ThePopTort

Covington & Burling, No Shame

Let me tell you a story about the Washington DC corporate law firm, Covington & Burling.

A huge cache of documents made public during the state attorneys general litigation against the tobacco industry in the late 1990s revealed that this firm, which for decades represented the tobacco industry, was an early force behind the “tort reform” movement.  Big Tobacco would funnel money to tort reform groups through Covington. The point was to pass laws to keep cigarette companies from ever being sued in court for promoting addiction through manipulation of nicotine levels, engaging in a secret campaign to hook teens and even pre-teens and lying to government officials and the public. A Covington partner named Keith A. Teel was the firm’s tobacco point man and even boasted about setting up “tort reform” groups with tobacco money. (See much more here.)

In addition to the release of millions of documents, the state tobacco litigation resulted in a $200 billion settlement. The settlement reimbursed 46 states for costs dealing with one of the biggest public health disasters in modern times. To get this incredible result, the states all used outside law firms, who worked for years without pay and risked being paid nothing at all. (Or as a plaintiff law firm might have put it, “the attendant risk that we might receive no fee whatsoever, and dedicated efforts by our team in hard-fought, complex litigation lasting over … years.” Emphasis so you’ll remember this.)

As to the fees they were ultimately paid in the tobacco case:

Many retainer agreements between AGs and private firms were made public, usually showing a standard contingency fee of around 15 percent, lower than typical 1/3 arrangements, despite the huge risks and the small likelihood of a plaintiff win. Yet when the industry began to settle these cases, most private counsel gave up the contracted fee and amiably agreed, along with the tobacco industry, to arbitrated fee decisions.  In announcing the first fee award to attorneys in Florida, Texas and Mississippi in December 1998, to be paid by the tobacco companies over a minimum of 10 years, labor mediator and panel Chairman John Calhoun Wells said, “[N]otwithstanding all the efforts by individuals who committed years of their lives to achieving progress on this issue, without these outside counsel, there would be no multibillion-dollar settlements for the states to reimburse tobacco-related health expenses and provide funds for educational efforts to reduce youth smoking.”

Looping back to Covington & Burling. In 1996, Covington’s Keith Teel met with Texas Attorney General Dan Morales to try to derail the Texas AG’s tobacco suit altogether (which no doubt included payment of attorneys’ fees that came out of the industry’s pocket). Fortunately Texas ignored him, and the industry ultimately paid the state $15 billion.

Covington’s attacks on lawsuits and those who use the civil justice system didn’t end in the 1990s, however.  Lately, one of their partners and Trump advisor, Phil Howard, has made a name for himself “attacking corporate regulations and the civil jury system [by] using inflammatory stereotypes about public protection laws and attorneys for the injured to deflect attention from the misdeeds of those he defends.” For example,

As for sexual harassment claims?  Barring some overt form of ‘quid pro quo,” (presumably a promotion conditioned on a sexual favor would qualify) Howard would prohibit those too. If "just offensive comments," are at issue, says Howard, women should simply embrace the laws of the locker room and get over it. The alternative, he says, would kill "the spontaneity needed" for a “healthy” work environment.

He also derides laws that permit civil rights lawyers to be paid.

So pardon my shock when I read this story:

Covington & Burling LLP came under fire March 5 for a $125 million fee it received to represent the state of Minnesota in its $5 billion environmental lawsuit against 3M Co., which settled Feb. 20 for $850 million.

At a March 5 Minnesota House Ways and Means Committee hearing, state Rep. Sarah Anderson (R) questioned the Big Law firm’s contingency arrangement with the state, reached in 2010.

“I’m just curious as to why we are paying a law firm $125 million for seven years of work,” she said. Referring to her own math, she said the sum works out to about $48,000 per day. “That seems a little steep.” She also said all the legal fees are being shipped outside the state because Covington doesn’t have an office in Minnesota.

“Covington has represented the State of Minnesota in environmental matters for more than 20 years, including the NRD [3M] litigation that was recently resolved. Our work on the NRD case involved a contingency fee arrangement, the attendant risk that we might receive no fee whatsoever, and dedicated efforts by our team in hard-fought, complex litigation lasting over seven years,” a Covington spokesman told Big Law Business in an email.

