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.
Photo from eflon via flickr.