Public Comments for 02/19/2021 Courts of Justice - Civil Subcommittee
SB1180 - Civil actions; actions filed on behalf of multiple similarly situated persons.
Last Name: Gilbride Organization: Public Justice Locality: Washington, DC

I am a senior attorney at Public Justice, a nonprofit legal advocacy organization with a project focused on providing access to the civil justice system for people who are harmed by governmental abuses or corporate misconduct. One of the most effective ways for wronged individuals to obtain justice is to band together in a class action, or through joinder or consolidation of their claims in a single judicial proceeding. Such consolidation of similar claims reduces the burdens of litigation on all parties, including the court system. Class actions are already available in federal court in Virginia and in the vast majority of other states. SB1180 would ensure the due process rights of all involved by modeling its procedures on Federal Rule of Civil Procedure 23, which only allows cases to proceed on a class action basis if the judge finds that doing so would be superior to individual separate lawsuits. The citizens of Virginia deserve to have the option of banding together and taking advantage of economies of scale in pursuing litigation, under appropriate circumstances, just like the citizens in 48 of the other 49 states in this country can already do. Public Justice urges a yes vote on SB1180.

Last Name: Speer Organization: Virginia Poverty Law Center Locality: Richmond

Virginia and Mississippi are the only states in the country that do not allow class action lawsuits in state court. Virginians are deprived of their right to use the courts to seek relief for a violation of their rights if the cost of litigation exceeds the potential benefit. Claims that are too small to cover the cost of litigation will not be pursued in court. Class actions are a means of private enforcement of the law. Increased enforcement, in turn, creates improved incentives for companies to comply with the law and take the appropriate degree of care. Class action level the playing field for low-income Virginians who seek access to justice.

Last Name: Jenkins Organization: Virginia Loggers Association` Locality: Goochland

Most important for small business and family - owned businesses are the unintended consequences and potential for unbearable costs. The small business and family - owned business owners cannot afford to handle the escalated costs involved with class action suits. We hope you will vote NO to SB 1180. · Virginia courts are not set up for these types of cases. o Class action lawsuits are long and complicated, and require judges to dedicate time and staff attention to managing these cases. o Virginia’s circuit courts are already backlogged, and these cases will exacerbate the problem. o Virginia’s circuit court judges also do not have the staffing to be able to handle massive class actions. o Federal judges have law clerks and staff to be able to manage these complex cases. · Virginia lacks important procedural tools for managing these types of complex cases. o Virginia lacks an effective motion for summary judgment to deal with these types of cases. o Every other state and the federal system allow for depositions to be used to support a motion for summary judgment. Virginia does not. o This quirk in Virginia law could require cases to continue for longer than is appropriate. · Class actions do a bad job of delivering relief to injured parties. o Proponents say we need to change the law to allow injured parties to band together and bring a suit for efficiency’s sake. o The actual goal is to allow for plaintiffs to sue on behalf of other unknown “John Doe” plaintiffs. o Injured parties often do not receive meaningful relief from a class action brought on their behalf. · The legislation does not address the major problem of coupon settlements. o In a coupon settlement, consumers get a coupon for an extended warranty or a discount on a future purchase, but the plaintiff’s lawyers get millions.

Last Name: Medford Organization: Northern Virginia Chamber of Commerce Locality: Tysons

My name is Clayton Medford and I am writing on behalf of the Northern Virginia Chamber’s 700 members and close to 500,000 employees to ask you direct the Supreme Court to study how Virginia courts can effectively begin allowing class action lawsuits. We understand that class action suits are coming to Virginia but we ask that we take the necessary steps now to study the issue and do it right to prevent as many unforeseen negative consequences on the business community as possible. Thank you.

Last Name: Durkin Organization: Roanoke Regional Chamber of Commerce Locality: Roanoke

The Roanoke Regional Chamber of Commerce is concerned with SB 1180 and would ask that committee members vote against this bill. Class action lawsuits are complex and Virginia courts are not currently situated to handle them, which will end up overburdening already strained state courts due to increased litigation. This is an issue best served through the Federal judicial system.

