Expect a fight this week from heavily outnumbered Democrats when the full Tennessee House of Representatives hears a plan that targets contracts between cities and private lawyers.
Democrats in the Senate have spoken out against HB2069, which would empower the state Attorney General’s Office to review those agreements. They are commonly used to sue large companies and often result in jackpots for lawyers who convince government officials to sue over products like opioids and tobacco.
But not all cases are slam dunks, leading critics to claim arming private lawyers motivated by money results in questionable causes, like Nashville suing Hyundai and Kia because their cars are allegedly too easy to steal. Those lawsuits are filed by local governments under a “public nuisance” theory, and the bill would require private individuals using the same theory to show they sustained a special injury with “clear and convincing evidence.”
Sponsor Chris Todd, a Republican, says his bill would let the AG pursue litigation without interference from private lawyers hired by political subdivisions. In nationwide litigation over the opioid addiction crisis and in other cases, settlements can be complicated when private lawyers representing towns stake their claims to the fees generated.
“In Tennessee, policy decisions belong to the people and their elected representatives – not to whoever files the most creative lawsuit and stands to profit from it,” Todd said at a recent Cities and Counties Subcommittee hearing during which the bill was approved on a party-line 5-2 vote.
The bill is on the House’s regular calendar for Thursday and the Senate’s regular calendar next week. Discussion in the Senate was supposed to be held Monday but was postponed.
The Senate Democratic Caucus on Monday criticized the bill, saying the changes to how public nuisance is applied will hurt the “common right to public health, safety and peace.”
“Once again, Sen. John Stevens, the bill sponsor, is using the legislature to deliver legal protections for corporations they could never get in court,” it added.
But there are only six Democrats in the 33-member Senate and 24 in the 99-member House. Gov. Bill Lee is also a Republican, leaving the bill’s path to becoming law relatively easy should the GOP supermajority be in agreement.
Roger Gibboni of Hunton spoke to the House subcommittee on behalf of the U.S. Chamber Institute for Legal Reform, which supports passage. He said Tennessee law already requires the attorney general to direct litigation in which the state might be interested, but this bill gives him or her the mechanism to enforce that.
“This safeguard will also protect against Tennessee municipalities knowingly or unknowingly being used as vehicles for policy-oriented litigation by activist organizations and profit-motivated litigation by private plaintiffs lawyers,” Gibboni said.
It will not strip a political subdivision’s power to bring public nuisance lawsuits. It instead directs the AG to make sure the contingency-fee contract is valid and won’t complicate any enforcement efforts the AG is pursuing.
