ThePopTort

Mitch McConnell’s Irony?

Remember when one of the biggest controversies of the year was whether any of the situations described in Alanis Morissette’s song “Irconic” were actually ironic? Irony is not easily defined and is often mistaken for other things. So let me run a situation by you, and you tell me if it seems ironic to you.

By now, you all know the outcome of last week’s impeachment trial. Probably just as likely, you heard about Senate Minority Leader Mitch McConnell’s speech tearing into Trump even though he voted to acquit. As part of his speech, he made sure to remind everyone about the importance of both criminal prosecution and civil litigation to hold Trump accountable. Most recognize that this speech was a politically-convenient way for him to justify the Senate’s failure to convict. But also, it seems ironic for him to be laying the survival of our democracy on a system that, for decades, he has made it his work to weaken or destroy … no?  

McConnell is not your average civil justice opponent. He’s the Senate’s leading “tort reformer”. We first noticed this when, in the late 1990s and early 2000s, McConnell led the fight to federalize the nation’s auto insurance system. His bill, euphemistically called the Auto Choice Reform Act, basically would have forced motorists into one of two unfair insurance systems, one of which would have deprived seriously injured victims of adequate compensation.  

From the mid-1990s through the 2000s, Sen. McConnell repeatedly introduced his “McConnell Amendment” to health care bills. This amendment proposed that Congress federally take over all 50 state tort systems, all for the purpose of severely limiting the rights of injured patients and nursing home victims to hold facilities, drug companies, hospitals and HMOs accountable in court.

His proposal to replace Obamacare was “tort reform.” His response to the COIVD pandemic was “tort reform.” In fact, in 2020, he blocked COVID relief legislation by insisting on broad and long-lasting corporate immunity provisions (as we covered somewhat humorously last July). Luckily, all of these failed.

So when Sen. McConnell said last week, “He didn’t get away with anything, yet. … We have civil litigation,” was he being ironic or just hypocritical?  And will he support the range of cases that are now being brought, including one just filed by House members for compensatory and punitive damages over violations of the 1871 Ku Klux Klan Act? 

Hope so. But I’m not holding my breath.

John Conyers’ Unique Civil Justice Voice Will be Missed

Yesterday was the funeral for former U.S. Representative John Conyers, who died last Sunday. A “lineup of political, entertainment, religious and sports leaders” paid tribute to him and his “remarkable 53-year” tenure in Congress, where he “compiled a near-record legacy of civil rights activism, longevity and advocacy for poor and underprivileged people.” But to us, he was also a civil justice hero.

Here are three instances where John Conyers stood up and stood out in a way that was truly unparalleled on Capitol Hill.

1. On February 11, 2003, when Republicans were running Congress and were pushing federal legislation to drastically cut the legal rights of medical malpractice victims, we brought some 50 families from 26 states to DC to lobby against the bill. Mr. Conyers decided he wanted to give some official voice to these brave people.  So he decided, on his own, to hold a House Judiciary Committee “rump” hearing. “Rump” because he was the ranking member – not the chairman.  He had no real power to hold a hearing. Nonetheless, he was able to get a hearing room in the Rayburn House Office Building, organize a forum over which he presided, allowed each one of these survivors to testify and tell their story, and got C-Span to cover it live. He began with these modest remarks:

Good morning, everyone.  We're meeting here today with friends from on and off the Hill about medical malpractice.  It's a forum, and we're going around the room just so that everybody -- I'm sorry I can't offer everyone coffee and doughnuts or brunch or whatever happens at this hour of the day in your area.

We want to kind of get to know who's talking besides just a name, and so I want to introduce myself as John Conyers from Michigan.  I'm on the Judiciary Committee.

And so it began. 

It went on for hours, with some of the most moving testimony we – and committee members – had ever heard.  Senators and Members of Congress told us repeatedly that the efforts of these survivors were a major factor in finally stopping the bill. This hearing was part of that.

2. Upon release of the Center for Justice & Democracy’s 2004 study, “Tort Reform” and Racial Prejudice: A Troublesome Connection, Mr. Conyers spoke out about this issue in a way that few others on Capitol Hill would dare. He explained in a news release, “The dirty little secret of the so-called tort reform movement is that it is premised on racist notions, and would have a massively disproportionate impact on African Americans, Hispanics and other minorities.… The restrictions on non-economic damages included in the Republican medical malpractice [bill] will also have a severe and disproportionate impact on minorities.” He was right. And as noted above, the legislation was eventually stopped.