Hoping that sounds familiar.

We’ve covered a lot of hypocrites in our day, but this one may take the cake.

Forced Arbitration – Can’t Get Away from It

We tried. We took about a month off following our last post, "Forced Arbitration Closes Out Our Summer." While we were away, the federal Consumer Financial Protection Bureau’s arbitration rule deadline passed and tons of letters came in supporting CFPB's rule to ban class action waivers – including one signed by 280 consumer groups! (We would have written about this at the time but we were busy luxuriating in our secret hot tub in the woods.)

But as soon as we returned, the biggest “arbitration hypocrite” story ever showed up!

Today, Fox and Roger Ailes agreed to settle Gretchen Carlson’s sexual harassment lawsuit for $20 million and an apology, after Fox and Ailes argued for months that the case should be buried in secret arbitration and kept out of court. As reported just recently by Erik Wemple in the Washington Post:

[T]he leading cable news outlet is asking the New York state Supreme Court to push the case into a shadowy proceeding under the control of the American Arbitration Association (AAA). “After shopping her supposed harassment story directly to the media without much success, she decided simply to ignore her obligation to proceed in arbitration, just as she ignored her other contractual commitments at Fox News, leading to her suspension,” reads the motion drafted by attorney David Garland, who is representing Fox News and executives Dianne Brandi, Irena Briganti, Suzanne Scott and Bill Shine.

That’s not exactly hypocritical. Here’s what is. The very same day that Mr. Ailes gave in, he apparently threatened to sue the New Yorker magazine in court for supposedly defaming him:

Roger Ailes, the former CEO of Fox News who left the company amid accusations that he sexually harassed women, has indicated that he and his wife might sue New York magazine, the magazine confirmed Monday.

“New York Media and Gabriel Sherman were contacted by Charles Harder on behalf of Roger and Elizabeth Ailes, asking that we preserve documents related to the Ailes, for a possible defamation claim,” a spokesperson for the publication told POLITICO in a statement. “The letter sent by Harder was not informative as to the substance of their objections to the reporting.”

This reminds me of the time when now Fox Business host (and former 20/20 correspondent) John Stossel sued a pro wrestler who hit him after Stossel implied pro wrestling was fake. This came after years of Stossel railing against people who file lawsuits (“We all have pain and suffering in our lives. And if each time we hang onto it until we get some kind of compensation, society can’t work"). Stossel accepted $200,000 for his pain and suffering.

We last wrote about this in a post we called “Hypocrisy, thy name is John Stossel.” Let's make it simple. Change to: “Hypocrisy, thy name is [insert name of current or former Fox honcho].”

Lawsuits and the Tech Industry – The Hippest Hypocrites Around

Technology is moving and changing so quickly that even its proponents are wondering if it’s happening too fast. No doubt. The whole “driverless car” thing terrifies most people, with “66% … scared of possible collisions when in the vehicles, while 45% … worried about cyber attacks stealing their personal data.”

Unfortunately, there’s something that hasn’t changed much in over a decade: the tech industry’s hypocritical litigation behavior.

In 2002, the Center for Justice & Democracy published a white paper called NOT IN MY BACKYARD II: The High-Tech Hypocrites of “Tort Reform.” At that time, the tech industry was pushing federal class action legislation to make it more difficult for consumers to win class action suits against corporations that commit fraud and other health, safety and environmental violations. They eventually got their wish in 2005 with a dumb law called the Class Action Fairness Act

But as the CJ&D study also found,

Litigation has become a time-honored way for high-tech companies to do business. But they do not like being held legally accountable by consumers. To these companies, the courts should be reserved exclusively for their patent, trademark, breach of contract and damaged property suits to recover for commercial losses. … Tort restrictions advocated by these companies virtually never limit the rights of corporations to bring such lawsuits.

Indeed, tech companies love running to court, like in 2002 when Amazon sued Von Eric Lerner Kalaydjian and his small business, Amazon Cosmetics and Tan Products, for using the word “Amazon” to sell beauty products. Or in 2001, when eBay sued a little company called BidBay, alleging that use of the word “bay” in its name and the overall appearance of the BidBay website infringed on the eBay trademark.

