ThePopTort

Doing Violence to the Legal System

Lots of talk over the weekend about guns. On Saturday night, 3,000 house parties and a national town hall discussion took place, hosted by MoveOn.org with Michael Moore and a panel of experts following the screening of the Oscar-winning documentary, Bowling for Columbine.  Yoko Ono’s heartbreaking twitter photo of John Lennon’s bloody glasses went viral. And the New York Times covered the new $12 million national advertising blitz by New York City Mayor Michael Bloomberg, which “focuses on senators who he believes might be persuaded to support a pending package of federal regulations to curb gun violence.” Bloomberg said on Meet the Press that he’s “optimistic” that Congress will pass something. NRA head Wayne LaPierre said the Mayor is trying to “buy America.” I guess when you represent a lobby group that thinks it already owns America, such a thing must be hard to reconcile.

And among the things that apparently Mr. LaPierre thinks he owns when it comes to guns, is the legal system. It was his lobby group that forced upon the nation a law that not only immunizes gun manufacturers for gun violence at the national level, but also prevents state officials seeking to protect their own citizens, from establishing any meaningful legal accountability for gun violence.  It was this same federal law that made it impossible for Colorado lawmakers to include in its recent gun control package some legal accountability for the gun violence that has already devastated that state.

At the same time, the NRA has rushed into Buffalo court to challenge New York’s new gun control law, which includes “a lower limit on magazine capacity and an expansion of the state's assault weapons ban to include some popular and formerly legal semi-automatic rifles.”

Other provisions require five-year renewals of handgun licenses statewide, direct mental health professionals to notify authorities of patients deemed likely to seriously hurt themselves or others and require federal background checks for private gun sales in New York. It will require registration of ammunition sellers and buyers.

Now, New York Assembly Speaker Sheldon Silver says,

[T]he state will suspend the April 15 effective date of New York’s law banning the sale of magazines with more than seven bullets to give lawmakers time to change the statute.

The changes are happening as [Governor] Cuomo, 55, has been attacked by pro-gun groups who claim the law was rushed through. In January, Cuomo, a Democrat, waived a requirement for a three-day waiting period between a bill’s introduction and vote.

The legislature approved the measure within 24 hours of its introduction. Rich Azzopardi, a spokesman for Cuomo, didn’t respond to an e-mail yesterday seeking comment on the lawsuit.

We’ll have to wait and see if the NRA wins its case.  But in being forced to drop the Colorado bill that would have included a new liability standard for gun owners and sellers – an attempt to get around the federal immunity law - Colorado Senate President John Morse said, "Cleansing a sickness from our souls doesn't come easy. It's gruesome.”

Like a bloody pair of glasses.

White Shoe Firms Feeding at the Government Pig Trough

It must be hard to keep white shoes clean while slurping at a pig trough, no?  (Wild boar troughs included.) The National Law Journal today released an investigation  exposing how much money the U.S. government spends contracting legal work from outside, corporate firms.  Some of the vendors are not actually law firms but many are, and taxpayers are having the foot the bill for the inflated hourly fees of some of this nation’s top corporate firms.

Here are a few examples: Hunton & Williams, $34.7 million. Cadwalader, Wichkersham and Taft: $26.8 million. Morgon, Lewis & Backius: $20.3 million. And on down the list.  This work is conducted “with little public scrutiny” and a “lack of transparency.” But the government says they need the help!

We wouldn't be so hot and bothered by this had Corporate America not launched a brazen, hypocritical campaign attacking underfunded and under-resourced state Attorneys General who also hire outside counsel.  Yet state AG's do so on a contingency basis.  In other words, there are no costs to the taxpayer. The AG's hire counsel to help them protect their citizens in many diverse areas, including consumer protection, antitrust and utility regulation, and environmental protection. What’s more, they often recover millions of dollars for state taxpayers! See some great examples here. 

Corporate critics of state AG work include groups like the conservative American Legislative Exchange Council, which complains that these contracts aren't transparent enough - but apparently doesn't bat an eye when corporate firms benefit.  Hhmm.  ALEC has been pushing model legislation to limit AG’s power to hire outside counsel.

