Legislature(2003 - 2004)

04/09/2003 01:40 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 249 - RESTRAINT OF TRADE: FEES AND COSTS                                                                                   
                                                                                                                                
Number 0043                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be  HOUSE BILL  NO. 249,  "An Act  relating to  actions involving                                                               
monopolies  and   restraint  of  trade;  and   providing  for  an                                                               
effective date."                                                                                                                
                                                                                                                                
CHAIR McGUIRE  posited that  HB 249  is a  clarifying bill.   She                                                               
relayed  that Civil  Rule  82(a)  of the  Alaska  Rules of  Civil                                                               
Procedure says,  "Except as otherwise  provided by law  or agreed                                                               
to by the parties, the prevailing  party in a civil case shall be                                                               
awarded attorney's fees  calculated under this rule."   Thus, she                                                               
surmised, the philosophy  has been that the  prevailing party may                                                               
recover its  fees, adding that  [HB 249] will make  it absolutely                                                               
clear  that  this  same  policy   also  applies  with  regard  to                                                               
antitrust cases.  She mentioned  that the legislature has not yet                                                               
spoken clearly  on this issue; under  current statutory language,                                                               
there  is  only  reference   to  successful  plaintiff  recovery.                                                               
Therefore, HB  249 is intended  to clarify, and  state expressly,                                                               
that the successful antitrust defendant  has the right to recover                                                               
partial attorney fees.                                                                                                          
                                                                                                                                
CHAIR  McGUIRE  noted that  the  legislature  has already  spoken                                                               
similarly  in the  area of  unfair trade  practices and  consumer                                                               
protection -  specifically in AS  45.50.537(b) - which  states in                                                               
part  that, "a  prevailing  defendant shall  be awarded  attorney                                                               
fees and costs as provided by  court rule."  She pointed out that                                                               
HB  249  has  an  immediate effective  date,  and  remarked  that                                                               
although  she  generally  tries  to  "stay  away  from  immediate                                                               
effective  dates,"   when  clarifying  an  existing   policy  she                                                               
believes  it  is appropriate  to  have  an [immediate]  effective                                                               
date.   "If  we  are  going to  speak,  we  should speak  firmly,                                                               
clearly, and immediately," she added.                                                                                           
                                                                                                                                
Number 0322                                                                                                                     
                                                                                                                                
JEFFREY M.  FELDMAN, Attorney, Feldman &  Orlansky, remarked that                                                               
the legislature,  in AS 45.50.576,  has already stated that  if a                                                               
plaintiff  proves that  an antitrust  violation  is wilful,  then                                                               
that  prevailing  plaintiff  can recover  actual  attorney  fees,                                                               
rather  than  just  the  partial  fees that  [Rule  82]  gives  a                                                               
prevailing party.   He opined that a commonsense  reading of that                                                               
statute would lead a person to  conclude that the general rules -                                                               
the  ordinary  rules  of  Rule  82 -  would  apply  to  either  a                                                               
prevailing  plaintiff  or  a prevailing  defendant,  and  that  a                                                               
plaintiff that proves a wilful  violation collects full fees.  He                                                               
noted,  however, that  the courts  are not  of one  mind on  this                                                               
issue;  he said  that  some  judges would  read  that statute  as                                                               
displacing Rule 82 entirely, concluding  that because the statute                                                               
only awards  prevailing plaintiffs  fees, it is  thereby intended                                                               
to  deprive   prevailing  defendants   of  any   [attorney  fees]                                                               
reimbursement.   He opined  that a reading  of that  statute does                                                               
not logically lead to such a conclusion.                                                                                        
                                                                                                                                
