Why Mass Tort Campaigns Are The Future Of Consumer Protection Efforts
Let me make it clear at the beginning I am of the opinion that mass tort litigation isn’t only a helpful tool to protect consumers it is quickly becoming the most potent and most effective, as well as most important tool that we have to hold corporations accountable in this day and age. And the evidence that supports this conviction grows stronger with each new year.
We live in a time of unprecedented corporate power. Global corporations are operating across many jurisdictions simultaneously they have legal and lobbying resources that are greater than the regulatory agencies of the majority and have demonstrated a consistent, documented desire to put profit ahead of safety in the belief that the financial calculations favor hiding rather than transparency. With this in mind, existing consumer protection methods –- such as government regulation or enforcement of agency policies, and individual lawsuits are revealing their weaknesses with greater transparency.
Mass torts are helping to fill that void. And I’m sure they’ll continue to fill that gap at a rapid rate in the years ahead.
The Failure Of Regulatory Protection
To comprehend the reasons why mass tort litigation has become vital, you must first be open about the shortcomings of the system of regulation it complements.
These regulatory agencies — such as the FDA and the FDA, EPA, OSHA, the CPSC were created with a real and vital objective: to protect the public from harm caused by corporations before it happens. The concept is solid. However, the implementation is extremely ineffective.
The regulatory agencies are frequently underfunded in relation their industries that they supervise. They are constantly at risk of the phenomenon known as “regulatory capture” — the gradual alignment of priorities of the agency with the needs of the industry being regulated and not the public that they are supposed to safeguard. They operate in political contexts where lobbying from industry consistently influences laws and weakens enforcement mechanisms and reduces the resources that can be used to monitor.
The effects are apparent everywhere you look in a major mass tort case. The tobacco industry was able to conceal the addictive qualities of nicotine for decades, while regulators did not take action. Asbestos producers concealed the deadly effects of their products from their employees for a generation while the oversight of regulators was insufficient. Purdue Pharma flooded American communities with opioids, while the DEA’s monitoring system did not meet the extent of the crisis. Monsanto advertised glyphosate as safe and secure, while internal documents suggest that there was more to the story than the company shared publically.
In all of these instances the regulatory system was unable to protect consumers from catastrophic, widespread harm took place. In all of these instances, mass tort litigation prevailed in the end in a way that was not perfect, and with an massive human cost in cases where regulation failed.
This isn’t a reason to abandon regulation. Independent, well-funded and strong regulation is vital and should be maintained and strengthened. However, it’s an open acknowledgement that regulation by itself is not sufficient and mass tort litigation is an important second option for defense when the first line of defense fails in the way it frequently occurs.
Why Mass Tort Works Where Other Mechanisms Don’t
The distinctive effectiveness of mass tort lawsuits as a consumer protection mechanism stems from a number of features that differentiate it from other tools available.
It is a way to expose the truth corporations deliberately conceal. The discovery process in mass tort litigationthe legal procedure that plaintiffs’ lawyers are able to compel the production of corporate documents such as internal memos email, research studies, emails and communications has proved as the best and most effective way to extract truth in the toolkit of consumer protection. Every time it has shown that companies were more aware of the dangers associated with their product than made public. The documents from the tobacco industry. Documents from the tobacco industry. Purdue Pharma internal communications about OxyContin’s potential for addiction. The Monsanto emails regarding research on glyphosate. This would not have been made public by voluntary disclosure or regulatory investigation alone. The litigation forced it out. When it was finally out it changed everythinglegally, regulatoryly as well as in terms of accountability to the public.
It can have financial consequences sufficient to influence the behavior of corporations. A regulatory fine that is a fraction of a quarter’s earnings could be considered, by a major company, simply the cost of operating. A settlement for mass torts in the amount of $20, $10 or or $50 billion isn’t. When corporate misdeeds result in a liability of that magnitude — especially when punitive damages are in place for retribution against deliberate concealmentthis alters the financial calculations inside the corporate boardsroom in a way nothing a regulatory slap on the wrist will ever be able to. The focus changes to “can we afford to conceal this?” To “can we afford the consequences if we do?”
