Enter the trial lawyers

Anthony Sanders

If you thought evil companies marketing tobacco, guns and fast food have been sued in order to protect the public interest, check the latest news on the 1998 tobacco settlement. As you might remember, the tobacco companies struck a deal in which state attorney generals agreed not to sue for the claimed harms of cigarette smoking in return for billions of dollars of payments spread over the next couple decades. Trial lawyers heralded this as a victory for public health, and politicians stated the payments would be used in states’ anti-smoking campaigns.

Fast-forward five years and the true intentions of the trial lawyers and politicians become clear. Even though virtually all states pledged not to sue the tobacco companies, private individuals have gone ahead and achieved some success. The only problem is that these lawsuits, if they continue, threaten to bankrupt the tobacco companies. That is, they threaten to bankrupt them well before the states finish extracting their settlement money.

Even though it would help public health, the states are not happy at all about big tobacco companies going bankrupt. Therefore, they are writing briefs in favor of the tobacco companies. The states don’t want bankruptcy because the reason for the tobacco settlement was not the protection of public health but the expropriation of cash. Some of that cash goes to the state coffers and some goes to the trial lawyers who brokered the settlement. The states’ share has hardly gone to public health concerns but is currently being used to cover the states’ well-publicized deficits. The trial lawyers’ funds have gone to financing their new Mc-mansions, and more importantly, toward financing additional class-action lawsuits.

The tobacco fiasco was only one of the first in a series of class-action litigation strategies taken in the name of public health and social justice but actually aimed at creating a new breed of robber baron: the trial lawyer. Unlike the robber barons of old, these industrialists create no wealth and no jobs. Instead, they target legitimate industries selling legal products and litigate them into submission, leaving only higher costs and unemployment in their wake. State attorney generals are their willing accomplices, and consumers are their prey.

Their standard strategy is to invent a claim involving thousands, or even millions, of possible victims. Then the lawyers, assisted by state attorney generals or other public officials, threaten to sue unless the targeted industry ponies up billions of dollars and changes its practices. Notice it is not the plaintiffs, the “victims,” who threaten to sue, but the lawyers. The plaintiffs are somewhere in the background, pawns to the get-rich schemes of the attorneys. Eventually the lawyers and their allies expropriate enough money to fund a third-world nation but leave the industry alive so it can pay its newfound bills.

The only good news in all this is that some industries are not big enough for the golden boy attorneys to sue. Remember the gun lawsuits that were heavily reported a couple years ago? Approximately 30 different cities threatened to sue the gun industry. The cities tried to enlist the help of some of the big-shot trial lawyers who had litigated against big tobacco companies. Instead of jumping at this chance to protect the public health, however, many were reluctant because the gun industry actually is not all that wealthy. Gun companies make nothing compared to the tobacco, oil and auto industries, for example.

Rather than litigate against guns, these lawyers have moved on to better targets, such as fast food. Only a few weeks ago, a federal judge in California threw out a lawsuit filed on behalf of people who had suffered health problems from eating too many orders of burgers and fries. The judge in that case saw the ludicrousness of the claim, but the next judge, or the one after that, might not be so rational. Eventually the trial lawyers will find a willing accomplice on the bench and then we will witness the same dog-and-pony show with McDonald’s and Burger King that we did with Phillip Morris.

What’s the answer to this gathering storm, which writer Walter Olson labels our new “fourth branch of government”? Various solutions present themselves, but the task won’t be easy. Once an industry is tarred and feathered in the public eye like tobacco and guns have been, and fast food is about to be, all bets are off. One situation to keep an eye on is the coming litigation on slavery reparations. Some of the same lawyers who are working on that issue helped orchestrate the tobacco settlement. Think they’re working on behalf of black Americans or think that blacks will be made whole through the enterprise? The only thing made whole will be the election campaigns of the lawyers when they decide to run for office.

Anthony Sanders’ biweekly column appears alternate Thursdays. Send letters to the editor to [email protected]