TorteDeForm

Marc Dittenhoefer

The Real Frivolous Lawsuit Crisis

This year in New York, what with a new Governor and all sorts of Budget drama, it seems an appropriate time for those of us concerned with consumers' rights to stop a bit and take our bearings. Albany is replete with this year's calls for sweeping changes in the civil justice system - wholly apart from the ridiculously overdue and eminently deserved judicial pay raise. New Bills are being floated all the time, even during placid seasons. Now, with an entirely new political equation in the capital, every conceivable new “combination” is being considered to open the doors to the Legislature, the Governor’s favor, or both.

We can expect much to be asked for by big business interests, what with the squeeze that has been put on the doctors, the contractors and the property-owners in the form of raised insurance premiums - all blamed on the greedy lawyers with seedy clients who hoodwink idiotic juries into awarding titanic sums to the undeserving. This "explanation" has made its way into the American mainstream as so much received knowledge and common wisdom that hardly anyone questions these assertions anymore. More's the pity – they ARE wrong!

But what is more pitiable still than the coming attempts to narrow the Courthouse door to those individuals with “pedestrian” complaints is what these offered changes to our administration of justice – immunity provisos, damages caps, statutes of repose, diminished fees, preemption of entire causes of action out of existence - say about us as a society, as a people, as a culture. How fitting it is that this entire sour business is now to be crystallized by artificial sweeteners!

A Federal District Court is now entertaining a suit on behalf of MERISANT, the manufacturer of “Equal” in the little blue packets, against McNEIL NUTRITIONALS, the maker of “Splenda” in the similarly little yellow ones. The supposed issue is couched in consumerist terms: whether or not “Splenda’s” advertising campaign is misleading to the public by circulating the idea that it is made from sugar, and is thereby a “natural” product. The “Splenda” slogan – “made from sugar, so it tastes like sugar” – is cited by “Equal” as an “urban myth” not worthy of commercial respect or legal protection. “Equal” is anxious to point out that “Splenda” does not contain any sugar at all in it, and thereby is hoodwinking customers into thinking they’re getting “sugar without the calories, or skim sugar, or magic sugar...” which, almost needless to say, it is not.

By the way, “Equal” likewise is wholly without sugar. It ‘s ad campaigns concede that point more readily, but describe a “sweet, clean taste, like sugar.” And, weighing in on the side of “baby blue” is the Sugar Association, a trade and lobbying collective that acts on behalf of America’s sugar industry. Both sides have lined up witness lists filled with chemists, neurobiologists, businesspersons and experts of wide description. And yet, much of the case is expected to be fought over issues of grammar, definition, syntax and nuance, according to an opinion written by the Judge in the case.

It would be heartwarming to know that two of our major corporations are willing to take time out from their workaday worries to make sure that America’s consumers were not misled on issues so important to health as just what we put into our bodies, were it not for the fact that this is NOT an informational lawsuit. At stake is an apparently significant chunk of this nation’s $1.5 billion-per-year faux sweetener market!

What should give us all pause, though, is that no one dares to suggest that we close the Courthouse doors to these corporate giants in their struggle to continue to be able to sell us swill so long as we'll swallow it. If the justice system deformers have their way, it is the “frivolous lawsuits” – the sick, sore, lame and disabled; the malpracticed upon brain-damaged child; the traumatic amputee from a defective product; the falsely arrested and brutalized innocent man; the auto accident victim - who would be pushed from the Courthouse to make way for these titans to settle their ridiculous score.

If this were even a slightly better world it would be obvious that it is these types of corporate battles - one incomprehensibly rich and powerful megalomerate suing another to add to their already gigantic holdings - that are the REAL frivolous lawsuits. As in the lawsuit by CBS vs. ABC for impermissibly aping “Survivor” with its own show. Or “Ragu” vs. “Prego” and “Hot Wax” vs. “Turtle Wax”: all three examples of corporate irresponsibility writ large across the legal landscape. Apart from the sheer “Godzilla vs. Rodan” spectacle of it all, there was little of enduring merit to anyone in these legal smackdowns. Only profit on a scale most of us could never imagine seeing in one lifetime.

Perhaps this “Sweet Suit” will be different, but here’s my bet. After wasting much of the Court's time and the system's effort, they will do what 95 per cent of all litigants do anyway - they'll settle upon terms that both sides can live with, and grow wealthier still.

Which is all just fine with me. I believe in the glory of the lawsuit, in the right of anyone to call anyone else into Court to explain a wrong done, or pain caused, or damage inflicted - even if it is only to a balance sheet!

But what about those of us who are not corporate? Those of us with bones that break, organs that stop functioning, pain that can be felt and suffering that won't go away with a hefty profit-posting next quarter.
Those people can have more than a business deal go bad if they are seriously and permanently injured. Their lives might never be the same again. And while they and their families sink slowly onto the welfare rolls, the makers of whichever product loses this Federal Court case will move on to spawn yet another "high watermark" for advertising by finding yet another way to hawk phony sugar.

The point? Do we really want a justice system that treats corporate rights to profit and property better than it does the rights of people - even the injured ones?

Marc Dittenhoefer: Author Bio | Other Posts
Posted at 9:00 AM, Apr 20, 2007 in
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Comments

I would appreciate a link to the lawsuit claim. I do not understand how Equal has standing on behalf of the fooled consumer.

Posted by: Supremacy Claus | April 20, 2007 8:28 PM

What should give us all pause, though, is that no one dares to suggest that we close the Courthouse doors to these corporate giants in their struggle to continue to be able to sell us swill so long as we'll swallow it.

Sigh. I understand that because you guys at Tortdeform can't defend frivolous litigation on the merits, you feel the need to try to portray the issue as one of big corporations vs. poor vulnerable consumers, but that's just your own propaganda. Tort reformers are not secretly working for insurance companies and big corporations to oppress consumers.

Yes, people do dare to suggest that lawsuits like the Equal vs. Splenda suit are frivolous. People like Overlawyered, which described this as a "bogus consumer fraud lawsuit."

Of course, what you don't mention -- but which Overlawyered does -- is that this bogus legal theory is being pursued by trial lawyers as well as Splenda's competitors.

Posted by: David Nieporent | April 21, 2007 9:27 PM

Call me a jackass, but I find this article funny.

http://www.law.com/jsp/article.jsp?id=1177059872839

Posted by: Supremacy Claus | April 23, 2007 8:47 AM