For the last two decades, insurance companies, manufacturers of dangerous
products and chemicals, the tobacco industry and other major industries
have been engaged in an effort to roll back the U.S. civil justice system.
In nearly every state and in Congress, corporations and their insurers
have waged a relentless campaign to change the laws that give sick and
injured consumers the ability to hold their offenders responsible for
the injuries they cause.
While most of their legislative initiatives have been stymied at the
federal level -- where corporations have sought national laws to override
the rights that states grant to injured parties -- the corporate coalition
has had enormous success in the states themselves. Going state by state,
they have succeeded in obtaining liability caps, elimination of various
causes of action, and procedural rules making it much harder to sue wrongdoers.
The business-led effort to take away consumers' legal rights (called
"tort reform" by its corporate proponents; "tort deform" by its pro-consumer
opponents) has had at its helm the American Tort Reform Association (ATRA)
located in Washington, D.C. In turn, ATRA has contracted with APCO & Associates,
one of the nation's leading "grassroots" lobbying/PR firms.
Because large corporations have found their message more effective when
delivered by what appear to be citizen groups than when conveyed by business
associations openly advancing their pecuniary interests, they have come
to rely on a network of front groups, corporate-funded think tanks and
industry-funded academics to articulate their message.
Among the national groups representing the corporate interests are organizations
like Citizens for a Sound Economy, the American Legislative Exchange Council,
Americans for Job Security, the Center for Individual Rights, the Federalist
Society, the Manhattan Institute, the Competitiveness Enterprise Institute
and the Washington Legal Foundation.
At the state level, more important has been a network of supposed grassroots
organizations spontaneously formed to confront "lawsuit abuse." This network
of local organizations was created by APCO. The groups euphemistically
call themselves any number of names, typically: Citizens Against Lawsuit
Abuse (CALA), Lawsuit Abuse Watch, Stop Lawsuit Abuse, or People for a
FAIR Legal System (collectively referred to here as "CALAs.")
Since 1991, "tort reform" advocates have set up dozens of tax-exempt
groups in at least 18 states to plant their "lawsuit abuse" message in
the media and the public consciousness, and to influence legislation,
the judiciary and jurors. These groups claim to speak for average people
and represent themselves as grassroots citizens groups determined to protect
consumer interests. But their tax filings and funding sources indicate
that they actually represent major corporations and industries seeking
to escape liability for the harm they cause consumers -- whether it be
from defective products, medical malpractice, securities scams, insurance
fraud, employment discrimination or environmental pollution.
The money trail from many of these groups leads directly to large corporate
donors, including tobacco, insurance, oil and gas, chemical and pharmaceutical
companies, medical associations and auto manufacturers. They are also
funded by ATRA, as well as professional associations, local businesses
and industries that also wish to be shielded from consumer lawsuits.
The tobacco industry has been perhaps the leading supporter of the CALAs.
The huge cache of documents made public during the state attorneys general
litigation against the tobacco industry in the late 1990s reveals that
Big Tobacco spent millions of dollars a year (and in at least one year
$15 million) supporting ATRA, state CALAs and other activities to weaken
tort laws in many states. For instance, in 1995, Big Tobacco allocated
$5.5 million for ATRA, more than half of ATRA's budget. In some cases,
CALAs, such as the one in Louisiana, were virtually created by the tobacco
industry. Tobacco money has gone directly to ATRA, APCO and state organizations.
"David" and the Vice President
In November 1990, the Rio Grande Valley Chamber of Commerce in Weslaco,
Texas hired a political/marketing consultant named Jon Opelt to develop
a program to counter a judicial climate it felt was too pro-consumer.
The catalyst for the program was a $2.5 million jury award in September
1990 to two Mexican-American men who were illegally fired from a local
sugar mill. The verdict, the Chamber said, could have shut down the mill
and put hundreds of people out of work. It didn't. The mill settled the
case, but the Chamber labeled it "lawsuit abuse" anyway and used the case
to rally popular support for its agenda to limit people's rights to sue.
Initial financing for the effort, which became the first Citizens Against
Lawsuit Abuse group (Weslaco CALA), was provided by the Chamber, corporations
doing business in the valley, and the local medical association seeking
to stop medical malpractice lawsuits. Its chair, Gonzalo Sandoval, was
an executive with Central Power and Light.
The Weslaco CALA launched its first campaign in January 1991, leasing
five billboards along the busiest roads in the Rio Grande Valley with
such messages as, "Lawsuit Abuse: Guess Who Picks Up the Tab? You Do."
