Opinion: Nessel Shouldn’t Cater to Trial Lawyers

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Michigan Attorney General Dana Nessel would needlessly create opportunities for entrepreneurial trial lawyers to pursue those that drive Michigan’s economy, ATRA President Tiger Joyce writes.

This piece first appeared in the Detroit News.

Michigan Attorney General Dana Nessel recently asked the state Supreme Court to reconsider a lawsuit involving Ford transmissions. But this is not about auto parts. What Nessel really wants is to have the Court “revisit” its interpretation of Michigan’s Consumer Protection Act.

While this may appear to be a technical, legal matter for lawyers and judges, the reality is that anyone who wishes to see a thriving Michigan economy should be concerned.

To start, if Nessel believes the state’s law should be changed, she should ask the legislature to do it. But she won’t do that because she knows she couldn’t accomplish her objectives there. Instead, she’s again asking the Court to hear this Ford case, after they had already denied it, in order to overturn two previous decisions. If she’s successful, Ford and all regulated industries in the state will face significantly expanded liability.

Protecting consumers and ensuring bad actors are held accountable is indeed a worthy goal, but needlessly creating opportunities for entrepreneurial trial lawyers to pursue those that drive Michigan’s economy is not the way to do it.

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Nessel claims the Court’s current interpretation of the law creates an exemption that leaves consumers open to “significant risk.” But the Michigan legislature hasn’t voiced any such concern with the Court’s interpretation of the law that which was handed down more than 20 years ago. If there was such a problem, the legislature presumably would have made that known at some point.

If Nessel is successful, the real “significant risk” will be for Michigan employers who find themselves facing increased litigation when trial lawyers take advantage of new opportunities to sue. Frivolous and meritless lawsuits often drag on in court for years, at considerable cost and burden to small business defendants. This lawsuit abuse ultimately will lead to flourishing companies deciding to close operations, and others looking to decide where to locate will look to states with a more balanced judicial system.

This is not just a slippery-slope argument, either. States deemed “Judicial Hellholes®” by the American Tort Reform Foundation like California and New York have loose “consumer protection” laws and courts that allow thousands of baseless claims to move forward. Companies are forced to litigate these cases, which often include complaints about just how “natural” a food’s ingredients are to whether there is too much air in a bag of chips.

Ford and the rest of Michigan’s automotive industry employ hundreds of thousands of hard-working Michiganders and they contribute billions of dollars to the state’s economy. It’s easy to see why entrepreneurial trial lawyers would want to target a booming economy, but Michigan shouldn’t want to be a “Judicial Hellhole” like California or New York.

While Nessel is charged with protecting consumers, and she no doubt has good intentions, the unfortunate reality is her insistence that the court re-interpret the consumer protection law will do little for consumers. The lawyers who will bring the resulting lawsuits, however, will reap a windfall of fees.

Instead of promoting litigation and attacking job creators with this legislative side-step, Nessel should make her case to the Michigan legislature and take pains to ensure she is serving the broader interests of the public – not lawyers bringing lawsuits. The onus is now on the state Supreme Court to reject Nessel’s request and decline, as they did before, to review the lawsuit against Ford.

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