Congress can move fast if it chooses to. Class action tort reform legislation began in February 2003 and was a nonstarter. Then on January 25 of this year, Senator Charles Grassley (R-IA) introduced bill S.5, and with 33 co-sponsors including eight Democrats (Carper-DE, Dodd-CT, Feinstein-CA, Kohl-WI, Landrieu-LA, Lieberman-CT, Lincoln-AR, and Schumer-NY), the Class Action Fairness Act of 2005 began. The House had passed a similar initiative (HRes.96) having no force or effect, being a trial baloon. The Senate passed S.5 on February10, the House passed S.5 on February 17, and President Bush signed the bill into law as PL-190.2 on February 18, indeed a step in the right direction to deter "jackpot justice" as labeled by National Association of Manufacturers. But there is more to this story.

Passage of this legislation had been an Administration goal. Opposition politics being what it is and with strident opposition from the usual cabal of liberals, reform has been impossible. As Captain Renault said in the movie classic "Casablanca," "...round up the usual suspects": the AFL-CIO, AARP, ACLU, The Association of Trial Lawyers of America ("a shameful attack on American's legal rights") and the fringe Democrats like House Minority Leader Nancy Pelosi ("a payoff to big business"). And regardless of political persuasion, tort law is still in disarray with "junk lawsuits," a major blemish needing removal. Class action suits have surged 1,300% nationwide in the past ten years and over 5,000% in certain "magnet jurisdictions." This impropriety now costs America more than $240 billion annually. As President Bush cited at the signing ceremony, in a suit against a TV manufacturer making faulty sets, the lawyer got a $22 million fee at settlement, but all claimants received was a $50 coupon for a rebate on another TV made by the same company. The President also commented about "venue shopping" for class action suits and cited Madison County, Ill., as a horrible example. Frivolous suits filed there rose from 2 in 1998 to 82 in 2004 with 24 filed already this year and 20 alone in the week before law signing. And you thought the U.S. has a system of justice.

Final House passage was a 279 to 149 recorded vote, with 6 not voting; a near 2:1 majority with substantial bipartisan support. The Senate recorded vote was 72 to 26 with 2 Republicans not voting; if you review the "nay" votes, all Democrats, no surprises are there, just the known leftists (Boxer, Clinton, Biden, Harkin, Kennedy, Kerry, Mukulski, Sarbanes, Levin, Dayton, Corzine, Reid, Wyden, Leahy, Byrd, Murray, Feingold, Nelson, Lautenberg, Inouye, Durbin, Pryor, Akaka, Baucus, Stabenow, and Dorgan). Politicians, all except the recalcitrant, came down on the right side of history before constituents came down on them. But there is more.

Read the legislation (see or "google" with the law name and get 343,000 hits). I call it a "better than a sharp stick in the eye" law because it moves in the right direction but does not really solve problems. Class actions attempt to aggregate claims of numerous parties into a single action for efficient resolution. When class members receive few benefits, unjustified award is made, and lawyers are enriched by the process, abuses occur. That old liberal claim that interstate commerce is affected is the "hook" used to justify this correcting action and that fits in this case, but only because it is an otherwise legally accepted reason.

The new law goes to lengths to limit how attorney fees must be linked to coupons that are redeemed, not awarded, but assures how defense and plaintiff attorneys will be paid. The law sets conditions where jurisdiction must (or may with exceptions) revert to federal district court for interstate class actions exceeding $5 million and so restricts venue shopping. The law is silent on issues of frivolity. The law is silent on any penalty for trial lawyers who bait and encourage class actions and that is at the heart of this matter. While supportive law firms say this legislation is a response to abuse in state court class actions, while true, is an obfuscation. An aggressive participant (plaintiff lawyer) suffers no penalty for frivolity and that is a more important issue, as I read history and the intent of class action, than the pablum of this new law.

Industry can be encouraged and thank Congress for assisting a partial step toward problem solution. But make no mistake; we ain't there yet.