If you have watched television, streamed a movie, spent time on a social media platform or even searched for something online you have probably seen endless advertisements from trial lawyers hunting for plaintiffs to join various class action lawsuits. Common targets are consumer products, pharmaceuticals, medical devices and chemicals, but what they all have in common is that they are seen as vulnerable by trial lawyers who put together a coordinated campaign to denigrate major companies and sue them for all they are worth.
Plaintiffs’ attorneys rake in hundreds of millions of dollars every year by leveraging a meticulously devised and time-tested system of outside experts, marketing agencies and non-profit organizations – paid to launch coordinated strikes against companies perceived as vulnerable. These attorneys and their lawsuits are not fighting for changes in law or consumer protections to safeguard the public, but they are using and abusing our judicial system in order to obtain significant personal wealth and status.
Now, don’t get me wrong -- companies should be held accountable for product safety and negligence in proportion to the true harm and damage, but most of the mass tort lawsuits today are simply orchestrated campaigns that aim to extort defendants and make trial lawyers rich.
Our current, broken tort system makes class action and multidistrict litigation (MDL) enormously profitable by allowing plaintiffs’ lawyers to grossly exaggerate their clients’ legal liabilities, drag companies through the mud with smear campaigns in the media and stretch out the legal process for decades, to the detriment of the actual plaintiffs for the benefit of the trial lawyers themselves.
Tort reform efforts at both the federal and state level are needed, but in the meantime, what are companies to do? Their fiduciary obligation to their shareholders means they must pursue any legal means to preserve shareholder value, protect their employees, minimize losses and maintain future capacity.
In a broken tort system, many companies have chosen bankruptcy as a first step in avoiding destruction of shareholder value. Such steps limit damage but may not be sufficient to ensure ongoing productive capacity for the company.
Companies like Johnson & Johnson and 3M have taken this route by launching different legal bankruptcy tactics. Unsurprisingly these were met with criticisms but also highlight the major problems with our legal system.
The public is taking notice of 3M’s legal efforts and their implications for reforming the current shortcomings of our tort system. According to recent reports from Axios, a 3M unit’s bankruptcy could put the U.S. mass tort system on trial by questioning whether the tort and the MDL systems are even functional. Axios reported that 3M’s legal battle could be a “cautionary tale of an MDL that is broken beyond repair.”
When U.S. law puts American companies at a disadvantage, it is only reasonable for those companies to make the necessary adaptations to preserve shareholder value and the ability to manufacture and serve their customers. Efforts by those companies to avoid destructive efforts by trial lawyers are not wrong — they are rational responses to an upside-down American tort system. The solution is not to demonize U.S. corporations, but to address the enormous need for tort reform in the United States.