Sadly, that brings us to today, and to Airbnb – a company with staggeringly hypocritical litigation behavior. I mean, scratch your head, “did they just do that?” kind of behavior.

Airbnb requires its customers “to waive their right to sue, or to join in any class-action lawsuit or class-action arbitration, to use the service.” These “forced arbitration” clauses are so anti-consumer that the Consumer Financial Protection Bureau has proposed a rule to prevent companies (like banks and lenders) from imposing them on customers.  (Public comments due August 22.) But that hasn’t stopped “hip” companies in the tech world, like Airbnb, however. As the New York Times wrote,

When there is litigation, Airbnb has not been afraid to use the class-action waiver clause. In March, the company cited the clause in fighting a class-action suit that accused Airbnb of acting as an unlicensed real estate broker. The company said the suit was moot because the plaintiffs had agreed to waive their class-action rights and, in a related clause, agreed to resolve disputes through individual arbitration.…

Airbnb may soon test the waiver clause directly in a class-action discrimination suit, which was filed in May in the United States District Court in Washington. The chief plaintiff, Gregory Selden, who is African-American, claimed Airbnb violated civil rights laws that forbid housing discrimination when a host on the service denied him accommodation last year because of his race. Airbnb’s response to the lawsuit is due by July 13.

Ok, this is all disturbing enough. But while arguing that the rights of Airbnb customers to go to court should be eliminated, they run straight to court when their own rights need protecting.

Airbnb went to court Monday seeking to block forthcoming amendments to San Francisco law requiring short-term rental companies to police their websites and remove unregistered hosts.

“While we have attempted to work with the City on sensible, lawful alternatives to this flawed new ordinance, we regret that we are forced to now ask a federal court to intervene in this matter,” Airbnb wrote in a blog post. The company’s suit in the U.S. District Court of Northern California seeks an injunction to suspend the new rules, claiming that they violate federal laws, including the Communications Decency Act, the Stored Communications Act and the First Amendment.

These are federal liability limitations that you may not even know exist. For example, explains SF Gate:

Section 230 of 1996’s Communications Decency Act shields Internet companies from liability for content posted by users on their websites. It covers reviews on Yelp, posts on Facebook and Twitter, and classified ads on a myriad of sites, among others.

And speaking of Yelp (cause Airbnb isn’t the only hypocrite here), at the same time the company is pushing terrible federal legislation that would wipe all out kinds of legitimate lawsuits (see our coverage last week ), it doesn’t hesitate to use the courts whenever it likes.

In sum, despite its trendy image, the tech industry appears to be no different than any other detested industry - at least when it comes to placing far more value on its right to sue than it does on the public's - and its own customers' - legal rights. Somehow we expected more.

Class Actions, Asbestos, and a Congress That Doesn’t Know Best

Lot’s of folks are expressing all kinds of nutty anger at the federal government this week. But don’t necessarily put the U.S. House of Representatives in that camp, at least when it comes to, well,  themselves! Sure, the House voted to repeal the federal Affordable Care Act again, for the 62nd time. But that failed effort qualifies more as an annoyance than actual rage at this point. When it’s politically inconvenient, however, the U.S. House is right there, sticking its hypocritical federal nose in places where it clearly doesn’t belong.

On Friday, the House is expected to vote on a bill that would directly preempt, or override, state legal systems in asbestos cases, and interfere directly with the third (judicial) branch of government in an unprecedented manner. Yes, the bill, H.R. 1927, would also give sweeping new liability protections to industries that make and market unsafe products, commit fraud and otherwise break rules and harm the public. (More than 70 organizations who oppose this bill explain how.) But these bills would do more than that.

One section of the bill would allow any defendant in any asbestos lawsuit the right to demand any information about any asbestos victim from any asbestos trust at any time for any reason whether or not this information is relevant in a lawsuit. Since relevant information is already available to defendants through the discovery process, this provision has no real purpose other than to delay the payment of claims to dying victims. And by allowing defendants to do an end-run around state discovery rules that place limits on information-gathering by parties, this bill directly interferes with state legal systems.

