Joint replacements are the #1 expenditure of Medicare. The process of approving these medical devices is flawed according to the Institute of Medicine. It is time for patients' voices to be heard as stakeholders and for public support for increased medical device industry accountability and heightened protections for patients. Post-market registry. Product warranty. Patient/consumer stakeholder equity. Rescind industry pre-emptions/entitlements. All clinical trials must report all data.
Please share what you have learned!
Twitter: @JjrkCh

Friday, April 28, 2017

Johnson & Johnson shareholders: are you listening? Divest or be complicit!

POSTED:APR 28 2017 03:07PM EDT
UPDATED:APR 28 2017 03:09PM EDT  FiDA Highlight
PHILADELPHIA, PA (WTXF) - On Friday, April 28, a jury handed down a $20 million verdict against Johnson & Johnson for injuries suffered by a New Jersey woman after being implanted with a vaginal mesh device.
The verdict was the third consecutive eight-figure award against the corporate giant in a mesh case in a Philadelphia courtroom.

The award—$2.5 million in compensatory and $17.5 million in punitive damages—for Peggy Engleman, now 56, of Cinnaminson, followed a three-week trial in Common Pleas Court in which her attorneys claimed the TVT-Secur medical device was not only defective but that J&J and its Ethicon subsidiary had failed to warn of its risks, risks they had been well aware of while continuing to market the product.

Engleman was implanted with the device in 2007 to relieve stress urinary incontinence, a leakage caused by things such as exercise or coughing. But within a month the TVT-Secur failed and Engleman's stress urinary incontinence returned.
She began experiencing pain and discomfort when the polypropylene mesh started to erode inside her body. Despite three subsequent surgeries, doctors were unable to remove all the remaining mesh.
As a result, Engleman now suffers chronic vaginal pain and pelvic floor spasms. She also developed permanent urinary dysfunction.
“I'm happy I could be a voice for other women,” Engleman said after the verdict. “It's been a nightmare, and I feel justice was truly served today."
The vaginal mesh product in Engleman’s case, the TVT-Secur, was launched in September 2006 but, as her attorneys noted, J&J had already had numerous reports of high failure rates from countries all over the world.
"This jury sent a strong message today to Johnson & Johnson that they continue to hear in courtrooms across the country—our communities deserve better than these dangerous mesh devices and putting profits before safety will not be tolerated," said lead plaintiff’s counsel Benjamin Anderson.

“The jury made the right decision,” added Thornburgh. “They looked at the evidence and heard the testimony and decided that the company had rushed the product to the market, did woefully inadequate studies and didn’t warn about the risks. So we feel they made the right decision and our client will finally get justice.”
Said Gomez: “The jury spoke and they sent a message that J&J and Ethicon need to take responsibility.”
The verdict was the third straight against a J&J vaginal mesh product in which the plastic-like device eroded inside a patient, leaving shards of mesh that doctors were unable to entirely remove.

The first two cases, in 2015 and 2016 respectively, produced verdicts of $12.5 million for an Indiana woman and $13.5 million for a Toms River, N.J., woman.

Friday, April 21, 2017

Survey: 95% of Chronic Pain Patients Report Harm by New CDC Opioid Guidelines

April 18, 2017
FiDA highlight

This large survey of pain patients and healthcare providers found that most patients had an unfavorable impression of CDC Opioid Prescribing Guidelines, which were released in March 2016.

Interview with Paul Christo, MD, MBA, and Pat Anson, National Pain Report editor
An online survey by Pain News Network (PNN) and the International Pain Foundation1 found that both patients and healthcare providers have an overwhelmingly unfavorable impression of the Centers for Disease Control and Prevention (CDC)’s voluntary opioid prescribing guidelines, first released in March 2016.2
More than 3,100 chronic pain patients and 278 doctors, pharmacy employees, and other healthcare professionals took the survey in early 2017; results suggest that about 95% of patients believe that the CDC's guidelines hurt pain patients. About 40% of healthcare providers thought the new guidelines were hurting patients, and another 30% didn’t know.
Almost half of patients reported having a harder time finding doctors to treat their chronic pain, and close to 85% are in more pain, likely due to the fact that about 70% of them are now being prescribed lower doses of opioids—or none at all. (Editor's Note: About two-thirds of PNN readers use opioids to manage their pain.3)
Some patients are hoarding opioids (22%) and/or getting hold of then illegally (11%). More than 42% of respondents have considered suicide. At the same time, 85% of patients and more than 65% of healthcare providers think the guidelines have not reduced opioid abuse or overdose.

