Mark Kirk's YOU and YOUR translate to securities cheats, dangerous financial products, drugs, autos, food, infant cribs and secret toxic exposures

At the debate on Sunday, Mark Kirk loudly answered the question about his position against the Lilly Ledbetter Act and Paycheck Fairness Act:

I believe that YOU should control your rights if you feel discriminated against, and not have YOUR rights taken over by a class action trial lawyer. Now, I am an original co-sponsor of the Equal Rights Amendment…an original co-sponsor of the Equal Rights Amendment to the Constitution of the United States, and I strongly support the Equal Pay Act, which was enacted by President Kennedy, but the legislation that we considered in the Congress was written by the trial lawyers. Any class action trial lawyer in the country can take control of your rights, and lift the burden of proof from the lawyer being forced to contact his clients, as has been done for 800 years, to where the lawyer got to control the rights of the clients without them even knowing. The law then set forth a procedure for women that forced them to find a trial lawyer to get out of the lawsuit. Otherwise, he would control… in litigation in which she did not know and took no part. I think you should control your own rights. I think we should back the Equal Rights Amendment to the Constitution. I've been endorsed by Planned Parenthood for my record on women's health and –I'm sorry—backed legislation to make sure that young women have a right to the HPV vaccine. But on this key case, I think you should control your lawsuit, and not be forced to go on a hunt to find which lawyer claims to represent you, under the new law from Congress.

There is so much in this comment that it needs to be taken a piece at a time. In this post, I'm going to cover his emphasis on, YOU control and YOUR rights in the context of class action lawsuits. When I say emphasis, I mean he actually screamed these words out so loud I jumped and that laptop passed over to me by a kind friend so I could live blog almost ended up on the floor.

What Kirk meant by his loud proclamation was that he did not support this legislation because it allowed the possibility of a class action lawsuit against a discriminating employer. republicans have maintained a strategic initiative against class action lawsuits for a long time. They don't want to improve how class action lawsuits are handled, they want to eliminate them.

Class action lawsuits are those suits started by one person or just a few people, but affect an issue affecting so many people that the plaintiffs' attorneys can look for others to band together and become legally certified as a class to maintain the action as one entity. Class action lawsuits are intended to equalize the playing field between a person of little or moderate means and the huge, multi-billion, multi-lawyered corporations that often injure them. When Kirk says he thinks YOU should control YOUR rights, he's really saying that you should remain alone as David facing Goliath left to maintain a lawsuit against a huge corporation all by yourself with only your own resources to rely on.

The bottom line of that is that you have to find an attorney willing to do all the work for fees and costs you can afford, and then that attorney has to live with the document blizzard and hardball tactics of Goliath's many many attorneys and unlimited resources. Corporations rely that most folks will either fail to get started or quit before the case goes anywhere.

Kirk's comment included this:

Any class action trial lawyer in the country can take control of your rights, and lift the burden of proof from the lawyer being forced to contact his clients, as has been done for 800 years, to where the lawyer got to control the rights of the clients without them even knowing.

"Lift the burden of proof from the lawyer being forced to contact his clients"???? That doesn't mean anything. It's just legal sounding gobble-d-gook. What he is most likely talking about here is the prevalent procedural rule allowing opt-out of class actions rather than opt-in. Opt-out suits are nothing new, but long standing public policy for class action procedure in most jurisdictions. Opt-out procedures are public policy in most jurisdictions because they help folks who do not get the mailed notice or do not understand it when they get it by including them in the class unless they opt out. They get the benof the case even though they do not understand what they are supposed to do. I've written about this before.

Now, Kirk will argue that killing the class action lawsuit will keep product costs down because it will save corporations from huge lawsuits that eat into their profits to defend. What it really does is make the cost of putting out a dangerous or defective product, or a substandard service, or even illegal discriminatory policies for their employees, an acceptable cost of doing business.

republican will tell you these suits are frivolous. Here, Kirk is saying that gender based employment discrimination complaints are frivolous. Take a look at some other types of class action lawsuits recently filed and you tell me what is frivolous about them:

1. Securities Fraud: These suits come from those false rosey predictions contained in companies' prospectus when they are seeking to unload their stock on an unsuspecting public. One investor alone might not have lost all that much, but all the investors together usually lost a pile, which means that the unscrupulous company made a pile. Do you think companies should get away with violating securities disclosure rules just because one investor alone didn't loose all that much? Don't you think such actions hurt the markets in general and wouldn't you want the law to discourage and not encourage such behavior.

2. Consumer Fraud: These are the suits filed to redress damage caused by defective products put out by a company when it knows of the defect or caused by misleading advertising and sales techniques of products that do not meet promised expectations. Such suits can be over over misleading credit card, mortgage loan or investment products, drugs known by the manufacturer to be dangerous when released to the public or dangerously designed automobiles sold when the manufacturer knew of the danger. There is one recent case against a distiller for deceptively advertising alcoholic beverages to kids. Frivolous, huh?

3. Chemical or other Toxic Exposure: These are really tough cases for an individual to maintain alone because they require a lot of physical and scientific evidence to prove not only contamination, but also proximite cause, did the contamination lead to the damage. Another big problem for individual plaintiffs is corporate secrecy of such matters and the ability of the corporate defendant to drown a plaintiff in tons (and I literally mean tons) of paperwork containing raw data that has to be analyzed by highly paid experts. Chemical exposure can affect a group of employees of the company exposed through their jobs or neighbors of the company who may be drinking toxic groundwater or just living on contaminated soil. Frivolous?

By limiting class action lawsuits, we not only leave the injured uncompensated, but we also encourage behavior we want to discourage. Think about it in the context of the financial damage caused by bad loans and investments in bad loans, and all the product recalls we have been seeing of late including tainted food, dangerous infant cribs and automobiles. Do you really want these companies to conclude favorable cost/benefit for providing us bad or dangerous products, or taking bad or dangerous actions?

Kirk would say that's fine because YOU are in control of YOUR lawsuit, a suit that you will never be able to maintain much less win on your own. What bothers me the most about Kirk's statement though is that he is willing to misrepresent the law and claim his position against class action lawsuits is beneficial to the average Tenth District resident, like he's doing something for YOU when he's really doing something for him and the huge corporations that support him.

Whenever Kirk tells you he's helping YOU, just replace the YOU with ME and you'll have it about right.