Sunday, November 7, 2010


Justizia, by Luca Giordano

One fine day, Harold Deadman stopped off at Walmart on one of his savings sprees. He liked to surprise his bride of fifteen years will bags and bags of goodies from time to time. Harold figured out that he could save $63.46 a month in this endeavor to seek the lowest prices for the staples necessary to keep his family properly supplied.

Suppose now, that following one of these shopping sprees, Harold came down with ‘the bug’ and instead of making a full recovery over the week, he ended up in the hospital with a lung infection and two years later he died from complications.

Further suppose that Harold earned $500,000 a year as an executive for an advertising firm and your wife and five minor children are devastated.

Finally, suppose that Walmart had purchased some real cheap toothpaste from a smaller corporation with ties to China and that the toothpaste had kind of escaped FDA scrutiny. The toothpaste later was found to contain poisonous substances.

And, Mrs. Deadman revealed later that her deceased husband had purchased six packages of that toothpaste, bringing it home with glee after having saved $4.56 by having his entire family brush with Glea Toothpaste.

Well, about seventeen law firms would end up crawling on their knees to the Deadman’s homestead begging for the opportunity to represent the Deadman’s family in a suit against Walmart et al. The attorneys who finally landed that case would spend a million dollars on experts and investigators with the certainty that  tens of millions of dollars would be won in a personal injury lawsuit brought against ten or more corporations. 

America, what a country!!!

I mean if one of those little cherubs in the Deadman’s family came down with the sniffles for even a couple of days, the potential verdict would increase exponentially.  

There would not be one judge in this country serving on the Federal bench or a state bench who would block this widow from entering the doors to the courthouse.

I gleaned this scenario from an episode of Law & Order this morning but this type of tort action is brought to the fore every day in our nation. Tort law is big business.

And republicans will do anything to stop these kinds of suits because they attack big business and the humongous insurance structure in America today. The right wingers would seek and always seeks ceilings on personal injury awards by putting artificial caps on compensatory damages as well as punitive damages. They also seek shorter and shorter windows for bringing a suit against corporations—this subsumed under that category of Statutes of Limitations.

In the conservative southern and western states more and more impediments for individuals seeking justice in our civil courts have been created by state legislatures.  Because of this trend, more and more attorneys bring suit in Federal Court.

Let us make a Federal Case out this, cries the plaintiff’s attorney.

The sales job for the repubs is to convince the American People that if civil jury verdicts are kept to a minimum, Americans will have the opportunity to find cheaper and cheaper toothpastes on their Walmart shelves.

As a tool for social justice, tort law sucks. A few people, relatively speaking, make out like bandits. The plaintiffs are usually richer and smarter and better able to present themselves before juries.

So our tort system ends up being a lottery; a huge scratch-off game providing the few with everything. In other words it reflects our economy as a whole.

Clever attorneys with the aid of the courts and legislatures had come up with a tool that helped unclog our civil courts and that was aimed at having a more egalitarian effect upon our citizenry.

The class action was developed so that one court action could seek compensatory damages from the felonies committed by our larger corporate entities.

Assume a computer company sells 500,000 PCs over a period of three years. Further assume that 15000 of those units fail from some overheating defect within a month following purchase.

A couple houses may have burned down, a few people might have lost a limb or two, and 15000 people lost fifteen hundred bucks.

It is impossible for one person to file a suit against the PC manufacturer because of the monies attributable to the loss unless he or she lost a limb or a house.

So some smart attorney locates fifty disgruntled purchasers and begins a class action suit against the corporation. The law firm can spread out the costs of litigation and through discovery find all of the disgruntled consumers and seek compensatory damages.

These suits are filed every day in this country on the state and Federal levels.

Republicans do not like class action suits. Republicans really believe that corporations should be able to make money and keep that money, the public be damned.

I stole it fair and square and now it’s mine, all mine.

A class action suit (or any tort suit really) can blind side a capitalist even when that capitalist has adequate insurance. Remember, insurers will attempt to get out of paying damages anyway they can. But that is a subject for another day.

Over the last 30 years, the capitalists have attempted to shut down the class action suit. States have made it more and more difficult to bring class action suits.

Statutes of Limitations have shrunk the time periods within which one might bring a suit against corporations.

The certification process has become harder and harder to overcome. You see, there are always differences in the amount of damages incurred by every plaintiff being represented.

Corporations not only spend huge amounts of money defending themselves in our courts but they spend huge amounts of money bribing legislators to pass laws that block citizens from seeking recompense in our courts.

It hasn't gotten a lot of press, but a case involving AT&T that goes before the U.S. Supreme Court next week has sweeping ramifications for potentially millions of consumers.

If a majority of the nine justices vote the telecom giant's way, any business that issues a contract to customers — such as for credit cards, cellphones or cable TV — would be able to prevent them from joining class-action lawsuits.

This would take away in such cases arguably the most powerful legal tool available to the little guy, particularly in cases involving relatively small amounts of money. Class-action suits allow plaintiffs to band together in seeking compensation or redress, thus giving substantially more heft to their claims.

Consumer advocates say that without the threat of class-action lawsuits, many businesses would be free to engage in unfair or deceptive practices. Few people would litigate on their own to resolve a case involving, say, a hundred bucks.

"The marketplace is fairer for consumers and workers because there's a deterrent out there," said Deepak Gupta, an attorney for the advocacy group Public Citizen who will argue on consumers' behalf before the Supreme Court on Tuesday.

"Companies are afraid of class actions," he said. "This helps keep them honest."

The case is AT&T Mobility vs. Concepcion. The basic question before the court is whether companies can bar class actions in the fine print of their take-it-or-leave-it contracts with customers and employees.

High courts in California and elsewhere have ruled that class-action bans are unconscionable and contrary to public policy.

Well, I already know how this case is going to turn out. I mean it does not take hours and hours of listening to egg heads discuss the issue on some CSPAN panel to figure this out.

The repubs have controlled our Supreme Court for decades and there is no frickin way the court is going to uphold the rights of the consumer.

This all comes down to some silly idea of the contract as being some sacred symbol of freedom in this country.

You cannot bargain with your credit card company or your local utility or Walmart for chrissakes.

So sometime next year I suppose, some long and lengthy piece of propaganda will issue from our Court discussing the freedom to contract and the consumer will once again be screwed.


Alan said...

This is George Carlin's take on the matter:


I had to work with your link C but this is one of my favorite videos.

Full of despair and cynicism, but it is all true.

trkingmomoe said...

Isn't this turning the clock back to when the Supreme Court used contract law interpertations to stop states from writing laws to limit work hours and set a floor on wages? Didn't we fight this battle around 1900? New York passed a law limiting the hours that bakers could work and the Supreme court shot it down sighting the right for employees and employer to enter in a contract of their choosing.

trkingmomoe said...

It is the idea that they have a right to contract what ever they want. Which was the bases for many court rulings that the progressive era politics fought against.


Momoe, these battles are never over.

That Jackass gov in Texas and Cream de Mint in SC are calling for the end of SS, Medicare, name it. No shame. nothing is off the table.