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[tvoivozhd <tvoivozd AT infionline.net>]

FEBRUARY 15, 2005, AND THEREAFTER



AUSTIN, Texas -- Sometimes the ironic timing of events in our public 
life is so striking as to cause one to wonder if the Great Scriptwriter 
in the Sky isn't trying to make a point. Thus, the word that the U.S. 
Senate voted for tort deform last week came just a few days after the 
news that seven executives of W.R. Grace and Co. were indicted on 
criminal charges for knowingly putting their workers and the public in 
danger by exposing them to asbestos ore.

Hundreds of miners, their family members and townsfolk in Libby, Mont., 
have died, and at least 1,200 more are sick from breathing the air 
polluted by the mine. Since the ore was shipped all over the country and 
was used as insulation in millions of homes, the total health effects 
are incalculable. The Seattle Post-Intelligencer deserves credit for 
bringing Grace to public attention with a series back in 1999.

The executives and the company were indicted on 10 counts of conspiracy, 
knowing endangerment, obstruction of justice and wire fraud.

W.R. Grace & Co. "categorically denies any criminal wrongdoing," said a 
spokesman.

The indictments and the P-I's series were based on tens of thousands of 
internal communications among the top health, marketing and legal 
managers at Grace about how to conceal the danger of asbestos in both 
the ore from the Libby mine and the products that were made from it. 
Their memos include discussion of how to keep investigators from 
studying the health of the miners, how to keep safety warnings off their 
products and how to hide the hazards of working with asbestos ore.

A lawyer with a Montana firm that has been trying to help families of 
the dead and dying for years said: "The prosecution cannot eliminate the 
death and disease in Libby. But there is comfort in the hope that 
criminal convictions will say to corporate America: Managers will be 
held criminally accountable if they lie and watch workers die."

According to an article in the St. Louis Post-Dispatch, W.R. Grace filed 
for Chapter 11 bankruptcy in 2001 because of a "sharply increasing 
number of asbestos claims." However, in 2002, the Justice Department 
intervened in a bankruptcy proceeding for the first time ever, alleging 
that before Grace asked for Chapter 11, it concealed money in new 
companies it bought. The Justice Department said it was a "fraudulent 
transfer" of money to protect itself from civil suits.

Just before the bankruptcy trial was to begin, Grace returned almost $1 
billion to the bankruptcy court. The company currently has annual sales 
of about $2 billion, more than 6,000 employees and operations in nearly 
40 companies.

On Feb. 2, President Bush again referred to "frivolous asbestos claims."

Against this timely reminder of what the tort system is designed to 
deter or punish, the Senate voted for the "Class Action Fairness Act" 
(love those cute names they keep giving rotten bills) 72 to 26. There is 
no "flood of frivolous lawsuits" -- in fact, tort claims are declining 
and only 2 percent of injured people ever sue for compensation to begin 
with.

Public Citizen did a study showing that corporations themselves file 
four times as many lawsuits as do individuals, and they are penalized 
much more often by judges for pursuing frivolous litigation. 
"Corporations think America is too litigious only when they are on the 
receiving end of a lawsuit," said Joan Claybrook, president of Public 
Citizen. "But when they feel aggrieved, businesses are far more likely 
to take their beef to court than are consumers."

The administration came up with a weird fix for this nonexistent problem 
(so reminiscent of nonexistent WMDs, the "crisis" in Social Security and 
other non-problems): It severely limited the right of individuals to 
file class-action suits against corporations by moving such cases from 
state courts to federal courts.

If the aggregate claim is over $5 million or the defendants and the 
plaintiffs are in separate states, the suit goes into the federal system 
-- and that definition pretty well encompasses all class-action suits. 
And federal judges are less likely to certify a group of aggrieved 
consumers as "a class" because such cases often involve conflicting 
state laws -- victims of a bad product can live in any state, and the 
company that made the product is often in another state.

On top of that, in case you haven't talked to any federal judges lately, 
the whole federal system is under-funded and overburdened now. The net 
effect is less accountability for corporations that violate health, 
safety, consumer and civil rights, and environmental laws. Happy Enron, 
WorldCom, Tyco and W.R. Grace to all.

This abominable bill was also much-sought by Republicans for nasty 
political reasons, which makes their rhetoric about justice all the more 
nauseating. It's a big win for the insurance industry and for big 
business, both heavy donors to Republicans. It also strips potential 
cases from trial lawyers, a group notoriously given to supporting the 
Democrats. How clever of Karl Rove.

Frankly, I think both the trial lawyers and big business can take care 
of themselves -- it's the rest of us I worry about.