Legislation to Be Introduced to Limit Victim’s Rights to Access to Courts

November 7, 2013

Two pieces of legislation that will be going to a vote the week of November 11 could adversely affect victim’s rights.

FACT.   Asbestos companies and their supporters are using their political influence to pass a new bill in the U.S. House of Representatives.  The “Furthering Asbestos Claim Transparency Act” (“FACT”) is going to a vote the week of November 11.  This bill will delay and, in some cases, deny justice and compensation to people suffering from asbestos-related diseases, such as mesothelioma, lung cancer, asbestosis, and pleural diseases, among other diseases. It is merely the latest attempt by asbestos corporate interests to avoid responsibility for their wrongdoings. There are already too many hurdles and impediments and delays in asbestos victims’ cases! More are not needed when these clients are suffering because some corporations chose to use a poisonous product rather than put consumers’ and employees’ health and safety before their corporate bottom line.

You can call your Representative and tell him or her to OPPOSE the bill, and ask your family and friends to do the same. Go to www.takejusticeback.com/asbestosaction to do this right now.

LARA.  H.R. 2655/S. 1288, the Lawsuit Abuse Reduction Act, known as LARA, would amend Rule 11 of the Federal Rules of Civil Procedure by replacing the current version of the Rule, which has been in effect since 1993, with the 1983 version of Rule 11.  LARA would increase litigation, unnecessarily meddle with the authority of the federal judiciary, and disproportionately affect plaintiffs, especially plaintiffs in civil rights cases.

Some of the most important changes in the LARA are:

• the elimination of Safe-harbor provision which protect against the imposition of sanction if the filing alleged to be sanctionable is withdrawn or corrected within 21 days.
• Sanctions, including attorneys’ fees and costs are to be paid to the party prevailing on the motion rather than the Court .

LARA will have the following effects:

• Encourages satellite litigation.  For the 10 years that mandatory sanctions were in effect, litigation surrounding Rule 11 significantly increased.  Any time a party filed a Rule 11 motion – because judges had no discretion and were forced to issue a sanction for even the smallest violation of the Rule – a countermotion would be immediately filed and a whole side or “satellite” litigation business erupted. Parties would be encouraged to litigate rather than resolve these issues.

• Threatens an independent judiciary.  Since 1993, Rule 11 has been discretionary rather than mandatory.  Under current Rule 11, judges are able to use their discretion to assess the complex nature of a case, and evaluate potential violations of the rule and issue sanctions accordingly.  This appropriately leaves the determination of whether or not sanctions should be imposed for a violation of Rule 11 to the judges who hear the cases, and not Congress.

• Jeopardizes civil rights cases.  Sanctions were more often imposed against plaintiffs than defendants and more often imposed against plaintiffs in certain kinds of cases, primarily in civil rights and certain kinds of discrimination cases. This may be because such cases are difficult to prove because people and institutions generally try to hide discriminatory or retaliatory motives, as they know the law does not allow such conduct.

• Willl unfortunately encourage the use of Rule 11 as a litigation tactic to prevent all claims from proceeding, especially those that involve new legal issues, that are different from the “norm” or difficult to prove from being brought at all and thus lessen the public’s constitutional right to trial by jury.

THESE BILLS SHOULD BE OPPOSED BY ANYONE WHO VALUES OUR CONSTITUTIONAL RIGHT TO TRIAL BY JURY.  CONTACT YOUR REPRESENTATIVE TO DO SO!!