Another section of the bill would essentially wipe out the court rule that governs class action lawsuits, known as Rule 23. The Rules Enabling Act directs the U.S. Supreme Court – not Congress – to prescribe general rules of practice and procedure for the federal courts. Indeed, the Judicial Conference of the United States is currently in the midst of studying changes to Rule 23 right now! Let them do their job? Not this House! They’d prefer to interfere, pressured by lobby groups whose goal is to eliminate legal accountability for corporations that engage in illegal behavior.

You can learn more about this terrible bill by reading opposition letters, yesterday’s statement of opposition from the White House, and news articles like here, here and here.  

And then if you like, tell your Member of Congress how you feel.

Better Call Ted

I love New Mexico – Land of Enchantment, powerful history, gorgeous landscape, blue meth. And of course this week, I’m thinking about lawyers (although not necessarily the dedicated folks at the New Mexico Trial Lawyers Association). My thoughts are more consumed with one particular ethically-challenged fake NM attorney named Jimmy McGill, aka Saul Goodman, Attorney at Law. And now it turns out, there’s an even more ethicially-challeged attorney to fill my thoughts today.  His name is Senator Ted Cruz (R-TX), and unfortunately, he’s real.

David Corn at Mother Jones broke a story today about Sen. Cruz that would be unbelievable if not so common. Certainly the Senator qualifies to join our esteemed list of “Hypocrites of Tort Reform.”  (John Boehner received our last shout out.)  But the Cruz story is so much more.  It’s really one of the worst cases of “tort reform” hypocrisy that we’ve ever seen.

As a policy advisor to George W. Bush's, a Senate candidate and a Senator, Ted Cruz “championed tort reform” (to put it mildly.)  For example, writes Corn,

When Cruz ran for Senate in 2012, his website declared he had defended a landmark pro-business tort reform law passed in Texas in 2003 that severely constrained the ability of consumers to sue medical professionals and nursing homes and to collect punitive damages in other cases.… After becoming a senator, Cruz told the Austin Chamber of Commerce that Texas-style tort reform—which places a cap of $750,000 on punitive damages—ought to be a national law.

Yet, as a lawyer in private practice, Cruz—at least twice, in 2010 and 2011—worked on cases in New Mexico to secure $50 million-plus jury awards in tort cases prompted by corporate malfeasance. These are precisely the kind of jury awards that the tort reform Cruz has promoted would abolish. That is, Cruz the attorney, who sometimes billed clients $695 an hour, made money defending jury awards that Cruz the politician wanted to eliminate—and he did so at the same time he was running for Senate as a pro-tort-reform candidate.

Notes Corn, “The two cases Cruz worked on were gruesome.”  One involved a nursing home resident who bled to death due to neglect. The case was against “Ohio-based ManorCare Inc., one of the largest for-profit operators of nursing homes in the nation, for wrongful death."

The jury found that the nursing home had been negligent and awarded Barber's family $53.2 million, with $50 million of that in punitive damages. This was one of the largest jury awards in the history of New Mexico.

When ManorCare Inc. appealed and challenged the punitive damages award, Cruz came in to help the family and defend the award, which he did in writing.  The case settled before he had a chance to argue it. 

His next case involved a civil case brought on behalf of “a profoundly mentally and developmentally disabled man—he could not speak or effectively use his limbs—[who was] was raped, presumably by an employee at the Roswell group home where he lived and which was operated by the New Mexico subsidiary of ResCare Inc. (RCI), a Louisville-based health services firm.… The jury slammed RCI and the subsidiary, awarding $4.95 million in compensatory damages and a whopping $49.2 million in punitive damages.”

Again, the company appealed and Cruz came into the case arguing in favor of the award.  Wrote Cruz and his team, “[A] large punitive damages award is justified by the need to deter conduct that is hard to detect and often goes unpunished."

The filing Cruz helped write echoed an argument often used by consumer advocates and plaintiffs attorneys who oppose tort reform and claim it protects companies that seriously harm people, especially the elderly and infirm: "Restoring the punitive damages awarded by the jury in this case is crucial if there is to be any hope of deterring companies like RCI from engaging in reckless conduct against vulnerable individuals.”

