Rollback of Our Civil Justice System



Consumers, Workers

Over the next several weeks, the House of Representatives is set to consider  bills that all have one thing in common:  to make it more difficult for everyday Americans to hold corporations accountable when they are victims of fraud; when they are injured because of corporate negligence; or when their rights are violated. 

These pieces of legislation – which are being considered with blinding speed – are all designed to tilt our justice system to one that favors corporations and special interests over workers, consumers and investors; the bills would make it far easier for corporations to violate the law without consequence.   

The “Fairness in Class Action Litigation Act of 2017” would make it harder for aggrieved consumers and others to enforce their rights.  Long-established law recognizes that those who have been wronged are able to come together under a single suit.  This is an essential tool for consumers, investors, employees and others to fight corporate wrongdoing and challenge government conduct.  The bill the House is set to consider, however, would make it harder for people to form a class.  It would require each class member to have suffered “the same type and scope of injury.”  This impractical standard would needlessly limit who could sue.  The same type of impermissible conduct may impact different people in different ways (for example, a faulty car that needs to be recalled might injure some passengers differently; different individuals might lose different amounts from a fraud).  That is why the Supreme Court has explicitly held that class members need not suffer the exact same damage to serve in a class.

The “Lawsuit Abuse Reduction Act” is designed to intimidate lawyers and deter them from  filing potentially meritorious claims.  Under current law, judges have the discretion to impose sanctions against lawyers who file non-meritorious claims.  The bill would mandate the sanction; as well as eliminate a “safe harbor” provision of current law that allows parties to avoid sanctions by withdrawing frivolous claims.  Rather than address a real problem, the bill’s purpose is to chill potentially legitimate suits.  Indeed, when a similar rule was enacted in 1983, it led to a significant decrease in the filing of meritorious civil rights, employment, environmental, and consumer cases before it was repealed.   If this legislation is enacted, parties with deep pockets will  tie up the courts and plaintiffs in  costly litigation concerning sanctions, rather than the merits of lawsuits.   

The “Furthering Asbestos Claim Transparency Act of 2017” would harm asbestos victims.  Thousands of people die every year from asbestos-related disease, including many veterans, first responders and firefighters who were exposed to asbestos in the line of duty.  In addition to lung cancer and other illnesses, exposure to asbestos causes mesothelioma, a cancer that attacks the lining of the lungs, stomach and other organs.  Yet, instead of attempting to ensure justice for the victims and ensure workers’ health and safety are protected, the bill would require private asbestos bankruptcy trusts to publicly release extensive individual information about asbestos victims and slow down asbestos cases by allowing asbestos defendants to bury the trusts in information requests, no matter how unnecessary or irrelevant. This denies and delays justice for asbestos victims who do not have time on their side.

The “Innocent Party Protection Act” would make it more difficult for people to bring state claims in state courts, meaning that states cannot enforce laws enacted to protect their citizens.  The bill would allow corporations to move cases properly brought in state court to federal courts, which are more corporate-friendly because they generally have less diverse juries, more expensive proceedings, longer waits for trial, and stricter limits on discovery.

The “Protecting Access to Care Act of 2017” would allow doctors, hospitals, and insurance companies to avoid properly compensating patients when they are injured by a medical error.  Thousands of people die each year from medical malpractice, yet the bill would arbitrarily limit what patients could recover; would give blanket immunity for health care providers for dispensing a defective or dangerous drug or medical device; and would trample on the states’ ability to fully protect their citizens.

While the House is considering these bills, the Senate is considering the nomination of Judge Neil Gorsuch to a lifetime seat on the Supreme Court.  This is no surprise. Neil Gorsuch was handpicked by corporate interests to ensure that our nation’s highest court, like the House, sides with corporate interests over those of everyday Americans.

Judge Gorsuch has criticized those who have used our court system to ensure constitutional rights. He has consistently tried to limit the rights of aggrieved persons with common claims to join together to challenge large corporations or government abuse, and fully supports the rights of corporations to force employees and consumers into arbitration, where the ordinary safeguards for litigants disappear.  In fact, less than ten years after the Great Recession, when corporate fraud remains troubling (e.g. Wells Fargo), it is  deeply disturbing that the President has nominated to the Court an individual who has advocated making it more difficult for victims of securities fraud – as just one example – to hold large corporations accountable.  And, he has demonstrated willingness, when it benefits corporations, to read federal statutes broadly to preempt a person’s ability to obtain relief under state law.  

It is no surprise that while Republicans support a Supreme Court nominee who has repeatedly sided with corporations over the American people, the House Judiciary Committee has advanced legislation that would erode critical civil justice protections.  If these bills become law, they would deeply undermine the justice system so critical to millions of Americans.