"Lawsuit abuse" became the poll-tested solution to the dilemma faced by
advocates of "tort reform" -- how to convey their agenda in terms average
people could understand.
The first "lawsuit abuse" television ad ran in 1991 as part of the Weslaco
CALA's $20,000-a-month publicity program. The ad portrayed a gloomy business
environment in south Texas, citing the "near closure" of the sugar mill
that had wrongfully dismissed two workers. The Weslaco CALA also aggressively
took on trial lawyers by posting ads that read: "Fairness Yes -- Greed
No."
"It was kind of like David versus Goliath," Opelt says. "We were David
and the trial lawyers were Goliath."
It turns out, however, that David had the vice president of the United
States and an alliance of Fortune 500 companies on his side.
The same year that Weslaco CALA ran its first ads, the White House Council
on Competitiveness, headed by then Vice President Dan Quayle, embraced
"tort reform" as a priority issue and assigned then-Solicitor General
Ken Starr the task of developing a plan to overhaul the country's civil
liability laws. Starr has represented tobacco companies and General Motors,
among other clients, in products liability litigation. A "Starr report,"
not destined to receive as much attention as the subsequent Starr report
on President Clinton's affair with Monica Lewinsky, was ready in August
1991, and presented 50 recommendations for "tort reform" which it said
were necessary to "maintain America's competitiveness." President George
Bush embraced the recommendations at an October White House ceremony in
which he signed an Executive
Order on Civil Justice Reform.
In 1992, Quayle visited South Texas, where he met with Weslaco CALA President
Bill Summers. Quayle encouraged Summers to take the "lawsuit abuse" campaign
statewide.
Following the meeting between Quayle and Summers, similar campaigns
were launched in San Antonio, Corpus Christi, Victoria and Beaumont. The
right-wing Texas Public Policy Foundation and the Texas Chamber of Commerce
were instrumental in helping to develop this statewide CALA network.
Following that, CALAs started springing-up around the country. The Weslaco
CALA had become the CALA blueprint, growing from a regional campaign in
the South Texas oilfields into a nationwide crusade.
THE ATRA/APCO CONNECTION
The American Tort Reform Association (ATRA) was formed in 1986 to represent
hundreds of U.S. and foreign corporations in their bid to overhaul civil
liability laws at the state and national levels.
By 1992, ATRA had hired a public relations firm to help it reach its
"tort reform" goals by creating local "grassroots" front groups. The contract
was with a subsidiary of public relations titan Grey Advertising called
APCO & Associates, a company that had specialized in "tort reform" lobbying
since the 1980s and had worked both for insurance companies, like State
Farm, and the tobacco industry.
APCO knew the issue well. Founded in 1984 by the beltway law firm, Arnold
& Porter, and first known as the Arnold & Porter Consulting Group, APCO
was later sold to Grey Advertising after having consulted for Philip Morris
and other tobacco companies on civil justice issues for years. Indeed,
an internal Philip Morris document indicates that APCO and Neal Cohen,
its "principal account executive on the PM [Philip Morris] Family Tort
Project" had been, since 1988, "assisting the PM Family [on] national
and state tort coalitions and other tort reform advocates with political,
communications and grassroots strategies and related programs."
This concept of corporate "grassroots lobbying" in which APCO specializes
is a relatively new public relations strategy, which the New York Times
described as "a technique often used to camouflage an unpopular or unsympathetic
client." One of the faster growing areas of corporate public relations,
grassroots lobbying, which supplements legislative lobbying, involves
forming a coalition on behalf of wealthy companies and trade associations
and generating sympathy for legislation sought by the unsympathetic client.
A memo from the now-closed Tobacco Institute highlights the importance
of these "astroturf" efforts appearing to be independent "grassroots"
initiatives. Describing the grassroots lobbying strategy long used by
tobacco companies, the 1986 memo says, "The primary purpose of [grassroots
lobbying] is to substantiate and support [the] Tobacco Institute position
presented [to] Congress, state legislatures or local councils by our lobbyists.
In order to be totally effective, the grassroots effort must appear to
be spontaneous rather than a coordinated effort. The goals of the Committee
should be set by the Tobacco Institute. Invite suggestions and discussion,
however, steer the discussion so that it ends up at our predetermined
objective."
