H.R. 985, a Republican bill that skews class action and mass tort litigation in favor of big corporate defendants — at the expense of injured plaintiffs and trial attorneys — has passed the House of Representatives by a vote of 220 to 201.
The US Senate will now consider the intentionally-misnamed “Fairness in Class Action Litigation Act of 2017.” The bill has been referred to the Committee on the Judiciary.
The ACLU joined 120 other civil rights organizations and advocates in opposing H.R. 985. “H.R. 985 adds years of additional delay, expense, and disruption,” the ACLU says. “The bill would undermine the enforcement of the nation’s civil rights laws and upend decades of settled class action law.” The ACLU offers a downloadable letter opposing the bill at https://goo.gl/jokQ8W
The Center for American Progress called the anti-consumer bill, “A new attack on civil rights,” adding that the bill “is just the latest in a series of congressional and executive actions that will precipitously widen the justice gap—the gap between legal needs and services available.”
- The bill allows for an automatic appeal – in the middle of every case – of the class certification order. Such appeals are extraordinarily disruptive and typically add one to three years to the life of the case. While the case sits in an appellate court, expenses and fees rise, memories fade, and injured victims remain without justice. Automatic appeals of all class certification orders will clog our already-taxed Courts of Appeals.
- The bill similarly builds in an automatic stay of discovery in the district court when an alleged wrongdoer files any one of a list of motions. This is an invitation for gamesmanship and delay, and will deprive judges of the ability to properly manage their cases.
- The bill applies to all cases pending upon the date of enactment. This means that hundreds of cases that have been litigated and certified under existing law would start from scratch with new standards, new class certification motions, and new automatic interlocutory appeals. The resulting waste of judicial resources would be enormous.
Targeted at trial lawyers
The bill is specifically targeted at plaintiff trial lawyers. For example it will:
- Limit the fees to attorneys in multi-district proceedings to no more than 20 percent of the total recovery. The Congressional Budget Office stated in a March 6 cost estimate that it would cause an annual loss of net income to attorneys of $156 million in 2017 alone.
- Prohibit the payment of fee awards to attorneys in class-action cases until the distribution of any monetary recovery to class members has been completed.
Howard M. Erichson, a professor at Fordham University School of Law called the bill “a terrible idea,” adding that “it looks like a crass effort to minimize any change of liability for defendants even if they have violated the law.” For example, the bill:
- Imposes certain disclosure requirements on class counsel. In every class action complaint filed in federal court, class counsel would be required to “describe the circumstances under which each class representative or named plaintiff agreed to be included in the complaint and … identify any other class action in which any proposed class representative or named plaintiff has a similar role.”
- Imposes a new and impossible hurdle for class certification. It requires that the proponents of the class demonstrate that “each class member has suffered the same type and scope of injury.” At this early stage of a civil rights class action, it is frequently impossible to identify all the victims or the precise nature of each of their injuries.
- Limits the court’s ability to certify “particular issues” class actions. Federal courts would be unable to enter class certification orders on “particular issues… unless the entirety of the cause of action from which the particular issues arise satisfies” various requirements in Rules 23(a) and (b).
“So far from being a “fairness” measure to aid “consumers,” the legislation would crown a decadeslong campaign of the United States Chamber of Commerce and other business interests, abetted by an increasingly conservative Supreme Court and Republicans in Congress, with no goal but to make consumer class recoveries impracticable,” write Chris Sagers and Joshua P. Davis in the New York Times.