Tort Reformers' Media

It is said that freedom of the press is limited to those who own one. Apparently unsatisfied with the fact that the existing mass media, being big businesses themselves, are already serving the rich and powerful, the class-conscious United States Chamber of Commerce created a newspaper from scratch, for the sole purpose of attacking the right of people to sue the corporations that injure them, i.e., promoting the "tort reform":

The Madison County Record, an Illinois weekly newspaper launched in September that bills itself as the county's legal journal, reports on one subject: the state courts in southern Illinois. A recent front page carried an assortment of stories about lawsuits against businesses. In one, a woman sought $15,000 in damages for breaking her nose at a haunted house. In another, a woman sued a restaurant for $50,000 after she hurt her teeth on a chicken breast.

Nowhere was it reported that the U.S. Chamber of Commerce created the Record as a weapon in its multimillion-dollar campaign against lawyers who file those kinds of suits.

"We wanted to educate [the people] that their county is the laughingstock of the country" because of the large number of lawsuits filed there, said Stanton D. Anderson, chief legal officer for the chamber, which is a part owner of the Record.

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Communications scholars cringe at the notion that lobbying groups are obscuring or playing down their participation in publications and programs that push a narrow point of view. "People judge communication by its source so when you deny people full knowledge of that source of information they are losing something important about evaluating the message," said Kathleen Hall Jamison, dean of the University of Southern California's Annenberg School for Communication.

Geneva Overholser of the University of Missouri's journalism school's Washington bureau said anything less than thorough disclosure "is deceitful and imbalanced." Otherwise, she said, citizens "don't have enough information to judge" publications or broadcasts.

Anderson said he didn't agonize over ethics when he was thrashing around last spring for a new way to bring attention to the increasing burden class action lawsuits place on companies. He was focused instead on his frustration that Madison Country's court system plays host to more class action lawsuit filings than any other country in the nation -- 106 last year alone.

His brainstorm: buy a newspaper to spotlight the county's courts. Purchasing an existing publication proved too pricey even for the chamber's Institute for Legal Reform, which spent $40 million this year to battle trial lawyers. So he and Thomas J. Donohue, the chamber's president, decided to start a newspaper from scratch.

Through a common acquaintance, Anderson met Brian Timpone, 32, co-owner of a small chain of community newspapers in Illinois. Over the summer, Timpone agreed to become the Record's publisher with the chamber as his silent benefactor. The chamber has poured about $200,000 into the 6,000-circulation broadsheet and expects to invest more, Anderson said.

The chamber hopes the Record's influence will spread beyond Madison County and help push tort reform nationally. Anderson distributes the Record to interested companies and business trade associations. Timpone sells subscriptions to law firms and companies across the nation -- some of which have cases pending in the county. The Record is also online (www.madisonrecord.com).

Neither Anderson nor Timpone see any need for the paper to disclose in its pages that the chamber is an owner. Timpone said the chamber doesn't dictate the paper's news content and he defends the stories he runs as genuine news. He said he chose not to divulge the Record's connection to the chamber in print because "I was afraid we'd be prejudged. I thought, 'Let people judge us by our actions.'"

At the same time, Anderson doesn't conceal his pleasure at the newspaper's obsession with reporting about the filing of seemingly frivolous class action and other lawsuits. The Record even maintains a running tally of class action filings on its front page. The Record "has a point of view," conceded Anderson, who keeps a framed copy of his editorial in the Record's inaugural edition on his office wall.

Timpone admitted: "I'm a biased guy. I'm a Republican."

Depending on how well the Record performs, Anderson said, the chamber plans to launch similar newspapers in counties that the pro-business lobby considers to be problems, particularly in West Virginia. (Jeffrey H. Birnbaum, "Advocacy Groups Blur Media Lines: Some Push Agendas By Producing Movies, Owning Newspapers," Washington Post, December 6, 2004, p. A1)

You would think that the Chamber of Commerce's novel publishing venture is a petty tactic -- unnecessarily hands-on, in fact. Why not leave it to the existing mass media, which know how to promote business interests more subtly? As you notice, the Washington Post story above, while scandalized by the Chamber's secret ownership of the Record, decisively debunks neither the idea that corporations are saddled with "the increasing burden class action lawsuits place" on them nor the anecdotes promulgated by the Chamber-owned newspaper to support it. Better yet, Newsweek, owned by the Washington Post Company, published a story on an explosion of "frivolous lawsuits" that is filled with bogus anecdotes -- without scandalizing the Washington Post, of course: Neil deMause, "Trial by Anecdote: Newsweek's 'Lawsuit Explosion' Blown Away by Facts" (Extra!, April 2004).