MR. FELDMAN  posited that  the purpose  of HB  249 is  to clarify                                                               
that in  enacting the aforementioned provision  giving prevailing                                                               
plaintiffs full  [attorney] fees, the legislature  did not intend                                                               
to strip  other prevailing parties  of partial  fee entitlements.                                                               
He  relayed that  he  is  currently "defending  one  of the  fish                                                               
processors  in   the  antitrust   case  that's   presently  being                                                               
litigated  in Anchorage."   He  said  that "this  issue" arose  a                                                               
couple  of years  ago when  the processors  prevailed on  summary                                                               
judgment and  the trial court gave  [his party] a signal  that it                                                               
would likely read the current statute  as displacing Rule 82.  He                                                               
noted that  this issue  was never resolved  because the  grant of                                                               
summary  judgment in  favor  of the  processors  was reversed  on                                                               
appeal, and  so his  party has  been "sent back  for trial."   He                                                               
said  that if  his party  were to  ultimately prevail,  under the                                                               
trial court's  current reading of  the statute, his  client would                                                               
not be  entitled to recover  any attorney  fees.  He  opined that                                                               
this would be contrary to what was intended by the statute.                                                                     
                                                                                                                                
MR. FELDMAN,  in closing, said that  it is not his  intention, in                                                               
proposing the  concept of HB 249,  to change the law,  but rather                                                               
to simply clarify [legislative intent]  and spare his clients the                                                               
burden  of  having to  go  through  another two-year  process  of                                                               
appeal.                                                                                                                         
                                                                                                                                
Number 0625                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  that  rather  than amend  AS                                                               
45.50.576 by adding  a subsection (c) - as is  proposed by HB 249                                                               
- it might  be better to amend (a)(1) of  that statute by adding,                                                               
after "person",  the phrase "the  prevailing party shall  also be                                                               
awarded  the cost  of the  suit plus  reasonable [attorney]  fees                                                               
according to court rule".                                                                                                       
                                                                                                                                
MR. FELDMAN  acknowledged that doing  such would be  an alternate                                                               
way of approaching  "this problem."  He  mentioned, however, that                                                               
that would  have the  effect of  "deleting, from  [AS 45.50.576],                                                               
the ...  provision that would  grant an award of  full reasonable                                                               
fees to prevailing plaintiffs for wilful violations."                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG surmised,  then, that  the court  reads                                                               
"reasonable  [attorney]  fees"  as  "full  reasonable  [attorney]                                                               
fees."                                                                                                                          
                                                                                                                                
MR. FELDMAN indicated that that is correct.                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  Mr.  Feldman whether  it is  his                                                               
intention, with HB 249, to  have the courts award full reasonable                                                               
attorney fees to defendants as well.                                                                                            
                                                                                                                                
MR. FELDMAN said no, just Rule 82 fees.                                                                                         
                                                                                                                                
REPRESENTATIVE    GRUENBERG    suggested,     then,    that    AS                                                               
45.50.576(a)(1)  be amended  to say,  "including full  reasonable                                                               
[attorney]  fees".   "Let's  add  the word  'full'  in there,  so                                                               
they'll understand what we're doing," he remarked.                                                                              
                                                                                                                                
MR. FELDMAN  said, "That may  be granting  us more than  what I'm                                                               
asking for."                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  indicated  that   it  would  not,  and                                                               
clarified that in addition to the  change proposed by HB 249, his                                                               
latest suggestion  would be to  also amend AS  45.50.576(a)(1) by                                                               
adding the word "full" before "reasonable".                                                                                     
                                                                                                                                
MR. FELDMAN, in response, said his  only goal is to ensure that a                                                               
prevailing defendant is given Rule 82 fees.                                                                                     
                                                                                                                                
Number 0847                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  opined  that  [Representative  Gruenberg's]                                                               
suggestion  would be  creating mischief  with the  statutes.   He                                                               
elaborated:                                                                                                                     
                                                                                                                                
     There are  a number  of provisions  where the  State of                                                                    
     Alaska   has  decided   that  certain   cases  are   so                                                                    
     important,  and the  attorney general's  office doesn't                                                                    
     have the presence to file  these cases, that we want to                                                                    
     encourage people  to be able  to find  private counsel.                                                                    
     And,  so,   in  the   consumer  protection   area,  the                                                                    
     antitrust  area, there  are  provisions  in there  that                                                                    
     provide for  full [attorney]  fees in  recognition that                                                                    
     the State of  Alaska doesn't have the  presence to take                                                                    
     all of these  cases that ... people would  need them to                                                                    
     take.   And sometimes  we refer  to the  full [attorney                                                                    
     fees]  provision   as  a  reasonable   [attorney  fees]                                                                    
     provision in  the statute, [and]  sometimes we  use the                                                                    
     word "full".                                                                                                               
                                                                                                                                