About the Survey
The survey was created by PNN President and Editor in Chief Pat Anson, in consultation with several pain experts. Respondents were recruited via PNN’s email newsletter, website, social media, and through affiliates.
While it was not a scientific study, “I do think it's a fairly good indication that the guidelines have resulted in harm to many patients, and created a fair amount of uncertainty and even fear among prescribers,” Anson said.
Are Attempts to Curb Abuse Misguided?
The survey also found that “relatively few patients were referred to addiction treatment (4%) or were discharged for failing a drug test (4%)” Anson pointed out. “That would indicate to me that the misuse and abuse of opioid medication is rare among pain patients—yet they are often blamed for fueling the nation's opioid epidemic.”  
“Most patients with chronic pain using opioids therapeutically do so responsibly,” agreed pain specialist Paul J. Christo, MD, MBA, a Practical Pain Management Editorial Board Member who also hosts a radio show “Aches and Gains.”4
He cited a recent study showing that less than 13% of patients “presenting to the emergency room for opioid overdoses carried a diagnosis of chronic pain.5 Unfortunately, the war on opioids is hurting certain patients who need them the most.” Dr. Christo is Associate Professor in the Department of Anesthesiology and Critical Care Medicine at Johns Hopkins University School of Medicine in Baltimore.
Interpreting the Guidelines
Among other recommendations, the CDC urges primary care physicians to exercise caution in prescribing 50 or more morphine milligram equivalents (MME) a day, and avoid prescribing 90 MME or more a day. Note: the CDC guidelines are designed for primary care physicians, and are not meant for specialists. In fact, the American Pain Society and the American Academy of Pain Medicine, which represent pain specialists, consider 200 or more MME a high dose.6
Furthermore, while the guidelines are voluntary, “Too many providers [30%, according to the survey] either don't know [that], or believe the guidelines are mandatory,” Anson noted, adding that the guidelines are prompting insurers to decline to cover long-term opioid treatment. Indeed, 57% of healthcare providers reported that insurance companies have refused to cover pain treatment they thought patients should receive.
Anson added that federal agencies are also making some guidelines mandatory: A new law in Maine, for instance, prevents doctors from prescribing chronic pain patients (not including those receiving cancer treatment or palliative care) more than 100 MME a day, and patients currently taking more than that should taper down by July 2017.7,8 In North Carolina, the state’s medical board, which adopted and endorsed the CDC’s guidelines,9 may now investigate some opioid prescribers.10 These kinds of laws help illustrate why more than 35% of health care providers worry about being prosecuted or sanctioned for prescribing opioids, according to the survey.
“The survey indicates that we need to strongly support patients … and highlights the chilling effect the CDC guidelines are having on the lives of chronic pain patients,” Dr. Christo said.

“Doctors and patients also agreed overwhelmingly that the guidelines have worsened the quality of pain care, not improved it,” Anson concluded. “Insurers may think they are reducing costs and reducing liability by making it harder for doctors to prescribe pain medication, but in the long run they are creating millions of chronically ill patients that are bedridden, unable to work, or disabled because their pain is untreated or under-treated. The long-term costs to society will be immense, and we're just starting to see the fallout.”

