Of all the misrepresentations and outright lies uttered by Congressman Mark Kirk over the years, the one that bothers me the most is his explanation why he voted against the Lilly Ledbetter Fair Pay Act. The reason it bugs me so much is that, while Kirk uses the argument to berates lawyers, he in fact is a lawyer himself and instead of using his legal knowledge to help constituents understand the law, he uses it to misrepresent the law and its effect on people. He uses misrepresentations to get people to agree to things they'd never agree to if they understood the law. He uses the law and his position as a lawyer and a congressman to prey on people's ignorance of the law.
I'll start by saying that although I am an attorney, I am not and have never been a class action attorney. I have made no and currently make no money getting people to agree to be part of a class for a lawsuit. Zero. Zippo. None. Never. My beef here is not my own personal gain. I just don't like to see people duped by those in a better position to understand the law.
I explained the details of the class action provisions of the Ledbetter Act and Kirk's misrepresentation of them once before here. To reiterate the issue in a nutshell, Kirk wants to mask his vote against fair pay with nonsense about opt-in and opt-out class action lawsuits. Opt-out has been public policy in this country since 1966. The Ledbetter Act simply reiterates that. The reason for the long time policy (considered a reform in its time) is simple. Most people cannot afford to maintain lawsuits against large, wealthy corporations all by themselves. Class actions allow people similarly situated to sue together as a class and level the playing field.
To bolster his false argument, Kirk actually told constituents at the meeting on Saturday that his position protects them. He said that the Ledbetter class action opt-out provision forces discrimination victims to hunt down the attorneys to opt-out. He insinuated they'd have to do a lot of work and then beg to be let out of the suit. He also insinutate that the average person would want to opt-out. All of that is nonsense.
First, notices have to be sent out to all class members. The contact information is on the notice which often contains a self-address stamped return envelope. Second, to opt-out, all you have to do is check a box on a form and mail it back. That being said, none of that is really important to the issue because most people, the vast majority of people, will actually want to stay in the suit. As I said before, the class action lawsuit allows people to get justice and often monetary awards against large wealthy corporations with armies of their own attorneys. Most people could never afford to do that on their own. Even if they could afford a law firm at around $300-$350 per hour for a simple local lawsuit or some local solo practitioner who might charge less, a large national or international company could play jurisdiction and venue games for months or years, and drown a small local firm or solo with discovery requests or discovery responses, tons of paperwork from which they'd never dig out. Case closed. You lose. Or, more likely, case never closed, because it goes on forever. You still lose. Or, most likely, case never opened, you lose again and corporation continues to discriminate, poison, pollute etc.
Through his position, Mark Kirk is trying to get people to happily agree to make the courts inaccessible to them. The problem relates to cost of doing business. If people have no access to the courts to hold these corporations accountable for their actions, they will continue to discriminate, poison and otherwise harm people. In the unlikely event that someone actually finds a lawyer and sues, the suit is just a small nuisance, an acceptable cost of doing business. It becomes more profitable for a corporation to fight the occasional nuisance suit and continue on business as usual, than clean up their act.
The other harm caused by Kirk's rejection of the class action lawsuit has to do with balance of power. The judiciary is part of the balance of powers in this country. The average person is supposed to have access to the judiciary. The judiciary made some of the most important changes to our laws that help people including separate is not equal and the right to be left alone, not to mention all the environmental cases that made property owners clean up their own pollution. Without access to the courts, the balance is broken. People lose their power against those who would discriminate, violate their privacy, pollute, poison or otherwise harm, and particularily, those who have enough money to buy themselves a congressman.
