Amidst ACA Repeal Effort, House GOP Votes to Make It More Difficult to Obtain Justice
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Ramming their ACA repeal bills through committee wasn’t the only thing the House GOP was up to this week. They also passed three bills aimed at making it more difficult to sue corporations when they cheat, pollute, exploit, discriminate, or violate the law in other ways.
Fairness for Whom?
The first bill was the Orwellian titled “Fairness in Class Action Litigation Act” (H.R. 985).
The bill would prohibit class action lawsuits unless the injuries suffered by each plaintiff were exactly the same. Under current law, if one person got a head injury and another got a broken rib because of the same faulty airbag, then they could be a part of the same suit. Forcing them to bring separate lawsuits would be costly and time-consuming and would reduce the chances that they receive justice and that the corporate wrongdoer face accountability, all the while burdening an already overextended court system. This is Republicans’ idea of “fairness.”
H.R. 985 is opposed by a wide range of groups, including the American Association for Justice, the AFSCME, the American Civil Liberties Union, Consumer Federation of America, Consumers Union, American Bar Association, Disability Law Center, Center for Responsible Lending, American Association of University Women, Public Citizen, NAACP Legal Defense and Educational Fund, Inc., National Partnership for Women & Families, Southern Poverty Law Center, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, and the Leadership Conference on Civil and Human Rights.
The bill also includes language from H.R. 906, the Furthering Asbestos Claim Transparency (FACT) Act of 2017. Transparency, for Republicans, is bad when it can help keep corporations accountable. When it can disincentivize people from seeking just compensation for corporate wrongdoing, they love it. Under this bill, anyone seeking reimbursement for their injuries from an asbestos settlement trust set up through a Chapter 11 bankruptcy reorganization would have personally identifiable information made publicly available online, and the settlement trusts would have to face burdensome new reporting requirements. Again, some “fairness.”
These provisions are opposed by asbestos victims and their families, Military Officers Association of America, the Military Order of the Purple Heart, the AFL-CIO, the American Federation of State, County and Municipal Employees, Asbestos Disease Awareness Organization, the Environmental Working Group, Public Citizen, the Alliance for Justice, among other groups.
The bill passed 220 to 201, with one Republican — Morgan Griffith (VA-09) — voting present.
14 Republicans joined Democrats in opposing the bill: Justin Amash (MI-03), Carlos Curbelo (FL-26), Mario Diaz-Balart (FL-25), Jimmy Duncan (TN-02), John Faso (NY-19), Walter Jones (NC-03), Frank LoBiondo (NJ-02), Tom Massie (KY-04), David McKinley (WV-01), Pat Meehan (PA-07), Ted Poe (TX-02), Mike Rogers (AL-03), Ileana Ros-Lehtinen (FL-27), and Steve Russell (OK-05).
The House also killed seven Democratic amendments in recorded votes.
Two of those amendments were from Ted Deutch (FL-21).
Access to Counsel: His first was to strike the provision of the bill that would deny the certification of a class action lawsuit in all cases where the class representative or named plaintiff is a relative of, present or former client of, present or former employee of, or has a contractual relationship with the class counsel, without exception — -out of a misguided belief that there would be something inherently untoward about that.
It failed 182–227. Four Republicans joined Democrats in voting for it: Justin Amash (MI-03), Walter Jones (NC-03), Ileana Ros-Lehtinen (FL-27), and Steve Russell (OK-05).
Attorney Fees: Deutch’s second was to the provision that requires that attorneys’ fees be calculated as a “percentage of the value of the equitable relief.” The Leadership Conference on Civil and Human Rights has blasted this as “arbitrary and unworkable.”
In their letter opposing the bill, the Leadership Conference explained the negative impact on nonprofits this provision could have:
But how is a judge to determine the cash value of an integrated school, a well-operating foster care system, the deinstitutionalization of individuals with disabilities, or myriad other forms of equitable relief secured by civil rights class actions? Asking judges to assign a price tag in such cases is an impossible task and would lead to uncertainty and inconsistency.
Non-profit organizations cannot bear the risk of these long and expensive cases if, at the end, their fees are calculated under this incoherent and capricious standard. Indeed, the bill creates an incentive for defendants to prolong the litigation so as to make it economically impossible for plaintiffs’ attorneys to continue to prosecute the litigation.
It failed 189–228. Six Republicans joined in voting for it: Justin Amash (MI-03), Carlos Curbelo (FL-26), Walter Jones (NC-03), Thomas Rooney (FL-17), Ileana Ros-Lehtinen (FL-27), and Steve Russell (OK-05). One Democrat — Jose Serrano (NY-15) — voted against it.
Discovery: Darren Soto (FL-09) offered an amendment to strike section 1721 to allow discovery to proceed while motions are pending. As written, the section would impose needless and costly delays on lawsuits.
It failed 192 to 230. Five Republicans joined in voting for it: Justin Amash (MI-03), Carlos Curbelo (FL-26), Walter Jones (NC-03), Ileana Ros-Lehtinen (FL-27), and Steve Russell (OK-05).
Fraud: Hank Johnson (GA-04) offered an amendment to exempt civil actions alleging fraud.
It failed 190 to 230. Four Republicans joined in voting for it: Carlos Curbelo (FL-26), John Faso (NY-19), Walter Jones (NC-03), and Steve Russell (OK-05).
Civil Rights: John Conyers (MI-13) offered an amendment to exempt civil rights actions from the bill’s class action provisions.
It failed 191 to 230. Five Republicans joined in voting for it: Carlos Curbelo (FL-26), Brian Fitzpatrick (PA-08), John Faso (NY-19), Walter Jones (NC-03), and Steve Russell (OK-05).