Regulatory Watchdogs Complicit With Medical Device Industry: A Case In Mesh

NHS and medical devices regulator tried to limit scandal over vaginal mesh implants

Minutes show NHS England and MHRA worked together to try to ‘avoid media attention’ of problems faced by women

Friday 21 April 2017 11.19 EDT
Last modified on Friday 21 April 2017 12.43 EDT
NHS bosses and the watchdog that oversees medical devices tried to limit public exposure of the scandal over vaginal mesh implants that have harmed hundreds of women.
Minutes of a meeting held in October 2016 show that NHS England and the Medicines and Healthcare Products Regulatory Agency (MHRA) agreed to “avoid media attention” over the implants, despite the fact they were seeking to encourage patients to report any complications.
More than 800 women sue NHS and manufacturers over vaginal mesh implants

The document, obtained by the Press Association, records an agreement to “take the press element out” of the “yellow card” campaign to record adverse reactions experienced by vaginal mesh patients, suggesting that it could be incorporated into a wider effort, “of which mesh is one element, to avoid media attention on mesh”.

The apparent cooperation between NHS England and the MHRA to minimise media focus on the debilitating problems increasingly associated with the implants appears to breach the NHS’s duty – reiterated regularly by the health secretary, Jeremy Hunt – to be open and transparent over patient safety failings.
NHS England and the Department of Health both refused to comment on the minutes of the meeting.
MHRA officials said the minutes were more than six months old and the conversation noted in them was one of many conversations held during one of many oversight meetings about the issue.
The campaign, when it begins, will aim to ensure that both women and healthcare professionals know that there is no time limit on reporting complications with mesh devices. It will include engagement with the media, officials stressed. 
An MHRA spokeswoman said: “Patient safety is our highest priority and we are committed to help address the serious concerns raised by some patients. MHRA strongly encourages the reporting of issues related to all medical devices. When promoting reporting it is important to strike a balance between causing undue concern to patients who may benefit from a procedure and making sure they are aware of the potential complications.”
One possible reason for the NHS to want to limit exposure of the issue could be to reduce the number of potential lawsuits faced by the health service.
More than 800 women are suing the NHS and the manufacturers of the implants after suffering serious complications, it emerged this week. Some women reported that implants had cut into their vaginas, with one woman saying she was left in so much pain that she considered suicide. Others have been left unable to walk or have sex, according to the BBC.
Vaginal mesh implants are used to treat incontinence after childbirth or pelvic organ prolapse, where the womb or bladder bulge against the walls of the vagina. Between 2006 and 2016, more than 11,000 women in England were given the implants to treat prolapse or incontinence, NHS data shows.
About 11% to 12% of users have reported problems, while lawsuits in the US have already seen about $2bn (£1.5bn) paid to affected women.
Campaigners say that hundreds more women have come forward after learning of the group planning to sue.

What's your experience of vaginal mesh implants?

Kath Sansom, who runs the campaigning website and Facebook group Sling the Mesh, says the number of women contacting her has risen from a few people a day to more than 200 in the past 24 hours.
“It’s always the same story,” she said. “There are so many women who were told it was just them, that they were a one-off. They can’t believe there are others out there. So many people are told it’s back pain, endometriosis, gall bladder pain, scar tissue. And so many of them accept it, you trust medical professionals.”
Data from the MHRA, which has been looking at the issue since 2011 after complaints from women, shows more than 1,000 adverse incidents have been reported in the past five years. 
Despite the problems that have emerged the MHRA insists the best current evidence supports the continued use of the implants to resolve health conditions that could themselves cause serious distress to patients.
A report into the issue from a working party led by NHS England admits there is a huge lack of data on complications from the devices. Published studies on mesh implants do “not tell the whole story” and there are gaps in NHS knowledge about their safety, it added.

Since you’re here …
… we’ve got a small favour to ask. More people are reading the Guardian than ever, but far fewer are paying for it. Advertising revenues across the media are falling fast. And unlike many news organisations, we haven’t put up a paywall – we want to keep our journalism as open as we can. So you can see why we need to ask for your help. The Guardian’s independent, investigative journalism takes a lot of time, money and hard work to produce. But we do it because we believe our perspective matters – because it might well be your perspective, too.
If everyone who reads our reporting, who likes it, helps to support it, our future would be much more secure.

