[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1542 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 1542

   To provide certain immunities from civil liability for trade and 
                       professional associations.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 7, 1997

  Mr. Bono (for himself and Mr. Goode) introduced the following bill; 
          which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To provide certain immunities from civil liability for trade and 
                       professional associations.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Trade and Professional Association 
Free Flow of Information Act of 1997''.

SEC. 2. DEFINITIONS.

    As used in this Act--
            (1) the term ``trade and professional associations'' means 
        those organizations described in section 501(c) of the Internal 
        Revenue Code of 1986 that are exempt from tax under section 
        501(a) of such Code; and
            (2) the term ``State'' includes the District of Columbia 
        and any commonwealth, territory, or possession of the United 
        States.

SEC. 3. QUALIFIED IMMUNITY FROM CIVIL LIABILITY.

    Acts done for the purpose of transmitting information between and 
among trade and professional associations and their members regarding 
product defects, quality, or performance shall be immune from liability 
in any civil action, except to the extent such acts are proven by clear 
and convincing evidence to involve factual statements that are 
fraudulent, knowingly false, or made with a reckless indifference to 
their truth or falsity.

SEC. 4. SPECIAL MOTION TO STRIKE.

    A trade or professional association may file a special motion to 
strike any claim in any judicial proceeding on the ground that the 
claim is based on or relates to an act that is immune from liability 
under section 3. A party filing such a motion shall have the right to 
remove the case to Federal court pursuant to section 1331 of title 28, 
United States Code.

SEC. 5. REQUIRED PROCEDURES REGARDING SPECIAL MOTION TO STRIKE.

    On the filing of any motion under section 4--
            (1) the motion shall be treated as one for summary judgment 
        under Rule 56 of the Federal Rules of Civil Procedure or its 
        equivalent under the procedures of applicable State law;
            (2) the trial court shall hear the motion within a time 
        period appropriate for preferred or expedited motions;
            (3) the moving party shall have a right to an 
        interlocutory, expedited appeal from a trial court order 
        denying such a motion or from a trial court's failure to rule 
        on such a motion in expedited fashion;
            (4) discovery shall be suspended, pending decision on the 
        motion and appeal;
            (5) the responding party shall have the burden of proof of 
        going forward with the evidence and the burden of persuasion on 
        the motion;
            (6) the court shall make its determination based upon the 
        facts contained in the pleadings and affidavits filed;
            (7) the court shall grant the motion and dismiss the claim, 
        unless the responding party proves, by clear and convincing 
        evidence, that the acts of the moving party are not immunized 
from liability under section 3; and
            (8) the court shall award to a prevailing moving party its 
        costs of litigation, including reasonable attorney and expert 
        witness fees, incurred in connection with the motion.

SEC. 6. QUALIFIED IMMUNITY FROM THIRD-PARTY DISCOVERY.

    Trade and professional associations shall not be required to comply 
with subpoenas served by a party to a civil action regarding product 
defects, quality, or performance, to which the association is not a 
party, unless the party serving the subpoena has established by clear 
and convincing evidence that--
            (1) the materials or information sought by the subpoena are 
        directly relevant to the civil action; and
            (2) the party serving the subpoena has a compelling need 
        for the materials or information because they are not otherwise 
        available.

SEC. 7. SPECIAL MOTION TO QUASH.

    A trade or professional association may file a special motion to 
quash a subpoena in order to enforce the provisions of section 6. A 
party filing such a motion shall have the right to remove the case to 
Federal court pursuant to section 1331 of title 28, United States Code.

SEC. 8. REQUIRED PROCEDURES REGARDING SPECIAL MOTION TO QUASH.

    On the filing of any motion under section 7--
            (1) the trial court shall hear the motion within a time 
        period appropriate for preferred or expedited motions;
            (2) the moving party shall have a right to an 
        interlocutory, expedited appeal from a trial court order 
        denying such a motion or from the trial court's failure to rule 
        on such a motion in expedited fashion;
            (3) compliance with the subpoena shall be suspended, 
        pending decision on the motion and appeal;
            (4) the responding party shall have the burden of proof of 
        going forward with the evidence and the burden of persuasion on 
        the motion;
            (5) the court shall make its determination based upon the 
        facts contained in the pleadings and affidavits filed;
            (6) the court shall grant the motion and quash the 
        subpoena, unless the responding party proves, by clear and 
        convincing evidence, that the materials and information of the 
        moving party are not immunized from third-party discovery under 
        section 6; and
            (7) the court shall award to a prevailing moving party its 
        costs of litigation, including reasonable attorney and expert 
        witness fees, incurred in connection with the motion.

SEC. 9. QUALIFIED ASSOCIATION-MEMBER PRIVILEGE.

    A member of a trade or professional association shall not be 
required to disclose materials or information received from the 
association that--
            (1) relate to actual or anticipated litigation involving 
        product defects, quality, or performance,
            (2) are treated as confidential by the association and its 
        member, and
            (3) are communicated by the association to the member with 
        the reasonable expectation that the materials or information 
        will be used in connection with actual or anticipated 
        litigation and will be maintained in confidence,
unless the party seeking the information has established to the court, 
by clear and convincing evidence, that the materials or information 
sought are directly relevant to the litigation, and that the party has 
a compelling need for the materials or information because they are not 
otherwise available.

SEC. 10. PREEMPTION.

    This Act supersedes the laws of any State to the extent such State 
laws apply to matters to which this Act applies.
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