LeMod Pol
03-01-2005, 10:15 AM
A Needed Fulcrum for Fairness
in Class-Action Litigation
By Marion Edwyn Harrison, ESQ. *
February 24, 2005
Class actions are here to stay. The question, then, is
to how to make them fairer without damaging the
federal, a state or local judicial system.
Last Thursday I was among those honored to accept an
invitation to witness President George W. Bush's
signing in the East Room of the White House the
optimistically - one hopes, not euphemistically - named
Class Action Fairness Act of 2005.
As layman and lawyer alike know, a class action is
litigation in which a handful of plaintiffs sue a
defendant on behalf of themselves and huge numbers -
sometimes tens or hundreds of thousands - of other
people who allegedly suffered materially the same
injury from the same defendant.
The arguments in favor of allowing a class action
primarily are twofold (although the first is not always
applicable). (1) Few, if any, of the plaintiffs could
afford to sue solely on their own behalf because
ordinarily the damage to one plaintiff is small but
multiply by thousands of people and the damage is
large. (2) Thousands or tens or hundreds of thousands
of individual cases, even if (as often would be
necessary) filed in local small-jurisdiction courts,
would jam court dockets out of control.
The arguments against allowing a class action are more
extensive. (1) Class actions are rife with abuse,
usually to the great monetary advantage of the
so-called "trial lawyers" - that is, the lawyers who
recruit those people who are the named plaintiffs (and
many of which lawyers nowadays are career "trial
lawyers," a fancier name for plaintiffs'
contingency-fee attorneys). (2) Often the plaintiffs
get a pittance, the lawyers a windfall. (3) Often the
injury to a plaintiff is so minimal as not to be worth
the aggravation of trying to redress it. (4)
Occasionally a defendant is ruined for life if an
individual, the company bankrupted if a corporation,
all beyond the evil of the offense. (5) Sometimes the
affect upon interstate commerce, local commerce,
employees, pensions, shareholders is devastating.
Notwithstanding the fact the rest of the world does not
have class actions as we know them, for the foreseeable
future they are here to stay in our country. The
question, then, is to how to make them fairer without
damaging the federal, a state or local judicial system.
President Bush and a bipartisan - yes, there is some
bipartisanship left - Congress thus enacted the Class
Action Fairness Act. The President over time doggedly
has been working for this type of legislation. The
House of Representatives approved it 279 - 149. Of
note, several veteran Democratic Senators supported it,
among them Christopher J. Dodd, Connecticut, Dianne
Feinstein, California, Charles E. Schumer, New York.
(Maybe the first two are not that surprising. Both, and
especially Mrs. Feinstein, from time to time digress
from the liberal path for something pragmatic; not
surprisingly, both are popular with their colleagues.
Maybe Senator Schumer isn't surprising either inasmuch
as New York State by and large has a competent
judiciary and reasonably realistic jurors.) The rabid,
real and imagined "consumer" groups, of course, opposed
the Act, as did House Minority Leader Nancy Pelosi, of
San Francisco and John Conyers, of Detroit - geography
tells a lot, doesn't it?
What does the new law do and why?
When interstate commerce is involved, as it is with
most class actions, the Act confers jurisdiction upon
the Federal Judiciary to try the case. Depending upon
where you live, federal judges and juries may not be
any more objective and respectable than state judges
and juries. However, in many states, and jurisdictions
within states, judges and juries aren't up to that
level. The trial lawyers know where to sue. If the
alleged offense is sufficiently pervasive, they can
find a nominal plaintiff some place: Let's try where
the juries are unrestrainedly sympathetic; judges are
elected; trial lawyers are powerful, affluent and
generous with political donations to such judges.
Would anybody have guessed that Madison County,
Illinois, only 1/19th of the population of the State of
Illinois, is a popular class-action litigation forum or
that the President of the United States would be
talking about it?
The President wisely mentioned that the new law will
not cure all the evil and that, among other things, the
law must be improved as to medical malpractice
litigation. Physicians' net incomes are down - in some
places very dangerously down - and patients are paying
higher fees. ...
< ... >
www.aim.org/guest_column/2688_0_6_0_C/
--
LP
"We are fighting today for security, for progress,
and for peace, not only for ourselves but for all
men, not only for one generation but for all
generations. We are fighting to cleanse the world
of ancient evils, ancient ills."
Franklin Delano Roosevelt
State of the Union Address - 1942
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in Class-Action Litigation
By Marion Edwyn Harrison, ESQ. *
February 24, 2005
Class actions are here to stay. The question, then, is
to how to make them fairer without damaging the
federal, a state or local judicial system.
