As you recall, we reported last March that we counted among the introduced bills at least 104 new causes of action or new public enforcement actions against businesses and another 40 against health care providers (as well as 28 against various governmental entities and public employees). Indeed, the vast majority of TCJL’s time and effort this session was devoted to killing as many of these bills as possible and mitigating the adverse effects of the ones that ended up passing.
In that endeavor we were more or less successful but not completely We should point out that, on account of our efforts and those of our sister organizations, we have generally kept the Legislature from enacting additional new private causes of action with money damages. Part of the price we have to pay for this approach, however, is shifting enforcement authority from private to public entities, most frequently to the attorney general. Nevertheless, most of the new AG enforcement power this session is specifically focused on specific activities and types of business, with the very notable exception of HB 4 (privacy), HB 18 (digital service providers and Internet websites), and SB 14 (public money to facilitate gender modification treatment). The powers granted in these bills could make any business subject to civil investigation and an enforcement action on any number of possible violations. On the reverse side of that coin, HB 2127, the field pre-emption bill, seems likely to generate litigation against cities and counties at the taxpayers’ expense. Either way, businesses end up paying a significant proportion of the tab.
Although our count is a bit rough and ready at the moment and we’re undoubtedly overlooking something, here is a snapshot of where we stand today.
New Causes of Action Against Businesses and Employers: HB 18 (parental declaratory judgment action and injunctive relief against digital service providers); HB 450 (washout cause of action against oil and gas operators); HB 567(employment discrimination based on hair texture or protective hairstyles); HB 2837 (payment card issuers or payment card networks for requiring merchants to use a firearms code).
New Civil or Administrative Actions or Penalties Against Businesses and Employers: HB 4 (AG enforcement of privacy protections); SB 12 (sexually oriented performances); SB 14 (AG enforcement of public money used to facilitate gender modification treatment); HB 2444/SB 1639 (AG enforcement against persons using bypass technology to make ticket sales); HB 2459 (AG enforcement of child labor violations); HB 2545 (AG or district attorney enforcement of prohibited disclosure of individual genetic data); HB 2837 (AG enforcement against payment card issuers or payment card networks for requiring merchants to use a firearms code); HB 5232 (raises penalties for antitrust violations); SB 2015 (AG enforcement against third-party data collections services).
New Causes of Action Against Physicians and Health Care Providers: Thank heaven, we don’t see any right now.
New Civil or Administrative Actions or Penalties Against Physicians and Health Care Providers: SB 14 (license revocation for gender modification treatment); SB 401 (AG enforcement of price gouging by medical staffing services).
New Causes of Action/Civil or Administrative Actions Against Governmental Entities: HB 33 (bars a state agency or employee from assisting federal oil and gas regulators; not sure how it will be enforced); HB 2127 (private action against a city or county to enforce field pre-emption); SB 1017/HB 2374 (bars political subdivisions from limiting access to energy source or regulating an engine based on fuel source; assume AG enforcement); SB 784/HB 2211 (pre-empts local regulation of greenhouse gas emission; assume AG enforcement).
New Criminal Penalties Against Businesses: SB 12 (sexually oriented performances)
New Attorney’s Fees and Cost Recovery: HB 4 (AG); HB 18 (AG; parents and guardians); HB 450 (mineral owners); HB 2127 (individuals and trade associations); HB 2444/SB 1639 (AG); HB 2545 (AG and district attorneys); HB 2837 (AG); HB 4142 (enforcement of a motor vehicle mortgagee’s lien); SB 12 (AG); SB 58 (AG); SB 401 (AG).
