Washington, D.C. — Senate bill S. 5 is anything but fair to the many individuals harmed each year by corporate wrongdoers. This bill would block significant access to the civil justice system. To do so in the middle of a corporate crime wave is simply irresponsible. Those damaged by pollution and environmental harms would have their liberty to seek remedy unduly curtailed. Labor violations — where wages are too low and hours too long — would likely proliferate as the traditional means of redressing these issues would be undercut by S. 5. According to The Lancet, a respected medical journal, between 88,000 and 140,000 consumers of Vioxx have been seriously harmed; under S. 5, those who suffered under this recently elucidated scandal — where corporate greed trumped scientific study — would be left without efficient recourse. This bill would also put Connecticut citizens at a greater disadvantage than the rest of the larger states when trying to seek remedy for any egregious pollution, labor or consumer harms.
S. 5 is a cleverly crafted Gordian knot. It binds the hands of federal judges, and forces them to declare any class action of significance — usually encompassing many plaintiffs from multiple states — “unmanageable.”
S. 5 would affect each state differently; those states that would experience the greatest adverse effects from this legislation are the smallest states in the Republic. A small state, like Connecticut, would have difficulty mustering together enough injured parties from the state to use the state class action remedy.
While a common-sense amendment (the Bingaman amendment) will be offered to untangle some of the worst provisions of this bill for innocent consumers and taxpayers, Senator Dodd has stubbornly refused to support this prudent improvement. The Bingaman amendment is a modest procedural proposal that would mitigate the negative impact that S. 5 would otherwise have on consumers. It does so by incorporating suggestions made by the preeminent Harvard legal scholar, Arthur Miller, to prevent federal judges from being forced to simply dismiss class suits as “unmanageable.” Other co-sponsors of this bill have indicated a willingness to support the Bingaman amendment. If Senator Dodd chooses to support the will of big business to subjugate our courts, the citizens of Connecticut will know exactly who to blame.
I remain closely involved with my home state of Connecticut, and by my estimation, Senator Dodd has neglected to spend a fraction of the time discussing this bill with Connecticut state judges that he has with the promoters and lobbyists behind S. 5; namely the Chamber of Commerce and the Insurance Industry lobby. It boggles the mind that a Senator would overlook the experienced opinions of his own state judges when it comes to legislation that would pre-empt the fundamental principles of Federalism. To so blithely subvert the interests of his constituents back home for those of the Washington business lobbies is shameful.
Ralph Nader’s letter to Senator Dodd follows:
February 1, 2005
Senator Christopher Dodd
SR-448 Russell Building
United States Senate
Washington, D.C. 20510
Dear Senator Dodd, I am dismayed to learn that you are again aligned with the Republican majority and the Chamber of Commerce on legislation that would take away a fundamental freedom from average Americans. The callous Chamber of Commerce — fronting for widely reported and confirmed corporate wrongdoers — has received its legislative wish with Senate Bill S. 5, scheduled to be marked-up this week without public hearings in the Senate Judiciary Committee. Should this anti-law bill pass, innocent victims of fraud, labor law violations, civil rights abuses, unsafe products and environmental harm will be left without the fundamental, judicially limited freedom they have now to sue defendant corporations, which in many instances will be able to escape being held accountable. This is Washington’s pay-to-play politics at its worst.
Senate bill S. 5 would move state class action lawsuits to the much more business-friendly and congested federal court system. Federal and state judges, legal scholars, and public interest organizations roundly oppose the prospect of such a backward step.
The Federal Judicial Conference led by Chief Justice Rehnquist opposes such legislation because “of concerns that the provisions would add substantially to the work load of the federal courts and are inconsistent with principles of federalism.”
Corporate wrongdoers favor this legislation out of pure economic avarice. They prefer the federal courts because the rules to certify a class suit are more onerous, making it procedurally more difficult for plaintiffs to file suit in the first place. In fact, many federal courts will simply dismiss class action lawsuits, such as systemic billing overcharges, on the grounds that the case is “unmanageable” whenever the class is made up of citizens of many different states suing under different state laws. Among other scholars and judges, this is the considered expert judgment of Professor Arthur Miller of Harvard Law School.
