The 2018 legislative session produced much political posturing but resulted in comparatively no meaningful policy accomplishments toward reducing litigation
The 2018 legislative session produced much political posturing but resulted in comparatively no meaningful policy accomplishments toward reducing litigation
Two bills introduced late in this legislative session purport to protect employees – specifically female employees – from wage discrimination. Instead,
House Bills 1377 and 1378 paint a target on the Colorado businesses and invite trial lawyers to unleash a new wave of litigation against them.
HB 1377 (sponsored by Reps. James Coleman, D-Denver, and Brittany Petterson, D-Lakewood) would prohibit “seeking” information about a potential employee’s salary history. But what makes this bill so exceptionally misguided is that it makes asking for that information a violation akin to illegal racial or gender discrimination.
That’s right – the sponsors of this bill believe that merely seeking information about a potential employee’s salary history is tantamount to refusing to hire someone because of their race or gender.
By defining salary history as a discriminatory practice, the bill creates an incentive for trial lawyers to sue employers, seeking a wide range of monetary damages, including punitive damages, and automatically forces employers to pay attorney fees and costs to any prevailing plaintiff.
Prevailing employers aren’t automatically entitled to recover their attorney fees and costs. Even if a business has done nothing wrong, defending against a baseless lawsuit is costly!
If there was any doubt that these bills are far more about enriching trial lawyers than eliminating any pay disparity, HB 1378 should dispel them. Sponsored by Rep. Jessie Danielson, D-Wheat Ridge, and Sens. Kerry Donovan, D-Vail, and Rhonda Fields, D-Aurora, this bill removes the authority of the Department of Labor to penalize employers that pay women less than men for performing the same job and instead uses private litigation for enforcement.
And just as with HB 1377, it gets worse! Next, the bill mandates that every business in Colorado must follow a specific legal procedure before promoting any of its employees. No matter how many employees and no matter what the job, the proponents of this bill believe the State must micromanage day-to-day operations of private businesses – the economic engine of our state.
If this bill becomes law, an employer couldn’t simply give a promotion to a deserving employee – including a female employee – without first advertising the opportunity for promotion to all existing employees.
In the past year, Colorado has fallen to its worst alltime ranking (36th) by the U.S. Chamber of Commerce Lawsuit Climate Index. Legislation like this shows that it could get worse!
Anti-business extremists at the State Capitol would have Coloradans believe that giving up their "right to sue" in exchange for a more efficient, less
adversarial process of dispute resolution is somehow playing into the hands of "big corporations."
In fact, consumers and businesses alike have often found arbitration to be a better way to resolve disputes than long, drawn out lawsuits in which the only real winners are the lawyers who rack up hundreds of billable hours.
House Bills 1261 (sponsored by Rep. Mike Weissman, D-Aurora) and 1262 (Reps. Dominique Jackson, D-Aurora, and Dylan Roberts, D-Eagle) purport to bring "fairness" and "transparency" to arbitration proceedings.
In reality, they would make Colorado's arbitration system just as big a mess as our state's system of civil courts.
Many business contracts require arbitration as a means to settle disputes, rather that lawsuits. That's a choice that businesses and consumers deserve to make for themselves - without unnecessary meddling by politicians.
Arbitration can be cheaper and faster for both parties in a dispute, reducing costs for the largest driver of litigation costs - attorney fees. Arbitration can also be more flexible, less complex, more private and less hostile than endless litigation.
Instead, HBs 1261 and 1262 will make arbitration more difficult and more expensive by inviting litigation against arbitrators.
These bills are also likely to erode modest gains made by the Legislature last year to make it easier for homeowners and builders to resolve disputes over home construction problems and to reduce litigation costs that drive up home prices.
HB 1261 creates new standards for "impartiality" in an environment in which the Colorado Uniform Arbitration Act, case law, Colorado Rules of Professional Conduct, and private contractual standards already establish ethical requirements on arbitrators. This isn't solving a problem. Instead, it's creating one!
HB 1262 creates disclosure requirements that violate contractual confidentiality provisions that typically benefit both parties in a dispute. The bill also creates a cloud over any contract containing an arbitration clause because, U.S. Supreme Court precedent strongly suggests, it will be preempted by the Federal Arbitration Act.
It is important to note that judges and courts do police arbitrator impartiality by reviewing arbitration awards. A party that believes an arbitrator to be biased can ask a court to vacate the award. Ironically, these protections do not apply for judges who preside over lawsuits.
These bills would harm consumers by making arbitration more expensive, thereby leaving consumers at the mercy of trial lawyers and a costly, over-crowded civil litigation system.
