Trump on Tort Reform? Where Business, Populist Interests Clash

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By Steven M. Sellers

Nov. 10 — Advocates for legal tort reform at the federal level on one side, and those pressing for consumer protections on the other, say their competing efforts will continue under President Donald Trump.

But, as with many items under the new administration, both agendas face uncertain trajectories.

“There are huge gaps in what we know right now,” Paul Bland, executive director of Public Justice in Washington, D.C., told Bloomberg BNA Nov. 10.

“Donald Trump ran a campaign where there was less release of detailed position papers than in any other modern presidential campaign,” Bland, who advocates for consumers and workers, said.

“Will he delegate to the U.S. Chamber [of Commerce] people or try to bear more to the populist positions that animated his campaign?” Bland said.

He noted that Trump repeatedly said on the campaign trail that he would stick up for the “little guy” on consumer protection and other issues like worker-rights.

Reform Issues with ‘Traction.’

Defense attorney Mark Behrens, of Shook, Hardy & Bacon in Washington, D.C., told Bloomberg BNA Nov. 10 his tort litigation reform agenda for the new president and Congress includes a renewed push for legislative overhauls of class action and asbestos exposure litigation procedures.

Behrens co-chairs the firm’s public policy group and is a tort reform advocate.

Two other bills, one to reduce so-called frivolous litigation and another to restrict transfers of federal cases to state courts, also are in play, he said.

“Those four are the ones that have had some traction, and would be on the legal reform short list,” Behrens said.

Even though the measures all passed the House this Congress, Trump’s presidency doesn’t assure they will become law in the next legislative term.

“With a President that won’t reject these measures out of hand as a matter of administration policy, it will be easier, but you still have to get 60 votes in the Senate,” Behrens said.

“Sixty votes is always a challenge in any kind of legislation, including legal reform legislation,” he said.

H.R. 1927, The Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016, would make it harder to certify class actions by requiring that all class members suffered the same type and scope of injury.

It also would mandate increased reporting of any payments made to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies.

The legislation passed the House on Jan. 8, 2016 and is awaiting consideration by the U.S. Senate.

Another bill would require federal courts to impose sanctions and damages against an attorney or law firm that files a frivolous complaint. The Lawsuit Abuse Reduction Act of 2015 was passed by the House in 2015.

And H.R. 3624, the Fraudulent Joinder Prevention Act of 2016, would make it harder for plaintiffs to transfer cases from federal to state courts, where juries are seen by some plaintiff lawyers as more receptive to damages claims.

Syncing Consumer Issues, Campaign Themes

Bland, of Public Justice, said any question of a tort litigation overhaul should be viewed through the longer lens of Trump’s campaign themes, which weren’t always in sync with industry wish lists.

“I feel strongly the U.S. Chamber’s views on forced arbitration and banks is overwhelmingly at odds with the Republican voters—they are very strongly opposed to it,” he said.

Bland said it remains to be seen what path Trump ultimately chooses.

“It will be interesting to see if Mr. Trump doesn’t give a damn about the voters to go with the industry lobbyists, or shakes things up to go a different direction,” he said.

“I hope he surprises us,” Bland said. “But if he’s a predictable industry hack, he’s going to face a lot of battles.”

To contact the reporters on this story: Perry Cooper in Washington at pcooper@bna.com; Steven M. Sellers in Washington, D.C. at ssellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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