Contrary to the myth created by the corporate media, tort filings peaked in 1990 and have declined since then, according to the National Center for State Courts' Court Statistics Project:

The longest trend of state court filing data that the CSP [Court Statistics Project] reports is tort filings from 16 states for the period 1975 to 2001. These data, including filings from three of the four most populous states (California, Texas, and Florida), indicate a 40 percent rise in tort filings during that time. In 1990, when filings had increased 75 percent over 1973, the trend reached its apex. Since then, tort filings have, with the exception of an anomalous spike in 1996 caused by the enactment of tort legislation in Michigan, shown a continual decline. The downward trend is confirmed by the inclusion of data from 14 additional states (representing a total of 73 percent of the U.S. population) that reported data since 1992.

The table below ranks states according to changes in tort filings per 100,000 population between 1992 and 2001. These population-adjusted figures eliminate the disparity caused by states of varying population sizes and allow for a more meaningful comparison of caseloads. The table reveals that tort filings per 100,000 population declined in 22 of the 30 states examined. Population-adjusted filings dropped 25 percent or more in 11 of these states and had a median decline of 19 percent. The largest declines occurred in Texas and Massachusetts, where tort filings fell by 41 percent. (emphasis added, Examining the Work of State Courts, 2002, "Tort and Contract," pp. 24-25)

The timing of the decline is another index of how good the double-dealing Bill Clinton era was to Corporate America:

According to the N.Y. Times on February 3, 2002, some of the members of Congress -- "Democrats and Republicans alike" -- "professing moral outrage over Enron's collapse" while investigating the causes of the Enron/Arthur Andersen scandal "may need to look no further than the mirror". The Times reported that corporate lobbyists armed with enormous amounts of campaign contributions, mainly from the accounting industry, used these newly outraged investigators in Congress to successfully push through legislation in 1995 that shielded companies -- like Enron -- and their accountants -- like Arthur Andersen -- from investor lawsuits. These same senior member of Congress, now "outraged" by the $60 billion loss to investors from the Enron/Arthur Andersen scam, also helped defeat a legislative proposal in 2000 that would have outlawed the practice of accounting firms being both consultants and auditors for the same corporation as was the case with Enron/Arthur Andersen. A couple of these "outraged" foxes who are now investigating who ate up the hens they were guarding for "the people" are Rep. Billy Tauzin of Louisiana who received $289,743 from the accounting industry since 1989 and Senator Chris Dodd of Connecticut who took $505,453 since'89. At the behest of the accounting industry, Dodd fought for the controversial "tort reform" legislation of 1995 that ended joint and several liability for corporate wrongdoing while he was Chairman of the Democratic Party. Also playing the cynical game was President Clinton who took $450,020 from the accounting industry since '89, but much more from the trial lawyers who opposed the Gingrich-pushed tort reform measure. So Clinton vetoed the legislation, while the chairman of his party rounded up the necessary votes to successfully override Clinton's veto. (Tom Turnipseed, "War Against 'Axis of Evil' Is a Cover for Corporate Corruption," CounterPunch, February 6, 2002)

But there is no such thing as enough profits, so Corporate America soldiers on.

Meanwhile, the true cause of America's propensity to litigiousness is excluded from consideration:

American businesses file four times as many lawsuits as do individuals represented by trial attorneys, and they are penalized by judges much more often for pursuing frivolous litigation, according to a report issued today by Public Citizen.

The survey of case filings in two states (Arkansas and Mississippi) and two local jurisdictions (Cook County, Ill., and Philadelphia, Pa.) in 2001 found that businesses were 3.3 to 5.8 times more likely to file lawsuits than were individuals. This comes as businesses and politicians are campaigning to limit citizens’ rights to sue over everything from medical malpractice damages to defective products. By way of comparison, the number of American consumers (281 million) outnumbers the number of businesses in America (7 million) by 40 times.

The report also found that businesses and their attorneys were 69 percent more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses. The report, Frequent Filers: Corporate Hypocrisy in Accessing the Courts, is available by clicking here. ("U.S. Businesses File Four Times More Lawsuits Than Private Citizens And Are Sanctioned Much More Often for Frivolous Suits," October 4, 2004)