It is a way to compensate the actual people who have suffered. Regulatory enforcement, when it is effective, results in fines that are deposited into the the government’s coffers. Mass tort litigation results in payments to victims who actually suffered. This distinction is crucial. The grandmother who developed mesothelioma from her husband’s asbestos-contaminated work clothing. The farmer who contracted non-Hodgkin’s lymphoma following decades of Roundup usage. The family that was devastated by an addict in their family member. Families and individuals who suffer from addiction need direct, substantial compensation. Mass tort litigation is one of the methods best suited to delivering it.
It is not part of the political system. Regulatory reform requires political will and in a time of unprecedented corporate lobbying power, this is extremely difficult to sustain and generate. Mass tort litigation doesn’t require an overwhelming legislative majority or a warm administration or a regulatory body that is able to face a powerful industry. It is a matter of evidence, legal skills and the ability to pursue justice in the courts. The fact that the courts are independent of the political system isn’t an issue, it’s one of the most crucial characteristics as a protection for consumers mechanism.
The Emerging Frontiers Of Mass Tort Litigation
If the past record demonstrates the significance of mass torts but the new landscape of possible litigation shows why I believe that it is what consumers will be protected in the near future. There are several emerging areas that suggest that the future generation of mass torts is already in the process of forming.
Social Media and mental health: The evidence connecting the design of social media platformsspecifically, the algorithmic amplifying of content that is emotionally charged and the deliberate use of reward loops that release dopaminewhich can cause mental health problems particularly among young adults and adolescents and young adults, is increasing rapidly. Documents from the top social media firms, discovered through litigation discovery as well as whistleblower disclosures suggest that these companies were aware of the potential dangers associated with their platforms and opted to prioritize to prioritize engagement metrics over wellbeing of their users. The similarities to tobaccoan industry that knew the harmful and addictive nature of its product, but did not disclose that knowledge are awe-inspiring and intentional. The mass tort lawsuit against companies that use social media is currently in progress and I am expecting it to be one of the major legal campaigns of the upcoming decade.
PFA “Forever Chemicals”: Polyfluoroalkyl and per-based substances are synthetic chemicals that are employed in non-stick cookware foods packaging and firefighting foam and a myriad of other uses have been found to be a source of contamination in water supplies throughout all across the United States and globally. They are referred to as “forever chemicals” because they don’t break down in the environment or within the human body. Additionally, they are linked with a growing number of health issues that are serious, like thyroid disease and disruptions to the immune system. The producers of PFAS chemicals -the largest of which are 3M and DuPont particularly — have been aware of these dangers for years while lobbying to stop any regulation. The mass tort lawsuit is currently leading to significant settlements, such as 3M concluding an agreement at around $12.5 billion in order to resolve claims for water contamination. The litigation is still just beginning to be resolved and is expected to grow significantly.
Artificial Intelligence and Algorithmic Harm Artificial intelligence systems are more deeply embedded in consequential decisions – credit scoring medical diagnosis hiring, content moderating criminal sentencing — the possibility for algorithms to cause massive, systematic harm to specific groups is increasing. If an AI system results in similar harm to millions or thousands of people because of similar flawed designs or inaccurate training data the pattern of damage is precisely the one of mass tort law was created to tackle. This is an area that legal scholars are currently investigating, and I am convinced that it will result in significant litigation over the next years.
Climate Change and Corporate Accountability The lawsuit being pursued by states and cities as well as communities, against fossil fuel corporations and seeking compensation for the cost of the adaptation to climate change, damage to infrastructure and health-related impacts on public health is perhaps the most ambitious use that the mass tort system ever tried. Legal and evidence-based hurdles are daunting. But the factual premise -that fossil fuel companies were aware of the negative effects on climate change from their products long ago, and put a lot of money into the cover-up and denial of the truth of their understanding is supported by an increasing amount of evidence from documents. If this lawsuit succeeds on the scale it is, it will be the biggest transfer of corporate liability to the public good in recent history.
The Objections – And Why They Don’t Hold
There is no convincing argument that the use of mass tort law as a protection for consumers mechanism is able to overlook the legitimate oppositions that have been to it. Let me discuss the main ones in detail.
