THE DAILY WHIP: FRIDAY, MARCH 10, 2017

House Meets At:First Vote Predicted:Last Vote Predicted:
9:00 a.m.: Legislative Business

Five “One Minutes”
10:30 – 11:00 a.m.11:00 – 11:30 a.m.

Complete Consideration of H.R. 720 – Lawsuit Abuse Reduction Act of 2017 (Rep. Smith (TX) – Judiciary) (One hour of debate).  This bill would change Rule 11 of the Federal Rules of Civil Procedure to require that courts impose sanctions on parties that violate the prohibition on the filing of frivolous lawsuits. Rule 11 currently leaves the imposition of sanctions to the discretion of the judge.

This bill represents a reinstatement of discredited rules that were previously in effect, from 1983 – 1993, and triggered almost 7,000 Rule 11 filings, compared with just 19 such filings from 1938 to 1983, when sanctions were not required. Reenactment of these rules would do the exact opposite of their claimed intent, leading to further litigation that is spurred by the prospect of mandatory sanctions and monetary compensation for attorneys’ fees.

The bill specifies that sanctions against parties that file frivolous lawsuits must include monetary payments to the other party for that party's expenses, including attorneys' fees and other costs, discrediting the judicial system by assuming judges are incapable of appropriately punishing abusive lawsuits. The bill would also eliminate the “safe harbor” provisions of Rule 11, under which a motion for sanctions will not be pursued if the challenged filing is withdrawn or corrected within 21 days of service of the motion for sanctions.

This bill would have a wide-ranging impact on civil rights cases, which often involve an "argument for the extension, modification or reversal of existing law or the establishment of a new law," and often have relied upon novel legal theories that are particularly susceptible to abusive claims of frivolity by defendants.  Had the provisions in H.R. 720 been in place at the time, they could have discouraged a number of landmark civil rights cases, including Brown v. Board of Education of Topeka, and they could prevent new cases—such as cases challenging the Trump administration’s new travel ban, cases challenging restrictions on the rights of the LBGTQ community, or cases involving police misconduct—from ever being considered.

On September 17, 2015, the House considered H.R. 758, which is identical legislation to H.R. 720 .  That vote can be found hereMembers are urged to VOTE NO.

The Rule, which was adopted yesterday, makes in order 4 amendments, debatable for 10 minutes each, equally divided between the offeror and an opponent.  The amendments are:

Soto Amendment. Reinstates the safe harbor provision currently found in Section 11(c)(2) of the Federal Rules of Civil Procedure to allow parties to avoid penalties by withdrawing or correcting the claims within 14 days from when the alleged violation of rule 11(b) – pertaining to frivolous litigation - becomes known, anytime up until the end of the discovery period.
Jackson-Lee Amendment. Strikes provision mandating the award of reasonable  attorney's fees and costs, restoring judicial discretion to award such fees and costs, when warranted.
Conyers Amendment. Exempts from the underlying bill civil actions alleging any violation of a constitutional or civil right.
Jeffries Amendment. Exempts actions pertaining to whistle blowers.

Bill Text for H.R. 720:
PDF Version

Background for H.R. 720:
House Report (HTML Version)

House Report (PDF Version)

 
The Daily Quote

“Major associations representing physicians, hospitals, insurers and seniors all leveled sharp attacks against the House GOP’s plan to rewrite the Affordable Care Act on Wednesday, as some Republicans publicly questioned whether the measure can clear the House of Representatives. While industry groups warned that the proposal could leave vulnerable Americans with fewer protections than they now have, GOP leaders pressed ahead…”

     —     Washington Post, 3/8/2017