Litigation

Things Congress did and didn't do before leaving, Part II

By Carter Wood

The National Association of Manufacturers just released its congressional ratings for the 111th Congress, and noticeable by their absence are key votes on civil justice reform issues. In years past, high-priority pieces of tort reform legislation (think Class Action Fairness Act) were included the NAM's Key Vote Committee rankings, but in 2009-2010, no separate tort reform bills were rated.¹ Neither did bills to expand liability reach the point of a floor vote.

We covered some of the flurry of legislative action in the last week before recess. Here's Part II, highlighting the inaction.

• The Medical Device Safety Act, meant to overturn the Supreme Court's decision in Riegel v. Medtronic. (H.R. 1346, S. 540)

• The Motor Vehicle Safety Act, introduced as a reaction to the Toyota recalls. Turns out that truth - in this case, the reality of operator error - helped discourage passage of the expanded regulatory control and liability applied to automakers. (H.R. 5381)

• Expansion of liability under maritime law proposed in the wake of the Deepwater Horizon accident.² Here's a list of the 95 bills, resolutions and amendments introduced in the 111^th Congress with the term "oil spill" in them.

• The Discount Pricing Consumer Protection Act, S. 148, meant to overturn the U.S. Supreme Court's decision in Leegin Creative Leather Products, Inc. v. PSKS, which held that resale price maintenance agreements were not per se illegal under federal antitrust law. The bill by Sen. Herb Kohl (D-WI) was reported out of the Senate Judiciary Committee, however.

• Bills sponsored by Sen. Arlen Specter (D-PA) and Rep. Artur Davis (D-AL) to allow trial lawyers to deduct expenses from contingency lawsuits. (S.437 and H.R.2519)

• Sen. Specter's federal media shield legislation, with the potential to weaken protections of corporate trade secrets and confidential personnel records. (S. 448)

Yes, it is possible that Congress will act on some of these bills in the lame-duck session, which convenes Nov. 15. You would think that extending the tax 2001 rates would come first, but who knows what might happen? November promises to be an unsettled period full of recriminations and last gasps -- an environment that invites legislative excesses.

Perhaps Senators will give expression to their warm feelings of affection for Sen. Specter and pass all his bills as a final tribute. If the wind of change have been especially scouring, the litigation lobby may call on their congressional supporters to use their last opportunity to enact all sorts of liability-expanding legislation.

¹ The NAM rated two bills in the area of employment law, the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. The first, which became law, removed statutes of limitation on employment discrimination suits. The second, which passed the House, lifts caps on punitive damages.

² No legislation, plenty of litigation. The Washington Post today reports: "METAIRIE, LA. - The BP oil spill cleanup is winding down, but the lawyers are just warming up. The gusher of litigation might not be capped for years."

Full post as published by Point of Law on October 06, 2010 (boomark / email).