Trial Magazine
On the Hill
Tort Reform Stew
February 2018The House Judiciary Committee spent most of 2017 stirring up old tort “reform” favorites. The committee did not hold a single hearing on any of the tort reform bills that it approved, relying on hearings from previous Congresses as justification for supporting this Congress’s bills. But what happens when an idea emerges for a new bill or when pressure builds for the Senate to consider those House-passed measures? Hearings in both committees.
Cooking up new ideas. At the end of November, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on nationwide injunctions, which focused on the research and writing of UCLA School of Law Professor Samuel Bray. He advocates for district courts being limited to granting a “plaintiff-protective injunction” that controls the defendant’s conduct only with respect to the plaintiff. Bray’s philosophy is non-ideological: He is as troubled by the nationwide injunction that halted President Obama’s immigration policy as the one that limited President Trump’s immigration ban.
How does this affect civil justice? Many class action, antitrust, and civil rights cases use nationwide injunctions to stop corporate and government misconduct. During the hearing, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) also suggested that a three-judge panel consider any national injunction. A proposed House bill, H.R. 2660, the “Assigning Proper Placement of Executive Action Lawsuits Act,” would provide the District Court for the District of Columbia with exclusive original jurisdiction for any action involving an executive order or action—affecting where motions for nationwide injunctions could be brought.
Clashing flavors. Two weeks earlier, the Senate Judiciary Committee held a hearing on so-called “lawsuit abuse,” which Congress has repeatedly done over the past few years to make the case for tort reform. Called “The Impact of Lawsuit Abuse on American Small Businesses and Job Creators,” this hearing featured familiar witnesses testifying on repeat topics. John Beisner, appearing for the U.S. Chamber of Commerce’s Institute for Legal Reform, testified in favor of class action, asbestos, and multidistrict litigation reforms—many of which can be found in the House-passed H.R. 985, the “Fairness in Class Action Litigation Act.” Elizabeth Milito from the National Federation of Independent Business reprised testimony supporting the “Lawsuit Abuse Reduction Act,” the mandatory Rule 11 sanctions bill. She also insisted that small businesses regularly give in to demand letters, settling unmeritorious claims to avoid court.
The preposterous juxtaposition of small businesses settling all claims to avoid court while insisting that small businesses need mandatory Rule 11 sanctions because they are frequent victims in court was torn apart by Senate Democrats at the hearing. The minority witness, Cardozo School of Law Professor Myriam Gilles, testified about the problems of forced arbitration and class action bans in employment and consumer contracts. In the wake of revelations about sexual harassment in the workplace, the harmful impact of forced arbitration and secret settlements has taken on new meaning.
New recipes. A bipartisan group of legislators introduced H.R. 4570 and S. 2203, the “Ending Forced Arbitration of Sexual Harassment Act,” to prevent businesses from enforcing mandatory arbitration agreements when employees allege workplace sexual harassment or gender bias. Former Fox News host Gretchen Carlson, whose lawsuit against former Fox News executive Roger Ailes led to his resignation, has joined lawmakers to push these bills.
New chef in the kitchen. Rep. Jerrold Nadler (D-N.Y.), a true champion of civil justice, is the new ranking member of the House Judiciary Committee. Nadler previously served as ranking member of the Subcommittee on the Constitution and Civil Justice and has a deep knowledge of issues affecting you and your clients.
AAJ continues to vigilantly watch as Congress begins stirring up its agenda for 2018.
Susan Steinman is AAJ's senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.