     My worry  is, by changing "reasonable"  to "full", that                                                                    
     might imply,  in all the  other places in  the statutes                                                                    
     where we  use the term "reasonable",  that that doesn't                                                                    
     mean full.   And the term  "reasonable [attorney] fees"                                                                    
     has  always  been  interpreted by  the  court  to  mean                                                                    
     "full" - they  understand what it means -  I just don't                                                                    
     think we need to ...  change the wording of the statute                                                                    
     at all.   This follows  the federal  antitrust statute,                                                                    
     which does the same thing.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  offered his  understanding that  at the                                                               
federal  level, since  this is  the same  as federal  law, it  is                                                               
interpreted as "full".                                                                                                          
                                                                                                                                
REPRESENTATIVE GARA affirmed that.   Indicating he'd discussed it                                                               
earlier that  day with Mr.  Feldman, he then brought  up removing                                                               
the immediate  effective date.   Representative Gara said  he had                                                               
no  problem  with  the  substance  of the  bill  and  was  pretty                                                               
confident that it  accurately stated existing law and  the way it                                                               
should have  been interpreted  by the trial  court in  this case.                                                               
He said  he wasn't 100  percent comfortable, however,  because he                                                               
hadn't  read every  single case;  he suggested  the courts  would                                                               
have more  insight in that area.   He asked whether  adopting the                                                               
bill without  Section 3 would have  an impact as this  case wends                                                               
it way through  the courts, and whether the courts  would look at                                                               
"our act  in clarifying existing  law as evidence of  the meaning                                                               
of existing law."                                                                                                               
                                                                                                                                
MR.  FELDMAN  responded  that  if Section  3  were  removed,  the                                                               
consequence for the currently pending  Bristol Bay antitrust case                                                               
would be that the proposed  legislation would become effective 90                                                               
days after enactment;  given how protracted the  case has become,                                                               
it is possible  that the bill could be enacted  without Section 3                                                               
and it still would apply to  this case by the time final judgment                                                               
is entered.   He expressed doubt, therefore,  that the immediate-                                                               
effective-date provision  controls whether  this law is  going to                                                               
apply to  this case.   He also said  he believes the  court would                                                               
still be obliged  to consider the enactment "as  an indication of                                                               
how  the statute,  even before  the enactment,  should have  been                                                               
considered."  He explained:                                                                                                     
                                                                                                                                
     If ...  the legislature says, "This  is a clarification                                                                    
     and  this is  what the  prior statute  was intended  to                                                                    
     mean," I would like to  think that the court would give                                                                    
     that  enactment appropriate  deference and  would weigh                                                                    
     it and  consider it.   Now, courts  do lots  of things,                                                                    
     and ...  we'd have to  wait and  find out. ...  I'll be                                                                    
     candid and  say that  part of  my motivation  for being                                                                    
     here is just to avoid  the uncertainty and the cost and                                                                    
     the delay of  running that risk.  But  ... I understand                                                                    
     your concern about  it. ... If I thought  that this was                                                                    
     a substantive  change in the  law, it would  trouble me                                                                    
     more.   But I really  just think ... that  it clarifies                                                                    
     and makes explicit what I  think was obviously intended                                                                    
     when the statute was enacted originally.                                                                                   
                                                                                                                                
Number 1128                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA said he thought  he largely agreed and didn't                                                               
believe it  was a  substantive change  in the  law.   However, he                                                               
acknowledged the  need to analyze  all the  cases in order  to be                                                               
able to  speak for sure.   With regard to legislative  intent, he                                                               
offered his belief  that this bill is consistent  with the intent                                                               
of  the statutes,  "even before  it gets  changed."   He informed                                                               
members that  at some point during  the hearing he would  move to                                                               
delete Section 3.                                                                                                               
                                                                                                                                
