March 31, 2017

Private: The Death of Class Actions?

Dan Karon

by Dan Karon, Karon LLC

A German auto manufacturer lies about its cars’ emissions and swindles billions. Too bad. An energy company cooks the books and steals millions of people’s retirement money. So sad. A chemical company dumps toxic waste into a river and kills thousands of children downstream. Pound sand.

If Congress passes H.R. 985—the Fairness in Class Action Litigation Act—these horrifying scenarios will be just the beginning. The bill reads like a Chamber of Commerce wish list because it is. It will kill all class actions and will sacrifice the valuable, necessary and commendable work that consumer attorneys have performed for decades. It will gut human-rights cases, eviscerate employment-abuse cases and kill defective-drug and products cases. Its carnage is too expansive to list here. The bill will leave nothing but an unpoliced wasteland, where unaccountable corporations will exploit their new world order, knowing that no one can stop them.

If this all sounds too horrible to be real, I am sorry—it is. Despite all the scares that the class-action bar has agonized through, this congressional blow not only will crush people’s right to justice, but also will decimate plaintiffs’ and defense firms overnight. If you think I am kidding, read the bill.

How did we get here? Simple. Bad plaintiffs’ lawyers brought too many bad cases. But these sewer lawyers neither resemble nor represent the plaintiffs’ bar—lawyers who risk comfort, safety, and security every day by committing to a contingent-fee model, where the upside of bygone days no longer exists. We do this because it is important, because we care, and because we want to make a difference. These motivations may seem silly or unimaginable to lawyers who have never done this type of work, who have never risked their practice, and who favor getting paid per hour to getting paid perhaps. Plaintiffs’ work is not for everybody.

Most of us chose this road because we care differently. We care when we see corporations stealing from seniors, companies selling killer cars to young families and power plants giving kids cancer. To us, the plaintiffs’ profession remains a risk worth taking and a cause worth pursuing.

Or it least it did.

If Congress passes H.R.985, my stories will be a eulogy. Plaintiffs’ and defense lawyers’ jobs will disintegrate. Snap. Just like that. And make no mistake about it, when this happens defense lawyers and their firms will be poured down the same hole as plaintiffs’ lawyers and ground into the same unrecognizable refuse. Defense lawyers’ challenge is that they believe they are helpless to save their lives. They think they are relegated to sitting out, hoping the plaintiffs’ bar, with its commitment, passion and vigor, will do something to help them. Disabling as that sounds, even smart defense lawyers think that way.

But they should not. Never mind which side you are on, class-action lawyers are a community. We respect each other. We work together to solve shared problems so that both sides emerge in a decent and acceptable place. I have as many dear friends at defense firms as I do plaintiffs’ firms. I know this dynamic is true.

So what are plaintiffs’ and defense lawyers to do? As routine as it sounds, they must engage their senators to ensure that access to the courts is not further and unnecessarily restricted.    

Now is our chance as a class-action community to do something to save our professional lives. If we do nothing, if we do not quietly contribute, when summer comes and class actions are dead, we can enjoy telling our families that we could have helped but did not. That is not a joke. It will happen and we will be having that conversation. So everyone, do your part now.