Last Thursday I was among those honored to accept an
invitation to witness President George W. Bush's
signing in the East Room of the White House the
optimistically - one hopes, not euphemistically - named
Class Action Fairness Act of 2005.
As layman and lawyer alike know, a class action is
litigation in which a handful of plaintiffs sue a
defendant on behalf of themselves and huge numbers -
sometimes tens or hundreds of thousands - of other
people who allegedly suffered materially the same
injury from the same defendant.
The arguments in favor of allowing a class action
primarily are twofold (although the first is not always
applicable). (1) Few, if any, of the plaintiffs could
afford to sue solely on their own behalf because
ordinarily the damage to one plaintiff is small but
multiply by thousands of people and the damage is
large. (2) Thousands or tens or hundreds of thousands
of individual cases, even if (as often would be
necessary) filed in local small-jurisdiction courts,
would jam court dockets out of control.
The arguments against allowing a class action are more
extensive. (1) Class actions are rife with abuse,
usually to the great monetary advantage of the
so-called "trial lawyers" - that is, the lawyers who
recruit those people who are the named plaintiffs (and
many of which lawyers nowadays are career "trial
lawyers," a fancier name for plaintiffs'
contingency-fee attorneys). (2) Often the plaintiffs
get a pittance, the lawyers a windfall. (3) Often the
injury to a plaintiff is so minimal as not to be worth
the aggravation of trying to redress it. (4)
Occasionally a defendant is ruined for life if an
individual, the company bankrupted if a corporation,
all beyond the evil of the offense. (5) Sometimes the
affect upon interstate commerce, local commerce,
employees, pensions, shareholders is devastating.
Notwithstanding the fact the rest of the world does not
have class actions as we know them, for the foreseeable
future they are here to stay in our country. The
question, then, is to how to make them fairer without
damaging the federal, a state or local judicial system.
President Bush and a bipartisan - yes, there is some
bipartisanship left - Congress thus enacted the Class
Action Fairness Act. The President over time doggedly
has been working for this type of legislation. The
House of Representatives approved it 279 - 149. Of
note, several veteran Democratic Senators supported it,
among them Christopher J. Dodd, Connecticut, Dianne
Feinstein, California, Charles E. Schumer, New York.
(Maybe the first two are not that surprising. Both, and
especially Mrs. Feinstein, from time to time digress
from the liberal path for something pragmatic; not
surprisingly, both are popular with their colleagues.
Maybe Senator Schumer isn't surprising either inasmuch
as New York State by and large has a competent
judiciary and reasonably realistic jurors.) The rabid,
real and imagined "consumer" groups, of course, opposed
the Act, as did House Minority Leader Nancy Pelosi, of
San Francisco and John Conyers, of Detroit - geography
tells a lot, doesn't it?
What does the new law do and why?
When interstate commerce is involved, as it is with
most class actions, the Act confers jurisdiction upon
the Federal Judiciary to try the case. Depending upon
where you live, federal judges and juries may not be
any more objective and respectable than state judges
and juries. However, in many states, and jurisdictions
within states, judges and juries aren't up to that
level. The trial lawyers know where to sue. If the
alleged offense is sufficiently pervasive, they can
find a nominal plaintiff some place: Let's try where
the juries are unrestrainedly sympathetic; judges are
elected; trial lawyers are powerful, affluent and
generous with political donations to such judges.
Would anybody have guessed that Madison County,
Illinois, only 1/19th of the population of the State of
Illinois, is a popular class-action litigation forum or
that the President of the United States would be
talking about it?
The President wisely mentioned that the new law will
not cure all the evil and that, among other things, the
law must be improved as to medical malpractice
litigation. Physicians' net incomes are down - in some
places very dangerously down - and patients are paying
higher fees. ...
< ... >
www.aim.org/guest_column/2688_0_6_0_C/
--
LP
"We are fighting today for security, for progress,
and for peace, not only for ourselves but for all
men, not only for one generation but for all
generations. We are fighting to cleanse the world
of ancient evils, ancient ills."
Franklin Delano Roosevelt
State of the Union Address - 1942
----== Posted via Newsfeeds.Com - Unlimited-Uncensored-Secure Usenet News==----
http://www.newsfeeds.com The #1 Newsgroup Service in the World! 120,000+ Newsgroups
----= East and West-Coast Server Farms - Total Privacy via Encryption =----
