a little class warfare

As I write this, the Senate is debating the Class Action Fairness Act, which is a GOP-backed attempt to federalize interstate class-action lawsuits (i.e. divert them to federal courts, as opposed to the state courts where they’re usually tried). My initial reaction to the bill was, as you’d imagine, fairly negative…as the guy on the treadmill next to me at the gym can attest. Not for the first time, I referred to Trent Lott as an “assface clone” out loud in public.

And this bill does suck. The National Association of Manufacturors is lobbying hard for it, as are the other major business associations. Why? They say that federal courts carry the appropriate jurisdiction over lawsuits involving multiple states, and that current class-action laws allow plaintiffs to “shop” for the most friendly state in which to file for class certification. According to business, forum shopping undermines those critical jurisdictional authorities. Businesses also regularly settle class actions out of court, which can be expensive in large class-action suits. NAM argues that, in addition to the constitutional angle, the current system is bad for consumers and business alike. Tort litigation, much of it frivolous, costs American business hundreds of billions of dollars, raising the cost of services like healthcare and insurance, and thus raising prices on undeserving consumers.

I find this argument to be strong, well-crafted, and completely fucking false. First of all, the real reason they want to federalize interstate class-actions is because federal courts are much less likely to grant class certification than state courts. They’re overburdened, for one thing, which makes them likely to send cases back to the states or deny class certification due to conflicting state laws. We have to keep in mind that the consumer protection laws, wage and hour laws, and anti-discrimination laws under which most class-action suits are brought vary from state-to-state -- and it's the state laws that govern what constitutes a class, as well as the merits of the case. But conflicts between, say, California’s pioneering consumer protection laws and Nevada’s weaker ones should not prevent a company operating in both states from being held accountable by its consumers. In addition, as Public Citizen points out, federal courts traditionally rule more stringently on whether common issues predominate over individual issues (the central question in class certification), and federal judges tend to apply state law conservatively, since it’s outside their scope. All these factors make the Class Action Fairness Act a decidedly business-friendly piece of legislation.

Which, presumably, is why my fearless sellout of a senator (Diane Feinstein) is supporting it – though she claims it’s so that California consumers won’t get screwed when interstate class actions are tried in less-protected states. Of course, giving it to the federal courts is the best way to insure that California's consumer-protection laws (not to mention employment laws, environmental laws, etc.) get thrown out the window.

But here’s the real kicker, and the reason why I think this should be interesting to you, instead of just me. Interstate class action lawsuits are the absolute backbone of the labor movement’s legal war against corporate employers. The UFCW is great and all, but Dukes v. Wal-Mart was the first real blow in the national war against big-box retail employers. Class-action presents not only a credible legal threat, but a remarkable organizing opportunity. For example.

We need a strong, thriving class-action system to protect us as workers, parents, and breathing people in this country. But believe me, we're also gonna need it for that good ol' class war.

Pun intended.