REPRESENTATIVE OGG  asked whether  Mr. Feldman  was aware  of any                                                               
antitrust  cases  in which  the  defendants  prevailed in  Alaska                                                               
under Rule 82, and what the results were.                                                                                       
                                                                                                                                
MR. FELDMAN answered that he knew  of no other private case tried                                                               
under  the antitrust  statute, and  thought this  was the  first;                                                               
thus there is no precedent to draw on.  He added:                                                                               
                                                                                                                                
     The  trial court  actually gave  us a  ruling ...  that                                                                    
     said, "I  read the statute  as precluding Rule  82 fees                                                                    
     to  prevailing defendants."   That  issue  was part  of                                                                    
     what was  appealed to the  supreme court.   But because                                                                    
     the  supreme court  ... reversed  the grant  of summary                                                                    
     judgment and sent us back  for trial, the supreme court                                                                    
     never addressed  the issue of  whether the  trial court                                                                    
     was  right  or  wrong  on   that  ruling.    But  Judge                                                                    
     Michalski certainly  has told  us what  his perspective                                                                    
     is ... on  the issue, and ... I assume  he'll give me a                                                                    
     fair chance to  try and change his mind; if  we win, we                                                                    
     have that issue  presented all over again.   But ... he                                                                    
     read  the statute,  and ...  I respect  him completely.                                                                    
     And ... he's entitled to his  view. ... I think it does                                                                    
     violence to  the words in  the statute, though,  in the                                                                    
     intent.                                                                                                                    
                                                                                                                                
Number 1251                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG asked what the  argument would be on the other                                                               
side of the existing case.                                                                                                      
                                                                                                                                
MR. FELDMAN replied:                                                                                                            
                                                                                                                                
     Well,  I  know  what  their argument  is  because  they                                                                    
     advanced it ... when we had  this issue crop up back in                                                                    
     1999,  ... the  first  time. ...  Rule  82 talks  about                                                                    
     "except as  otherwise provided by  law.  Their  view is                                                                    
     that when the legislature  speaks to [attorney] fees at                                                                    
     all, it  displaces Rule  82.  And  the only  thing that                                                                    
     thereby becomes  operative is what the  legislature has                                                                    
     said, which,  I supposed,  ... if  that were  the rule,                                                                    
     the legislature ought  to keep in mind that  if it ever                                                                    
     says anything  about [attorney] fees, it  ought to make                                                                    
     sure it  says it completely and  entirely, because it's                                                                    
     effectively displacing Rule 82.                                                                                            
                                                                                                                                
     Now, I'm  not sure that  that's a sensible  reading ...                                                                    
     of the  law - and  of the rule,  for that matter  - but                                                                    
     ... they  would say that because  the antitrust statute                                                                    
     only spoke  to full fees for  prevailing plaintiffs, it                                                                    
     thereby displaced  everything else.  ... It  depends on                                                                    
     one's view, I suppose, of  the intent of the statute as                                                                    
     to  whether  that's true  or  not.   We  couldn't  find                                                                    
     anything in  the history of the  statute that supported                                                                    
     that [view].                                                                                                               
                                                                                                                                
CHAIR McGUIRE  asked whether anyone  else wished to  testify; she                                                               
then closed public testimony.                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG, noting that  [Mr. Feldman] was speaking                                                               
on behalf  of at least one  of the defendants, asked  whether the                                                               
plaintiffs had been notified.   He recalled that when legislation                                                               
involves  litigation,  usually  the  policy has  been  to  notify                                                               
everyone.                                                                                                                       
                                                                                                                                