SB1209 - Subcontractor's employees; liability of general contractor for wages.
Last Name: Leonard Organization: BWLDC, LiUNA Locality: Reston

The Baltimore Washington Laborers' District Council, the LiUNA affiliate representing more than 7,500 construction laborers across Northern Virginia, DC, and Maryland opposes SB1209 for the following reasons, and urges the committee to vote no on this bill: ● The existing law already is narrow in scope. The current law only applies if the general contractor knew or should have known that workers on their job sites were not being paid all wages due. The current law also only applies to large construction projects valued at more than $500,000, and entirely exempts single-family residential projects. ● SB1209 creates a loophole so that general contractors can avoid liability. Subcontractors have shown a strong willingness to commit wage theft and circumvent Virginia Criminal Code to maintain competitive advantage. With SB1209, a general contractor would be able to avoid liability if the subcontractor states in writing it is paying workers all their wages due, whether true or not. ● It is well-established that general contractors are liable for the actions of their subcontractors, and Virginia should not be backtracking. General contractors are liable for subcontractors’ violations of OSHA regulations and workers compensation laws. As a result, it is well-established that general contractors are responsible for all workers on their job sites for certain matters and should monitor their job sites for potential violations. ● General contractor liability does NOT increase the cost of bonding for subcontractors. The implementation of § 11-4.6 in July 2020 has NOT led to an increase in bonding rates for subcontractors because general contractors typically do not require subcontractors to purchase separate indemnity bonds. Instead, general contractors usually include contract language that indemnifies the general contractor for wages and damages unpaid by the subcontractor.

Last Name: Gilbride Organization: Public Justice Locality: Washington DC

I am a senior staff attorney with Public Justice and have litigated dozens of cases involving forced arbitration provisions, many of those focusing on the issue of Federal Arbitration Act preemption. I have also spoken on the topic of whether particular proposed state legislation is preempted by the Federal Arbitration Act before the legislatures of New York, California and Maryland. Public Justice supports SB1384, which will empower localities throughout Virginia by allowing them to gather the same information about companies that use forced arbitration that is already in the public domain with respect to companies whose employment and civil rights disputes are litigated in open court. When localities enter into contracts, they should have full information about the business records of their potential contracting partners, and this legislation will provide that much-needed transparency. Because the localities will be operating as market participants, not as regulators imposing restrictions on arbitration, the bill does not raise concerns about preemption by the Federal Arbitration Act. A more extensive discussion of the market participant doctrine and how it interacts with FAA preemption can be found in our full testimony here: http://bit.ly/Gilbride_PublicJustice_SB1384

SB1384 - Virginia Public Procurement Act; local arbitration agreements.
Last Name: loveawake.ru Organization: loveawake.ru Locality: Auckland

Welcome to the world of adult Dating loveawake.ru

Last Name: Johnson Organization: National Women's Law Center Locality: Silver Spring, MD

The National Women’s Law Center writes in support of SB 1384. This is an important issue for us because forced arbitration is too often used as a tool to cover up sexual harassment and violence in the workplace and prevent survivors from seeking justice and being made whole for their injury. In arbitration, survivors stories remain secret and they are often forbidden by nondisclosure clauses from sharing their experiences. The Virginia legislature has already recognized the importance of not silencing survivors by passing legislation in 2019 to prohibit employers from using NDAs in employment contracts to silence survivors of sexual assault. SB 1384 too, is an important measure to ensure survivors have a voice and can get justice. This legislation doesn’t prohibit the use of forced arbitration, but we think it takes a really important step towards ending the abusive use of forced arbitration by increasing transparency around businesses’ use of forced arbitration.