A 1996 campaign by the Louisiana CALA, which was created with the help
of tobacco companies, illustrates how astroturf lobbying works. According
to Louisiana CALA Executive Director Ron Gomez, a former state representative,
the Louisiana CALA generated some 4,000 constituent calls, faxes or letters
urging key legislators to vote for three "tort reform" bills pending in
the state Senate that year. Drawing from a list of 18,000 names compiled
from calls to toll-free numbers advertised on the CALA television, radio
and billboard ads produced by APCO, the Louisiana CALA set up phone banks
to coordinate calls and letters to legislators. "That's effective," he
says. "I can tell you as a former legislator."
In 1994, APCO's Cohen explained the CALA "grassroots" strategy in a
speech before a gathering of corporate public affairs executives sponsored
by the Public Affairs Council, an organization of some 500 corporations
and trade associations. "Rule No. 1 for me is stay away from substance,"
Cohen said. "Don't talk about the details of legislation. � Talk about
� frivolous lawsuits, lawsuit abuse, trial lawyer greed." He explained
the need for front groups. "In a tort reform battle," he said, "if State
Farm -- I think they're here, Nationwide -- is the leader of the coalition,
you're not going to pass the bill. It's not credible, O.K., because it's
so self-serving. Everybody knows the insurance companies would be one
beneficiary of this."
The APCO/CALAs grassroots campaign has been effective. At the 1994 seminar,
Cohen showcased his CALA work with Mississippi for a Fair Legal System
(M-FAIR), a CALA he had set up in Mississippi in 1993. APCO orchestrated
a blitzkrieg public attack on trial lawyers, which included an 800-number
on billboards, and TV ads. The idea was to use "every campaign tactic
we had in order to bring in as many people, and we made sure that it was
typical people mixed in with large employers and political contributors."
The coalition soon had over a thousand people who had responded to the
"greedy trial lawyer" message.
According to Cohen, "we have 1,500 Mississippians mixed in with who
our clients were" and since Mississippi had "no reporting requirements,
�they [the trial lawyers] didn't really know who was at the heart of everything."
In the end, they "caved in completely." The group was "instrumental" in
the passage of H.B. 1270, Mississippi's 1993 "tort reform" legislation,
according to ATRA. The Tobacco Institute was involved in the Mississippi
effort as well, and several APCO documents documenting the M-FAIR strategy
were uncovered in the Tobacco Institute's files.
Other state lawmakers have undoubtedly been influenced by APCO/CALA
grassroots lobbying efforts. In 1994, Liability Week reported that in
addition to Mississippi, Neal Cohen and APCO had a "key role" in developing
the system which resulted in substantial tort overhauls in Texas, North
Dakota, Arizona and Michigan in 1993. Cohen also boasted in a 1995 interview
published by the PR industry magazine, Reputation Management, that CALAs
have helped pass significant "tort reform" bills at the state level in
California, New Jersey, Texas, Mississippi and Michigan.
In 1995, the Illinois Civil Justice League, which was the principal
author and proponent of the state's Civil Justice Reform Amendments of
1995, organized an Illinois CALA. It used direct mail to collect contributions
and build a list of names supporting "tort reform." This CALA was short-lived
as the bill was signed into law in March of that year (though the law
was declared unconstitutional two years later).
As another example, weeks before the Ohio House considered a massive
"tort reform" bill in 1996, Ohio Citizens Against Lawsuit Abuse (OCALA)
appeared on the scene. The bill passed but it was later declared unconstitutional.
As the Alabama state legislature was debating proposals in May 1999 to,
among other things, cap punitive damages, Alabama Voters Against Lawsuit
Abuse (AVALA) organized pro-business demonstrations outside the capitol
in Montgomery, and sent out letters to its mailing list asking people
to urge their legislator to vote for the package of tort restrictions.
The legislation passed.
1-800-Start-A-CALA
At its first press conference in 1994, Los Angeles CALA's President, Bill
Bloomfield, owner of a Redondo Beach company that loans washers and dryers
to apartment buildings, unveiled television commercials and its first
billboard with the message: "Help Stop Lawsuit Abuse. We All Lose. 1-800-293-CALA."
Bloomfield said, "We are a group of citizens who have had enough of a
system that makes us all victims." Similarly, when Ohio Citizens Against
Lawsuit Abuse (OCALA) appeared on the scene in 1996, OCALA's chairman
Jackie Fox, the chief financial officer and general manager of a company
that runs beauty salons, stressed the group's local "grassroots" origins,
saying OCALA "is relying on small business, grassroots donations to get
started." Neither organization gave much hint of their extensive connection
to the nationwide ATRA/APCO network (although OCALA did admit that three
television commercials it previewed were prepared with ATRA.)