Colorado Supreme Court unanimously ruled that claims for disputed wages must be filed within the statute of limitations (either two or three years) and that the clock starts ticking "on the date that each set of wages first became due and payable—not on the date of separation."
The opinion, written by the court's newest member, Justice Melissa Hart — Yes, we were pleasantly surprised! — largely echoes the salient points submitted by CCJL in a friend of the court brief, authored by Chris Ottele and Sonia Anderson of Husch Blackwell, and which was joined by the Denver Metro Chamber and Building Jobs 4 Colorado.
The plaintiffs in Hernandez v. Ray Domenico Farms, Inc.had
sought to exploit an unusual feature of the Colorado Wage Claim Act (the Wage Act). It allows employees to bring suit for unpaid wages under two separate
provisions, depending on whether the employee is currently employed or no longer employed. Plaintiffs in this case had reasoned that the provision
that applies to former employees revived claims that were time-barred under the provision that applies to current employees. If true, former employees
could bring suit for unpaid wages dating to the beginning of their employment, possibly 20 or 30 years ago.
On behalf of the Colorado Civil Justice League and other business interests, Husch Blackwell attorneys filed the only amicus brief in support of the employer. The Supreme Court’s opinion agreed with each of the positions set forth in Husch Blackwell’s amicus brief and disagreed with the briefs of the plaintiffs, their amici and, with respect to at least one issue, even the defendant employer.
There's an unseemly underside to some of those mesothelioma commercials that dominate late-night television. It hasn't come to Colorado yet, and if the
Colorado General Assembly passes Senate Bill 123 (sponsored by Sen. Jerry Sonnenberg), it never will.
Mesothelioma is a cancer that develops from asbestos fibers that become lodged in the lungs. Because it usually goes undiscovered until it has become advanced, it is almost always fatal.
While it is just to feel sympathy for those suffering from mesothelioma and to want them to receive timely compensation, the way some asbestos plaintiffs lawyers abuse the asbestos claims process is not only unjust - it also endangers the ability of future victims to receive adequate compensation.
Those suffering from mesothelioma can seek relief in two ways: a lawsuit against manufacturers of asbestos products that are still in business or a claim against one or more "asbestos trusts" established during bankruptcy proceedings to pay claims against insolvent companies.
Many injured parties may have legitimate claims against both. However, as more primary companies declared bankruptcy, plaintiffs attorneys began focusing lawsuits against secondary users of asbestos, including those whose products were less dangerous.
One such company, Garlock Sealing Technologies, regularly settled for very small amounts while the primary companies were still solvent. But when the trusts were established, Garlock and other secondary companies suddenly saw claimants argue that they had been exposed only to these secondary products and not to those manufactured by the likes of Owens Corning or Johns Manville.
Garlock's lawyers smelled a rat and, thanks to an inquisitive judge, uncovered a scam in which plaintiffs lawyers first sued solvent companies, claiming exposure only to one or two products, then after reaching a settlement, they applied to the asbestos trusts, now claiming exposure to many other products which were manufactured by now-bankrupt companies.
"It was a regular practice by many plaintiffs' firms to delay filing Trust claims," Hodges wrote. He found that, on average, plaintiffs against solvent companies disclosed only about two exposures to bankrupt companies' products, but after settling with Garlock, those same plaintiffs subsequently made claims against 19 of the trusts.
Because exposure happened decades ago, "there's no way for defendants to get information on exposure (to asbestos) except from claimants," said Phil Goldberg, who testified for the U.S. Chamber of Commerce in favor of SB 123.
SB 123 requires claimants to first file trust claims before litigating against existing companies in state courts and to provide the same information to each.
"The fastest way to pay plaintiffs is to file trust claims first," Goldberg testified. "The only reason to file civil claims first is to game the system."
While no such abuses are yet known to have occurred in Colorado, we should institute safeguards before these deceptive practices undermine the integrity of our judicial system.
DENVER — Colorado Civil Justice League has announced winners of its Common Sense in the Courtroom Awards,
given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse.
Awards will be presented at CCJL’s Legislative Awards Luncheon on Friday, October 20, at the Denver Four Seasons. Tickets are available at www.CCJL.org.
CCJL is the only organization in Colorado exclusively dedicated to stopping lawsuit abuse while preserving a system of civil justice that fairly compensates legitimate victims.
“Common Sense in the Courtroom requires justice for those who have been wronged, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.
A highlight of the 2017 legislative session was the passage of House Bill 1279 which addressed construction litigation by ensuring that homeowners are fully informed of costs and risks of litigation and given a formal voice in determining whether to initiate a lawsuit to resolve alleged defective construction.
“The most encouraging development this year is the growing coalition of legislators who value economic growth for all Coloradans above the narrow interests of personal injury lawyers and a handful of plaintiffs,” Hillman added.