For the appeal, Cruz's main task was to sway three appeals court judges during oral arguments. On November 15, 2011, Cruz took time off from his Senate campaign to appear in an Albuquerque courtroom to argue for Selk and the $54 million jury award.…

The appeals court, Cruz told the judges, was obliged "to respect the jury's finding," regarding the substantial punitive damages, which, he noted, represented only 3 percent of RCI's gross revenue. Toward the end of his presentation, he put it plainly: "The purpose of punitive damages is to punish and to deter…The jury rightly concluded the appropriate amount to punish and deter was $48 million."

Yup.  Again, “the case was settled before the appeals court reached a decision.”  And here’s where the real hypocrisy comes in.  Continues Corn,

If either the Selk or Barber case had been brought in Texas, the noneconomic damages could not exceed $250,000, according to Paula Sweeney, a Dallas attorney and former president of the Texas Trial Lawyers Association. “These jury verdicts would not be possible in Texas,” she says. And, Sweeney notes, the tort reform in Texas that Cruz supported has created serious obstacles to even filing such lawsuits. (In 2006, the American Bar Association Journal noted that "Texas plaintiffs layers have been leaving in droves from nursing home and medical malpractice litigation in the wake of tort reform.") Under Texas tort reform, Sweeney points out, a victim (or relative) cannot ask a jury to hit a corporation with tens of millions in punitive damages, as Cruz in the Selk case contended is necessary to deter serious wrongdoing.

See more here, here about how bad things are in Texas.  Corn sums things up this way:

In the courtroom—when he was being paid—Cruz was an articulate and forceful champion of super-size punitive awards, insisting such lawsuits and punishments were needed to protect consumers from reckless corporations that put profits ahead of people. On the campaign trail—when he is trying to score political points and draw the support of the business community—Cruz has embraced tort reform that disempowers consumers and protects negligent companies from such penalties. So what does Cruz truly believe? It might depend on whether he is trying to win cases or win elections.

The U.S. Chamber’s Cerebral Disorder

A few years ago, the filmmaker Errol Morris wrote a strange and fascinating 5-part series in the New York Times Opinionator blog called “The Anosognosic’s Dilemma: Something’s Wrong but You’ll Never Know What It Is.”  Anosognosia, medically speaking, is a neurological condition “in which a person who suffers from a disability seems unaware of or denies the existence of his or her disability.” Or put more simply, it’s an utter lack of self-awareness. Morris also explained the Dunning-Kruger Effect, or “the anosognosia of everyday life.” (This explains so much, right?)  Morris also writes,

[V.S.] Ramachandran has used the notion of layered belief — the idea that some part of the brain can believe something and some other part of the brain can believe the opposite (or deny that belief) — to help explain anosognosia.

Morris seemed, in part, like he was trying to understand the subject of his later film, The Unknown Known, about former United States Secretary of Defense Donald Rumsfeld. But I found it incredibly useful in trying to decipher the brain function of Thomas J. Donohue, President and CEO of the U.S. Chamber of Commerce, the nation's largest corporate lobby group.  Donohue just gave a speech announcing the “State of American Business 2015” and the Chamber’s priorities for the new Congress.  Morris points out that, “by definition one can never be aware of one’s own anosognosia.  It takes someone else to point it out.”  And one way to diagnose this condition is apparently through the use of an “anosognosia questionnaire.”  So let’s do one for Mr. Donahue and then we’ll pass it along.  We’ll see if it helps.

1. In your speech, Mr. Donahue, you complain about lawsuits and announce the need for “legal reform,” i.e., laws that block everyday people from suing big corporations. In literally the next paragraph, you boast about how “extremely busy” the Chamber is filing lawsuits (which it does on average three times a week).  Are you aware of how (insanely, we might add) hypocritical your position is?
   
   
2. In your speech, you boast that “the Chamber’s Litigation Center successfully filed a record number of briefs in federal and state courts, and we’ll likely surpass that record this year.” One example?  A day after BP was found to be grossly negligent in causing the 2010 BP Deepwater Horizon explosion, the U.S. Chamber filed a brief with the U.S. Supreme Court supporting BP's decision to stop spending money to help businesses it harmed and agreed to compensate. Those businesses, of course, included many of the Chamber's own members. Luckily the Supreme Court said “NO” to this ridiculous petition.  However, are you aware that your position was (and continues to be) in direct conflict with the interests of your own members, whose pending claims would be tossed out if the Chamber got its way?
   
