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Practice Tip: The SPILL Act

By Amy Rudd

Much has been said recently about the far-flung effects of the Gulf Coast oil spill, and much has been done to contain it. But thanks to a recent act of Congress, the oil spill may be seeping into product liability law. Meet the SPILL Act (Securing Protections for the Injured from Limitations on Liability), legislation drafted in response to the recent oil spill and designed to permit families of deceased oil workers to recover non-pecuniary damages from those responsible. Buried in the Act is Section 5, a proposed amendment to the Class Action Fairness Act ( CAFA), which would redefine class actions to exclude actions brought by a State or subdivision of a State on behalf of its citizens. On its face, this amendment appears to allow state AGs to avoid federal jurisdiction and pursue parens patriae actions ' suits brought by AGs on behalf of their injured citizens in state court without the threat of removal.

So what's the problem? Proponents of Section 5 would argue state AG actions were never subject to federal jurisdiction, that CAFA has long been misinterpreted to apply to parens patriae actions, and that this amendment just clarifies what was supposed to be the law after CAFA. Detractors would argue that this amendment will allow state AGs to game the system and pursue what should be private class actions in their more class action-friendly home courts. That, opponents will say, would fundamentally undermine the very purpose of CAFA.

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