The Docket April 2017 - Page 9

“ L AW S U I T A B U S E W E E K ” House bills “fix” individuals’ right to due process By CHRISTINA E. UNKEL, Esq. Maglio, Christopher & Toale, PA “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” — Seventh Amendment to the Constitution of the United States of America E xpecting to be cheated — a lot or a little — in every consumer transaction. Watching helplessly as human rights and workplace rights go unprotected or are actively attacked. Paying high prices for dangerous, ineffective, or counterfeit drugs. Driving unsafe cars. Remain- ing powerless as environmental depredations take a toll on one’s life and health and family. These are alarming potential realities for every citizen. These are not partisan issues nor do they discriminate. Unfor- tunately, these are the foreseeable consequences of a series of bills the House will vote on in early March that will make it difficult — if not impossible — for Americans harmed by corporate misconduct to seek justice in our nation’s courts. Plaintiffs’ lawyers and consum- er-rights advocates are raising the alarm regarding a series of bills that are headed to the House Floor that would severely limit the abil- ity of citizens to join in lawsuits to fight grievances in court. In what is dubbed as Lawsuit Abuse Week, the House will vote on each of one of these bills, which were rushed through the House’s Judiciary Committee without a single hearing (trust me — I watched several days of streaming). No testimony was heard from anyone impacted by any of these bills. There was no testi- mony given as to why any change in the law is reasonable and necessary nor why current jurisprudence does not effectively handle class action issues the bills purport to address. Rightfully so, the American Asso- ciation for Justice, American Bar Association, Public Justice, 120 civil rights organizations, 37 disability rights organizations, and over 80 consumer, environmental, and work- Christina Unkel Maglio, Chris- topher, and Toale P.A. ers’ rights organizations oppose these bills. The bills up for vote in the House during Lawsuit Abuse Week are: H.R. 725, the Innocent Party Protection Act, which allows corpo- rate defendants to more easily move a case into a favorable forum for them by making it more difficult to remand an improperly removed state case and taking away the harmed citizens’ right to choose an appropri- ate forum, including state court. H.R. 720, the Lawsuit Abuse Reduction Act, which forces a court to impose sanctions on attorneys who bring novel legal cases. The bill requires a mandatory Rule 11 sanc- tions. H.R. 732, the Stop Settlement Slush Funds Act, which prohibits non-profits and charities from being able to receive compensation from corporations found to have commit- ted widespread harm to the public. H.R. 1215, the Protecting Access to Care Act, which undermines state law and eliminates the rights of Americans to bring certain health care claims when they are injured by medical malpractice and dangerous drugs and devices, or when they or their families are injured or killed in a nursing home. This bill caps non-economic damages, eliminates joint liability for economic loss, caps fees, prohibits lawsuits against providers in product liability cases plus more; and there is sweeping reform against healthcare lawsuits. Further, “healthcare lawsuits” are broadly defined and this impacts many practice areas. H.R. 985, the Fairness in Class Action Litigation Act, and H.R. 906, th e Furthering Asbestos Claims Transparency Act, rolled together into H.R. 985, which strips Ameri- cans of the ability to join with others to bring consumer, worker, or civil rights class actions, or multidistrict litigations against corporations, by requiring an unfair and impos- sible standard for proposed class members to have the exact same type and scope of injury as the named representative (see Section 1716 of the Bill). For example, this would require, in cases involving dangerous drug and medical devices, all the victims to have suffered the same exact harm and to have the same exact amount of damages and for the same duration — a completely impossible standard. And in cases where businesses are seeking damages for losses associated with data breaches, each business must suffer the same type of data breach and suffer the same losses. The bill also interferes with attorneys’ ability to represent clients and the freedom to contract (see Section 1717 and 1718). For example, it prohibits only plaintiff attorneys from representing a family member or law firm employee in a class action and requiring that no plaintiff lawyer may represent a client in a class action if that plaintiff lawyer previously represented the client in another matter. Further, the bill attempts to circumvent the Rules Enabling Act, which sets the proto- col for amendments to the Federal Rules of Civil Procedure. If Rule 23 governing class actions truly deserves an amendment, it should be done by the federal judiciary through its Rules Advisory Committee and then reviewed and approved by the U.S. Supreme Court, as the Rules Enabling Act specifically requires (and has been done since the Federal Rules of Civil Procedure were imple- mented in the 1930s). Also this bill is retroactive, taking away the existing rights of consumers, employees and small businesses. Overall, the proposed bills have several common themes — applying restrictions only to individual Americans and the attorneys who represent them by eliminating class actions and multidistrict litigations, violating contractual rights, overreaching into core state functions such as professional license regulation and state courts jurisdiction, imposing one-sided requirements on plaintiffs, and eliminating existing rights. Pushing bills with this kind of limiting language on citizens’ abilities to access justice is another shot across the bow of an independent judiciary — courts know how to deal with many of these issues the new bills are proposing to “fix.” The courts can and most often do reject the bad. When this occurs, no one on the plaintiffs’ side is paid or reimbursed when cases are dismissed or lost at trial, or settlements are disapproved. 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