PCCJR Update — September 20, 2019

PCCJR Urges PA Supreme Court to Reject Strict Liability in Unfair Trade Practices Case

On September 5, 2019, the Pennsylvania Coalition for Civil Justice Reform along with several other organizations filed an amicus curiae brief in the case Gregg v. Ameriprise Financial Inc., currently pending before the Supreme Court of Pennsylvania. 

The principle issue in Gregg is the scope of liability under the catchall provision of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq., which prohibits “any . . . fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”

The Superior Court held that the UTPCPL’s catchall provision “imposed strict liability” on all persons or entities that sell or lease goods—even if the required “confusion or . . . misunderstanding” was caused by purely innocent conduct. As argued in our brief, that reading of the law finds no support in its text or the history surrounding the law’s enactment.

Furthermore, such a reading of the UTPCPL usurps the role of the legislature, which explicitly declined to enact such a “strict liability” regime; and would create a dangerous and unworkable standard that would be ripe for abuse and hurt Pennsylvania businesses. For those reasons, our brief joins the defendants in the case, arguing that the Supreme Court of Pennsylvania should overrule the decision of the Superior Court.

Businesses and Health Care Providers Concerned About Regs Proposed Under Unfair Trade Practices/Consumer Protection Law

Businesses and health care providers 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 pursuant to the Unfair Trade Practices/Consumer Protection Law. 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!

The proposed rule-making ventures well beyond the scope of authority provided by Pennsylvania’s Unfair Trade Practices/Consumer Protection Act. This law provides for a private right of action and is a concern to the Pennsylvania Coalition for Civil Justice Reform. The terms and language in the proposed regulations are so vague and open ended that the Attorney General would have virtually unlimited power and authority over commercial transactions should these regulations be adopted.

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. Comments on the proposed regulations must be submitted by September 30. You can find information on the regulatory review process here.

The Pennsylvania Coalition for Civil Justice Reform will be engaged in the regulatory process and is taking a lead role in organizing opposition to this regulatory overreach.

Tune In: PMA Perspectives Features Roundtable on Venue Shopping

The Pennsylvania Manufacturers Association will explore the issue of venue shopping on the September 29 edition of PMA Perspectives on the statewide public affairs network, PCN, at 5:30 pm.

On the program, PMA President David N. Taylor hosts PCCJRExecutive Director Curt Schroder, The Hospital and Healthsystems of Pennsylvania’s Warren Kampf and Zach Shamberg of the Pennsylvania Health Care Association to discuss the harmful effects of venue shopping. The Supreme Court is currently considering a rule change to allow lawsuits to be filed in courts with little or no connection to the cause of action or harm that occurred.

Such a move could return Pennsylvania to the medical liability crisis of the early 2000s, which threatened access to health care throughout the state.

A Legislative Budget and Finance Committee hearing in June featured testimony demonstrating that similar impact could be expected should the Supreme Court revert back to the old rule.

In the News

Things that make you go Hmm…| Is AG Shapiro ignoring the legislature as he tries to change state consumer protection law? | Pennsylvania Record 

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