The House Judiciary Committee yesterday reported out H.R. 6126, the Fairness in Nursing Home Arbitration Act, which would vitiate pre-dispute arbitration provisions in nursing home contracts. The Senate Judiciary has just begun a business meeting to mark up a bevy of bills, including S. 2838, the Senate version of the nursing home arbitration bill. (Sen. Specter just said that Republicans want to hold over the bill, however.)

As we’ve noted before, there’s a full-scale campaign by trial lawyers against arbitration, with the nursing home bills being for the advance guard. The ultimate goal is to drive more disputes into the courtroom.

We note the American Association for Justice’s lobbying disclosure report for the second quarter, 2008, available here, listed the following bills as being lobbied by the group.

• H.R. 3010/S. 1782, Arbitration Fairness Act, to prohibit mandatory binding arbitration agreements in consumer contracts.
• H.R. 1519, American Homebuyers Protection Act, relating to the including of mandatory binding arbitration in homebuilding contracts.
• H.R. 3512, Automobile Arbitration Fairness Act, relating to the use of arbitration agreements to resolve disputes involving nursing home care and nursing home contracts.
• H.R. 6126/S. 2838, Nursing Home Arbitration Act, relating to the use of arbitration agreements to resolve disputes involving nursing home care and nursing home contracts.
• H.R. 6124, the farm bill, specific interest in language in enrolled bill (PL 110-246) relating to the use of arbitration to resolve controversies arising under livestock or poultry contracts; also similar language in H.R. 2419.

When you spend $1.74 million on lobbying for the quarter, you can cover a lot of bills.

For the second week in a row, there will be a committee hearing in Congress on legislation to ban predispute arbitration agreements in long-term care contracts. Last week it was the House Judiciary Subcommittee on Commercial and Administrative Law with its hearing on H.R. 6126, the Fairness in Nursing Home Arbitration Act of 2008. This week it’s a joint hearing by a Senate Judiciary subcommittee with the Special Committee on Aging; Judiciary Chairman Herb Kohl (D-WI) will chair, and he’s the sponsor with Sen. Mel Martinez (R-FL) of S. 2838, the Fairness in Nursing Home Arbitration Act.

The Mother Jones blog profiles Republican trial lawyer Ken Connor in this post, an interesting look into the politics of suing nursing homes. To its credit, MoJo paints the big picture accurately:

The nursing home arbitration bill is one of nearly a dozen Democratic-backed measures introduced in Congress over the past year that would ban mandatory arbitration in everything from new car contracts to meatpacking company agreements. With the backing of the powerful AARP, it’s also the most likely of the lot to pass, and thus, pave the way for Congress to ban mandatory arbitration altogether. After all, if Congress deems the practice unconscionable for seniors, businesses will have a tough time arguing that it still ought to be forced on everyone else.

For a clear argument on the value of arbitration agreements — and a spirited defense of the long-term care industry – we direct you to the testimony last week of Gavin Gadberry on behalf of the American Health Care Association and National Center for Assisted Living:

In the increasingly litigious environment, a growing number of health care and long term care providers – including nursing facilities and assisted living residences – have incorporated arbitration clauses into their admissions materials given to residents when being admitted to the facility or residence. AHCA/NCAL supports the use of arbitration agreements as a viable option for long term care providers and their residents to resolve legal disputes. Arbitration is less adversarial than traditional litigation, produces quicker results and has been determined to be both fair and appropriate by our courts.

The House Judiciary’s subcommittee on commercial and administrative law will hold a hearing Tuesday on H.R. 6126, the “Fairness in Nursing Home Arbitration Act of 2008.” (Hearing notice here.) The CRS summary for the bill, introduced May 22, states: “Provides that a pre-dispute arbitration agreement between a long-term care facility and a resident (or anyone acting on the resident’s behalf) shall not be valid or specifically enforceable.”

So apparently to the sponsors, fairness means NO arbitration whatsoever.

Sponsored by Subcommittee Chairwoman Rep. Linda Sanchez (D-CA) — and cosponsored by Judiciary Chairman John Conyers (D-MI) – the House bill is the companion  to the Martinez-Kohl anti-arbitration measure, S. 2838. As we’ve noted before, the plaintiff’s bar has embarked on a multifront campaign against arbitration since the big profits lie in litigation and jury jackpots, not balanced settlements reached through discussion.

On May 1, the National Association of Manufacturers joined other business trade associations in writing a letter to Congress defending arbitration, citing 13 separate bills where it has come under attack. From the letter:

If successful, these legislative efforts would retroactively declare unenforceable potentially millions of provisions for the orderly and economical resolution of disputes. Opponents of pre-dispute arbitration have neglected to realize that, if enacted, these provisions will actually limit the realistic opportunity for an average consumer, employee, and investor to obtain a remedy if a dispute arises. Evidence shows that arbitration can be very useful in the context of low-value claims. Studies show that plaintiffs’ lawyers are reluctant to take cases involving relatively small claims because they seek larger potential attorneys’ fees than would likely result from these cases. According to one survey, plaintiffs’ employment lawyers said they would not take a case unless it was worth at least $60,000, on average. Therefore, without the option of arbitration, consumers would be faced with two choices–to try to navigate the legal system on their own, or to abandon their claim. The only real beneficiaries of these anti-arbitration provisions and bills would be class action lawyers who would benefit from both the rare blockbuster claim and the possibility of bringing more class action lawsuits–lawsuits that provide little benefit to class members while ensuring large payouts to class action attorneys.

The trial lawyers have made nursing homes the most prominent target in this broad assault, finding it a fruitful area for emotional pleas.