CHAIR  McGUIRE offered  her  belief that  most  bills before  the                                                               
House  Judiciary Standing  Committee  affect  litigation in  some                                                               
way.   She announced that her  position is to provide  five days'                                                               
notice  on  every  bill, and  that  the  legislative  information                                                               
offices  (LIOs)  are  available.    She  said  this  bill  is  no                                                               
different from any  other, and that there is no  intent to either                                                               
exclude or include anyone.                                                                                                      
                                                                                                                                
MR. FELDMAN  added that although he  has a role as  legal counsel                                                               
for one  of the  parties in  the case, this  is a  little outside                                                               
those   activities;  he   hadn't  coordinated   with  the   other                                                               
defendants  and didn't  believe  the other  defendants knew  that                                                               
he'd  sought  this correction.    He  remarked, "We  handled  the                                                               
appeal back  in 1999 and, frankly,  it always just kind  of stuck                                                               
in  my craw  that we  were having  to litigate  that issue."   He                                                               
indicated  that after  realizing that  another way  to deal  with                                                               
this was to clarify the law, he'd begun the attempt.                                                                            
                                                                                                                                
Number 1412                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE announced  that the  hearing  on HB  249 would  be                                                               
recessed in order to take up HB  164.  [The hearing on HB 249 was                                                               
recessed until later in the meeting.]                                                                                           
                                                                                                                                
HB 249 - RESTRAINT OF TRADE: FEES AND COSTS                                                                                   
                                                                                                                                
Number 2031                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  announced that  the  committee  would resume  the                                                               
hearing  on HOUSE  BILL  NO.  249, "An  Act  relating to  actions                                                               
involving monopolies  and restraint  of trade; and  providing for                                                               
an effective date."                                                                                                             
                                                                                                                                
Number 2070                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved that the committee  adopt Amendment                                                               
1, which read [original punctuation provided]:                                                                                  
                                                                                                                                
     Page 1, Line 9:                                                                                                            
     Delete "this section"                                                                                                      
     Insert "AS 45.50.562 - 45.50.570"                                                                                          
                                                                                                                                
REPRESENTATIVE GARA objected for discussion purposes.                                                                           
                                                                                                                                
CHAIR McGUIRE  explained that  the purpose of  Amendment 1  is to                                                               
clarify that it's  a suit under the  [entire applicable] section.                                                               
The  current  legislation  only references  AS  45.50.576,  which                                                               
refers to suits  by persons injured and treble  damages.  Without                                                               
this  amendment,  "the meat"  of  the  suit isn't  obtained,  she                                                               
remarked.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GARA withdrew his objection.                                                                                     
                                                                                                                                
Number 2101                                                                                                                     
                                                                                                                                
There being no further objection, Amendment 1 was adopted.                                                                      
                                                                                                                                
Number 2117                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved that the committee  adopt Amendment                                                               
2, which read [original punctuation provided]:                                                                                  
                                                                                                                                
     Page 1, Line 10:                                                                                                           
     After "costs", Delete "and"                                                                                                
     After "costs", Insert "of the suit, including"                                                                             
                                                                                                                                
REPRESENTATIVE GARA  objected in order  to read Amendment 2.   He                                                               
then withdrew his objection.                                                                                                    
                                                                                                                                
Number 2134                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  noted  that there  were  no  further  objections.                                                               
Therefore, Amendment 2 was adopted.                                                                                             
                                                                                                                                
Number 2174                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  moved that the committee  adopt Amendment 3,                                                               
which read [original punctuation provided]:                                                                                     
                                                                                                                                
     Delete Section 3.                                                                                                          
                                                                                                                                
CHAIR McGUIRE objected.                                                                                                         
                                                                                                                                