3. Finally, in 1997, Congress passed the Volunteer Protection Act, which immunizes nonprofit volunteers from negligence.  In a last-minute move, Congress exempted from the federal bill’s scope immunity for volunteers of hate groups.  In other words, anyone volunteering for a group like the Ku Klux Klan, let’s say – which is a non-profit organization – cannot be insulated from liability under federal law.

But while articulating a clear congressional policy to make hate group volunteers fully liable for their negligence, Congress refused to close the preemption loophole that allows states to immunize them instead -- even if they do so inadvertently.  Mr. Conyers was the one most concerned about this oversight and he tried to correct it.  He brought it to the attention of his fellow legislators, who promptly ignored him. 

In dissenting remarks to the House of Representative’s report on the bill, Conyers and his Democratic colleagues quoted directly from a May 16, 1997, letter from the Southern Poverty Law Center explaining the significance of this problem:  “Under this legislation … a state could maintain or reinstate protections for volunteers of white supremacists, neo-Nazi and violent militia groups – the types of organizations the Southern Poverty Law Center has crippled over the past ten years through the use of both federal and state tort laws.” As Conyer’s put it, “if a particular state provides across the board immunity to volunteers, [the federal law] continues to allow a member of a militia or hate group who negligently entrusts a gun to a child (who in turn harms an innocent victim) to avoid responsibility for negligent entrustment.  This is not appropriate.” Indeed.

While Mr. Conyers has been out of Congress for a couple years now, it’s still hard to believe he’s gone. His voice is already greatly missed. Rest in Peace.

Civil Justice – The Next Big Shiny Object?

Some may wonder why we write about issues that seem so obscure considering the tweeting mob boss in the White House, his allied dictators and fake national emergencies, the obsessions of cable news hosts (“can a sitting president be indicted after all?"). or pick whatever shiny “objet du jour” you like.

Indeed, while news-followers were fixated on Michael Cohen or maybe even Kim Jong-un this week, we watched as Congressperson and Senator after Congressperson and Senator introduced major new legislation – literally bill after bill - to ban the insidious use of forced arbitration clauses and class action waivers in consumer, employment and small business contracts.

Here's the coalition letter in support of the main piece of legislation, H.R. 1423/S. 610, the "Forced Arbitration Injustice Repeal (FAIR) Act." It has 147 House co-sponsors and 32 Senate co-sponsors, and counting. Wow! (See some coverage of the major news conference here, here, here.)

But being in such great company is not the only reason why we stay focused on the civil justice system. Here’s why we really do it.

In 2018, the U.S. Chamber of Commerce spend $95 million lobbying (far more than anyone else), a third of which was spent by the their “tort reform” branch (Institute for Legal Reform); the Chamber’s #1 issue in terms of lobbying reports was “torts;” the Chamber’s #1 bill was H.R. 985, the anti-class action bill, and Mayer Brown (their pro-forced arbitration law firm), led their outside lobbying expenditures. Liability and tort issues may not be shiny but they sure are big in Congress. We need to keep talking about them and hope someone hears.

That’s why we are proud to tell you about the new Loyola Consumer Law Review article from the Center for Justice & Democracy, which discusses the Chamber's push to pass that terrible class action bill in the last Congress, H.R. 985, showing it to be a corrupt and ultimately failed effort. The article shows how the forces actually running things in Congress, like the U.S. Chamber of Commerce, hope you never pay attention to us. They’d prefer to bulldoze over your legal rights with as little notice as possible, thank you very much. 

Not this time, suckas!

Is Congress Worse than Trump?

In yIn yesterdays’ Daily 202 from the Washington Post, James Hohmann wrote, “The American people are more focused on the daily drama emanating from the reality television presidency than they are substantive policy issues. Meanwhile, the administration is making meaningful moves every day — and we’re covering them — but these stories are often overlooked in favor of distracting shiny objects."

Yet I have an even more alarming perspective. It’s not just the administration’s daily moves. Check out what Congress is doing. No one’s paying any attention – at all.

