Diary

Trial Lawyers Seek One More Sweetheart Deal to Close Obama Era

As the old joke goes, the difference between a good and a bad lawyer is, the bad lawyer can let a case drag out several years. The good lawyer makes it last even longer.

Truly, only a lawyer could devise a proposal to actually make it illegal to settle a lawsuit. Yet that is the upshot of a wrong-headed idea being pushed on Capitol Hill as one of the last gasps of the Obama era.

The bill, championed by Democratic Sen. Amy Klobuchar (often mentioned as a future presidential aspirant) instructs the Federal Trade Commission to “presume” any lawsuit settlement between two drug companies is anti-competitive, and subjects those settlements to federal enforcement.

For Democrats, this bill serves several important purposes. First, the drug companies have become useful bogeymen to distract from the epic meltdown of Obamacare slowly unfolding in front of us.

Secondly, having the government pay for millions of poor people’s health care is expensive, so it’s useful to pin the costs on someone else.

Thirdly, the drug market is one of the last remnants of the free market left in the health care system, so bringing it to heel serves an important left-wing economic objective. You and I may know that price controls will lead to rationing, but liberals apparently didn’t learn anything from the last 150 years of recorded history.

So excuse me if I look a bit suspiciously at a Democrat’s efforts to “increase competition” in the health care market, especially if said effort creates a rather conspicuous windfall for a left-leaning special interest group.

If settling lawsuits becomes illegal, what’s next? Will plumbers try to outlaw reliable pipes? Will the government require cars to break down after a year of uninterrupted use for the mechanics?

Also, you have to love the irony of Democrats completely abandoning the concept of “guilty until proven innocent” when it comes to corporations.

Dyed-in-the-wool ACLU types would have had Special Forces troops reading Osama bin Laden his Miranda warnings in the midnight raid in Pakistan. Drug companies, though, get the “lock ‘em up and throw away the key” treatment. Here they want to pass a law that explicitly says the company is assumed to have acted illegally and must prove its innocence.

In the real world, there’s a wide variety of reasons to settle lawsuits even when they are have no merit whatsoever. And when there are cases of legitimately anti-competitive practices, the Federal Trade Commission already has authority to review and, if necessary, enforce against those.

Trying to make settling illegal would create hundreds of millions of dollars in litigation costs. Money previously used in service of inventing new medicines would instead pay the salaries of one the wealthiest (and least liked) professions in America.

But more importantly, it would create huge amounts of uncertainty in the market, making it even more difficult to invent the next generation of medicines.

A top reason for settling patent suits (and why patent “trolls” file frivolous suits) is because the technology in today’s cutting edge medicines is so complicated that it can be difficult for a court to adjudicate the claims of each side.

For economic growth, you want the “rules of the game” in the court system to be as predictable as possible, which allows people to make plans based on those rules. This, in contrast, is the exact opposite: we are forcing companies to play legal Russian Roulette so that Amy Klobuchar has a campaign issue.

Republicans in Congress, you have one job: do the absolute minimum until reinforcements arrive. In several weeks, the GOP controls both branches of government. Dismissing the trial lawyers’ wish list should be an easy call.