Groups like ALEC have tons of corporate members who have been found liable in state AG suits for corrupt and harmful business practices. These companies have had to reimburse taxpayers hundreds of millions of dollars. But these new ALEC laws are burdensome to the point that their enactment will cost state taxpayers hundreds of millions of dollars. 

Something is definitely wrong with this picture.

The Cross-Eyed Litigation Focus of the U.S. House Judiciary Committee

When it comes to litigation and the civil justice system, there are two kinds of people in this world.  There are people who are actually familiar with it.  And then there are others.  Consider March.

This week, the American Association for Justice (the plaintiffs’ bar), the DRI—The Voice of the Defense Bar, and the American Bar Association, got together to issue a dire warning about the impact of sequestration on our courts.  Said the groups in a joint statement:

Severe and indiscriminate federal court budget reductions through sequestration combined with chronically anemic state funding for courts threaten access to justice for every American and put court petitioners, staff and judges in physical jeopardy.  … Our organizations representing a concerned legal community, call on  policymakers on Capitol Hill and statehouses across the country to provide adequate funding for  our federal and state judiciaries. Access to justice is a promise that would be too costly for our country to deny.

Meanwhile, the seemingly oblivious U.S. House Judiciary Committee has decided to do nothing about that, but rather to attack victims who use the courts.  What timing, am I right?  The first hearing was held yesterday before the Subcommittee on the Constitution and Civil Justice, called “Excessive Litigation's Impact on America's Global Competitiveness.”  Witnesses included the last minute addition Rocky Flick, former CEO of Blitz USA, which decided to manufacture its plastic gas cans – the kind you might find in your garage – without 4 cent flame arresters.  Not surprisingly, kids have gotten burned and the company is now complaining about lawsuits.  Fortunately, professor Neil Vidmar from Duke University School of Law also testified, stating, “Wild claims about the American tort system and its negative effects on our society have consistently not stood up to scrutiny when examined carefully from an empirical perspective.” Thank you.

Thursday, the Subcommittee on Courts, Intellectual Property and the Internet is holding hearings called, “Abusive Patent Litigation: The Impact on American Innovation & Jobs, and Potential Solutions.”  Supposedly this is to address “patent trolls” which sue companies over patents.  This is not an area of much focus here at ThePopTort, but we do note that the size of personal injury verdicts seems to pale in comparison to the size of patent verdicts these days, which are in the billions and are making companies like Apple even richer. 

We also understand that next week, there will be hearings on anti-victim asbestos legislation, on which the committee wasted time last year and seems to be doing again.  And last but not least, next Wednesday, the Subcommittee on the Constitution and Civil Justice, is holding hearings called “Examination of Litigation Abuses.”  Witnesses for this hearing have not been announced yet, but I would like to offer a few ideas.  First, we should change the hearing title to, “Examination of Litigation Hypocrites."  Witnesses could include the U.S. Chamber of Commerce Institute for Legal Reform, which sues the government three times a week on average while trying to strip everyone else of their legal rights.  Another should be NRA CEO Wayne LaPierre who, after having made sure that no one can sue the gun industry for gun violence, says he will “fight” any new gun laws “in court.”  

Not if they're defunded, he won't.

UPDATE:  Looks like the Patent hearing has been postponed.  We'll keep you posted on that!

Suing for Secrecy

“Good vs. evil.” It’s a theme that pops up often. Just consider the movies. The new film Beautiful Creatures almost entirely echoes this theme. Ghost featured that same dynamic. And there have been plenty of others. It’s a popular motif. And it reminds me of today's story.

Back in November 1983, the respected law professor, Tom Lambert, published a groundbreaking (at the time) article called “Suing for Safety.” In it, he outlined some of the ways tort lawsuits have saved lives, like ensuring that toys don’t strangle children, or that clothes washers stop when doors are opened, or that guns don’t fire while being unloaded. So important was this article that it ended up in the Congressional Record years later.  And since that time, much else has been written about how tort suits make us all safer, whether or not we are the ones who sue. That's our definition of "good."

