Big Business Battles the #MeToo Movement

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Posted in: Business Law

I suppose lawmakers’ deference to big business is in the air. The United States Supreme Court, in a 5-4 opinion by Judge Neil Gorsuch in Epic Systems v. Lewis, swept away hope this week that employees would be able to form class actions or join forces against oppressive employer practices. Instead, arbitration clauses in agreements pit the lone employee against the employer. In the same vein,the House of Representatives today sent to President Trump a bill to relax restrictions on banks.

These developments are not happening in a vacuum. This empowerment of business interests is also operating to suppress child sex abuse victims’ access to justice.

On March 1, I optimistically wrote here that three of the worst states were considering meaningful statute of limitations reform—Georgia, Michigan, and New York. The freshness of the #MeToo movement seemed to augur a positive pathway even in those states that have long shut out victims. Since then, each state has followed a different path, but victims in none of these states are likely to celebrate soon. For the time being, they have been suppressed by the insurance, chamber of commerce, and religious lobbyists.

Georgia was considering a window that would have held institutions accountable. A defensible version of the Hidden Predator Act passed the House. But institutional lobbyists succeeded in the senate, which gutted the strong parts of the bill and added so many poison pills that it died a merciful death before it could set a terrible precedent for victims elsewhere. The man responsible for the improved justice child sex abuse victims have received in recent years, Rep. Jason Spencer, did everything he possibly could, as described here.  The future for Georgia’s victims is now clouded as Spencer lost his Georgia primary yesterday after the Chamber of Commerce and insurance interests poured money into his opponent’s campaign. So much for the power of the #MeToo movement to improve the victims’ position in Georgia.

New York lawmakers fought harder than ever over the Child Victims Act, with the end result a political standoff between senate Republicans and Democrats. The former have resolutely refused to permit the CVA to get a vote in the senate for over a decade while the Democrats have been stalwart supporters. The issue was left hanging into the political season, which has featured five Republicans announcing their retirement. That has opened the door to a “blue wave” that could bring the CVA into January with a Democratic senate majority and a bright prospect.

In an obvious ploy to deflect criticism for shutting down child sex abuse victims, and positive proof that the powerful message behind the CVA has penetrated, Republican Sen. Cathy Young introduced a disingenuous bill that would take $300,000,000 from the New York City District Attorney’s forfeiture fund, which is intended for criminal justice purposes, to pay civil settlements for victims whose civil SOL has expired. Although it is a government handout, which Republicans typically rail against, it is no favor for victims or the people of New York. It does not permit survivors to go to court or sue the institutions that caused the abuse. That means no embarrassing discovery for institutions and no truth for the public. With one fell swoop, the Republicans immunized all of the institutions that have caused child sex abuse, thereby eliminating the deterrence power of window legislation and keeping the facts locked away in the institutions’ files. The insurance, business, and religious lobbyists’ fingerprints were all over this non-starter that is opposed both by Gov. Andrew Cuomo and Manhattan District Attorney Cy Vance (yes, the DA whose forfeiture fund the Young bill would raid. For the New York Senate Republicans, the #MeToo movement is obviously about defending business and power against the vulnerable. Of course, we knew that before. How ironic that they thought that this bill would somehow prove that they are on the side of the victims. It’s been over a decade, and one would have thought they would have understood more by now.

Michigan was shoved into the public spotlight on these issues by Larry Nassar and the brave gymnasts who came forward. This was the classic scenario where there is massive failure by trusted institutions and extensive child sex abuse only to learn that justice under state law is not an option. Most were out of the criminal statute and the Michigan civil SOL is age 19, period. Michigan’s senate responded by passing a bill that would have taken Michigan from the basement of justice: it extended civil claims and lesser crimes to age 48 (age of majority, 18, plus 30 years). This was modest. It did not eliminate the civil SOLs as have Alaska, Connecticut, Delaware, Florida, Illinois, Maine, Minnesota, Nebraska, and Utah. Rather, it was akin to Oklahoma’s recent extension to age 45. It also included a truncated window (claims were only allowed back to 1993) and rolled back sovereign immunity. While it was not going to set any records, it was promising.

The prod was the Nassar cases. Then MSU settled with the victims before the house could proceed on the senate bill. As soon as these spotlighted cases were no longer on the horizon, Michigan representatives quickly amended the bill to restrict its scope, as described here.

Apparently pandering to the insurance, business, and religious lobbyists whom they treated with kid gloves when they testified, the extensions to age 48 were shortened. Now the civil extension is a miserly age 28. The one ray of sunshine is that the latest version also would add a three-year discovery rule for civil claims. Forget removing sovereign immunity (as MSU insisted as a precondition to the settlement). There would also be modest improvement in the criminal SOLs.

Then there is a Nassar-fashioned window, which is extraordinary: it only applies to abuse between January 1, 1997, and two years before enactment, only lasts for 90 days, and only applies to victims of medical professionals who happen to have been convicted. In other words, it’s literally crafted to reach no victims other than Nassar’s.

The Nassar window is a cruel back of the hand to the many church, school, sport, and family victims in the state, but the insurance, business, and religious lobbyists have obviously spoken. Lawmakers appear to be chagrined over the Nassar scandal— the jury is still out whether that is a result of sincere shame over a legal system that created the conditions for such extensive abuse or the fact of excruciatingly embarrassing public disclosure. But they are almost comical in their extreme effort to ignore every other victim right in front of them. There is no #MeToo movement in Michigan.

In sum, three bad states with bills that seemed optimistic in March have been turned sideways by big business and powerful lobbyists to keep victims silent. For those who thought a #MeToo movement was sweeping the country that would aid all victims of sex abuse and assault, think again. The structures of power don’t change that quickly or easily.

The SOL reform season is not over yet, however: North Carolina is seriously considering a window. All I can say is that the state’s victims need to keep an eye out for the chamber of commerce, insurance, and religious lobbyists in Raleigh.