Don’t Let Corporations Take Advantage of This Crisis

“never let a serious crisis go to waste.” ~Rahm Emanuel

Thirty million Americans have filed for unemployment since the start of the pandemic. Meanwhile, American billionaires increased their wealth by 406 billion dollars from mid-March through late-April. However, money isn’t the only thing that the uber-wealthy and corporations are after in this pandemic. They want immunity.

Recently, Mitch McConnell tried to pass legislation that would ensure governments and corporations have complete protection against any lawsuits regarding the coronavirus. Ironically, many of these same corporations have ensured that their workers don’t have protection from the actual threat: the virus.

This effort isn’t a one-off. Mitch McConnell and other loyal servants of corporations have been trying to get laws like these passed for quite some time. It’s called “tort reform” — a fancy way of saying that corporations want to get rid of any opportunities for consumers and employees to hold them accountable for gross negligence.

While it seems unlikely that these attempts by Mitch McConnell will lead to permanent tort reform, it’s crucial to understand the larger forces at play. To do so, let’s go back to one of the most commonly cited tort reform cases in history: McDonald’s and their hot coffee.

The Twisted Narrative of McDonald’s vs. Stella Liebeck

The common narrative of the McDonald’s coffee case is that some clumsy lady spilled coffee on herself and realized that she could make a quick buck by suing McDonald’s. This could not be further from the truth.

In the early 90s, 81-year-old Stella Liebeck accidentally spilled McDonald’s coffee on herself shortly after purchase. That much is true.

But, because of her accident, Stella suffered severe third-degree burns on 6% of her body. She was hospitalized for 8 days and her recovery lasted two years.

Originally, Stella only wanted two things. Twenty-thousand dollars to cover her medical expenses and for McDonald’s to make a better lid to protect other people from getting burned. McDonald’s refused, and the case moved on to court.

The court investigation discovered that there was more to the case than just a simple accident. McDonald’s required its franchisees to keep their coffee between 180 and 190 degrees Fahrenheit — most home coffee makers maintain a significantly lower 135–150 degrees. McDonald’s believed that the high temperature made their coffee taste better. But their purposefully hot coffee was putting people at risk — and McDonald’s knew it. They were aware of at least 700 other cases of severe burns, yet they did nothing.

When the jury learned of this egregious oversight, they not only sided with Stella but wanted to award her a payout of 2.7 million dollars (eventually this was appealed down to 600k.)

Unfortunately, the media didn’t have the same empathy for Stella. All they could see was an unreasonably high payout.

They twisted the jury’s sympathy for a poor old woman into a narrative that Americans will sue for just about anything, throwing Stella under the bus. Her ridicule eventually led to the creation of the Stella Liebeck awards, given out to the most frivolous lawsuits of the year. Given the facts of the case, how did we get it so wrong??

Ralph Nader and the Ford Pinto

Back in the 60s and 70s, tort law was popularized by consumer protection advocate Ralph Nader — famous for his “spoiler” third-party Presidential election bids. Nader and other consumer-protection advocates realized the power of tort law to hold corporations accountable for their negligent actions. Among other things, they used the law to promote improved car safety, such as crash protection and seat belts.

The most famous example of their efforts is the Ford Pinto Case. In the 1970s, Ford had a problem. Smaller foreign vehicles, such as the Volkswagen Beetle were on the rise and the American automaker had to figure out a quick solution to the problem. They quickly came up with the idea for the Ford Pinto.

Unfortunately, their rush to get the Pinto to market left the car with some flaws. Ford learned from their internal testing that their precious Pintos exploded in any rear-end collision over 25 mph. Some reports estimate that the fix to this problem would’ve cost them a mere one dollar per vehicle.

Ford had other calculations, though. They believed that the potential lawsuits would cost less than the fix. And if it wasn’t for consumer advocates like Ralph Nader, their calculations would’ve paid off. Eventually, Ford was slapped with a 125 million dollar fine and all Ford Pintos were recalled.

Because of efforts like those against the Ford Pinto, the Center for Auto Safety estimates that 3.5 million American lives were saved between 1966 and 2014.

Despite evidence that these regulations not only saved lives but also improved the profits and innovation of auto manufacturers, other corporations didn’t see it that way. They saw Nader’s efforts as one thing, and one thing only: a threat.