REPRESENTATIVE  GARA  pointed  out   that  virtually  every  time                                                               
legislation impacting legal rights is  enacted, it applies to all                                                               
causes  of  action  that  accrue  after  the  date  of  the  act.                                                               
Therefore,  [new  legislation doesn't  impact  the  rules or  the                                                               
outcome of] pending  lawsuits.  The arguments  presented in favor                                                               
of HB 249 are good ones, he  said, adding that he agreed with the                                                               
substance behind  HB 249.   Furthermore, he anticipated  that the                                                               
courts will  end up agreeing  that the state's  interpretation is                                                               
the  correct interpretation.    He offered  his  belief that  the                                                               
antitrust case  [referred to by  Jeffrey M. Feldman in  the first                                                               
part of  the meeting]  should run  its course.   He noted  that a                                                               
superior court's ruling on [attorney]  fees can be appealed.  The                                                               
Alaska Supreme  Court will,  he predicted,  address the  issue of                                                               
[attorney]  fees  on  appeal,  and will  likely  issue  a  ruling                                                               
favoring the defendants in this case.   He said he didn't believe                                                               
the legislature  should make  it a  practice to  pass legislation                                                               
that would impact pending litigation.                                                                                           
                                                                                                                                
REPRESENTATIVE  GARA  then  acknowledged   the  weakness  of  his                                                               
argument:     this  legislation  doesn't  change   existing  law.                                                               
However,  he noted  that he  isn't the  authority on  the matter;                                                               
rather, the  supreme court is.   Although he said that  he hasn't                                                               
read all  of the relevant  cases, he did  believe that he  has an                                                               
understanding  of the  intent  behind existing  law.   Again,  he                                                               
relayed  his belief  that ultimately  the [Alaska  Supreme Court]                                                               
will agree  that Civil Rule  82(a) of  the Alaska Rules  of Civil                                                               
Procedure  ("Rule 82")  applies when  a defendant  prevails under                                                               
antitrust statutes.   Representative Gara said  he didn't believe                                                               
it looks good for the  legislature to pass legislation that could                                                               
be perceived  as favoring one side  in a [pending case]  - a very                                                               
contentious case.                                                                                                               
                                                                                                                                
Number 2303                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA   explained  that   with  the   adoption  of                                                               
Amendment  3, the  normal effective  date  provision will  apply.                                                               
Therefore, the  legislation will  be applicable a  certain number                                                               
of days  after passage and will  be applicable to all  new causes                                                               
of action.   The courts should  be left to make  the decision, he                                                               
opined.                                                                                                                         
                                                                                                                                
REPRESENTATIVE SAMUELS  asked whether the elimination  of Section                                                               
3 would also impact the case.                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA said he believes  that the courts will always                                                               
look  to   legislative  history  for  legislative   intent.    He                                                               
indicated  that he  didn't feel  comfortable impacting  a pending                                                               
case.                                                                                                                           
                                                                                                                                
CHAIR  McGUIRE reiterated  her  earlier  statement regarding  the                                                               
need  to  speak  clearly,  effectively, and  immediately  on  the                                                               
subject.                                                                                                                        
                                                                                                                                
TAPE 03-34, SIDE B                                                                                                            
Number 2389                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  relayed  his  belief that  this  is  a                                                               
different issue.  Putting the  effective date aside, the question                                                               
[the  committee   wants]  to  address  is   another  clause,  the                                                               
applicability section,  that should  be in  the legislation.   If                                                               
the legislation is left as  it is, Representative Gruenberg said,                                                               
he thought  the legislation would  be interpreted as  applying to                                                               
all  cases  previously, currently,  or  prospectively.   Upon  an                                                               
indication  [from  Chair McGuire]  that  such  is not  the  case,                                                               
Representative Gruenberg  said that [the language]  is ambiguous.                                                               
Therefore,  the  legislation   should  include  an  applicability                                                               
clause regardless of the effective date.                                                                                        
                                                                                                                                
REPRESENTATIVE OGG relayed his belief  that [this legislation] is                                                               
stepping  out in  such  a  way that  [the  legislature] could  be                                                               
perceived  as acting  as a  court.   When an  act is  passed, the                                                               
court  looks for  legislative intent  from  the legislature  that                                                               
passed it.   Therefore, the court would be looking  back in time,                                                               
to the legislature  that passed the antitrust statute,  to try to                                                               
find  legislative intent.   Representative  Ogg  said [it  seems]                                                               
that by looking  back in the future and specifying  the intent of                                                               
a  past  legislature,  [this  legislature  would  be]  trying  to                                                               
influence something that "we" really  don't know.  He relayed his                                                               
belief that  this isn't the  proper purview for  the legislature,                                                               
to  be stepping  in [on  a current,  very heated  case].   If the                                                               
desire  really   is  to   clarify  the   intent  of   a  previous                                                               
legislature,  then  an  applicability  clause  is  necessary,  he                                                               
opined.                                                                                                                         
                                                                                                                                