Then we have the opposite situation, where a company sues to keep anyone from learning about its dangerous products, presumably allowing it to keep injuring and killing consumers.  It’s a variation of a theme with which we’re familiar: companies that insist on settling cases confidentially so no one learns about a dangerous product or practice; or, the medical profession, which goes after reporters who glean information from the National Practioner Data Bank – a databank that identifies the safety record of physicians but which patients are not allowed to see. 

Back in 2008, Congress passed the Consumer Product Safety Improvement Act (CPSIA) after a public health disaster hit this country – toxic toys with dangerous lead levels, causing brain damage in children. See some of our coverage here.  The U.S. Chamber of Commerce (which, by the way, sues the U.S. government about 150 times per year, or about 3 times a week), and the National Association of Manufacturers (among other huge corporate lobby groups) tried to kill this law because, among other things, it created a public database of product defects so parents can protect their kids. Here’s what the Chamber said in its letter to Congress: [T]he database “will lead to consumer confusion and give rise to lawsuits based on a rumor repeated through the echo chamber of the Internet.” 

Oh, it’s led to lawsuits, alright. But not by “confused consumers" based on “rumors” about product defects. On no. The lawsuits are by companies who do not want to comply with the database law and are suing so they can continue to cover up information. And some courts are cooperating, in the words of FairWarning Reports, which has a great article on this today, “blazing new trails in judicial secrecy.” 

In October 2011, just months after the database went public, a company that has only allowed itself to be known as “Company Doe,” brought a case against the Consumer Product Safety Commission, “aimed at a complaint submitted by a local government agency regarding a product from Company Doe that, the local agency said, had harmed a child.” Mind you, the CPSC,

[f]ollowed standard procedure by notifying Company Doe and giving it an opportunity to post a response to the complaint. But the company argued the complaint was inaccurate. The commission responded by writing four different versions of the grievance to eliminate any inaccuracies, but that wasn’t enough to satisfy Company Doe, and it eventually sued to keep the product complaint out of the database altogether. (emphasis added)

And now,

[t]hanks to closed-door hearings, sealed records and a 73-page ruling with large sections blacked out, even the most basic details are concealed. That includes the identity of the plaintiff — known only as “Company Doe” –along with its product and the incident that led to the complaint. …

Several legal experts said they know of no other case in which a company was allowed to use a fictitious name to protect its reputation.

“The general price tag for wanting to submit things to a court to get a ruling in your favor is that they become public,” said Richard Marcus, a law professor and expert on civil procedure at the University of California Hastings College of the Law in San Francisco. “We don’t have closed trials in this country,” Marcus said. “ We don’t allow witnesses to come in and testify wearing bags over their heads.  Maybe there are some very, very, very unusual exceptions to that but that’s our general mode of operation.”

Luckily, Consumers Union, Public Citizen and the Consumer Federation of America, “have asked an appeals court to lift the veil of secrecy by unsealing records in the case.” Whether it’s a veil, or a bag, or any other kind of secretive head gear, they need to be pulled off the heads of companies like Company Doe, and when that happens, look out for the movie cameras.  Just sayin’.

Credit Reports and the Courts

The Federal Trade Commission hasn’t always done a great job monitoring the sleazy industries that can financially ruin our lives, but lately, under the leadership of the soon-departing Jon Leibowitz, it’s been doing a pretty good job. Pay day loans.  Identity theft.  Mortgage relief scams. 

And lately, the FTC has been up to its eyeballs monitoring the credit reporting industry. In 2010,  the agency issued new rules about those deceptive and often irritating “free credit report” commercials, advertisements and websites. They aren’t.  Free, that is. Wish that were the only problem.

Today, the FTC released a new study finding that when it comes to the three biggest credit bureaus - Experian, Equifax and TransUnion, “As many as 42 million consumers have errors on their credit reports, and around 20 million have significant mistakes.” Says the FTC, “One in four consumers identified errors on their credit reports that might affect their credit scores,” but only “[o]ne in five consumers had an error that was corrected by a credit reporting agency (CRA) after it was disputed, on at least one of their three credit reports.”

