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Legal Reform It’s Not

Al Meyerhoff is a partner with Lerach, Coughlin, Stoia, Geller, Rudman and Robbins in Los Angeles. He is co-counsel for the plaintiff class in the Enron securities litigation.

For 50 years, the American civil justice system has been the last, best line of defense for the average Joe against the abuse of corporate power and a government that too often fails to protect its citizens.

“Tort” litigation won redress for Vietnam vets suffering from exposure to Agent Orange and for African Americans denied service at Denny’s restaurants, and it may finally also do so for the Enron shareholders who lost pensions and life savings when that company imploded.

Now the Bush White House and its friends in Congress want to close courthouse doors to many such suits. Tort reform legislation is on a fast track. First up are class actions.

Traditionally, U.S. courts provided for group litigation under common law. It wasn’t until 1966, with the influence of the civil rights movement, that class actions were formalized in the Federal Rules of Civil Procedure. Where a widespread pattern of discrimination, systemic abuse or other unlawful conduct has occurred, class actions allow a few plaintiffs to represent all the injured, streamlining the legal process and providing plaintiffs with strength in numbers.

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The proposed reform -- championed by conservatives who otherwise tout states’ rights -- would “federalize” most class actions, taking them away from local courts and juries. Already overburdened, federal courts would be required to resolve complex issues of state law and adjudicate factual disputes -- resulting, at best, in slow justice, while many victims kiss justice and compensation goodbye.

It is no coincidence that trade groups representing chemical companies, the pharmaceutical industry and manufacturers associations are on the record as supporting the reform; these are businesses that are frequently subject to successful class actions in the state courts.

The attack on your day in court is occurring against a backdrop of kickback scandals in the insurance industry, unsafe drugs like Vioxx slipping through government oversight and corporate-power abuses unmatched since the Roaring ‘20s.

Instead of cleaning up such abuse -- after dismantling much of the regulatory regime -- the Bush administration seeks to further unshackle American business through tort reform. As with deregulation, for the average American, tort “reform” will simply mean more unsafe products, unfair markets and unchecked monopolies.

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Why care? Because you can never know when you’ll need the protection of the civil justice system.

Consider the citizens of Avila Beach, about 150 miles north of Los Angeles. They awoke one morning to find a massive crude oil leak from an old Unocal pipeline just 25 feet beneath their town. Class-action and public interest group litigation was filed in the local county court in 1997, invoking California’s tough environmental laws. Within 18 months, Unocal agreed to finance a $200-million cleanup and pay $43.8 million in fines.

Under the proposed legislation, this case would have gone straight to federal court in Los Angeles, with one of the longest dockets in the nation. The people of Avila Beach would probably still be awaiting trial.

The fishermen of Valdez, Alaska, for example, have yet to receive a penny through federal class-action litigation against Exxon brought 16 years ago, after the greatest environmental disaster in U.S. history.

Class-action lawsuits are not perfect. Abuses like “forum shopping” -- filing suits in what are considered plaintiff-friendly courts -- and excessive legal fees do occur. But remedies for these problems are already available through established court procedures. In fact, no other type of lawsuit is subject to as much judicial oversight and control as the class action.

Laws do not enforce themselves. Civil lawsuits provide a critical backstop to government oversight -- and never more than when regulators don’t regulate, and when Congress is asleep at the proverbial switch.

Watch how your representatives vote on tort reform: It will signal whether they represent the public interest or, instead, runaway corporate power.


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