This morning, the U.S. House Judiciary Committee began voting on a bunch of terrible bills, some of which were just introduced this week, which would upend centuries of law and/or make it more difficult for people who have been harmed to have their cases fairly heard and/or stop courts from blocking Trump’s illegal actions. Yup, all that just this morning!

Behind it all is the soon-to-be-ex- (thank goodness) Chairman of the U.S. House Judiciary Committee, Bob Goodlatte, a Republican who has represented Virginia’s 6th congressional district since 1993. Last year, Goodlatte rammed through his committee five bills that together, strip away major legal rights from everyday Americans. He was so fixated on making sure these bills passed with the greatest amount of harm to victims, that he forced the committee to re-vote on an amendment - after he lost - that would have prevented his legislation from violating state constitutions. Last month, Goodlatte's son Bobby “blasted” his own father “for his role in ruining [FBI agent Peter] Strzok’s career, tweeting, “I’m deeply embarrassed that Peter Strzok’s career was ruined by my father’s political grandstanding. That committee hearing was a low point for Congress. Thank you for your service sir. You are a patriot.” Bobby also urged voters to elect a Democrat to replace his  father.

So let’s just say, today’s hearing isn’t all that surprising.  As explained by a number of public interest groups who literally overnight turned in a letter of opposition to four of the bills, here’s what the House Judiciary Committee majority, chaired by Mr. Goodlatte, wants to do:

• Ban nationwide injunctions – the kind of injunctions issued by federal judges to slow down or prevent harm caused by some of the more destructive policies of the Trump Administration.
• Radically change the law of diversity jurisdiction, forcing a vast number of state cases into federal court that have no business being in federal court. It’s essentially a corporate forum-shopping bill since corporate defendants prefer to litigate in federal court.
• Break up the Ninth Judicial Circuit at the behest of corporations and the right, even though everyone from the American Bar Association to the judges themselves object to this.

We’re tired of covering this type of dumb, destructive and corrupt policy-making. Today is primary election day in New York State (home of ThePopTort!), and we’re reminded of our message to you this fall: get out there on November 6 and vote!

House Judiciary Committee’s New Anti-Victim Fix

You know how some addict’s can be. A few days sober and then back to some bad old habits.Take the House Judiciary Committee. Earlier this year, this committee rammed through five pieces of anti-victim legislation (class actions, asbestos, fraudulent joinder, Rule 11, and medical malpractice) without so much as a single hearing. Now, just two days back from its August recess, the committee - obviously experiencing some type of withdrawal – has focused on a new target: the disabled.  

Today, this committee. again without holding one hearing, will be voting on H.R. 620, a bill that would weaken the 27-year-old Americans with Disabilities Act, described by the ACLU as “the most comprehensive and foundational civil rights law prohibiting discrimination on the basis of disability.”

The bill would amend the ADA’s public accommodations requirement, changing its entire purpose and intent by relieving non-compliant businesses of the obligation to comply with the law unless and until they first receive a very specific type of notice from an aggrieved individual. Notice must specifically include (1) the address of property where there was a barrier, (2) the specific sections of the ADA that they believe the business has violated, (3) whether the individual requested assistance in removing the architectural barrier, and (4) whether the barrier was permanent or temporary.

What if an individual is blind? Or cannot write? Or simply does not have access to law books? By placing this kind of ridiculous notice burden onto aggrieved individuals, H.R. 620 dramatically weakens incentives for businesses to comply with the ADA.

Moreover, assuming proper written notice is given to a business owner, the owner would have 60 days to acknowledge that there is a problem and once the problem is acknowledged, an additional 120 days to begin to remedy the problem. The barrier does not have to be completely removed by the end of the 180-day period. Instead the business only has to show that there has been substantial progress made to remove or alter the architectural barrier. During this period, disabled individuals would still not be able to access the public accommodation, with no deadline for completion.

As noted by the ACLU, even today,

… people with disabilities still face enormous barriers. People with mobility disabilities routinely find themselves blocked from the simplest of social interactions. They are unable to go to the corner grocery store to pick up a quart of milk because there is a step at the door. They are unable to go to the local movie theatre with their friends because there is no accessible seating. They might be able to get into the door of the local restaurant, but are stymied if they have to go to the bathroom while they are there, because it is the size of a postage stamp.…

The bottom line is that people who use wheelchairs or who have other needs deserve the same right to visit local businesses as any other individual. Forcing people with disabilities to wait months to visit a supermarket or bookstore is precisely the kind of discrimination the ADA was designed to prevent. Businesses have had more than enough “notification” to comply with disability rights law. People with disabilities deserve equal access today — civil rights should not be delayed or tied up in bureaucratic red tape.