   
3. In your speech, you announced that the Chamber will fight to “preserv[e] the availability of arbitration” although you really mean ONLY forced arbitration clauses imposed ON consumers and employees BY big banks, credit card companies, internet companies, payday lenders, nursing homes and other big corporations. If you supported forcing these clauses ON big banks, credit card companies, internet companies, payday lenders, nursing homes and other big corporations, forcing them to arbitrate to resolve their own business disputes, you'd have an insurrection on your hands. Why? Arbitration - they apparently hate it! 
   

   [A] study, that included contracts by 21 different telecommunications and financial service companies, found mandatory arbitration clauses jammed into 75 percent of consumer agreements, but just 24 percent of contracts overall.  And in previous studies, the report’s authors found  that just 11 percent of companies used arbitration clauses when contracting with fellow businesses.

   We get it.  Forced arbitration is biased, rigged, expensive, unfair and binding.  So we gotta ask: any awareness, any at all, of your own duplicity on this matter?

4. Finally, in your speech, you advocate “passing the FACT Act to help prevent fraudulent asbestos claims.”  What fraud? The fraud where BASF and its corporate lawyers, Cahill Gordon & Reindel LLP, were shown to have "systematically collected and destroyed or hid evidence of asbestos-contaminated products produced by a BASF predecessor, Engelhard, in order to evade liability and forge quick settlements"?  The fraud "committed on the court" by asbestos company Garlock Sealing Technologies, which, "violated [the judges'] discovery orders, hid evidence from the bankruptcy court and presented false testimony"? The 50 years of fraud committed on millions of people – including former servicemembers - by the entire asbestos industry, which covered-up the lethal effects of asbestos for decades, causing the death of 10,000 people every year - still today!  Or the utter lack of fraud by dying asbestos claimants? 
   
   The Chamber’s bill would require asbestos trusts to disclose on a public web site private, confidential information about every asbestos claimant and their families, including their names, addresses, where they work, how much they make, some medical information, how much they received in compensation and the last four digits of their social security numbers. (Alert the identity thieves!) At the same time, as noted by the New York Times, the legislation does not ask the companies to do one thing to help the victims, or to disclose any information that could help a claimant with his or her case.

Anything?

Anosognosia is a disease.  Step one - admit you have a problem.  Hope we've helped. 

Tort “Reform” Hypocrites Hit the Big Time

There’s nothing I like more than a good hypocrite story, so let’s start with some statistics.

The new Court Statistics Project data from the National Center for State Courts is out.  As any good researcher knows, most state courts are useless when it comes to collecting data about cases going through their system, but NCSC found good data in a representative number of 19 states.  It found (no surprise) that tort cases as a percentage of the total civil caseload range from a low of 0.9 percent (ND) to a high of 7.3 percent (PA). Or, as researchers succinctly put it, “nowhere do tort cases exceed 7 percent as a percentage of all civil cases.”

So when some politicians argue that the system is flooded not just with tort cases, but with frivolous ones (the rationale behind laws that strip away the legal rights of injured people) you really gotta laugh.  What exactly do they want?  To get that number down to 3 percent?  Or to reach North Dakota’s low of less than 1?  No, more likely they want that number of be “0”, so the civil courts can be cleared just for them.

Today, it is being reported that 17 states, led by Texas Attorney General Greg Abbott, the state's governor-elect, are suing the Obama administration over its recent executive actions on immigration.… Abbott said that Obama's action ‘tramples’ the Constitution."

During his gubernatorial run, Abbot got in trouble – although not enough trouble – when it was revealed that when his “spine was crushed by a falling oak tree in 1984,” he sued and won millions of dollars in compensation. So far, he has received about $5.8 million “and is entitled to monthly income from the settlement until he dies.”  Most of what he receives is compensation for “noneconomic losses for pain and suffering and mental anguish.”  He eventually went onto the Texas Supreme Court, where he “began adopting tighter standards for losses that involved pain and suffering and mental anguish.”  And now he supports all kinds of other so-called “tort reforms” to make it harder for people hurt like he was, to receive adequate compensation or even to sue at all.