State class actions would be removed to federal court and then consolidated for pretrial motions, such as class certification. Many of these cases will then be dismissed because adjudication would call for applying the laws of numerous states. This diabolically designed Gordian knot of a bill creates the impression of fairness, but leaves aggrieved parties without judicial recourse because no federal consumer protection statute exists.
Moreover, federal judges are often reluctant to interpret state laws in ways that expand liability or provide additional remedies for plaintiffs. The U.S. Court of Appeals for the Seventh Circuit noted, “when we are faced with opposing plausible interpretations of state law, we generally choose the narrower interpretation which restricts liability, rather than the more expansive interpretation which creates substantially more liability.” These very same denials and rejections proffered by federal courts are usually claims duly recognized by state courts that better understand local issues and have more experience in handling such cases.
As you know, class action lawsuits were created as a vehicle to offer a degree of fairness and efficiency to citizens collectively when pitted against the comparatively limitless resources of a predatory giant corporation. Multiple plaintiffs are allowed a more level playing field by pooling together their grievances because each taken alone may not economically warrant an individual lawsuit. A collective injury and established pattern of fraudulent or harmful behavior displayed by a wrongdoing corporation as a whole may be quite substantial — in the billions of defrauded dollars — and often merits significant damages. This serves to fulfill the goal of deterring future infliction of injury while properly compensating affected individuals as determined by state judges and jurors. They are the only ones who hear, see and evaluate the evidence and law for such cases. S. 5 would undo this crucial consumer safeguard, thereby widening the gap between relatively powerless individuals in America and the global corporate behemoths that want to hijack more of the people’s access to justice.
The egregious provisions contained in S. 5 are certainly not fair to the many individuals harmed by corporate wrongdoers every year (especially during a five year corporate crime wave). Consider, for instance, the between 88,000 and 140,000 (according to the respected medical journal, The Lancet) given heart disease by Merck’s Vioxx; do they deserve to have their judicial recourse negated when corporate greed trumped and suppressed the scientific studies demonstrating the drug’s lethal harm to trusting patients?
While a common-sense amendment (the Bingaman amendment) will be offered to untangle some of the worst provisions of this bill for innocent consumers and taxpayers, you have stubbornly refused to support this prudent improvement. The Bingaman amendment is a modest procedural proposal that would mitigate the negative impact that S. 5 would otherwise have on consumers. It does so by incorporating suggestions made by the preeminent Harvard legal scholar, Arthur Miller, to prevent federal judges from being forced to simply dismiss class suits as “unmanageable.” Other co-sponsors of this bill have indicated a willingness to support the Bingaman amendment. If you choose to support the will of big business to subjugate our courts, the defrauded citizens of Connecticut will know exactly who to blame.
I remain closely involved with my home state of Connecticut, and by my estimation, Senator Dodd, you have neglected to spend a fraction of the time discussing this bill with Connecticut state judges that you have with the promoters and lobbyists behind S. 5; namely the Chamber of Commerce and the Insurance Industry lobby. It boggles the mind that a Senator would overlook the experienced opinions of his own state judges when it comes to legislation that would pre-empt, as Chief Justice Rehnquist has said, the fundamental principles of Federalism. To so blithely subvert the interests of your constituents back home for those of the Washington business lobbies is shameful.
Do the right thing and reject this destruction of contemporary civil justice freedoms historically accorded wrongfully injured and defrauded men, women and children in your state of Connecticut. Beware of the further concentration of corporate power and abuse and uphold your responsibility to protect your constituents.
It is bad enough that Congress doesn’t legislate to prevent the corporate abuses to the health, safety and well being of Americans; Congress most certainly should not move to limit the courts from dispensing compensatory justice once these abuses inflict their damages.
P.O. Box 19312
Washington, D.C. 20036
*For more information contact Mark Wittink (202) 387-8030