Tuesday, April 18, 2017

Hernia Mesh Harm: Canada Health

Published Monday, April 17, 2017 10:00PM EDT CTV Staff  FiDA highlight
Warning: Some of the content may be disturbing to some viewers
There is growing concern over the number of recalls of hernia mesh in Canada, as patients speak out about complications they believe are linked to the surgical device.
Patients across the country contacted CTV News after a story on health problems linked to hernia mesh aired last month.
Patient Ivan Richardson said his hernia mesh has caused him ongoing, unexplained pain.
"You couldn't even touch me, I would cry, I mean literally cry and I went to the doctor and they kept saying they couldn't find nothing," Richardson said in an interview with CTV News.

That is until one doctor cut open his abdomen. There, what was supposed to be flat plastic mesh was rolled up inside Richardson's torso.
Even with part of it removed, Richardson said he still suffers.
"It will feel like a bunch of little needles," he said. "I assume that is the edge of the plastic mesh. I'm scared to do anything anymore, really."
Figures from Health Canada show that some 12 brands of hernia mesh have been recalled or removed from the Canadian market since 2000.
Some were linked to infections and perforations. There were 185 reports of serious injury and other complications, including three deaths.
Still, studies indicate the majority of hernia mesh patients have no problems, and its use is on the rise.
Data shows mesh helps improve recovery and lowers hernia recurrence.
But Dr. John Morrison, president of the Canadian Hernia Society, warns it may be used too often given the growing questions of the harm being done to some patients. In some cases, he said, mesh may not be required.
As part of his practice, Dr. Morrison often removes mesh that's shifted and punctured organs.
"I've seen pictures of it in the bladder, I've seen mesh in the stomach," Morrison told CTV News. "The mesh can erode into other organs over a period of time."
Morrison said studies show 10-20 per cent of people are left with chronic pain.
"It is a very serious phenomenon that's happened," Morrison said.
The physician said if the pain persists longer than three months, a hernia patient should find another physician or a hernia surgeon.
Morrison called the complications an "epidemic, and unfortunately, there's no end in sight, it's going to get worse because almost all hernias are now repaired with mesh."
Dr. Morrison advises patients who are scheduled for hernia surgery to "ask their surgeon if they're going to be using mesh, ask them exactly what type of hernia they have, why the mesh is being used.
He said prior to the operation, a patient should read on the internet the effects of the mesh being used on the hernia they're having repaired.
"An educated patient is the number one thing that will solve this problem," Morrison said.
There is research underway to try to better understand these emerging complications. The research will be of vital importance to the thousands of Canadians who have hernia surgery every year.

With a report by CTV medical specialist Avis Favaro and producer Elizabeth St. Philip

Friday, April 14, 2017

Doctors: Ignorance of the Law Harms Patients (& Destroys Your Future, Too)

by Joanne Finnegan | Apr 13, 2017 12:37pm  FiDA highlight

A doctor convicted of accepting a bribe now warns future physicians to never accept anything from drug and device manufacturer reps.

A New York doctor, who is now a convicted felon, is warning other doctors about the dangers of accepting bribes from drug and device representatives.
Michele Martinho, who faces the possibility of jail time and the loss of her medical license when she is sentenced, pleaded guilty in 2014 to one count of accepting a bribe. This week she spoke to a small audience at the Georgetown University School of Medicine, telling her story as a warning to future doctors, according to The Washington Post.
While she learned about medicine, Martinho said her training did not prepare her for the business of medicine.
Martinho was one of more than two dozen doctors who have pleaded guilty in a $200 million health fraud scheme operated by the now-defunct blood-testing company Biodiagnostic Laboratory Services in New Jersey. She accepted monthly payments of $5,000 to refer patients to the lab for blood tests and other screenings, the newspaper said.
She told students her life has been “destroyed,” and she advised them to never accept anything from drug, device and other representatives who parade through doctors’ offices and to consult an attorney who specializes in medical practice with any questions.
Martinho accepted $155,000, always in monthly envelopes full of cash, and acknowledged she knew she was evading tax laws when she took the money, the newspaper said. However, she says she did not understand that the referral itself was considered a kickback.

Now she speaks at healthcare and ethics institutions, but doesn’t know if her efforts at "restorative justice" will help at sentencing.

