Trial Magazine

A few days after President Trump’s inauguration, Congress introduced a deluge of anti-civil-justice measures, which quickly began making their way through the House of Representatives. Without a hearing or input from witnesses, these bills were sent to a full committee vote within 48 hours.  

One bill is H.R. 720, the Lawsuit Abuse Reduction Act (LARA), which would make Rule 11 sanctions mandatory rather than discretionary. The ­Federal Judicial Conference—the ­federal judiciary’s policymaking arm—made the rule mandatory in 1983, and it remained so until 1993, when it was repealed as a failed experiment.

In addition to being disproportionately used against plaintiffs bringing civil rights and employment discrimination claims, Rule 11 also led to satellite litigation that clogged federal courts with extraneous motions. The Judicial Conference opposes H.R. 720, as do 50 consumer, civil rights, employee rights, and health and safety groups. State courts tend to copy the federal rules, so even lawyers who practice exclusively in state court should be concerned.

When the House Judiciary Committee met about LARA on Feb. 2, it was the first full committee meeting of 2017. Many committee members opposing the legislation commented that the committee should be focusing on the executive order travel ban or other pressing issues rather than legal reform, especially since it was clear that lawyers were needed to ensure access to the courts.

Several committee members proposed amendments to exempt certain kinds of cases from the mandatory sanctions. Ranking member Rep. John Conyers (D-Mich.) offered an amendment to exempt civil rights cases, and Rep. Eric Swalwell (D-Calif.), a newly appointed committee member, offered one to carve out immigration actions. Rep. Jamie Raskin (D-Md.), new to Congress and the committee, offered an amendment to exempt government ethics claims. All amendments failed along party lines, and the bill was voted out of committee.

The committee also considered H.R. 725, the Innocent Party Protection Act (IPPA). Last year, this bill was called the Fraudulent Joinder Protection Act. IPPA is a corporate forum-shopping bill that would replace the current simple test that federal courts use in determining whether an improperly removed case should be sent back to state court (no possibility of state claims) with a ­complicated, four-part test that is more subjective. The bill would make it easier to remove the diverse defendant to federal court and to dismiss the in-state defendant to create a so-called “empty chair” to blame for the plaintiff’s injuries. H.R. 725 was also voted out of committee along party lines.

A few days later, the committee approved H.R. 732, the Stop Settlement Slush Funds Act, which allows Congress to interfere in settlements involving the government when a “donation” is involved. The bill would prohibit cy pres in any settlement involving the U.S. government and applies whether the United States is the plaintiff or defendant.

Why so many bills? House Judiciary Committee Chairman Bob Goodlatte (R-Va.) announced that a top priority for this Congress is to “make the legal system fair and efficient for all Americans.” But these bills do the opposite: They drag out litigation for plaintiffs and tilt the playing field in corporations’ favor.

AAJ lobbies against every tort reform bill, regardless of subject matter. We are all in for you. Are you all in for AAJ? Make sure all eligible members of your firm join AAJ. Email membership@justice.org to check the membership status of attorneys in your firm. 

Editor’s Note:
At the time this issue went to print, LARA and IPPA were scheduled to be debated on the House floor in early March.

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.