In a 1996 memo originally obtained by the publications Counterpunch
and PR Watch, Neal Cohen highlighted APCO's involvement in the formation
of CALA groups. With regard to OCALA, for example, Cohen wrote, "In Ohio,
we are working with the local business community to form a new citizens
group focusing on lawsuit abuse." In Michigan, he said, "we are working
with the local business community to form a new citizens group focusing
on lawsuit abuse." He also said, "In California, we work with both a statewide
group � as well as six local CALA groups." And in Alabama, Cohen said,
"we work with an extremely active statewide citizens coalition, Alabama
Voters Against Lawsuit Abuse." In addition to these states, Cohen's memo
mentioned a number of other states in which APCO was involved, including
Louisiana, Minnesota, Mississippi, Texas and West Virginia.
While ATRA/APCO have not advertised their role in creating the CALA
movement, they do admit to supplying the groups with limited guidance.
Likewise, in its own materials, ATRA admits to working with local groups
to "set their legislative agenda and strategies," as well as provide them
with "briefing materials, model bills, witnesses and speakers," and a
"communications �tool kit'" including "hard-hitting television ads and
radio spots as well as billboard and information handouts."
In 1997, ATRA spun off a foundation to provide funds of approximately
$1 million annually to local groups for purposes of conducting public
education programs and other consulting services that are pursuing the
ATRA agenda. According to ATRA's newsletter and web site, one of the Foundation's
top jobs will be "enhancing the communications tool kit that ATRA currently
makes available to grassroots organizations across the country. This program,
which includes award-winning television and radio commercials and other
communications materials, helps to communicate the �Stop Lawsuit Abuse'
message in a way that avoids legalese and is understandable to the public."
Indeed, widespread national coordination of message and strategy, focused
on developing public scorn for the civil justice system, is evident in
virtually every aspect of local CALAs' activities:
- Starter grants and kits: ATRA provides funding to individuals or
groups interested in starting a CALA, as well as starter kits. The initial
filings with the Internal Revenue Service (IRS) by Western Maryland
CALA, for example, included as an attachment what appears to be a portion
of a generic starter kit consisting of detailed job descriptions, a
fundraising manual and a media primer.
Specifically, attached to the IRS filing was a job description for
an "Executive Director," which was described in generic terms as being
"responsible for executing and implementing policies adopted by the
CALA steering committee on a day-to-day basis." The executive director,
according to the document, is supposed to help draft op-ed articles
and letters to the editor for placement, to "devote time to cultivating
reporters, �jumping on a story' that the stop lawsuit abuse theme
can piggy-back onto, etc. (See CALA media primer)." Also, 40 percent
of the executive director's time is to be spent on fundraising, and
preparing an annual fundraising plan that reports potential contributors.
The job description continued, "examples: physicians for $50K, auto
dealers for $25K, etc. See CALA fundraising manual for more specifics."
Finally, the memo directs the executive director to spend 25 percent
of his or her time on administrative/management tasks.
- "Public education" materials and activities: The slogans, brochures,
websites, activities, billboards and other advertising used by CALAs
nationwide are evidence of widespread national coordination.
For example, the "Stop Lawsuit Abuse" stop sign logo is ubiquitous
throughout the CALA network, used by, among others: Alabama Voters
Against Lawsuit Abuse (AVALA); Bay Area CALA (Texas); Central California
CALA; Central Texans Against Lawsuit Abuse; Los Angeles CALA; Louisiana
CALA; Michigan Lawsuit Abuse Watch; San Diego Citizens Against Lawsuit
Abuse; Silicon Valley CALA; Southern West Virginia CALA; Texans Against
Lawsuit Abuse; and Weslaco (Texas) CALA.
The slogan "Lawsuit Abuse: We All Pay, We All Lose" has been used
by numerous CALAs, as has the slogan "Fairness, yes -- Greed, no."
Since 1996, several active CALAs, including those in Texas, California,
Ohio, West Virginia and Maryland, have designated the third week of
September as "Lawsuit Abuse Awareness Week." This week is sometimes
accompanied by a so-called "wacky warning label contest" ostensibly
to show how lawsuits lead to silly results. At the same time each
year, these CALAs obtain endorsements from sympathetic political officials,
ranging from conservative Republican governors, to local mayors and
legislative bodies, to members of Congress.
