I
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 Representa-
tives 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 associa-
tions’’ means those organizations described in sec-
tion 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 pos-
session of the United States.
SEC. 3. QUALIFIED IMMUNITY FROM CIVIL LIABILITY.
Acts done for the purpose of transmitting informa-
tion between and among trade and professional associa-
tions and their members regarding product defects, qual-
ity, 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 reck-
less 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 MO-
TION TO STRIKE.
On the filing of any motion under section 4—
(1) the motion shall be treated as one for sum-
mary judgment under Rule 56 of the Federal Rules
of Civil Procedure or its equivalent under the proce-
dures 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 deci-
sion 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 dis-
miss 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 at-
torney and expert witness fees, incurred in connec-
tion with the motion.
SEC. 6. QUALIFIED IMMUNITY FROM THIRD-PARTY DISCOV-
ERY.
Trade and professional associations shall not be re-
quired to comply with subpoenas served by a party to a
civil action regarding product defects, quality, or perform-
ance, 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 com-
pelling 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 provi-
sions 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 MO-
TION 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 sus-
pended, 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 at-