House Committee on Education and Labor
U.S. House of Representatives

Is ‘Paycheck Fairness Act’ First in Long Line of ‘Trial Lawyer Earmarks’ Expected from 111th Congress?

More Lawsuits Can Only Hinder President-Elect’s Plans to ‘Create or Preserve’ Millions of Jobs

Since the House of Representatives is slated to vote tomorrow on H.R. 12, the so-called Paycheck Fairness Act, the American Tort Reform Association would like to join Ranking Member McKeon in thoughtful criticism of the bill.

In that President-elect Obama has boldly and laudably declared that the enormous economic stimulus package also being considered by Congress and his incoming administration shall include no “earmarks” whatsoever, it’s confusing and troubling to see that many lawmakers nonetheless appear poised to pursue any number of economy-sapping “trial lawyer earmarks,” such as those included in H.R. 12.

Mind you, no one in the tort reform community stands against the vague notion of “paycheck fairness.” But the fact is that the existing Equal Pay Act already allows employee claimants to successfully sue for the recovery of money damages without even having to prove that their employers discriminated against them. And a fair reading of the new bill (see attached) makes clear that the paychecks it will most likely bolster will be those of plaintiffs’ lawyers.

Though the legislation would shield federal government employers from having to pay punitive damages, private sector employers would not be so shielded and thus would invariably be targeted more often by profit-seeking lawyers working on a contingency fee basis. Provisions in the bill would also promote a new wave of inherently difficult-to-defend-against class action lawsuits, which could actually help drive more American jobs overseas. None of this will positively contribute to the new president’s goal of “creating or preserving” millions of American jobs in the coming years.

Though it’s easy to understand why the politically powerful plaintiffs’ bar expects the new Congress to expand liability and increase opportunities for litigation by ginning up such trial lawyer earmarks, responsible leaders should keep their focus on creating jobs and growing our economy instead. Not a single member of Congress, nor anyone in the incoming administration, can assert with a straight face -- much less demonstrate empirically -- that more lawsuits will be good for anyone other than trial lawyers. After all, every dollar spent defending against speculative litigation is a dollar that won’t be spent on R&D, capital investment, job creation, worker training, and wages and benefits.

The Paycheck Fairness Act is arguably little more than political payback for all the campaign checks that America’s powerful litigation industry wrote for congressional candidates. And if it wasn’t such a significant threat to an already anemic economy, some Washington cynics might just slough it off as “politics as usual.” But if this Congress and the incoming administration want to be taken seriously when they talk about economic stimulus, they’d best rise above politics and check the parasitic trial bar before it does further damage to our nation’s capacity to compete and thrive.

Darren McKinney
Director of Communications
American Tort Reform Association
1101 Connecticut Avenue, NW, #400
Washington, DC 20036
(202) 682-0084
dmckinney@atra.org