Class Action Dismissed

By Amanda Griscom Little, Grist.org. Posted February 14, 2005.

The Erin Brockoviches of America could have a much tougher time going after polluters if the Class Action Fairness Act – which the Senate Judiciary Committee voted to approve last week – is signed into law.

The bill, which will be put to a full Senate vote today, would move most major class-action lawsuits from state courts to federal courts, purportedly in an attempt to bring order and fairness to a system in which, currently, plaintiffs' attorneys seek out local courts with agreeable track records on rulings and negotiate settlement awards for victims that are inconsistent from state to state. A long-standing priority of the Bush administration and its corporate contributors, the legislation is overwhelmingly backed by Republicans on the Hill and several Democrats in the Senate, and is considered a sure bet for passage.

Howls of protest are being heard from environmental activists, labor and civil-rights groups, including the AFL-CIO and the NAACP, and a number of Democrats on the Judiciary Committee, including Sen. Richard Durbin (Ill.), who said during a hearing on the bill last week, "This isn't the Class Action Fairness Act – this is the Class Action Moratorium Act."

These critics claim the bill would make it too difficult for wronged citizens to have their day in court and see justice meted out. On Monday, attorneys general of 15 states sent a letter to the Senate leadership arguing that the bill as it stands would "result in far greater harm than good." That same day, leaders of 16 large green organizations signed a separate letter to the Senate warning of serious environmental harm that would come from the bill and requesting that environmental lawsuits be exempted.

Under current law, class-action suits that involve plaintiffs from multiple states (as most major class-action suits do) can be heard in any state in which the harm has taken place. Beth Levine, an aide to Sen. Chuck Grassley (R-Iowa), who sponsored the bill, argues that this allows plaintiffs' attorneys to do what's called "venue shopping": "They look for certain state courts that have been known to rule in their favor. The president often cites the courts in Madison County, [Ill.,] that continually rule in favor of the trial attorneys and dole out huge settlements." (Well, technically, said courts tend to rule in favor of plaintiffs, sometimes known as "victims," but we get her drift.) Levine argues that the settlements frequently yield huge payoffs for the attorneys, but paltry coupons for the plaintiffs themselves. Large class-action cases should be heard before judges who have a more national outlook, she says, and can help ensure fairer and more consistent awards.

Critics of the bill argue that in moving lawsuits from the state to the federal level, local concerns would be taken out of the hands of communities. "There is a reason that defendants want to be tried outside of the state," said John Walke, an attorney at the Natural Resources Defense Council. "They're fearful that their wrongdoing will be punished more within the community because the people have more at stake. [Proponents of the bill] term it 'local prejudice,' but it's really 'local care.'"

Worse still, say the bill's opponents, federal courts often refuse to hear class-action cases submitted by petitioners from multiple states. "No one wants to file a class-action suit at a federal level because they often get dismissed if they include plaintiffs from a patchwork of different states, all of which have different laws," explained Jude McCartin, an aide to Sen. Jeff Bingaman (D-N.M.), who has been a vocal critic of certain sections of the bill. "There isn't one state law that is applicable and there is no guidance for federal judges as to where they can apply just one state's laws."

Bingaman tried to address this concern by proposing an amendment that would give federal judges the authority to select one state's law and apply it to a case with plaintiffs from multiple states, but he couldn't rally enough votes for it. "We tried to say [in this amendment] that if class-action suits are going to be forced into federal courts, let's give consumers reasonable expectation that their case will be heard," McCartin told Muckraker. "But the support just wasn't there for it."

And even if the cases do get heard, the Class Action Fairness Act could result in substantial cost increases and time delays for plaintiffs. Federal courts are already backlogged, critics say, and new cases bumped up to the federal level would have to go to the end of a long waiting list.

"Going through the federal system is far less expedient," said Joan Mulhern, a senior attorney at Earthjustice. "If you're a community that's suffering from groundwater contamination or an oil spill or a tank explosion or air contamination from nearby factory farms, you may have to wait for years to even get your case heard, much less be given a fair chance from an unbiased judge to have your injuries redressed."

Mulhern argues that the Bush administration is rigging the judicial system so it's harder for citizens to hold corporate culprits accountable on the full gamut of civil concerns – not just environment and public health, but also consumer protection, civil rights, and labor issues. "It's that sweeping," she said.

Enviros are particularly concerned about how the bill would affect lawsuits over water pollution from MTBE, a gasoline additive that has contaminated the groundwater in at least 35 states. Hundreds of communities across the country are grappling with the effects of MTBE pollution, and many of them have been banding together to organize major class-action suits – suits that would be passed off to federal courts if the bill is signed into law.

The bill also worries environmentalists and other public advocates because it would hand more power to an increasingly conservative federal judiciary. President Bush has made it a high priority to appoint conservative judges to federal courts, as did Ronald Reagan, and they have left a lasting legacy: Of the 836 total active federal judges, 204 have been appointed by Bush, and 253 were appointed by former Republican presidents going back to Richard Nixon. In total, 55 percent are Republican appointees, according to the Alliance for Justice. And Bush has signaled his intent to aggressively push through more right-wing appointees to the federal bench.

At a time when the White House is weakening environmental defenses across the board, the Class Action Fairness Act would remove yet another avenue for citizens to keep corporate polluters in check, according to Ed Hopkins, director of environmental quality for the Sierra Club. "You've got the executive branch and Congress clearly aligned against strong environmental protections. So what branch of government can citizens turn to? That's the courts. The courts are really the final frontier. And now even they are being taken away from the American people."

Amanda Griscom Little writes the Muckraker column for Grist Magazine.

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