Talking Turkey about So-called Lawsuit Abuse

Brian Kabateck
Brian Kabateck is a past president of the Consumer Attorneys of California, the Los Angeles County Bar Association and is currently Board Chair of Loyola Law School as well as the managing partner of Kabateck LLP in Los Angeles. John and Brian occasionally host “KabaTalks,” a podcast discussing their views on California politics.

Around the Capitol and throughout California, people always ask us, “Exactly what is Thanksgiving dinner like for the Kabateck family?”  The answer to that question may lie in a closer look of the article published in this publication on Nov. 11 by my brother, John, entitled “In 2020, California lawmakers failed to protect Californians against lawsuit abuse.”

“Lawsuit Abuse” is a tired catch phrase used by the far right to define corporate protectionism. 

So most holiday gatherings, we enjoy robust discussions around our family about whether or not there really is such a thing as “lawsuit abuse.” I’m a trial lawyer, so I’m betting you can guess where I come down on the debate.

I am sure anyone who ever gets sued thinks they are the victim of “lawsuit abuse.”  First, we can all concede that there are “frivolous lawsuits.” It’s not just individuals who file “frivolous lawsuits.”  Big corporations love to play. Look no farther than Frito-Lay, which sued a smaller chip maker is 2013 saying it ripped off the shape of its Tostitos Scoops! tortilla chips. Frito’s lawsuit got crunched in federal courts in Texas. Back in 1998, Kellogg sued Exxon over the gas station giant’s whimsical tiger logo, saying it could be confused with Tony the Tiger. Tony and Kellogg lost as a federal court tossed their suit. 

Fortunately, the several thousand California superior court judges, our appellate and supreme Court justices, as well as numerous federal district court judges sitting in this state act as a deterrent to control frivolous lawsuits. By their very definition, a frivolous lawsuit is a lawsuit that doesn’t get off the ground, often gets dismissed, and those lawyers who file frivolous lawsuits make no money and go broke quickly. So let’s focus on what really is meant by “lawsuit abuse.”

Look, if I ran a corporation, I would want legal immunity too. And that’s what we’re really talking about here. Corporations and employers big and small would like nothing better than to never have to face the consequences of their wrongful actions. For example, my brother and I recently debated the rule in California that anyone in the distribution chain of a defective product can be held liable for defects in that product. But the distributors and the retailers would like nothing more than immunity, which would allow them to sell the products that they receive from China or other foreign manufacturers with impunity without ever checking the product’s safety history or efficacy.  

The way we actually protect the 40 million people living in California is to ensure that the products sold them are safe and, if not, hold liable all of those responsible for the sale of the product, not just the manufacturer. That’s what happened with the automotive industry. As a result of good consumer lawsuits over the last 50 years, cars are much safer and people are injured or die less often.  

The same is true for pharmaceuticals, home goods and industrial products. The world has been made safer by lawyers, judges, legislators and many others who hold those responsible accountable for their actions.  

While my brother’s article seems to want to take aim at legislators, he consistently refers to the men and women who represent the 40 million Californians, oftentimes for little or no compensation, as “money-hungry,” “extortionist,” “shake-down” trial attorneys, and trial lawyers who “line their pockets at the expense of businesses.”  

I get it: the far right would like to protect businesses by building a shield around them or giving complete immunity. I also understand that it is difficult to run a small business and always follow the sometimes complex and sometimes onerous legal rules. I run a small business with less than 50 employees and understand the challenges. We can always do a better job of protecting small businesses, but let’s not dress up legal violations by putting lipstick on a pig and throw around the phrase “lawsuit abuse.”  

The real aim of the far right is to protect corporations, not small businesses. I have no doubt that my brother protects small business; that’s his job and that’s what he does well. But consistently wanting to throw the baby out with the bathwater ignores the fact that the men and women in the state who enforce the law – whether they are the legislators, the attorney general, district attorneys, city attorneys or trial lawyers – serve the important function of protecting people from corporate abuse and injury. One of the great equalizers in our society, which makes us different than almost every other country in the world, is that everyone has a fair and equal opportunity to justice and access to the courts.

Is the current (short term) occupant of the White House engaging in “lawsuit abuse” when he files countless lawsuits in a final attempt to hold onto his job or is he just exercising his constitutional right to redress the courts?  How about we all drop the term “lawsuit abuse” and talk about what we can do to make California better, not just for the corporations and small businesses, but the individuals who live here.  

So, the answer to the question:  “What is Thanksgiving like at the Kabateck family?” might be best answered by my brother, who was recently asked that very question by Hannah-Beth Jackson, the outgoing Chair of the Senate Judiciary Committee. My brother’s answer:  “vodka.”

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