Last Name: Szalai, Prof. Imre Locality: New Orleans, LA

I am a law professor and commercial arbitrator who has written extensively about the Federal Arbitration Act (FAA). I have written numerous articles and two comprehensive books about the history and development of the FAA, and state and federal courts have cited my scholarship about arbitration. In appropriate circumstances, where there is meaningful consent and fair procedures, I firmly believe that arbitration can be superior to litigation, but at the same time, parties can sometimes abuse arbitration. I am submitting this comment to state my opinion that the FAA would not preempt SB1384. It is critical to note that SB1384 does not impact the analysis of whether an arbitration agreement is fully enforceable; if parties agree to arbitrate, a court will fully enforce the agreement under the FAA. FAA preemption of state law typically exists where a state law makes arbitration agreements unenforceable, or where application of a state law would undermine a fundamental attribute of arbitration. SB1384 does not dictate what the terms of an arbitration agreement must be, what an arbitration proceeding must look like, or whether an arbitration agreement is enforceable. If one closely examines the text of the FAA, there is nothing in the FAA which would conflict with SB1384. Looking solely at FAA preemption doctrine, the FAA would not preempt SB1384. Moreover, assuming there was some conflict between the FAA and SB1384 (but there is absolutely no conflict), the localities would be operating as participants in the market. As a result, the FAA would not preempt SB1384 under the market participant exception for preemption. Overall, it seems that SB1384 would increase awareness and transparency and debate regarding the use of arbitration, all of which would be valuable in mind. By increasing awareness of the use of arbitration, SB1384 can help advance party autonomy, the central value of the FAA. Thank you for your consideration. Professor Imre Stephen Szalai Judge John D. Wessel Distinguished Professor of Social Justice Loyola University New Orleans College of Law

Last Name: Hodges Locality: Henrico

S.B. 1384 - The Federal Arbitration Act and Preemption Submitted by: Ann C. Hodges, Professor of Law Emerita, University of Richmond and Visiting Professor of Law, University of Virginia. As a law faculty member who has taught and written about arbitration for many years and served as an advocate in arbitration prior to joining the academy, it is my opinion that SB 1384, addressing procurement by localities, would not likely be preempted by the Federal Arbitration Act. While the Supreme Court has held some state arbitration laws preempted by the FAA, S.B. 1384 differs significantly from those laws. The law does not disfavor arbitration agreements in either their enforcement or their formation as compared to other contracts, the concern recently articulated by the Supreme Court Kindred Nursing Centers v. Clark, 137 S.Ct. 1421 (2017), which concluded that the FAA preempted a Kentucky law. The FAA was enacted by Congress to make arbitration agreements enforceable on the same grounds as other contracts. 9 U.S.C. §2. In Kindred Nursing Center, the Court concluded that the FAA preempted state law requiring a power of attorney to specifically authorize the representative to agree to arbitration in order for an arbitration agreement to be valid. The Court decided that the FAA preempts state laws interfering with formation of arbitration agreements, as well as those restricting enforcement. In AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), the Court invalidated a California law that prohibited enforcement of agreements banning class actions, holding that the law interfered with the FAA’s goal of ensuring enforcement of arbitration agreements according to their terms. These two cases, among others, make clear that states cannot target arbitration with laws that obstruct the formation or enforcement of arbitration agreements. S.B. 1384 does neither. The law does not affect any locality’s ability to enter into an arbitration agreement nor does it limit any employer that desires to mandate that its employees arbitrate their legal claims against the employer. The law simply permits localities to require disclosure of pre-dispute arbitration provisions, and certain information about the use of those provisions, as part of the procurement process. This disclosure in no way impairs arbitration requirements, which remain enforceable unless they are invalidated on other grounds as provided in the FAA. The locality is free to use the information disclosed about arbitration in any way it chooses. While some localities may be reluctant to enter into contracts with businesses using mandatory arbitration for reasons articulated by critics of the practice, this legislation would also allow a locality to prefer businesses that use mandatory arbitration if the locality believes it would be beneficial to do so. In addition, localities are completely free not to ask about arbitration at all. As a result, S.B. 1384 is simply not the sort of law disfavoring arbitration that the Supreme Court has invalidated. A further reason that the law is not preempted is that localities employing the disclosure requirements would be acting as market participants rather than regulators. Accordingly the “market participant exception” to preemption would apply. As others have addressed this issue, I will only add that I agree with the analysis.

Last Name: Gilbride Organization: Public Justice Locality: Washington DC

I am a senior staff attorney with Public Justice and have litigated dozens of cases involving forced arbitration provisions, many of those focusing on the issue of Federal Arbitration Act preemption. I have also spoken on the topic of whether particular proposed state legislation is preempted by the Federal Arbitration Act before the legislatures of New York, California and Maryland. Public Justice supports SB1384, which will empower localities throughout Virginia by allowing them to gather the same information about companies that use forced arbitration that is already in the public domain with respect to companies whose employment and civil rights disputes are litigated in open court. When localities enter into contracts, they should have full information about the business records of their potential contracting partners, and this legislation will provide that much-needed transparency. Because the localities will be operating as market participants, not as regulators imposing restrictions on arbitration, the bill does not raise concerns about preemption by the Federal Arbitration Act. A more extensive discussion of the market participant doctrine and how it interacts with FAA preemption can be found in our full testimony here: http://bit.ly/Gilbride_PublicJustice_SB1384

