Liability-lawsuit Expansion Bill Helps No One Except Lawyers

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This op-ed was originally published by the Orlando Sentinel. Lawmakers on both sides of the aisle are following a developing national trend by creating new bases for litigation through private rights […]

This op-ed was originally published by the Orlando Sentinel.

Lawmakers on both sides of the aisle are following a developing national trend by creating new bases for litigation through private rights of action to authorize individuals to file more lawsuits. In some instances, this includes cases in which the plaintiff hasn’t suffered an actual injury. 

We’ve seen it play out in the headlines most recently with the introduction of bills to expand of liability for employers requiring COVID-19 vaccines for their employees.

Interestingly, it seems the personal injury bar has found sympathy from increasingly populist-type Republicans and is gaining footholds in places where they historically weren’t welcome.

Now, Florida’s legislature is the latest to seek new liability expansion with House Bill 9, which would create a new private right of action related to data privacy. The proposed legislation provides a mere 48-hour window for companies to respond to a consumer’s privacy request.  Trial lawyers seeking to take advantage are likely to find companies that may not comply quickly enough or make technical mistakes, then file “gotcha” class action lawsuits in response. Plaintiffs will seek small monetary damages while plaintiffs’ lawyers will ask for tens of thousands of dollars in attorneys’ fees. 

Illinois already has enacted a similar statute, the Biometric Information Privacy Act (BIPA), which also allows for a private right of action. It has become a goldmine for the plaintiffs’ bar, especially after courts have allowed litigation to proceed even in instances where there was no actual harm done to consumers.

Unless amended or replaced with the Senate version of the bill, Senate Bill 1864, which doesn’t include this private right of action, House Bill 9 could place some Florida companies in a similarly unenviable position. If the House version passes, one should also expect the trial bar to spend millions of dollars on advertising to recruit new clients to take advantage of this new opportunity to generate additional fees. Over the past five years, more money was spent on legal services ads in Florida than in any other state. Trial lawyers spent over $137 million on 1.46 million local television ads in 2021 alone.

Unfortunately, all these laws fail to solve any real problems or protect consumers – the only parties who benefit are entrepreneurial trial lawyers who jump on the latest lawsuit bandwagon.

Lawsuit abuse results in $34.7 billion in excessive tort costs in Florida, eliminating nearly 175,000 jobs across the state, with a loss of $11.8 billion in personal income. In other words, lawsuit abuse costs every Floridian more than $800 each year in a “tort tax.” 

Legislatures should be wary of any bill that includes a private right of action. These provisions open the door to abusive and expensive litigation, weakening our business climate, and deterring companies from creating new jobs. 

Lawmakers should focus on measures to strengthen the economy and take pressure off business owners and employers that are over-burdened by a once-in-a-century pandemic.

Private rights of action often are presented under the guise of consumer protection and are sold as a panacea for a mix of a myriad of important policy issues as we’ve seen with abortion, gun violence, workers’ rights, data privacy and more.  But the reality is that expanding liability and suing companies and individuals won’t solve these issues – it only lines the pockets of lawyers who take advantage and target perceived deep pockets.

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