H.R. 620 is obviously a step in a very wrong direction for the nation. In other words, no surprise from this very diseased committee.

HuffPo Repost: Congress Needs to End its War With the Civil Justice System

Until recently, you may have been hard pressed to find any positive news coverage of civil lawsuits. You were more likely to see a story about some supposed “jackpot” jury award than coverage of anything positive to come from a court case, such as how a lawsuit helped a family with a severely injured child or stopped illegal corporate behavior.

This was no accident, of course. For many years, large industries (like tobacco and insurance), often through Washington DC lobby groups, funded expensive public relations campaigns to deliver carefully packaged messages about the American public’s presumed obsession with suing - even though it was all factually untrue. Their goal was to turn the American public’s mind against the civil justice system and to breed fear, anger and contempt for people who use the courts. They also sought to garner sympathy for corporations, professions and institutions that harm people and communities, and which are subsequently sued in court.

Today, however, public perception of the civil justice system has taken a decided U-turn! In fact, many people now see civil court decisions as having momentous implications, acting as the last line of defense against a possibly law-breaking President and a Congress that refuses to perform its “checks and balances” function. When Trump attacks judges and judicial independence, there is bi-partisan criticism. Those who use the courts get at least respectful coverage like this New York Times story, “In Lawsuit After Lawsuit, It’s Everyday People v. Trump.” The American Civil Liberties Union not only is awash is donations but had its own Oscar ribbon this year.

This new pro-civil justice sentiment is a dilemma for House Republicans. They know full-well that voters did not send them to Washington DC to pass laws blocking constituents’ access to the courts or undermining the independence of judges. Yet many are also beholden to major industry groups like the U.S. Chamber of Commerce, which wants them to do just that. So this year, they tried a new tactic. After slapping together a bunch of major bills that wipe out people’s legal rights, the House Judiciary Committee voted them out of committee without holding a single hearing (although some degree of arm-twisting was likely involved, as this hearing shows), passed most of these bills at breakneck speed, and hoped no one would notice.

Keep reading.

The Obsessive Mr. Goodlatte

The House Judiciary Committee is run these days by an obsessive man named Bob Goodlatte (R-VA). Last month, he rammed through his committee five bills that together, strip away major legal rights from everyday Americans. See more here. He was so fixated on making sure these bills passed with the greatest amount of harm to victims, that he forced the committee to re-vote on an amendment (after he lost) that would have prevented his legislation from violating state constitutions. In other words, he wanted his bill to violate state constitutions. Watch what went on at the time he scheduled the second vote, which did seem to obviously follow “some arm twisting in back rooms.” (Check out this hearing, go to around the 3 hour mark and watch for about 20 minutes.)

Needless to say, Mr. Goodlatte got his bills of committee just as he wanted them, four of which have now passed the House. But for the obsessive Mr. Goodlatte, this was apparently not enough. He has now shifted his attention to Russian interference in our elections. Just kidding! Yesterday he put out a press release about – wait for it - lawyer ads. Specifically, he sent out a bunch of letters urging bar associations to require “that attorney commercials which may cause patients to discontinue medically necessary medications have appropriate warnings that patients should not discontinue medications without seeking the advice of their physician.”

In a way, I see why Mr. Goodlatte suddenly made this a national priority ahead of hundreds of other issues under his jurisdiction. The drug industry, which no doubt helped write these letters in that same back room, is understandably upset. You would be too after you spent billions of dollars relentlessly marketing expensive drugs directly to consumers with possibly misleading TV ads that encourage “irrational” drug use, only to be forced to watch another ad suggesting you made a bad investment. How’s an industry supposed to make a (billion) bucks - or for that matter, enjoy a stress-free hour of The Walking Dead?

To be honest, I am looking for a new drug myself. It’s a drug specifically for members of Congress like Mr. Goodlatte – and for Presidents and their staff, too – who are obviously struggling with a bizarre kind of Obsessive-Compulsive Disorder (OCD). Could be a fixation on lawyers, a fixation on successful former presidents, or a fixation on microwave ovens. But whatever kind of OCD behavior it is, it isn’t doing the country any good.