So as beneficial as FTC monitoring is, sometimes it’s not enough. And that was made clear in last night’s 60 Minutes piece about how nearly impossible it is to get a credit reporting agency to fix a mistake once they know about it, sometimes with ruinous consequences for the consumer. And that’s where lawsuits and state Attorneys General can step in.

First the lawsuits. Judy A. Thomas, who had a great credit history, was denied car loans, credit cards, etc. etc. because her credit reports confused her with someone named Judith Kendall who had a lot of debt. It shouldn’t have come to this, but until she took those credit agencies to court, nothing got resolved. 

As for AG’s, back in 1996, Congress amended the Fair Credit Reporting Act (FCRA) to include state enforcement provisions. (See more in this law review article.) And last night’s piece, based on a series that first appeared in the Columbus Dispatch, showed how valuable a move that was. Writes the Dispatch:

Ohio Attorney General Mike DeWine [who appeared in the 60 Minutes piece]… and at least 24 other state attorneys general launched an investigation into the three national credit-reporting agencies after a Dispatch series Credit Scars, exposed systemic flaws in their operations that prevent consumers from correcting costly mistakes.

DeWine has discussed the problems with officials from Experian, Equifax and TransUnion. No solutions have been proposed yet, he told The Dispatch on Friday, but his work with them will continue…

Without that power, these 24 state AG’s would have no tools to help their own citizens, if only to try to push Congress to strengthen the federal law. This is the kind of state power that groups like the U.S. Chamber of Commerce and the American Tort Reform Association want Congress to strip away.  Seems they don’t want to sully our federalist system with too much state power. … Oh wait.

Cutting Class – Actions, That Is

Yesterday, Allstate filed a federal lawsuit in New York State to recover $796,000, alleging that bunch of doctors and medical groups fraudulently billed them.  According to Allstate’s press release, “Since 2003, Allstate has filed thirty-nine fraud lawsuits in New York, seeking nearly $204 million dollars in damages.”  How nice for them.  Did you ever notice how freely doctors and insurance companies run to court to sue each other?  (See also, for example, the 2003 class action brought by New Jersey doctors against Allstate and other auto insurers for underpaying them after treating accident victims, and other examples here.)

At the same time, insurers and doctors are running around the country trying to limit consumers’ and patient’s rights to sue them when they kill, harm or rip-off everyday people.  (See more about how the American Legislative Exchange Council helps them do that - including wiping out consumer class actions - in Media Matter’s analysis of ALEC’s “Tort Reform Boot "firmly on the neck of justice" Camp, and other gems.)  And unfortunately, some courts have been helping.  Look what a struggle it’s become in Florida, for example. 

Yesterday, a case was argued before the Florida Supreme Court to determine whether a class action can even move forward against notoriously-rotten payday lenders.  Like many businesses these days, these companies have stuck into their contracts fine-print arbitration clauses, which try to waive consumers' rights to file class-action lawsuits.  This has become the norm since the practice was recently upheld by the U.S. Supreme Court in a 5-4 decision, AT&T Mobility LLC. v. Concepcion.  In trying to deal with this horrendous  case, the wonderful Paul Bland of Public Justice argued what’s obvious to everyone, i.e., that the only way an individual case like this could ever be brought is by banding together with others in a class action.  Said Bland,

“If this arbitration clause had said, you have to go to Alaska to bring claims, that would be unenforceable. If the arbitration clause had said that the filing fees for the arbitrator would be a million dollars, there’s no doubt that that would be unenforceable.  And this was a trial court’s finding that there was essentially no reasonable avenue other than a class action.”

Notably, the lower Florida courts agreed with him, with Circuit Judge Elizabeth Maass calling the class action bad "unconscionable."  Writes the Miami Herald, “Bland said the decision did not invalidate prior U.S. Supreme Court rulings saying consumers must be able to effectively vindicate their rights. ‘A procedure that ends up gutting the rights effectively is enough to render the clause unenforceable.'"