Asbestos Victims: Sheila Jackson Lee (TX-18) offered an amendment to replace the substantive text of the bill with a requirement that the bankruptcy asbestos trust report quarterly an aggregate list of demands received and payments made.
It failed 193 to 229. Six Republicans joined Democrats in voting for it: Carlos Curbelo (FL-26), Walter Jones (NC-03), Frank LoBiondo (NJ-02), David McKinley (WV-01), Ileana Ros-Lehtinen (FL-27), and Steve Russell (OK-05).
Public Housing: Adriano Espaillat (NY-13) offered an amendment to exempt a claimant who is or has been living in public housing or any dwelling unit for which rental assistance provided under section 8.
It failed 193 to 228. Six Republicans joined in voting for it: Carlos Curbelo (FL-26), Mario Diaz-Balart (FL-25), John Faso (NY-19), Walter Jones (NC-03), Ileana Ros-Lehtinen (FL-27), and Steve Russell (OK-05).
Protecting the Not-So-Innocent
The Orwellian-named Innocent Party Protection Act (H.R. 725) was the GOP’s next effort at overburdening the court system and tilting it in favor of deep-pocketed corporations.
Under current federal procedures, a plaintiff can seek to bring his/her claim to either state or federal court. Plaintiffs often prefer state courts for reasons of location, timing, or limited resources, and big-pocketed corporations prefer federal courts. When the plaintiff and the defendant disagree, the federal court can determine the proper jurisdiction. H.R. 725 biases this decision-making process toward corporate defendants in several ways, such as removing the defendant’s responsibility to prove proper jurisdiction.
The bill passed 224 to 194.
10 Republicans joined Democrats in voting against it: Justin Amash (MI-03), Carlos Curbelo (FL-26), Mario Diaz-Balart (FL-25), Jimmy Duncan (TN-02), Morgan Griffith (VA-09), Walter Jones (NC-03), Tom Massie (KY-04), Ileana Ros-Lehtinen (FL-27), Steve Russell (OK-05), and Mark Sanford (SC-01).
Two Democratic amendments were voted down in recorded votes.
Public Health: Darren Soto (FL-09) offered an amendment creating an exception for instances of public health risks, including byproducts of hydraulic fracturing, well-stimulation, or any water contamination.
It failed 189 to 233. One Democrat — Gene Green (TX-29) — voted with the Republicans. Three Republicans— Carlos Curbelo (FL-26), Walter Jones (NC-03), and Ileana Ros-Lehtinen (FL-27) voted with the Democrats.
Insurance: Matt Cartwright offered an amendment creating a separate exception for plaintiffs seeking compensation resulting from the bad faith of an insurer.
It failed 187 to 229.
Frivolous to Whom?
The House continued this push by passing the again Orwellian-named Lawsuit Abuse Reduction Act (H.R. 720) on Friday. This bill would remove judges’ discretion in imposing sanctions on parties that violate the prohibition on the filing of “frivolous” lawsuits. Rather than making the courts work more efficiently, LARA would do the opposite, leading to additional rounds of litigation and costs. Indeed, this is exactly what happened when such rules were in place from 1983 to 1993, and it is why they were taken off the books.
The bill would not only eliminate judicial discrimination over whether to impose sanctions but also eliminate the discretion over what the sanctions are by mandating that they include monetary compensation for attorneys’ fees. The bill also eliminates “safe harbor” provisions, under which a motion for sanctions would not be pursued if the challenged filing is withdrawn or corrected within 21 days of service of the motion for sanctions.
The bill would have a discriminatory impact on civil rights, employment, environmental, and consumer cases because they can rely on novel legal theories or involve “argument for the extension, modification or reversal of existing law or the establishment of a new law.” House Democrats argued that these rules could prevent cases challenging Trump’s Muslim ban or cases challenging police misconduct or restrictions on LGBTQ rights from even being considered.
It passed 230 to 188.
Three Democrats joined the GOP in voting for it: Jim Costa (CA-16), Henry Cuellar (TX-28), and Collin Peterson (MN-07).
Five Republicans joined Democrats in voting against it: Carlos Curbelo (FL-26), Morgan Griffith (VA-09), David Kustoff (TN-08), Ted Poe (TX-02), and Steve Russell (OK-05).
The House voted down four Democratic amendments in recorded votes.
Safe Harbor: Darren Soto (FL-09) offered an amendment to reinstate the safe harbor provision.
It failed 181 to 225. One Democrat — Jim Costa (CA-16) — joined Republicans in voting against it. Three Republicans — Carlos Curbelo (FL-26), Ileana Ros-Lehtinen (FL-27), and Steve Russell (OK-05) — joined Democrats in voting for it.
Judicial Discretion: Sheila Jackson Lee (TX-18) offered an amendment to restore judicial discretion in determining sanctions.
It failed 185 to 225. The vote was almost identical to the prior vote, except for a handful of Democrats who were no longer absent and Morgan Griffith (VA-09)’s decision to vote with the Democrats.
Civil Rights: John Conyers (MI-13) offered an amendment to exempt civil actions alleging any violation of a constitutional or civil right.
It failed 190 to 227. Five Republicans joined the Democrats — the previous four plus Brian Fitzpatrick (PA-08).
Whistle Blowers: Hakeem Jeffries (NY-08) offered an amendment to exempt actions pertaining to whistle blowers.
It failed 189 to 229. Four Republicans joined Democrats in voting for it: Carlos Curbelo (FL-26), Brian Fitzpatrick (PA-08), Frank LoBiondo (NJ-02), and Ileana Ros-Lehtinen (FL-27).