But if we can’t find that drug, let’s all try this one (watch ad below):

 

HuffPo Repost: The Great Divide: Small Businesses, Lawsuits and Jobs

A few years ago, I sat in on some bi-partisan focus groups run by a well-known polling firm. The topic had to do with people’s views about litigation. One exchange really stuck in my head. The moderator asked the group if they thought limiting people’s ability to sue corporations that harm or cheat them would improve the economy and create jobs. Here was the general reaction: “Of course not. That’s ridiculous.” Data and studies confirm this, of course, like one from the Economic Policy Institute. EPI found that weakening people’s legal rights could actually “slow job growth.” But who needs studies when you have common sense?

I bring this up because over the next couple days, the U.S. House of Representatives is voting on a series of bills, which were just rammed through the House Judiciary Committee without a single hearing. These bills would make it nearly impossible for harmed individuals and small businesses to sue in court. It’s as if politicians think voters sent them to Washington with an urgent mandate to rig the courts against everyday people. Can’t imagine what they’re thinking.

We don’t know the type or scope of “PR spin” that will be used by proponents of these measures. “Spin” is really all you have when pushing unpopular bills that prevent harmed and defrauded people from getting into court, concocted in back rooms by lobbyists for giant corporations. Indeed, we wouldn’t be surprised to suddenly see the irresistible “J” word make an appearance. Maybe they’ll try to say that small business JOB-creators are clamoring for such legislation, which also happens to shut them out of court (like when big corporations steal their money). So let’s just shut down any spin right now.

Keep reading.

HuffPo Repost: Congress Moves to Punish Everyone Using the Affordable Care Act and Medicare

Those who think Congress is weakening its anti-Obamacare, anti-Medicare resolve aren’t paying attention. Instead of beginning with repeal and replace bills, however, Congress has shifted focus to punishing anyone who benefits from these laws. And it’s happening right now.

On February 28, 2017, the U.S. House Judiciary Committee will markup and vote on a rushed piece of legislation, H.R. 1215, covering anyone who receives health care through a “federal program, subsidy, or tax benefit.” At a minimum, that means the Affordable Care Act, veteran and servicemember health plans, Medicare and Medicaid (i.e., the elderly, poor and disabled). Beyond this, the full scope is unclear because the bill has not been examined in a single legislative hearing.

According to H.R. 1215, punishment would begin if you (or your child or loved one) were harmed by an unsafe hospital or nursing home, in some cases injured by an unsafe drug or medical device, or even sexually abused by a doctor. If you tried to seek compensation or accountability in court, you would be forced into an inferior and cruel system of justice created just for you by lobbyists and career politicians in Washington DC.

This bill, H.R. 1215, the so-called “Protecting Access to Care Act of 2017” (more like the Protecting Access to Unsafe Care Act of 2017) is the brainchild of congressional Republicans who say they want government out of health care. Ironically, this bill is nothing if not federal mandates, including eliminating civil justice rights guaranteed by state governments. These mandates include taking power away from local juries to decide individual cases, and consolidating that power in the hands of DC politicians.

Keep reading.

HuffPo Repost: Congress Intends to Destroy Your Rights and Hopes You Won’t Notice

If you’re wondering why Republicans in Congress seem disturbingly complacent about the unhinged President and the exploding Watergate-level (or worse) constitutional crises starting to brew, check out the February 15 Full Frontal show on TBS. As host Samantha Bee explains, while people focus their outrage on big ticket offenses like Russian interference with our elections, Congress is, as we speak, quietly destroying multiple Obama-era public protections. It’s a Koch-organized effort that has Republicans in Congress, as she puts it, going “hog wild” passing new laws to harm the public’s health, safety and economic security. For example, one new law allows “coal companies to dump debris into nearby streams. Who the f*%# asked for that?”

No one. Nor did we send politicians to Washington to rig the civil courts against everyday Americans, or strip away legal rights guaranteed by state and local governments. Yet just a couple hours before Full Frontal aired, the House Judiciary Committee finished-up a day-long session, which it began and ended by voting out two bills that would do just that - demolish our legal rights.

Keep reading.