitive damages.
Many frivolous suits are filed by the powerful, who can afford to spend for unnecessary and retaliatory ("SLAP" suit) litigation.
What especially clogs the court system are criminal, domestic relations and family law cases.
What especially clogs the criminal dockets is the War on Drugs.
The need for tort reform is mostly just another GOP/1% boogieman.

6:51PM PST on Feb 8, 2012

I think tort refrom would be great, if it were directed at the bulk of the frivalous business suits clogging the courts and not against individual and collective action by people who have been wronged. Actual damages should not be limited to anything less than the actual damage done. The reality of tort "reform" is that big businesses that want to break the law and cut corners and do not want to spend a little money to save the health and lives of their workers and consumers and bystanders but do not want to pay the cost are trying to rig the system so they can not even be called to account for gross negligence or even for malicious damage.

4:06PM PST on Feb 7, 2012

For those of you who support caps on lawsuits, wait until either you or someone you care about has to file a lawsuit for serious bodily injury or for discrimination and they are not awarded their Full Benefits, due to caps and so-called 'frivilous lawsuits' which are so rare they have whiskers.

It will be on Your Conscience, if you have one...

11:59AM PST on Feb 7, 2012

We do need reform. We need to stop lawyers from filing frivolous suits, we need to put a cap on the amount of money the lawyers get to claim of the amount awarded and they should received nothing of the punitive amount awarded. I didn't go back and read the Hot Coffee suit but if this is where the woman bought a steaming hot cup of coffee and then put it in-between her legs and drove, well I'm sorry there is personal responsibility. What she did was just plain stupid and there should not have been a claim. I feel sorry for her but what she did was not McDonald’s fault.

People and lawyers sue in many cases because they think they can get millions of dollars, thus taking away from legitimate claims. Twice in my life time I have felt I had legitimate claims against contractors and I was told by lawyers to forget it because it wasn’t worth anyone’s time after agreeing the claims were legitimate. I didn’t want big bucks I only wanted the wrong righted. But there wasn't enough money in it for the lawyers.

We also need these reforms to be fair to all concerned and indeed hold businesses, physicians, lawyers and individuals accountable. We must write these reforms keeping in mind all these groups have responsibilities to themselves and others and should be held accountable for their actions.



2:37AM PST on Feb 7, 2012

Succinctly put, Dr C.

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