Washington Update November 2024

AAJ is preparing for a Congress in which civil justice opponents will lead both chambers. 

When faced with similar challenges in the past, we have effectively fought back. How? Because we have key members in the House and Senate, on both sides of the aisle, who are civil justice champions. And our ability to highlight the personal stories of trial lawyers’ clients will continue to inform the public policy debate on our issues. 
 
We’ve Got You
AAJ anticipates that no cause of action will be safe with the shift in the Senate. In the current congressional session, we saw one corporation spend almost $14 million attempting to kill the cases of people harmed by pesticides. And we face a multitude of other opponents. 

We will always fight to ensure that your clients get a fair shot in the courts throughout the country. Right now, strengthening membership is a way to hold the line and reinforce our ability to make the case for accountability in the new Congress. Now is the time for every plaintiff trial lawyer to support the combined strength and protection offered by being a member of their state association and AAJ.  

Advocacy Update 
AAJ’s advocacy for trial lawyers and their clients is multifaceted. It covers Congress, federal agencies, research for state legislative battles, federal rules of procedure, and constitutional challenges. It also includes a strategic education component to show the media and the public why the work of plaintiff trial lawyers is essential.  

Professionally Diverse Federal Judges 
When the new Senate convenes in January, we will be concerned for the future of confirmations of professionally and demographically diverse federal judges. However, in the current lame duck session, the Senate continues to forge ahead to fill remaining vacancies. 

Thus far in the lame duck session, the Senate has confirmed Judge Embry Kidd for the U.S. Court of Appeals for the Eleventh Circuit and Judge Mustafa Kasubhai  for the U.S. District Court for the District of Oregon. These confirmations bring the total number of trial lawyers confirmed to the federal bench to 31. 

Of the 216 Biden nominees who have been confirmed: 

•  42.3% are professionally diverse 
•  58.5% are people of color 
•  62.8% are women  

As if this writing, there are five additional trial lawyer nominees pending in the Senate. 

Corporations Seeking Immunity 
Bayer/Monsanto and the pesticide industry continue to seek nationwide immunity by lobbying to include Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preemption language in moving pieces of legislation, such as the Farm Bill. This language would undermine current and future cases seeking to hold  pesticide companies accountable. FIFRA preemption language would override stronger state and local pesticide laws.  

The current Farm Bill expired on September 30th, and funding for many programs within the bill is scheduled to run out by the end of 2024. As of this writing, we believe the current Farm Bill will be extended into next year, and a new Farm Bill will not be completed until after the new Congress convenes in January. AAJ will work hard to ensure the FIFRA preemption language does not get into the final version of the bill. 

We also saw Bayer expand its efforts to get immunity for its weedkiller, Roundup, expanding the scope of its work from a federal legislative and regulatory strategy to state immunity legislation as well. Bayer supported immunity legislation in Idaho, Iowa, and Missouri in 2024, hoping that its manufacturing base in each of these states would be enough leverage to help enact this legislation. 

Because of the work of the TLAs in these states and AAJ’s State Affairs team, this legislation failed in every state where it was introduced. Still, Bayer has indicated that not only will it try again in 2025, but also will expand its footprint in the states. AAJ has data that voters in these states overwhelmingly oppose giving corporate chemical companies complete immunity for their dangerous products, and we are ready for this fight. 

A Strong Presence 
As we approach the end of the year, we are taking stock of all the work we’ve done to protect members’ practices and their clients’ cases. This year, AAJ’s State Affairs team continued to break records in the assistance they provided to the state trial lawyer associations (TLAs) for their advocacy efforts, responding to nearly 300 requests from 48 states and the District of Columbia. These requests encompassed dozens of issues, including raising auto insurance minimums, eliminating caps on damages, fighting off specific immunity proposals, capping medical record costs, and so much more.  