Meanwhile in California, Honda Motor Co. was able to get a $10,000 small-claims judgment reversed, a case it had lost in small claims court for overstating the fuel economy of the Civic hybrid.  The plaintiff in this case, a Los Angeles woman, had rejected a class-action settlement and filed in small claims instead. Other Civic hybrid owners followed, rejecting the settlement and also filing small claims.  But car owners are finding that these cases are difficult to prove in small claims court (although they are requiring a lot of attention and resources from Honda). 

Now what?

ALEC Hearts Immunity - Read All About It!

Some important updates on a few stories we’ve been following:

First comes breaking news that George Zimmerman will be charged with Travyon Martin’s murder today, which we assume means he won’t be able to take advantage of the civil immunity provision in Florida’s Stand Your Ground laws.

And on the related ALEC front, kudos to Minnesota Governor Mark Dayton for vetoing yet another ALEC bill (see our coverage of some of his other vetoes). This legislation would have protected the asbestos industry and successor companies from liability, greatly harming asbestos victims.  Meanwhile, Wendy’s joined the list of other high-profile ALEC corporate members disassociating itself from that organization.  And now, shareholders may be joining anti-ALEC efforts, as well. 

Following up on our coverage of the struggles of a severely injured former Pennsylvania student, Ashley Zauflik, to overcome a Draconian $500,000 cap on the school district’s liability, today her lawyers went back to court.  They are arguing that not only is the cap unconstitutional, but also that “the district should face sanctions [because it] withheld the existence of a $10 million insurance policy until after the trial.” 

Meanwhile, medical device manufacturer St. Jude lost its efforts to force a retraction by the medical journal that published devastating research, led by renowned cardiologist Dr. Robert Hauser, about the horrendous defects in its implanted heart defibrillators.  Writes the New York Times, “the journal’s editor, Dr. Douglas P. Zipes, said in an interview late Monday that the publication had looked at St. Jude’s complaint and did not plan to pull back the article, which had undergone review by experts associated with the journal before its online publication two weeks ago.”  This is all part of St. Jude’s (backfiring) “scorched earth” attack on its critics.  

Now this next one isn’t exactly an update, but the irony is just too good: the exceedingly pro-tort reform, anti-litigation Koch brothers are filing another suit against the Cato Institute, which sponsors the exceedingly pro-tort reform, anti-litigation blog, Overlawyered.com. Oh my. Talk amongst yourselves.

Corporate Rights Without Responsibilities, Take Two

Yesterday marked the 19^th anniversary of 1993 terrorist bombing of the World Trade Center.  It’s hard for many of us to even recall this event in light of the horrific events of 9/11, yet that first bombing did kill six people and injured hundreds of others.  Many of those victims sued the Port Authority of New York and New Jersey, since the agency had been warned about the trade center’s vulnerability to bomb attacks.  But it’s been some struggle. Last September – that’s right, September 2011 – a divided state Court of Appeals finally found the agency immune from suit.

Lately, New York state courts haven’t been terribly kind to victims of terrorism and human rights abuses. 

Tomorrow, the U.S. Supreme Court hears an incredibly important case called Kiobel v. Royal Dutch Petroleum, stemming from a federal lawsuit brought under the Alien Tort statute, a remarkable federal law that allows people from countries outside the United States to sue foreign individuals and multinational corporations that commit human rights violations abroad - like torture, crimes against humanity, war crimes, genocide, disappearances, summary execution, that kind of thing.  No other country in the world has a statute like this.

Under the Alien Tort statute, those who order or authorize the violations can be held liable.  Those with command responsibility, including those with authority over the actions of their troops and subordinates, who knew about the violations, can be liable.  Also, some cases have allowed suits against groups involved in human rights violations (e.g., the Zimbabwe African National Union-Patriotic Front, the Islamic Salvation Front).  Individuals who commit genocide, crimes against humanity and war crimes can be held liable even if they are not acting with the authority of the state.  (See more here.)