Wednesday, April 12, 2017

Johnson & Johnson toxic metal-on-metal hips: trial 'discovery' exposes secrets of scandal

11 APRIL 2017 • 10:00PM  The Telegraph
British patients were fitted with controversial hip implants despite the company behind them being warned by experts that the type of device was unsafe, secret documents reveal.
A senior engineer working for DePuy reported in 1995 that metal-on-metal constructions were “unpredictable” and parts prone to “catastrophic breakdown” five years before DePuy’s hips began to be implanted in Britons.
More than 20,000 patients were later fitted with the implants, which experts say can deposit toxic ions into the bloodstream as they wear. Thousands  were left in agony and had to have costly operations to have them replaced with safer alternatives.

Andrew Selous, a Conservative MP on the Commons health committee,  described the disclosure as “appalling”, saying: “If the company was aware of problems, they should have acted on the precautionary principle.”
A Daily Telegraph investigation today exposes a series of previously unseen memos, reports and emails, obtained from DePuy, that raised questions about the safety of metal-on-metal devices.
Dr Graham Isaac, a senior engineer based in DePuy’s Yorkshire factory, warned in a 1995 report that testing showed metal implants were “working well for a period of time” before wearing down, prompting the “release of a large volume” of debris.
In the same year, a surgeon advising DePuy told the firm that “we need to be cautious of the legal/litigation issues, lawyers etc ... perception of metal debris and metal ion release.” 

More than two decades later, the firm faces thousands of legal claims by patients who say they have suffered as a result of the metal-on-metal joint subsequently produced by DePuy wearing away in their bodies.

The Telegraph’s investigation also reveals how: 
  • Senior company figures were told in 2003 that one surgeon had already collected “a lot of bad data about metal-on-metal debris” in patients who had received DePuy implants; 
  •  A 2005 report warned that risks to patients of metal-on-metal were “as yet undetermined” but “the risk to DePuy may be major in terms of product liability or business impact”; 
  • An internal email in September 2008 acknowledged there were “growing concerns over metal-on-metal hips”. Surgeons needed “a high stability non-metal option”; 
  • Tony Nargol, a surgeon based in North Tees, repeatedly told DePuy from around 2008 about problems with its implants but was labelled an “outlier” and told his patients may simply have high volumes of metal in their blood because of a local “water supply problem”; 
  • A report commissioned by the company in 2008 about the use of one of DePuy’s first metal-on-metal implants found that tiny particles released from the devices “have killed the bone” and soft tissues around the hip and “resulted in the tendons ripping away”. 
The papers, filed in a US court, include an email from John Irving, a US orthopaedic surgeon, in 2010, forwarded internally to the company’s president, insisting that “it borders on unethical to continue to market” the Pinnacle type of metal-on-metal hips “until the issues are elucidated”. 
The metal ions released have killed the bone and soft tissues around the hip replacement resulting in:
a. Fluid retention often under high pressure causing pain
b. Tendon rupture causing hip dislocation
c. Bone death resulting in fractures around the implant

Excerpt from Investigation into the Performance of the Ultima Metal-on Metal Hip Replacement, East Norfolk and Waveney Research Consortium, 2008
He accused the firm of a “head-in-the-sand response to this problem” and warned that “the products are harming patients” – three years before the implant was eventually discontinued.

DePuy’s Pinnacle implant was first used in the UK in 2002, with the ASR, another metal-on-metal device, released two years later. They were promoted as offering better mobility than devices that used a metal ball and plastic socket.
In his 1995 memo, Dr Isaac, now “distinguished engineering fellow” at the firm, examined data on metal-on-metal hips produced by rival companies. He wrote: “It is clear from the literature the survivorship of cobalt chromium [the materials used in metal implants], metal-on-metal prostheses in the past have been far from satisfactory.
Paul Peters MD: We need to be cautious of the legal/litigation issues and lawyers etc… perception of metal debris and metal-ion release.

