Best intentions drive tort reform efforts

It has not been my intention to engage in a running debate with Randall Bono.

In sum, he is a fine lawyer but some of the assertions in his last column in the Madison County Record need to be challenged.

The Madison County court system is not the bastion of fairness that Mr. Bono alleges to exist and he once again ignores its actual track record.

The facts are that Madison County’s courts are rapidly developing an international reputation for being a hotbed of class action abuses, with publications worldwide reporting the tendency of Madison County courts to ignore basic class certification requirements and to approve settlements that provide large fees for plaintiffs’ attorneys and little or nothing for consumers.

The fact is that the numbers of class actions filed in Madison County far outstrip other jurisdictions, as several studies have demonstrated. In fact, 106 class actions were filed in Madison County in 2003 alone, a remarkable number given the county’s relatively small population.

Only a few years ago (back in 1998), only two class actions were filed in the county, about the number one might expect.

Does Mr. Bono really contend that this 5800% increase in class action filings over just a few years is sheer happenstance? That a wave of wrongdoing suddenly swept through Madison County – and no other county in the United States?

Of course not. Obviously, the increase reflects the unpleasant truth that plaintiffs’ lawyers around the country have realized that Madison County is the best place to make a quick buck at consumers’ expense.

Mr. Bono asserts that this avalanche of new class actions is local – local controversies brought by local lawyers.

But Mr. Bono is dead wrong.

When a Madison County plaintiff files a nationwide class action (and that’s what 80% or so have been in recent years), he is effectively asking the Madison County courts to decide the claims of consumers in all 50 states, virtually none of whom have any connection to Madison County.

In addition, despite Mr. Bono’s bluster, his statement that “most, if not, all” of the class actions filed in Madison County are being brought by local law firms is simply wrong and cannot be substantiated.

While many Madison County class actions may have a local firm associated with the case, the fact is that these class actions are largely being asserted by out-of-state, nationally recognized plaintiffs’ attorneys in search of a big payday.

In fact, 85% of the plaintiffs’ firms appearing in Madison County class actions in 1999-2000 were from outside Madison County.

Moreover, there is nothing deceptive about the charge that Madison County is more willing to certify class actions than other jurisdictions – that fact is well documented.

Numerous newspaper articles, think tank studies, congressional reports, and legal publications have been written in the past few years about how Madison County courts have consistently failed to respect basic class certification and due process requirements.

That’s why major newspapers around the country such as The Washington Post and USA Today have written editorials endorsing the Class Action Fairness Act, the principal legislative reform effort designed to remedy the class action abuses that have made Madison County infamous.

Indeed, Mr. Bono denies the class action problem by attempting to link Madison County’s track record to Illinois’ strong consumer fraud laws.

As a former state court judge, Mr. Bono should be well aware that class action certification has nothing to do with the strength or weakness of a consumer’s claim.

Rather, it turns on whether the class members’ claims are sufficiently similar that the court can hold a fair trial on all their claims at once.

Both the Illinois and United States Supreme Courts have made it clear on numerous occasions over the last 30 years that merit of a consumer’s claim is not a basis for certifying class actions. Yet Mr. Bono nonetheless offers such an argument as a rationale for why Madison County has become such a nationwide class action magnet.

Mr. Bono devotes much of the remainder of his article to defending the results of a number of “celebrated” Madison County cases and accusing the Chamber of Commerce of unethical behavior.

But Mr. Bono’s arguments are ultimately without basis.

Although Mr. Bono may not like to hear it, the truth about the Ameritech settlements he approved is that he awarded $16 million in legal fees to plaintiffs’ counsel in two separate lawsuits, while the class members whom those attorneys were supposed to represent primarily received $5 phone cards for Ameritech payphones.

Moreover, many of those class members couldn’t even use those phone cards because there were no Ameritech payphones near where they lived.

In short, it was the classic Madison County settlement: the lawyers got millions in fees while the consumers they purported to represent got nothing.

And Mr. Bono’s efforts to justify Madison County’s treatment of asbestos claims are equally disingenuous.

No one disputes either the seriousness of asbestos-related disease or the need to adequately provide for the victims of mesothelioma. But those concerns do not justify conducting asbestos trials that flagrantly violate basic principles of due process or ignoring recent United States Supreme Court decisions that emphatically state that massive punitive damage awards, like the one Mr. Bono obtained in the U.S. Steel case, are clearly unconstitutional.

A desire to help asbestos victims is not grounds for disregarding the Constitution of the United States.

Mr. Bono closes his article by contending that the Chamber’s concern over the harm that consumers are suffering as a result of the abuses occurring in the Madison County court system is simply an attempt by the Chamber to blame the victim.

Far from it. No one is suggesting that consumers should be prevented from seeking justice for corporate crime or from holding corporations responsible when their actions injure the public.

Indeed, despite Mr. Bono’s suggestion to the contrary, the Chamber has no problem with litigating before courts that adjudicate claims based on the law and the evidence. But that is not what has been happening in Madison County.

Rather, the past few years have seen Madison County courts consistently ignore basic principles of law and fundamental rules of evidence and approve awards that have mainly enriched plaintiffs’ attorneys instead of compensating consumers.

And without significant reform the Madison County court system will continue to be the focus of legal reform efforts from across the country.