Last Name: Johnson Organization: National Women's Law Center Locality: Silver Spring, MD

Andrea Johnson, Director of State Policy, National Women’s Law Center writing in support of SB 1384. This is an important issue for us because forced arbitration is too often used as a tool to cover up sexual harassment and violence in the workplace and to prevent survivors from seeking justice and being made whole for their injury. In arbitration, survivors stories remain secret and they are often forbidden by nondisclosure clauses from sharing their experiences. The Virginia legislature has already recognized the importance of not silencing survivors by passing legislation in 2019 to prohibit employers from using NDAs in employment contracts to silence survivors of sexual assault. This too, is an important measure to ensure survivors have a voice and get can justice. This legislation doesn’t prohibit the use of forced arbitration, but we think it takes a really important step towards ending the abusive use of forced arbitration by increasing transparency around businesses’ use of forced arbitration

Last Name: Peoples Organization: Peoples Pharmacy Locality: Norfolk

HB 5002 Small Business & Women-owned & Minority-owned Business Procurement Enhancement Programs; Why is the bill only limited to all new capital outlay construction solicitations that are issued. How many Black women own construction companies? Why is it capped at 200K. I have an independent pharmacy in Norfolk Virginia and I have been waiting for this bill to come to committee. The bill has no bite. The state wasted money doing a diversity study , only to come up with this as a resolution. I have been consistently discriminated against in the state procurement process and I do not see where this bill is going to change anything. Dr. Anna Peoples

Last Name: Gilbride Organization: Public Justice Locality: WASHINGTON, DC

Public Justice is a nonprofit legal advocacy organization that brings high-impact litigation to protect the Earth's sustainability and combat corporate and governmental abuses. Public Justice attorneys, including me, have litigated hundreds of cases involving forced arbitration provisions and are very familiar with this area of law. Public Justice supports SB1384, which will empower localities in Virginia by allowing them to gather the same information about companies that use forced arbitration that is already in the public domain with respect to companies whose employment and civil rights disputes are litigated in open court. When localities enter into contracts, they should have full information about the business records of their potential contracting partners, and this legislation will provide that much-needed transparency. Because participating localities will be operating as market participants, not as regulators imposing restrictions on arbitration, the bill does not raise concerns about federal preemption by the Federal Arbitration Act. A more extensive discussion of the market participant doctrine and how it interacts with FAA preemption can be found in our full testimony here: http://bit.ly/Gilbride_PublicJustice_SB1384 I urge a yes vote on SB1384. It doesn’t interfere with existing arbitration agreements or prevent new ones from being formed. It just allows localities who want to know more to ask some basic questions about how arbitration works. And if forced arbitration is as fair as its proponents claim, there shouldn’t be anything to hide.

Last Name: Baran Organization: National Employment Law Project Locality: Long Island City, NY