Minutes from the first Alternate Bearing Project designing surgeon meeting, May 1995
“Manufacturing methods have improved. However, simulator testing of such components suggests their performance is as unpredictable as ever, working well for a period of time before suffering a sudden catastrophic breakdown of the bearing surface accompanied by a release of a large volume of wear debris.”
He quoted an expert warning that the combination of metal with metal was “likely to give rise to toxic levels of metal under clinical conditions”.
I do not feel DePuy is doing enough to understand the extent of Pinnacle MOM hip disease. I believe it borders on unethical to continue to market the product until the issues are elucidated. These products are harming patients. DePuy needs to contact physicians that have used the product and encourage them to contact their patients for an urgent follow-up. Many of our hips have asymptomatic osteolysis!

Excerpt of letter to DePuy head of US marketing, Paul Berman, from John F Irving MD
The document was part of papers read out in a Texas court, where patients are suing DePuy over the Pinnacle implant. They were passed to the Telegraph by their lawyers. 
Mark Lanier, a lawyer,  said: “These documents show that DePuy knew this hip would fail.”
DePuy’s lawyers have said in court that the company had “always warned about the potential for a tissue reaction in a metal-on-metal device”.
A spokesman said patient safety was its “first priority” and it “acted appropriately and responsibly in the design and testing” of the Pinnacle.

The implant was cleared for sale by national regulators and “is backed by a strong track record of clinical data showing reduced pain and restored mobility for patients suffering from chronic hip pain”.
The spokesman added that the plastic and ceramic alternatives also “wear and produce debris”, and “the body reacts to any foreign material”.
Boz Michalowska Howells, representing more than 300 UK claims, said  it “appeared to be commonly known in the 90s that metal-on-metal hips cause could adverse reactions and it should have rung alarm bells”. 
Metal implants put under scrutiny

  • 2002

    Pinnacle hip implants, including metal-on-metal type, sold in UK by DePuy

  • March 2004

    DePuy sells its ASR metal-on-metal implants in Britain

  • 2008

    DePuy aware some metal-on-metal parts for Pinnacle Ultamet “were slightly outside our manufacturing specifications”. Internal investigation finds it would not cause “safety issues”

  • August 2010

    DePuy recalls its ASR Hip System “after receiving new information from the UK National Joint Registry as part of the company’s ongoing surveillance of post-market data”

  • June 2011

    US Food and Drug Administration report states that “production capabilities for the Pinnacle metal-on-metal liners and femoral heads at the Leeds facility should be reviewed”

  • June 2012

    Medicines and Healthcare Products Regulatory Agency guidelines say larger metal-on-metal hip implants should be checked for “life”, not just five years, with tests for metal particles in patients’ blood

  • March 2013

    DePuy announces “discontinuation” of Pinnacle Ultamet device “because of low clinician use”

J&J Lawsuits on Recalled Elbow Replacement: Deja vu all over again . . .


Johnson & Johnson (NYSE:JNJ) is recalling its DePuy Synthes radial head prosthesis because of the risk of loosening in the component that anchors the implant in the arm’s radius bone.
The entire prosthesis is designed for primary and revision replacement of the radial head, but only the radial stem surgeons insert into the radius is involved in the loosening issue, according to a letter the J&J unit sent to physicians Dec. 30, 2016.
“Based on the currently available data, we believe the cause to be multifactorial (including possible product characteristics, operative and patient factors), but we have not been able to fully characterize these factors. Consequently, we have not been able at this time to issue further instructions to surgeons that might lead to a reduction in issue rate and have decided to remove the DePuy Synthes Radial Head Prosthesis Stem from the global market,” the company wrote.
If the radial stem loosens, the risks include osteolysis, poor joint mechanics, pain, post-operative fracture and soft tissue damage, J&J said.
Patients already implanted with the device should be followed as normal and the device will still be available on request for revision surgeries “in which only the head would be replaced using the evaluation or loaner set programs only,” according to the letter.

