One of three provisions of S. 2663, the CPSC Reform Act, likely to cause the most damage to a coherent, federal standard of product safety is the one that gives states attorneys general the authority to enforce the laws. Instead of one federal standard, understandable by manufacturers and consumers alike, we in effect get 50 state-based and arbitrary sets of rules — all depending on an individual attorney general’s legal interpretation or, we’re afraid, hunger for headlines in going after a supposed bad actor. As the Wall Street Journal says, think 50 Eliot Spitzers.
Then there’s the trial lawyers, who are happy to work with attorneys general to target potential big payouts. Threaten companies with litigation, get the lawsuits rolling, and the cash will flow. The most abusive relationship is one where attorneys general contract out with one or more legal firms to do their work for them, based on a contingency fee.
So in Senate debate today on S. 2663, Senator John Cornyn (R-TX) offered an amendment to stop the threat of at least that most egregious abuse, the AG-trial lawyer shakedown tag team against business. The amendment’s purpose:
To prohibit State attorneys general from entering into contingency fee agreements for legal or expert witness services in certain civil actions relating to Federal consumer product safety rules, regulations, standards, certification or labeling requirements, or orders..
Unfortunately, the Senate preserved the threat, voting 51-45 to table Cornyn’s amendment. Pleasing to the plaintiff’s bar, sure, but this has nothing to do with product safety.
Debate continues in the Senate tomorrow.
If you can bear more of this, there’s actually a pretty good discussion available on the legislation available for download. It was broadcast today on the Washington, D.C. public radio program, the Kojo Nnamdi Show. Guests are Rachel Weintraub, Director of Product Safety, Consumer Federation of America, and Rosario Palmieri, Vice President, Infrastructure, Legal and Regulatory Policy, National Association of Manufacturers.
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