- Paid advertising: Since 1991, when the first Texas CALA became the
testing ground for ATRA's ad campaign, CALA groups have heavily relied
on APCO to develop, or assist them in developing, television, radio,
print and billboard advertising, as well as messages, signs and slogans
and PR materials. By 1996, APCO had said that the ad campaigns it developed
had "changed the nature of the debate from a technical intangible concept
to a concept more easily understood by the general public."
- Influencing juries: Consumer advocates and trial lawyers say the
CALAs' massive publicity campaigns are not targeted only at legislators
-- they aim to influence juries as well. Lawyers point to CALA billboards
near courthouses, and TV and radio ads that spike during particularly
high-profile cases. The purpose, they believe, is to make jurors more
suspicious of victims and the civil justice system.
Show Me the Money
CALAs are incorporated locally as non-profit, tax-exempt organizations.
As with other non-profit groups, a CALA is not required to disclose its
funders. And they choose not to.
CALAs work to maintain the appearance of local citizen groups -- a spontaneous,
folksy backlash by ordinary citizens against a legal system that is "out
of control." A typical story is the one Bill Bloomfield told the Sacramento
Bee, about the founding of the Los Angeles CALA. Bloomfield said the group
came into being after "organizing some friends including two attorneys,
a teacher and a sheriff's detective" and then "passing the hat to raise
funds."
However, for CALAs for which financial information is publicly available,
the evidence shows they are sustained by local industries, large corporations
or trade associations, which are generally represented on their boards,
and/or support them with financial or in-kind contributions. CALAs are
also often backed by the tobacco and insurance industries.
For example:
� Founded in 1992 primarily with the help of the tobacco industry, the
Louisiana CALA has also received financial support from Louisiana Power
& Light, Freeport-McMoran, Pfizer, Abbott Laboratories, Union Pacific,
Georgia Pacific, Texaco and local businesses.
� Minnesota Lawsuit Abuse Watch was incorporated in 1996. Its initial
supporters, donating more than $100,000 in its first six months, included
the Independent Business Association of Minnesota, the National Federation
of Independent Business (NFIB) Minnesota, the Minnesota Civil Justice
Coalition and the Minnesota Chamber of Commerce.
� In 1995, Oklahoma CALA, formed a year earlier, ran a statewide initiative
campaign to put tort restrictions on the ballot. By March, it had raised
$2 million, but not from average Oklahoma citizens. Oklahoma CALA's supporters
who contributed or pledged at least $50,000 each to this effort were:
CITGO Petroleum Corporation of Tulsa, Phillips Petroleum Company of Bartlesville,
the Oklahoma Publishing Company, publisher of The Oklahoman, Southwestern
Bell Telephone, Boatmen's First National Bank of Oklahoma, American Fidelity
Group, Kerr-McGee Corporation and State Bank & Trust Company.
In addition to the financial and public relations support they receive
from corporate-backed ATRA and APCO, CALAs are often run not by citizen
activists, but by hired public relations or marketing consultants. Texans
Against Lawsuit Abuse (TALA), which is operated by ROSS Communications,
a company with which APCO is formally partnered, is one such example.
But they are not alone. In papers filed with the IRS, Alabama Voters Against
Lawsuit Abuse says, "AVALA's activities � will be conducted in the state
of Alabama by independent consultants and professional research and polling
firms retained and paid by AVALA." In addition, several CALAs have been
run by individuals who are in and out of the PR world.
CALAS: Carved in the Landscape
While some of the CALAs have had a fleeting existence, appearing just
before major legislative fights and disappearing just as quickly thereafter,
the nationwide CALA phenomenon is now a permanent part of the national
political landscape.
And some of the CALAs, with ongoing infusion of corporate funding, have
shown significant staying power. The Texas CALAs continue to function
more than a decade after starting the national trend.
In February, the network of Texas CALAs emerged as the public face of
a corporate-driven effort to rewrite again the state's tort laws and further
restrict consumer and injured party rights in Texas.
Speaking straight from the text of a decade earlier, Jon Opelt, still
the Houston Executive Director of CALA, told the Dallas Morning News,
"this bill provides a far-reaching fix to the state's lawsuit abuse problem."
Carl Deal is a freelance journalist based in New
York City. Joanne Doroshow is the executive director of the Center for
Justice & Democracy. This article is based on their report, “The
CALA Files: The Secret Campaign by Big Tobacco and Other Major Industries
to Take Away Your Rights,” published by Public Citizen and the Center
for Justice & Democracy.
|