Number 2253                                                                                                                     
                                                                                                                                
JEFFREY  M.  FELDMAN, Attorney,  Feldman  &  Orlansky, noted  his                                                               
belief that this  legislation is a clarification  of current law,                                                               
not  a change  in  the law.    If  one believes  that  this is  a                                                               
clarification, then  the question  becomes why wouldn't  one want                                                               
it  to apply  to  all  cases, including  those  currently in  the                                                               
system.  He said that a  prospective effective date is even worse                                                               
because it suggests  that the legislation is changing  the law in                                                               
that  this provision  will only  apply prospectively  and thereby                                                               
imply  that something  different  must be  applied  in the  past.                                                               
Therefore,  he  stressed  that   he  didn't  want  a  prospective                                                               
effective date.                                                                                                                 
                                                                                                                                
REPRESENTATIVE HOLM said  that although he isn't  an attorney, he                                                               
did know  that it's  the legislature's job  and purview  to write                                                               
law.   Furthermore,  it's not  the legislature's  place to  allow                                                               
interpretation by  courts to indicate how  the legislature writes                                                               
law.  Moreover,  no legislature can bind  another legislature and                                                               
thus if  a legislature  chooses to  say that  an existing  law is                                                               
inappropriate, it's  inherent upon that legislature  to change it                                                               
if the legislature  so chooses.  He said, "I  don't think that we                                                               
can't make those  choices, in good faith."  He  then said that if                                                               
this   legislature  feels   that  this   legislation  should   be                                                               
retroactive, then it should be so.                                                                                              
                                                                                                                                
Number 2172                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  requested that  the committee  members place                                                               
themselves in the  shoes of someone involved in  a lawsuit that's                                                               
important to  them.  He  also requested that the  members imagine                                                               
the  opposite; a  case in  which an  individual felt  that he/she                                                               
would prevail, and  the other side felt the same  but went to the                                                               
legislature  and requested  clarity  of the  law  such that  that                                                               
side's  view was  reflected in  the  law.   The latter  situation                                                               
would be  troubling, he said.   Representative Gara said  that it                                                               
would  look poorly  upon the  legislature  to issue  a rule  that                                                               
would be applied in a pending lawsuit.                                                                                          
                                                                                                                                
REPRESENTATIVE  GARA, after  noting  his support  of the  policy,                                                               
said that  the legislature can  pass a  law and specify  that the                                                               
legislation will clarify the  intent behind previous legislation.                                                               
Because there  are rules for  interpreting statutes, he  said, he                                                               
wasn't concerned that passing HB 249  would send a message to the                                                               
courts that the  previous law was different.  A  letter of intent                                                               
can  be  included  with  this  legislation  to  specify  that  it                                                               
clarifies  the law,  and all  the  comments on  the record  would                                                               
support that as well.                                                                                                           
                                                                                                                                
CHAIR  McGUIRE   noted  that  she  respectfully   disagreed  with                                                               
Representative  Gara.    She informed  the  committee  that  when                                                               
someone requests that she introduce  legislation, she won't do so                                                               
if  she doesn't  think it's  the right  thing.   She relayed  her                                                               
belief that [HB 249] is the  right thing because she thinks it is                                                               
the law  and is  consistent with  Rule 82  and with  fairness and                                                               
equity.   Furthermore, if  the legislature  speaks, she  said, it                                                               
should  speak clearly.   She  said, "My  concern is  that if  you                                                               
speak  halfway, even  though you  have  all kinds  of intent  and                                                               
don't have an  immediate effective date, that  may be interpreted                                                               
as saying something as well."                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  if   the  committee  wanted  to                                                               
include an applicability clause.  He  said that it seems that the                                                               
committee  can  either choose  to  make  [HB 249]  applicable  to                                                               
pending cases  or not.  However,  it seems that if  the committee                                                               
chooses to say  nothing and the language  remains ambiguous, that                                                               
may be  poor public policy.   Representative  Gruenberg suggested                                                               
that the committee address [whether  to make HB 249 applicable to                                                               
pending cases or not].                                                                                                          
                                                                                                                                