“Mass tort litigation is driven by greedy plaintiffs’ attorneys seeking enormous contingency fees. “ This argument is a lie but is based on a fundamental misperception. Attorneys representing plaintiffs in mass tort lawsuits do get paid a significant amount when they prevail — which they must. They are taking on a huge financial risk by investing millions of dollars into cases that could take up to 10 years to settle and could ultimately fail. They take on defendants with nearly infinite resources. They conduct this through contingency — that is, they don’t get anything in the event of a loss. The incentive structure for contingency fee litigation isn’t an attempt to undermine the system. This is the reason why the system work — because it’s the mechanism that provides the legal services of a high quality available to people who would not otherwise have the money to take on the actions of a Fortune 500 corporation in court.
“Mass tort settlements compensate lawyers more than victims. “ In a few instances fees are excessive and worthy of criticism. The solution is to improve the oversight of the judiciary of fee agreements rather than the demise in mass tort cases as a method of. The millions of dollars of compensation that have been paid to actual victims via settlements for mass torts are the real, tangible assistance to victims whose lives were ruined due to corporate negligence. A flawed compensation system, if properly revamped and monitored, is far superior to having none at all.
“Mass tort litigation is unpredictable and creates excessive uncertainty for businesses. “ This argument should not be the least amount of sympathy. The uncertainty that mass tort litigation causes for companies is the uncertainty about the extent to which concealing dangers that are known to consumers is financially viable. That’s precisely the type of risk we want companies to confront. A business environment where corporations can reap the benefits of hidden damages without significant financial consequences is not a secure, healthy business environment. it’s a place which systematically rewards bad behavior. Mass tort liability doesn’t cause a lot of uncertainty. It is a way to ensure accountability.
What Must Change To Fulfil Mass Tort’s Potential
Recognizing the potential of mass tort litigation as a protection mechanism for consumers is not a requirement to ignore its limitations, and the reforms required to enhance it.
Access to justice is largely unjust. Mass tort law is best when harms are widely known, well documented and involve financially remunerable defendants. Damages that are scattered or difficult to prove causality, or caused by defendants who are judgment-proof remain unaddressed. The expansion of legal aid, the improvement of legal funding mechanisms and enhancing discovery tools for plaintiffs with limited resources would greatly expand the scope of mass torts.
The speed of litigation has to be accelerated. A mass tort lawsuit which takes 10 years to end offers cold comfort to those who are currently suffering. Reforms to the Court system that include special mass tort dockets enhanced case management, as well as more well-funded federal multidistrict litigation procedures can significantly reduce the time from injury to compensation.
International coordination needs development. Global corporations who cause harm across different jurisdictions could benefit from the fragmentation of legal systems across nations to minimize their liability. Implementing international frameworks to coordinate international mass tort litigation could significantly improve accountability for corporate misconduct of multinational corporations.
The Case For Mass Tort’s Future
The long history of litigation involving mass torts is a story of the truth being forced out against strong opposition, of corporations getting held to account for damages they had devoted huge resources to hide and of the common individuals — joined by a common injury and assisted by experienced legal advocates – getting justice that the legal and political process had failed to achieve.
The past isn’t an excuse to be content. The companies of the future will be more sophisticated, have better resources and more spread out than the criminals in the past. The damage they could create — by algorithms and chemical compounds as well as climate disruption technologies that we haven’t yet thought of — could be more complicated and difficult to define than the effects from asbestos, tobacco and opioids.
But the power behind lawsuits involving mass tort — their capacity to seek truth, provide genuine accountability, compensate actual victims and operate independent of the political systems which powerful interests can easily corrupt continue to be. As long as corporations continue to have the power and incentive to cause widespread, unintentional harm to consumers mass tort litigation will vital and relevant.
It’s not an ideal system. There is no perfect system in human justice. It is, however, am convinced that it is the most effective consumer protection tool available making investments in its growth along with its reforms or expansion of its reach is among the most crucial actions that the law enforcement community, the policymakers as well as civil society, can accomplish to defend ordinary citizens from the extraordinary power of corporate power.