DePuy Elbow Implant Lawsuit Evaluations Offered By Bernstein Liebhard LLP Following Class II Recall for Synthes Radial Head Prosthesis System

NEW YORK, April 11, 2017 /PRNewswire/ -- The nationwide law firm of Bernstein Liebhard LLP is now investigating potential product liability lawsuits involving the recall of more than 50,000 DePuy Synthes Radial Head Prosthesis Systems The DePuy elbow implant components were removed from the global market in December out of concern that the radial stem could loosen at the stem-bone interface following implantation. The U.S. Food & Drug Administration (FDA) has declared this action a Class II medical device recall, which indicates that recipients of the DePuy Synthes Radial Head Prosthesis System may be at risk for temporary or medically reversible health consequences.
"Individuals who allegedly suffered complications related to this DePuy elbow implant recall could be entitled to compensation for medical bills, lost wages and other injury-related damages. However, it is important that those affected act quickly to ensure that their legal rights are protected," says Sandy A. Liebhard, a partner at Bernstein Liebhard LLP, a nationwide law firm representing victims of defective drugs and medical devices. The Firm is now offering free, no-obligation case reviews to individuals who may be eligible to file a DePuy elbow implant lawsuit.

 DePuy Synthes Radial Head Prosthesis System
The DePuy Synthes Radial Head Prosthesis System was cleared via the FDA's 510(K) protocols in June 2011, which do not require human clinical trials when a device is shown to be "substantially equivalent" to a product that was previously approved by the agency. The DePuy elbow implant system is indicated for primary and revision replacement of the radial head.
DePuy Synthes announced that it was removing the Radial Head Prosthesis System from the worldwide market in December 2016, due to the potential for the radial stem to loosen at the stem-bone interface. Complications associated with radial-stem loosening include:
  • Osteolysis
  • Poor joint mechanics
  • Pain
  • Post-operative fracture
  • Soft tissue damage
DePuy Synthes noted that multifactorial issues (including possible product characteristics, as well as operative and patient factors) could be to blame for radial-stem loosening. Because it was unable to determine the exact cause, the company could not issue further instructions to surgeons that might mitigate the problem.
The FDA granted the DePuy elbow implant recall a Class II designation in February 2017.
 Patients who experienced complications related to radial-stem loosening of the DePuy Synthes Radial Head Prosthesis System may be entitled to compensation. To learn more about filing a DePuy elbow implant lawsuit, please visit Bernstein Liebhard LLP's website, or call 800-511-5092 to arrange for a free, no obligation case review.
About Bernstein Liebhard LLP
Bernstein Liebhard LLP is a New York-based law firm exclusively representing injured persons in complex individual and class action lawsuits nationwide since 1993. As a national law firm, Bernstein Liebhard LLP possesses all of the legal and financial resources required to successfully challenge billion dollar pharmaceutical and medical device companies. As a result, our attorneys and legal staff have been able to recover more than $3.5 billion on behalf of our clients. Bernstein Liebhard LLP is honored to once again be named to The National Law Journal's "Plaintiffs' Hot List," recognizing the top plaintiffs firms in the country. This year's nomination marks the thirteenth year the firm has been named to this prestigious annual list.
Bernstein Liebhard LLP 
10 East 40th Street 
New York, New York 10016 
ATTORNEY ADVERTISING. © 2017 Bernstein Liebhard LLP. The law firm responsible for this advertisement is Bernstein Liebhard LLP, 10 East 40th Street, New York, New York 10016, 800-511-5092. Prior results do not guarantee or predict a similar outcome with respect to any future matter.
Contact Information: 
Sandy A. Liebhard, Esq. 
Bernstein Liebhard LLP 
info (at)consumerinjurylawyers(dot)com

