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DLC | New Dem Daily | February 19, 2021
Breakthrough in the Courts?

In a move that may spur Congress to bipartisan action, the American Bar Association last week passed resolutions endorsing legislation to bring order to a ruinous tide of asbestos litigation and to rein in use of illegitimate class action claims that target businesses with deep pockets.

The ABA action takes these longstanding legal reform issues out of the predictable vein of business-community-versus-trial-lawyer, plaintiff-versus-defendant, and Republican-versus-Democrat standoffs. More importantly, the new impetus for reform and compromise could help people actually suffering grievous injury or economic damages to get compensated much more quickly once the logjam of asbestos and illegitimate class action suits is broken.

On the asbestos front, the problem is that the courts are overwhelmed, and a growing number of businesses have been driven into bankruptcy, by law suits brought by people who may have been exposed to asbestos but have no actual illnesses. Two different solutions have been proposed in recent years. Much of the business community (and now, the ABA, buttressed by some attorneys representing asbestos victims) supports a reform package that includes a new medical standard for bringing suit that requires actual injury, along with a change in the statute of limitations so that those who have been exposed but have not yet experienced injury will not quickly forfeit their right to sue. Others favor the creation of a trust fund to deal with asbestos injuries through compensation without litigation.

The opening created by the ABA action should lead proponents of the two solutions to get together and resolve their differences. As incoming ABA president and former New Democrat Mayor of Detroit, Dennis Archer, commented: "There has been at least 30 years of cases, settlements, bankruptcies and medical expertise upon which to draw.... There was common sense and an absolute need for our association to speak."

As for class action reform, the ABA passed a resolution endorsing the idea of expanding federal jurisdiction over class action filings with little or no "legitimate state-court interests." These are exactly the kind of cases -- typically big, complicated cases with very small stakes for plaintiffs, brought in a handful of plaintiff-friendly forums -- that class action reform legislation in Congress seeks to address. Reform legislation has been championed by Reps. Rick Boucher (D-VA) and Bob Goodlatte (R-VA) as well as New Democrat Reps. Cal Dooley of CA and Jim Moran of VA, and Sens. Tom Carper of DE and Herb Kohl of WI.

"By its resolution," said Carper, "the ABA's House of Delegates has recognized the growing public concern about class action abuses and the problem of overlapping class action cases."

And by recognizing the legal profession's broader interest in justice for all, the ABA helped make these issues potentially solvable as a public-policy question, rather than a high-stakes wrangle between powerful bands of professionals.

More immediately, the ABA resolutions give Democrats reason to keep an open mind and look for ways to get something done on both asbestos and class action reform. That's a big step forward.

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Related Links Getting Real on Asbestos Litigation

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