Communications & Public Education 
AAJ’s Communications department is working to educate the public and the media about the pesticide industry’s bid for immunity. Here is a sample of related press coverage: 
 
•  The New Republic: Sick Because of Roundup? These Bills Could Make Suing Impossible 
•  The Washington Post: Bayer lobbies Congress to help fight lawsuits tying Roundup to cancer 
•  Financial Times: Bayer turns to state lobbying in battle over Roundup weedkiller 
•  CBS News:  Bayer seeks legal shield from suits claiming Roundup causes cancer 
•  NBC St. Louis: Proposed bill sparks debate over pesticide immunity in Missouri amid health concerns 
•  The Guardian:  ‘It’s an abomination’: battle brewing over proposed US laws to protect pesticide companies
•  Politico: Weekly Agriculture: Pesticides, First in MA (Morning Agriculture) scroll to bottom
•  The Associated Press: Weedkiller manufacturer seeks lawmakers’ help to squelch claims it failed to warn about cancer
•  Idaho Statesman: How Idaho became the target of an influence campaign to protect pesticide companies 
 
Federal Rules Updates 
AAJ closely monitors proposed amendments to the federal, civil, appellate, bankruptcy, and evidence rules, and advocates for rule changes that protect the rights of injured people and improve access to justice. 
 
•  Formal comment periods for proposed amendments to FRAP 29 (brief of amicus curiae) and FRE 801(d)(1)(A) (prior inconsistent statements) will close February 17, 2025. To submit a comment or sign up to testify at a virtual hearing, visit our website for more information (login required). 
 
•  AAJ is seeking members to help with possible rule proposals on remote testimony and Third-Party Litigation Funding (TPLF) disclosure requirements. Email Sue Steinman and Kaiya Lyons to volunteer. 
 
•  This month, the Advisory Committee on Evidence Rules met to discuss recent suggestions, including several proposals related to the handling of evidence derived from artificial intelligence. The Committee is likely to develop a proposal for consideration in the spring of 2025. 
 
Amicus Curiae Update 
AAJ’s amicus curiae briefs help ensure that access to justice is rigorously defended in federal and state courts. Each year, AAJ amicus briefs cover dozens of distinct issues facing plaintiff attorneys across the country, such as Section 230 immunity, personal jurisdiction, federal preemption, products liability, and unconscionable arbitration practices.  

On average, half of these briefs are filed jointly with state TLAs because we aim to speak with one voice when we advocate for increased access to justice and protecting the right to trial by jury. Recently filed amicus briefs include:  
 
•  Williams v. Shapiro (11th Circuit) — On November 7, AAJ filed an amicus brief urging the Eleventh Circuit Court of Appeals to preserve ERISA’s effective and comprehensive civil enforcement scheme, and hold that retirement plans are prohibited from imposing arbitration clauses and class action waivers that would impermissibly strip plaintiffs of important statutory rights and remedies under the Supreme Court’s "effective vindication doctrine." 
 
•  Gilead Tenofovir Cases (California) — On November 4, AAJ and the Consumer Attorneys of California (CAOC) filed a joint amicus brief urging the California Supreme Court to hold pharmaceutical manufacturer Gilead accountable for the negligent delay of a safer drug alternative and protect HIV patients from physical harm and market manipulation.  
 
•  Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc. (Colorado) — On October 9, AAJ filed a joint brief with the Colorado Trial Lawyers Association (CTLA) in support of state law claims related to interstate greenhouse gas emissions and climate change caused by Exxon and Suncor Energy, urging the state’s high court to reject federal preemption arguments and allow Colorado courts to preside over Boulder’s state tort claims.  
 
For more information or to request AAJ amicus support, please email Legal Affairs. 
 
There is much work ahead! AAJ is proud to work in conjunction with state and local trial lawyer associations, to share and build upon our successes so that the right to a jury trial is protected, and all plaintiff trial lawyers can win justice for their clients. I welcome your questions and concerns.
 

CONTACT AAJ Advocacy Email: advocacy@justice.org