“You would think that a young man, at the start of his career, crippled by an injury, would want to make sure that others that may have the misfortune to follow in his footsteps would ensure that those people had the opportunity to be compensated for their injuries in the same way he was,” said Tommy Fibich, a Democratic donor and personal injury lawyer. “He instead closed the door because that would help him get re-elected.”

And he’s also leading a political lawsuit against the President.  His hypocrisy knows no bounds.  And he’s not the only one.  Just a couple weeks ago, "Speaker John Boehner finally went through with the lawsuit he had long promised to file over the administration's implementation of the Affordable Care Act."  This is the same body that not only "voted more than 30 times to repeal part or all of the law” but also passed a piecemeal repeal that included Draconian limits on the legal rights of medical malpractice victims.

Litigation seems now to be the preferred method for “tort reform” politicians to do business.  The courts apparently should be reserved exclusively for their political complaints, or to recover money for themselves. Sounds like something King George III could get behind!

Congress and The Ironic Right to Sue

There’s a fine line between irony and hypocrisy.  I’m not sure our political leaders in Congress understand either one.  But at least that makes for some fine comedy!

You may have heard that right before going on vacation, the “House of Representatives passed a resolution … authorizing Speaker John Boehner (R-Ohio) to sue President Barack Obama for what they say has been inadequate enforcement of the health care law they oppose.”

The suit would seek to make Obama strictly enforce the Affordable Care Act that Boehner has held some 50 votes to undermine or repeal. Republicans object that the Obama administration has delayed some parts of the law, particularly the mandate on employers who do not provide health care coverage.…

Some Republicans acknowledged the lawsuit's irony. But they argued that even though they oppose the law, it's the president's job to enforce it -- and he hasn't.

An outspoken lawsuit backer is Rep. Tom Rice (R-S.C.). Washington Post columnist Dana Milbank quoted Rep. Rice, who said he liked suing the President because, “We cannot stand by and watch the president shred our Constitution.” This is the same guy who also supports an “alternative” to Obamacare that would unconstitutionally (according to many Tea Party supporters) interfere with the common law of 50 states by severely limiting compensation to patients killed or injured by medical malpractice. That, he says, is to solve a so-called “lawsuit abuse” problem caused by sick and injured children - as opposed to, say, by members of Congress.  Dana Milbank also observed that, “For procedural reasons, Republicans opted to bring the lawsuit bill to the floor paired in debate with a measure to deregulate pesticides.” Irony?  Hypocrisy? Toxic? Just plain funny?  I say all of the above.

Aside from the lawsuit’s political backstory (i.e., impeachment “lite”), what’s really driving the U.S. House of Representatives up a wall is the President’s use of executive orders to bypass a house of Congress that refuses to act sanely.  

Today, the President is expected to issue a new executive order “seeking enhanced workplace conditions and rights for federal contract workers.”  Writes the Associated Press:

Some companies that earn billions of dollars as government contractors are among the worst violators of U.S. labor laws, yet year after year they keep winning new contracts. So President Barack Obama is aiming to end impunity for labor violators by pushing companies to clean up their act if they want to keep taking federal money.

Obama on Thursday will sign an executive order that requires contractors to give their workers more rights to address disputes. Companies seeking large contracts won't be allowed to require their workers to sign agreements saying that an arbitrator, rather than a judge, gets to hear sexual assault or civil rights grievances and make binding decisions. The order also requires that workers be given information each pay period to help them to determine whether their paychecks are accurate, White House officials said. …

The provision barring mandatory arbitration agreements will apply only to new contracts exceeding $1 million, officials said, and will affect disputes brought under the anti-discrimination section of the Civil Rights Act or accusations of sexual assault or harassment. It mirrors protections Congress already has enacted that apply to Defense Department contracts.

Senator Al Franken (D-Minn.) championed those protections, as we’ve noted before. This is a great step forward in what we hope will ultimately be a new federal law to ban these forced arbitration clauses altogether. 

I can’t wait to hear what House supporters of the crazy Obamacare lawsuit have to say about this new executive order providing victims of discrimination, sexual assault or harassment the right to sue in court.  I expect nothing less than full-blown irony, hypocrisy and just plain hilarity!