PCCJR Update — September 13, 2018

New anti-trust regs will expand liability and promote lawsuits * NFIB features PCCJR Guest Column * Lawsuit Watch talks U.S. Supreme Court nominee * In the News

Attorney General’s Proposed Anti-Trust Regulations Will Expand Liability and Promote Lawsuits!

Every business in Pennsylvania should be paying close attention to the recent regulations put forth by the Pennsylvania Attorney General. These regulations attempt to create state anti-trust enforcement through regulation. The problem is that Pennsylvania law does not contain an anti-trust statute and therefore the Attorney General is not empowered to enact such broad, sweeping regulations!

Published August 11, 2018, the proposed rulemaking ventures well beyond the scope of authority provided by Pennsylvania’s Unfair Trade Practices/Consumer Protection Act. The terms and language in the proposed regulations are themselves so vague and open ended that the Attorney General would have virtually unlimited power and authority over commercial transactions should these regulations be adopted. Perhaps even more concerning is that under the “private action” provisions of the statute, individuals would be able to bring civil lawsuits under the new anti-trust regulations, making this a bonanza for plaintiffs’ attorneys seeking to sue Pennsylvania businesses! 

Section 311.3 “General provisions – unfair market trade practices” attempts to accomplish through regulation what advocates have never been able to accomplish through statute, namely, enacting a state anti-trust act. This section enumerates a list of unfair market trade practices involving fixing minimum prices, stabilizing prices, allocating marketing territories, monopolization, as well as other practices sought to be prohibited.

Section 311.4 creates a “Catchall” provision which would now include “unfair or deceptive conduct.” “Unfair Conduct” is defined in the proposed regs as a method, act or practice …. which violates public policy as established by “any statute, the common lawor otherwise within at least the penumbra of any common law, statutory, or other concept of unfairness; which is unscrupulous, oppressive or unconscionable; or which causes substantial injury to a victim.” This overly expansive definition would give the Attorney General and his trial lawyer allies carte blanche to determine what is unfair by arguing that a certain activity falls within the “penumbra” of any other concept of unfairness!

In addition, Section 311.5 of the proposed regulations states that the enumeration of the unfair methods of competition and unfair or deceptive practices under Section 2(4) of the act are not exhaustive! The very existence of a “catch-all” provision in the act demonstrates that the enumerated methods are in fact exhaustive. Moreover, the proposed regulations combine this unwarranted and extreme interpretation of the Consumer Protection Law with a vast expansion of the Bureau of Consumer Protection’s subpoena power. Such unfettered powers will be ripe for abuse, inflicting significant costs and disruption on businesses.

Businesses are advised to carefully review the proposed regulations and seek the advice of your legal department or outside counsel. It is important that the Attorney General and the Independent Regulatory Review Commission (IRRC) hear from concerned businesses and residents about the excesses of this proposal. You can find information on the regulatory review process here.

NFIB Features PCCJR Guest Column

A big thank you to PA’s National Federation of Independent Businesses for inviting PCCJR to be a guest columnist on its webpage and recent newsletter.

“Lawsuit abuse has a detrimental impact on our commonwealth’s economy,” writes PCCJR Executive Director Curt Schroder. “Pennsylvania ranks a lowly 38 out of 50 states when it comes to having a litigation climate that is conducive to job creation and retention, according to recent surveys. It has also been estimated that Pennsylvania’s litigation climate reduces employment by up to 1.53 percent.

While all businesses bear this tort burden, it is felt most acutely by small businesses.”

Read more about how the civil justice system is running amuck. And find out more about how you can help combat lawsuit abuse on PCCJR’s website.

Lawsuit Watch: A discussion on U.S. Supreme Court Nominee Brett Kavanaugh

On the latest edition of Lawsuit Watch, our guest is John Malcom of the Meese Center for Legal Studies at the Heritage Foundation. John and PCCJR Executive Director Curt Schroder discuss what the nomination and confirmation of Judge Brett Kavanaugh to the Supreme Court would mean for the prospects for civil justice reform.

You can hear the complete podcast here.

Lawsuit Watch airs on the fourth Monday of each month on WFYL. The program broadcasts live on 1180 AM and on the web.

In the News

Litigation TourismPhiladelphia’s appeal to plaintiffs crosses borders; 41 Dominican Republic Plaintiffs file pesticide lawsuit in Philadelphia (PCCJR Quoted Extensively| Forbes | September 4, 2018 

Another Win for Xarelto DefendantsPhiladelphia Jury Hands Bayer & Janssen Defense win in Xarelto Litigation| August 30, 2018

Not just PAWhy Florida needs tort reform to stop wasteful litigation| FloridaToday.com | August 30, 2018

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