Hit ’Em From Both Sides: How Corporations Victimize Americans and Skirt the Law

To combat this threat, corporations have focused their efforts on two key areas: the court of law, and the court of public opinion. Spoiler alert: they’re winning both.

Only 10% of injured Americans — injured meaning harmed at the hands of another — ever make a claim and only 2% file lawsuits. That means 49 out of 50 injured individuals don’t take their legitimate cases to court.

According to David Engel — Distinguished Law Professor and author of “The Myth of the Litigious Society: Why We Don’t Sue,” — one of the biggest reasons that Americans don’t sue, even when they have good cause, is that they blame themselves. Corporations have effectively victim-shamed the better part of America.

Corporations have accomplished this feat by utilizing massive PR budgets to spread the belief that America is ripe with frivolous lawsuits — such as Stella Liebeck’s McDonald’s case. Their principal weapon to push this viewpoint is the American Tort Reform Association (ATRA).

The American Tort Reform Association is the literal manifestation of a wolf in sheep’s clothing. They bill themselves as a “grassroots” organization and claim that their members are “average citizen(s) looking for an end to the threat of being sued.” In reality, the ATRA is a coalition of medical professional associations and companies from the chemical, tobacco, and pharmaceutical industries.

So, how have their efforts fared? Well, a 2016 public opinion poll found that 87% of voters agree that there are too many lawsuits filed in America.

That checks the public opinion box.

The public opinion’s on this matter is far from in touch with reality. While public opinion has switched to believing there are too many lawsuits, actual lawsuits have decreased dramatically. The rate of lawsuits per 1000 people has decreased from 10 in 1993, to only 2 in 2015.

Tort cases have fared even worse. They made up 16% of state civil filings in 1993, but only 4% in 2015.

When you only look at corporations, the situation is somehow even uglier. Eight of the ten largest corporations block Americans’ ability to sue them in federal court. Moreover, a 2018 report from the Economic Policy Institute found that 60 million American workers can’t sue their employer, even in the cases of discrimination, civil rights violations, and sexual harassment.

They’re able to do this through “forced arbitration” clauses. They slip these clauses into contracts and bar individuals from having their day in court. Instead, they’re forced into a negotiation that allows the corporation to avoid any admission of wrongdoing and potential bad press.

Unsurprisingly, forced arbitration is about as fair as the 2002 NBA western conference finals. Corporations don’t have to follow the law or even the facts of the case in the arbitration process and they choose the arbitration company — meaning they often return to arbiters who have been favorable to them in the past.

And that checks the law box.

These efforts are being done to fix a situation that was never broken. The United States is a country that prides itself in due process and “innocence until proven guilty.” This is true for criminals and corporations alike. It’s frankly ridiculous to believe that corporations and their top-notch lawyers are being taken down by low-wage workers with iffy cases.

On the rare occasion that frivolous cases do make it to court, there are already protections against it. Parties that bring up frivolous lawsuits — determined by the judge — are forced to pay for legal fees and even damages of the other party. Is that not enough protection?

Corporations Don’t Deserve Our Empathy

To summarize: corporations have manipulated Americans into blaming themselves and forced the courageous few into rigged arbitration processes. And they’ve done all of this to fix a situation that didn’t need fixing.

Now, Mitch McConnell is saying that this isn’t enough and that corporations and governments deserve sympathy and complete legal immunity against coronavirus lawsuits.

Well, I’m calling b.s.

Tort law has done an incredible amount of good for this country and it’s more than worth preserving. Besides saving millions from car accidents, it’s tort law that held Exxon accountable for the Exxon Valdez oil spill off the coast of Alaska.

It’s tort law that got lead out of children’s toys.

It’s tort law that finally forced the NFL to pay up and acknowledge their role in traumatic brain injuries.

And it’s tort law that will ensure that Americans have the right to sue companies and governments for being criminally negligent in their handling of the coronavirus pandemic.

To be fair, not all corporations are evil. However, the most successful ones typically throw morality out the window like a used cigarette butt. If Ford had discovered that they could have saved millions of people while also making a couple of bucks, they would’ve done so. Unfortunately, corporations aren’t always incentivized to be on the right side of morality.

When corporations walk the fine line between morality and profit, one of the few things that keep them on the right side is courageous citizens fighting them in the court of law. Let’s make sure that Americans at least have the opportunity to fight.

“Power concedes nothing without a demand. Never has and never will.” ~Frederick Douglass