PCCJR Update — January 14, 2020

False Claims is a Bi-Partisan Threat ** PCCJR Amicus Brief Program ** The MOST Frivolous Lawsuit ** 

Push to Enact False Claims Act is a Bi-Partisan Threat

Rep. Seth Grove, Attorney General Josh Shapiro, and a bipartisan group of House and Senate members held a press conference on Monday, January 13 to advocate for enactment of a False Claims Act in Pennsylvania. This effort follows closely on the heels of a report issued by the House Government Oversight Committee which recommends adoption of a False Claims Act.

A False Claim Act has a strong appeal to many legislators who do not fully understand how it operates and are merely told that the Commonwealth will recoup money from medicaid fraud and abuse. PCCJR has reported on why this proposal is very harmful to good actors in business and the health care industry.

PCCJR will be working to educate legislators about the pitfalls of a False Claims Act and why Pennsylvania is better off continuing to allow cases to be brought under the federal act. Legislators need to understand that by the time the qui tam (relator, bounty hunter) plaintiff receives a substantial percentage of the state’s recovery, Pennsylvania will recoup less money than had it never enacted a state False Claims Act!

If you are concerned about the impact of a state False Claims Act and would like to help our effort to make sure legislators are well informed on this issue, please contact PCCJR Executive Director Curt Schroder at 717-461-3577 or curt@pccjr.org. 

PCCJR Launches Amicus Brief Program

The Pennsylvania Coalition for Civil Justice Reform, joined by the Pennsylvania Bankers Association, the National Federation of Independent Business, and the Insurance Federation of Pennsylvania (the “Associations”) filed an amicus curiae brief in the Pennsylvania Supreme Court in the case captioned Commonwealth v. Chesapeake Energy Corp. and Anadarko Petroleum Company, et al., Nos. 81 & 82 2019. In this case, the Attorney General invoked the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“Consumer Protection Law”) to challenge natural gas leasing activities of Chesapeake and Anadarko and to pursue antitrust claims and remedies against the companies for violations of the state law. Commonwealth Court sided with the Attorney General’s position, and the Pennsylvania Supreme Court accepted the companies’ appeal.

The Associations support the natural gas companies and offered the Court additional perspectives given that the decision on appeal implicates business and commercial transactions beyond the oil and gas context. On the first question involving the Consumer Protection Law, the Associations agreed with the companies that the statute only applies to protect buyers in consumer transactions. A broader reading like the one endorsed by the Commonwealth Court gives the Attorney General authority to challenge any commercial activity involving any individuals or businesses if he or she believes the transaction is somehow unfair or deceptive to one of the parties. As a result, the court’s decision exposes the business community to new threats of lawsuits brought by the Attorney General and private individuals to challenge any commercial transactions as a violation of the statute, a particularly concerning result in light of Gregg v. Ameriprise, in which a panel of the Superior Court (erroneously) created a new “strict liability” standard under the statute’s “catch-all” provision.

On the second question involving antitrust, the Associations reiterated the fact that the General Assembly has not enacted an antitrust statute. Therefore, the Attorney General only has authority to pursue antitrust claims and remedies under federal law and procedure, not under the Consumer Protection Law. The Commonwealth Court improperly made a policy choice reserved for the General Assembly by changing the well-settled legal framework in Pennsylvania that limits the Attorney General’s authority to pursue antitrust claims and remedies under federal law in federal courts. In addition, the Associations pointed out that, in the wake of the Commonwealth Court’s decision, the Attorney General proposed regulations that members of the business community and the Independent Regulatory Review Commission strongly opposed as exceeding the scope of the Attorney General’s authority under the Consumer Protection Law.

Finally, the Associations explained how the Commonwealth Court’s decision on both issues affects the business community. For example, the court’s decision (a) changes the legal framework in a way that makes it difficult for businesses to conform their behavior to settled law; and (b) creates an intolerable level of uncertainty in the statutory and regulatory framework in the Commonwealth that discourages economic investment and encourages reallocation of investments in other states where the rules are more well defined.

Other amici weighed in, including the Marcellus Shale Coalition, Pennsylvania Independent Oil & Gas Association, and the American Petroleum Institute (carrying the banner for the oil and gas industry) and the U.S. and PA Chambers of Commerce (echoing much of the Associations’ arguments and additional concerns the court’s decision below engenders for the business community).

PCCJR looks forward to taking the lead in additional amicus brief filings in 2020.

And the MOST Frivolous Lawsuit is…

We are in the midst of Awards Season. Not to be outdone, our friends at the U.S. Chamber Institute for Legal Reform bring us this winner in the Most Ridiculous Lawsuit category:

lawsuit over the tiny amount of lip balm at the bottom of the tube glides to the number one spot on the U.S. Chamber Institute for Legal Reform’s 2019 list of the most ridiculous lawsuits.

Every year, thousands of frivolous lawsuits are filed across the U.S., but only 10 make ILR’s annual list. This year’s list includes lawsuits over labeling on vegan butter, Popeye’s chicken sandwiches, and a poster advertising the television show “Dexter.”

ILR asked followers of the Faces of Lawsuit Abuse Facebook page to pick which lawsuit they thought was the most ridiculous. People were most chapped by a woman who sued Blistex, claiming the lip balm isn’t actually .15 ounces because it’s hard to get the balm at the bottom of the stick!

ILR also released two short, fun videos asking people in New York City which lawsuit they thought is the most ridiculous lawsuit of the year. Check out all the videos for this year’s most ridiculous lawsuits at FacesOfLawsuitAbuse.org.

ATRA’s Sherman “Tiger” Joyce is Guest on Lawsuit Watch!

On this month’s Lawsuit Watch, Tiger Joyce joins PCCJR Executive Director, Curt Schroder, in a discussion on Philadelphia being named the #1 Judicial Hellhole in America! You can listen to the podcast here.

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