And until Kiobel, corporations headquartered or doing business in the United States have always been liable, as well.  (We've covered some of this here.)  But the 2nd Circuit changed everything.  An article in the Harvard International Law Journal explained it this way:

On September 17, 2010, a two-judge majority of the Second Circuit held in Kiobel v. Royal Dutch Petroleum Co. that “corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the [Alien Tort Statute].”  The Alien Tort Statute (“ATS”) is a well-known tool that grants U.S. federal courts jurisdiction over civil suits brought by aliens for torts committed in violation of international law. The statute has been used for the past three decades to hold perpetrators of human rights abuses accountable in U.S. courts. Some ATS cases have involved conflict zones, and since the mid-1990s, ATS cases have been brought against corporations for their alleged involvement in human rights violations.

Prior to the Kiobel court’s ruling on September 17, no appellate court had ever held that corporations were not subject to suit under the ATS.  Indeed, numerous corporate ATS cases had proceeded through the courts with no indication that corporations could not be held liable or that this was an issue of subject matter jurisdiction. By ruling that the scope of liability for a violation of a given international norm does not extend to corporations, the Second Circuit majority, in the words of concurring Judge Leval, “deals a substantial blow to international law and its undertaking to protect fundamental human rights.”

The scary part now is that the U.S. Supreme Court is about to get its hands on this case.  Why scary?  When you think about it, treating corporations like people should be a no-brainer for this Court.  As David Savage at the LA Times put it,

Two years ago, the Supreme Court said corporations were like people and had the same free-speech rights to spend unlimited sums on campaigns ads. Now, in a major test of human rights law, the justices will decide whether corporations are like people when they are sued for aiding foreign regimes that kill or torture their own people.

But then again, there’s this other principle at work with this Court - letting corporations get away with whatever they want. Peter Weiss, vice president of the Center for Constitutional Rights in New York, wrote a powerful op ed in the New York Times over the weekend, explaining:

Next week, the Supreme Court will hear a case with many potential ramifications for American and international law, and for corporate responsibility for human rights around the globe. The justices will be asked to decide whether the corporations to which they have been extending the rights of individuals should also be held accountable for crimes against human rights, just as individuals are....

[D]ozens of successful alien tort claims have been brought in American courts — at first against individuals, and eventually against corporations. As a result, many foreign victims of egregious crimes — ranging from torture and slave labor to the execution of loved ones — that were sanctioned, endorsed or commissioned by corporations have found justice in our courts.

Yet in September 2010, a divided Second Circuit — the very court that had rendered the Filártiga decision — held that only individuals, and not corporations, can be sued under the statute.

That ruling, in a case known as Kiobel v. Royal Dutch Petroleum, came less than a year after the much more famous — and criticized — Supreme Court decision in Citizens United, which removed restrictions on political spending by contributions and wildly expanded the concept of corporate personhood.

Together, these decisions have triggered a wave of outrage among advocates for human rights, which see in them a signal from the courts that corporations have extensive rights but few responsibilities under American law.

Rights without responsibilities.  Welcome to the eighth blunder of the world.

UPDATE:  Indeed, it sure doesn't look good for the victims.

Loser Perry Isn't Payin'

Now that Rick Perry is just plain ol’ Texas Governor again, a guy who catapulted into governance after a solid “C” “D” and occasional “F” college record, we can get back to discussing what’s important.  His hypocrisy.

Late last week, Mr. Perry (as well as some other candidates who we won’t bother with for now except to note "epic tort reform hypocrisy") lost his lawsuit against the State of Virginia’ Board of Elections over its ballot access rules. Mr. Perry brought this suit even though he failed to submit the requisite total number of signatures – 10,000 – so his claim was obviously going to get kicked out.

Who represented Perry in this loser of a case? Joe Nixon, that’s who.  Joe Nixon, observed Dallas Morning News journalist Wayne Slater, is a former Texas legislator who was, “the architect of 2003's sweeping tort reform law in Texas that curbed civil lawsuits.”  (We’ve covered the devastasting impact of that law, like here, here.)  Upon losing his case, Mr. Nixon said, "'I commend Governor Perry for his courage and tenacity in pursuing the case and seeking to protect the rights of Virginia voters [while decimating the rights of Texans.]'"  Pardon the poetic license.

