Class action bill needs action now

The U.S. Senate is about to break for summer recess, but skeptics are justified in asking: break from what? Election-year partisanship and game-playing have the Senate so paralyzed that insiders doubt it could accomplish anything of substance even if the august members remained in town.

Nothing illustrates the dilemma better than S2602, a measure known as the Class Action Fairness Act.

This bill has been under consideration by Congress for a couple of years now. The House has passed it three times but the Senate hasn’t even voted on it. Not for lack of support, though. The bipartisan coalition of backers who champion the legislation have lined up 62 senators who will back the measure. Fifty-one are needed for passage.

Curiously — anywhere except in the Senate — they can’t come up with 50 senators who will insist on letting the bill come to a vote. That frustration happened most recently earlier this month. As S2602 moved tantalizingly close to floor consideration, disagreements broke out over which and how many amendments could be offered to it. That, at least, was the stated reason for the breakdown. Who knows for sure?

What we do know is that the current structure under which class action lawsuits are handled needs serious reforming.

Class action suits serve an important purpose. When large numbers of people are victimized by a common pattern of misconduct by, say, a negligent business, it would be chaotic for every potential plaintiff to go out and retain an attorney. In some cases, modest but legitimate wrongs would go unaddressed because the amount involved wouldn’t be enough to justify the expense of piecemeal litigation. Wrongdoers grin and get off the hook.

Bringing all those victims together in one case, however, generates a critical mass that makes the process feasible.

But the system invites abuse. Attorneys have a wide range of courts to choose from in the search for a judge who will certify the class. When a case with nationwide consequences is filed in a notoriously friendly county, it frequently is heard by a state judge whose ruling ultimately applies in other states, even when their laws differ. Proximity and plaintiff convenience have nothing to do with it.

The legislation that is having such difficulty getting a final roll-call vote would address the problem in a fair and practical way. It would require that cases with truly nationwide implications be filed in federal courts. Those in which the plaintiffs and defendants are concentrated in one state would go to that state’s courts. In its latest configuration, S2602 has the added appeal of discouraging so-called “coupon” settlements — those in which lawyers collect sizable fees and injured plaintiffs settle for a coupon they can redeem for merchandise from the business that bilked them in the first place.

As most Americans understand it, Congress is a place where policy proposals are raised, debated and decided. That is the difference between most Americans and so many members of the Senate.

When S2602 was considered earlier this month, only Idaho Republican Mike Crapo among Washington’s and Idaho’s four members voted to allow a vote. His fellow Idaho Republican Larry Craig and Washington Democrats Patty Murray and Maria Cantwell all voted to string the game out a little longer. Good for Crapo. Shame on the others.