CHAIR McGUIRE announced that the  bill will move out of committee                                                               
today.    She reminded  committee  members  that Amendment  3  is                                                               
before the committee, and said she is maintaining her objection.                                                                
                                                                                                                                
Number 1907                                                                                                                     
                                                                                                                                
A roll call  vote was taken.  Representatives  Gara and Gruenberg                                                               
voted in  favor of Amendment  3.  Representatives  Anderson, Ogg,                                                               
Holm,  Samuels,  and  McGuire   voted  against  it.    Therefore,                                                               
Amendment 3 failed by a vote of 2-5.                                                                                            
                                                                                                                                
Number 1898                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Conceptual Amendment 4, which would add an applicability clause.                                                                
                                                                                                                                
The committee took an at-ease from 2:42 p.m. to 2:43 p.m.                                                                       
                                                                                                                                
REPRESENTATIVE   GRUENBERG  specified   that  conceptually,   the                                                               
applicability  clause  would  say,  "This act  applies  to  cases                                                               
pending  at trial  or on  appeal on  the effective  date of  this                                                               
act."                                                                                                                           
                                                                                                                                
CHAIR McGUIRE objected.                                                                                                         
                                                                                                                                
Number 1844                                                                                                                     
                                                                                                                                
A roll  call vote was  taken.  Representative Gruenberg  voted in                                                               
favor of Conceptual Amendment 4.   Representatives Anderson, Ogg,                                                               
Holm, Samuels,  Gara, and McGuire  voted against it.   Therefore,                                                               
Conceptual Amendment 4 failed by a vote of 1-6.                                                                                 
                                                                                                                                
Number 1835                                                                                                                     
                                                                                                                                
CHAIR McGUIRE, after  remarking that the current title  of HB 249                                                               
is too  broad, made a  motion to  adopt Amendment 5,  which reads                                                               
[original punctuation provided]:                                                                                                
                                                                                                                                
     Amend title to read:                                                                                                       
                                                                                                                                
     "An  act relating  to  the award  of  attorney fees  in                                                                    
     civil actions  brought under monopoly and  restraint of                                                                    
     trade statutes; and providing for and effective date."                                                                     
                                                                                                                                
Number 1821                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG objected, and said:                                                                                    
                                                                                                                                
     I think  it's still too  broad.   And I would  move the                                                                    
     following amendment  to ... Amendment  [5].   After the                                                                    
     word  "fees", add  the following,  "to defendant  under                                                                    
     court  rule".   The title  would  then read:   "An  act                                                                    
     relating to  the award  of attorney  fees" --  I should                                                                    
     say, "and  costs" -  "costs and  attorneys fees".   I'm                                                                    
     going  to say,  "to the  award of  costs and  attorneys                                                                    
     fees to  defendants under court  rule in  civil actions                                                                    
     brought under monopoly ..."                                                                                                
                                                                                                                                
CHAIR  McGUIRE said:    "I  have no  objection  to your  friendly                                                               
amendment.    With  that,  do  you  maintain  your  objection  to                                                               
Amendment 5?"                                                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG said no.                                                                                               
                                                                                                                                
Number 1793                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE asked  if  there were  any  further objections  to                                                               
adopting Amendment 5  [as amended].  There  being none, Amendment                                                               
5 [as amended] was adopted.                                                                                                     
                                                                                                                                
Number 1782                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  moved to report  HB 249, as  amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying zero  fiscal note.   There being no  objection, CSHB
249(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                

Document Name Date/Time Subjects