But it gets worse.  If it’s one thing Rick Perry has made clear, it’s that he hates lawsuits.  Just hates them.  In fact, he hates them so much that he spearheaded and takes credit for a Texas “loser pays” law. In Texas, the idea is that if you file a lawsuit and lose, you are supposed to reimburse the legal costs of the insurance company for the corporation you sued, at least in some cases.  The British rule.  In other words, forget the American rule. Mr. Perry prefers that Texas be like England. 

Wayne Slater raised the question back in December:  “[I]f Perry loses, will he abide by what he supported in Texas and pay all the costs?” To which his spokesman responded that this wasn’t a frivolous case and besides, "'Typically courts do not award fees to a government defendant' (which in this case would be the state of Virginia)" but "'technically, the courts could require payment of defendant's fees in this case if they prevail.'" And then he’ll pay.  In other words, he’s not making any offers.

Not only that, Perry is the kind of states’ rights guy who says he really hates it when federal judges tell states what to do.  Except, apparently, when he needs to advance his career, in which case he’ll clearly ask a federal judge to tell a state what to do.  Perry spokesman again:  "'[States rights] is certainly something that the courts will decide. We believe that the people of Virginia have the right to choose among candidates and not be limited to just two because of onerous and, we believe, unconstitutional ballot-access provisions.'"

I didn’t notice an ethics course on Perry’s Texas A&M college transcript.  I’m sure they’d welcome him back.

Montana’s "Tort Reform" Hypocrite – Caught!

Well well well, as the Church Lady would say, isn’t that special.  A big class action lawsuit has just been filed by 38,000 Montana wheat farmers, cattle ranchers and others against former New Jersey governor Jon Corzine, claiming that “the failed financial firm run by Corzine stole millions from their accounts to pay off its spiraling debts, and that Corzine's ‘single-minded obsession’ with making MF Global a big player on Wall Street led to the firm's collapse.”

Seems like the farmers had “’hedged’ their crop prices by placing millions in MF Global accounts but MF Global made a series of bad investments -- notably in European debt – [and] it began ‘siphoning funds withdrawn from segregated client accounts’ to cover its debts.”

Now that’s what we like to see!  No matter the outcome, it’s a great example of the civil justice system providing a level playing field so that farmers and small business owners can pool together and take on a big Wall Street fat cat!  In fact, who wouldn’t agree that everyday people, farmers and small business should have a level playing field when it comes to taking on Big Corporate America?

Their lawyer.  Apparently.

Mark Baker represents plaintiffs in this case (see him quoted here), and I don’t doubt that he’s all for this lawsuit.  But Mark Baker is also a Montana lobbyist and not just any lobbyist. He’s a lobbyist for the American Tort Reform Association, the DC trade association funded by large corporations that seeks to limit liability for its members, which we’ve covered many times, like here.

Not only that, Mr. Baker specifically lobbied for laws in 2011 written nationally by the corporate-backed American Legislative Exchange Counsel (ALEC), (we’ve covered ALEC quite a bit, like here), which would have placed new burdens on injured Montana victims who bring and win lawsuits, as well as make it more difficult for the state of Montana to hire outside counsel, allowing it to recoup money from corporate wrongdoers for its taxpayers.

According to lobby report, Mr. Baker supported three bills for ATRA: HB 341, HB 342, HB 585:

HB 341 would limit the interest on judgments for injured victims, but not for corporations.  Here’s the ALEC model bill. 

HB 342 lowers appeal bond amounts.  Here’s the ALEC model bill.  This issue has been a huge one for ALEC as far back as we can remember.

HB 585 deals with contracts between state AG's and outside counsel.  It is based on the ALEC model bill.

This final bill, which ALEC has pushed hard, would interfere with the contractual arrangement between outside counsel and the state Attorney General office, which are generally underfunded and understaffed and can't hope to take on big industries without outside counsels' help. Their work often results in states recovering billions of dollars from corporate wrongdoers.  (We've covered this issue a bit here.)

So what exactly did Mr. Baker say when lobbying for these bills?  That he would like his clients to have their day in court but not anyone else?  That he wants his clients’ legal rights protected but would like to weaken everyone else’s?  Did he complain about people suing – except when he's the attorney?  Did he complain about trial lawyers – except himself? 

Well, nothing new here.  Move along.