"At CCJL, we are grateful for the bipartisan support of legislators who understand the importance of an efficient and balanced court system to our state's economy," said Jeff Weist, CCJL legislative director.
Common Sense in the Courtroom Award recipients include:
DENVER - Tickets are now available for CCJL's Legislative Awards Luncheon on Friday, Oct. 20, at the Denver Four Seasons, where Colorado's business community
will recognize state lawmakers for their commitment to "Common Sense in the Courtroom."
Featured speaker at this year's event is Malini Moorthy, head of global litigation for Bayer Corporation, who will speak about "The Mass Tort Machine." Moorthy is a nationally recognized expert in civil justice reform and complex litigation in the life sciences industry. Last year, she was named a Visionary Leader in Litigation by Inside Counsel magazine. She was also recognized by the National Center for Law and Economic Justice for her extraordinary service to the legal profession and nonprofit community.
Prior to joining Bayer, Malini headed the Civil Litigation Group at Pfizer where she and her team were awarded in-house Counsel Litigation Team of the Year by Benchmark Litigation. Earlier, she worked as a litigation associate at law firms in the U.S. and Canada, including the New York office of Salans, now known a Dentons.
Tickets can be purchased HERE.
With one notable exception, the Colorado General Assembly's 2017 session preserved the status quo - which isn't the worst outcome, given the potential
of certain bills to wreak havoc upon Colorado's litigation climate.
So, Colorado Civil Justice League rates the Legislature's performance as a "B," with it's passage of House Bill 1279, addressing construction litigation, as the notable achievement.
Sponsored by Rep. Alec Garnett (D-Denver), Rep. Lori Saine (R-Firestone), Sen. Jack Tate (R-Centennial) and Sen. Lucia Guzman (D-Denver), HB 1279 was the product of many hours of work including a much larger coalition of lawmakers from both parties, as well as advocates representing homeowners and homebuilders.
While not as ambitious as we might have hoped, the bill nonetheless moves the ball forward by ensuring that homeowners are fully informed of costs and risks and given a formal voice in determining whether to initiate litigation to resolve alleged defective construction.
Anything that makes it more difficult for a cadre of plaintiffs attorneys to steamroll HOA members down the path toward litigation is an improvement over the status quo, which has construction of multi-family owner-occupied projects crawling at a snail's pace.
The bill didn't specifically address affordability of contractor's liability insurance or the rampant litigation that ensues between developers and subcontractors when a construction lawsuit is filed. One school of thought says that HB 1279 will help with insurance affordability by making claims more predictable for underwriters. A more skeptical outlook is that the cost of litigation will continue to drive up insurance costs until those issues are specifically addressed. Only time will tell which viewpoint is more accurate.
Building on the success of HB 1279, the most encouraging development from this session is the growing coalition of legislators who value economic growth for all Coloradans above the narrow interests of personal injury lawyers and a handful of plaintiffs.
Bipartisan votes were instrumental in advancing worthwhile bills or defeating others that invited further lawsuit abuse.
The Senate passed - with bipartisan support - a package of bills to help consumers control the rising cost of automobile insurance, only to see those bills fail in the House. However, key Representatives stood up to vote against, and sometimes defeat, destructive legislation that would have eroded Colorado's safeguards against runaway jury awards for "pain and suffering" or other non-economic damages and subjected schools, nonprofits, businesses and local governments to increased litigation for various claims.
A complete list of bills related to Colorado's civil justice system appears below, followed by a link to each bill's summary and legislative history.
Significant changes to this year's version of "Ban the Box" (House Bill 1305) have reduced
the specter of litigation by potential employees, and for that sponsors Rep. Mike Foote (D-Lafayette) and Rep. Jovan Melton (D-Denver) deserve credit.
However, businesses use questions about criminal history for a variety of reasons - not simply because they don't want ex-cons in the workplace.
Employers ask for criminal history to protect employees and customers and to avoid litigation. Employers often owe a duty of reasonable care to both employees
and customers to avoid personal harm to either. Courts often hold employers liable for criminal or intentional harm caused by an employee when, in
they eyes of a jury with 20/20 hindsight, it was "reasonably foreseeable" that some type of harm or injury could result from hiring or retaining an
employee with a criminal history.
That's why employers use questions about criminal history to fulfill their duty of care to other employees and to customers. And that's why Colorado Civil Justice League remains OPPOSED to HB 1305.
House State, Veterans and Military Affairs Committee rubber-stamped a bipartisan agreement to make it more difficult for trial lawyers to bullrush homeowner associations into construction defects lawsuits, passing House Bill 1279 (SUPPORT) on a unanimous vote after adopting several amendments.