My name is Hugh Baran, and I am a Senior Staff Attorney and Skadden Fellow at the National Employment Law Project (NELP)—a non-profit, non-partisan research and advocacy organization specializing in a range of employment policy issues. NELP submits this testimony in support of S.B. 1384, which would empower localities in Virginia to seek disclosure about bidders’ use of forced arbitration requirements. A more detailed version of NELP’s testimony supporting S.B. 1384, as previously submitted to the Virginia State Senate’s General Laws and Technology Committee, is available here: https://www.nelp.org/wp-content/uploads/NELP-Testimony-Hugh-Baran-Senate-Laws-Committee-2021.pdf Forced arbitration requirements deny workers the right to go before a judge and jury when their employer breaks the law. Making matters even worse, class/collective action waivers incorporated into these requirements prevent employees from banding together to challenge employer lawbreaking. A recent NELP report showed that in 2019, forced arbitration enabled employers to steal $12.6 billion in wages from over 6 million low-paid private-sector workers in the U.S.. Relying on the same methodology, we find that forced arbitration enabled employers to steal $296 million in wages from low-paid private-sector workers in Virginia. In addition to facilitating wage theft, forced arbitration is also used to cover up cases of sexual harassment, racial discrimination, and other employment law violations. S.B. 1384 would give localities the ability to require bidders to disclose information regarding the use of forced arbitration in employment, civil rights, and consumer disputes, for procurement solicitations or contracts. S.B. 1384 does not require any locality to seek such information, but simply enables them to do so. S.B. 1384 advances localities’ interests in the efficient procurement of needed goods and services, insofar as these disclosures will allow the locality to determine bidder responsibility. A business’s record of compliance with workplace laws is an important, and indeed appropriate, criteria for determining a bidder’s responsibility. But forced arbitration obscures evidence of noncompliance, as arbitral proceedings are generally conducted in secret and behind closed doors. With the disclosures required by S.B. 1384, the locality will have a more complete and accurate picture of the bidder’s compliance with workplace laws. This will empower the locality to make responsible contracting decisions, including by avoiding bidders who may be covering up cases of wage theft, sexual harassment, racial discrimination, and more. A more detailed version of NELP’s testimony supporting S.B. 1384, as previously submitted to the Virginia State Senate’s General Laws and Technology Committee, is available here: https://www.nelp.org/wp-content/uploads/NELP-Testimony-Hugh-Baran-Senate-Laws-Committee-2021.pdf Thank you for the opportunity to submit these written comments.

Last Name: Strandlie Organization: Impact Project Locality: Fairfax County

Dear Chairman Carr and Subcommittee Members, I am writing to endorse SB 1384, the Local Procurement Transparency Act. As a representative for the Impact Project, we join a group of organizations, the Virginia Fair Arbitration Coalition, that supports the bill. Our Coalition includes Virginia organizations and national organizations with Virginia members: the Virginia Poverty Law Center, the Reserve Officers Association, Virginia Employment Lawyers Association, National Women’s Law Center, Legal Aid Justice Center, National Association of Consumer Advocates, National Employment Law Project, and the Enlisted Association of the National Guard of the United States. In addition to the Coalition, the Fairfax County School Board has this policy in its legislative agenda. Recently, certain FCPS vendors began imposing forced arbitration against families as a condition to pay online for school lunches, prom tickets, yearbooks, PE lockers, and more. SB 1384 will allow participating localities to ask bidders or offerors if they use forced arbitration in employment and civil rights disputes and certain online payment systems. Forced arbitration is when companies require employees or customers to “agree” to secretive, pre-dispute arbitration as a condition of using a product or keeping a job—before a dispute arises. Companies using forced arbitration might appear to be good candidates for a contract on paper but may be rife with unknown problems—like sexual harassment, discrimination, labor abuses, and service failures—that would undermine their contract performance. As more and more companies adopt forced arbitration clauses that require disputes to be resolved by a secret tribunal, public bodies in Virginia receive less and less information about potential contractors. SB 1384 will provide transparency for making the best contracting decisions using taxpayer dollars. Not only are sexual harassment, discrimination, wage theft, and other illegal practices harmful to Virginians, but there also is a wealth of evidence that businesses that violate the law also provide substandard work—often at higher cost. According to NELP’s 2020 ground-breaking study, forced arbitration has enabled Virginia employers to steal $296 million in wages from workers in low-wage jobs. In recent years, and even in recent months, companies have recognized that forced arbitration, while legal, is not good for business. Companies such as Google, Microsoft, and Wells Fargo have dropped provisions in employment disputes. Wells Fargo stopped using forced arbitration in sexual harassment and discrimination cases. “Googlers for Ending Forced Arbitration” was formed after more than 20,000 Google employees staged a walk-out over such practices that were hiding sexual harassment. Regarding Virginia-based businesses, after studying the issue, Cong. Don Beyer in 2014 ensured that Beyer Automotive no longer used forced arbitration and he has since become a champion in banning the practice. Finally, I want to emphasize that SB 1384 is (1) optional and (2) does not ban forced arbitration. This bill provides transparency in contracting through disclosure and falls fully within the market participant exception to any federal preemption of state law by the Federal Arbitration Act. For more information, talking points and a bill summary are posted here: https://bit.ly/SB1384TalkingPoints https://bit.ly/SB1384_Summary Thank you for your consideration.

End of Comments