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.