Friday, April 7, 2017

The U.S. House of Representatives Takes Away Your Civil Rights: HR 985

 H.R. 985, the ``Fairness in Class Action Litigation Act of 
2017,'' represents the latest attempt to tilt the civil justice 
playing field in favor of corporate defendants and to deny 
consumers and members of the public access to justice. The bill 
aims to eliminate the use of class actions by imposing numerous 
new and unnecessary requirements for the certification and 
consideration of class action lawsuits and also by creating new 
onerous requirements for multidistrict litigation. In addition, 
the bill amends the remand statute in a way that could make it 
easier for defendants to have certain personal injury and 
wrongful death actions be heard in Federal court.
    Class actions are a critical tool for allowing those 
injured by corporate wrongdoing to receive some measure of 
justice by making it economically feasible to pursue claims 
that are too small or too burdensome to pursue on an individual 
basis, but are nonetheless meritorious. Class actions are also 
an important enforcement mechanism and are particularly vital 
in consumer protection, civil rights, antitrust, personal 
injury, and employment cases. Finally, they promote the 
efficient consideration of numerous cases raising substantially 
the same factual and legal questions, thereby lessening burdens 
on courts. By making most class actions very difficult if not 
impossible to pursue, H.R. 985 undermines these important 
    H.R. 985 is highly problematic for many reasons. To begin 
with, the bill is a solution in search of a problem because it 
appears to be based on the false premise--offered with no 
supporting evidence--that Federal courts are routinely failing 
to comply with the rigorous requirements for certifying class 
actions specified in Federal Rule of Civil Procedure 23. 
Indeed, the false notion that many class actions and 
multidistrict proceedings are somehow inherently fraudulent or 
improper is implicit throughout the bill. In fact, what 
proponents appear to be concerned with is not the fact that the 
requirements of class certification and multidistrict 
litigation are unfair, but that they are not skewed decisively 
in corporate defendants' favor.
    In addition, H.R. 985 undermines the core purpose of class 
actions and multidistrict litigation, which is to ensure 
efficiency in the disposition of numerous but substantially the 
same claims or factual questions and to provide access to 
courts for parties that, individually, would not have the 
incentive or resources to pursue otherwise meritorious claims. 
Rather, the bill's numerous, vague or impossible-to-meet 
certification and other requirements will only foster more 
litigation, increase burdens and costs that would fall 
disproportionately on plaintiffs, and allow more opportunities 
for corporate defendants to have a case dismissed or to engage 
in dilatory tactics. Also, its attorneys' fee and ``conflict of 
interest'' provisions aimed specifically at class counsel 
appear designed to make it harder for plaintiffs to obtain 
legal representation in the first place.
    Finally, the bill would substantially and needlessly 
increase resource burdens on the Federal courts, significantly 
reduce judicial discretion in many respects, and unnecessarily 
circumvent the careful and thorough Rules Enabling Act process 
for amending Federal civil procedure rules.\1\ In fact, the 
Judicial Conference of the United States reports that it has 
been ``studying class action for the last five years'' and 
``has considered many of the issues addressed in H.R. 985.''\2\ 
Accordingly, the Judicial Conference ``strongly urge[s] 
Congress not to amend the class action procedures found in Rule 
23 outside the Rules Enabling Act process.''\3\
    \1\28 U.S.C. Sec. Sec. 2071 et seq. (2017).
    \2\Letter from Daniel G. Campbell, U.S. District Judge, D. Ariz., 
Chair, Comm. on Rules of Practice and Procedure, & John D. Bates, U.S. 
District Judge, D.D.C., Chair, Advisory Comm. on Civil Rules, Judicial 
Conference of the United States, to Bob Goodlatte (R-VA), Chair, H. 
Comm. on the Judiciary (Feb. 14, 2017) (on file with H. Comm. on the 
Judiciary Democratic staff) [hereinafter ``Judicial Conference 
    We are also concerned that the Majority has failed to 
accord any deliberative process to this legislation, which was 
introduced only days before the Committee considered it for 
markup. No hearings have been held this Congress and the 
version of the bill considered last Congress only consisted of 
one section of H.R. 985. Indeed, the Committee's markup of H.R. 
985 represented the first vetting of any kind for most of these 
provisions. In its opposition to this measure, the American Bar 
Association correctly notes the many shortcomings of 
``advancing comprehensive class action reform without a hearing 
to examine all the complicated issues involved with so many 
rule changes.''\4\
    \4\Letter from Thomas M. Susman, Director, Governmental Affairs 
Office, American Bar Association to Bob Goodlatte (R-VA), Chair, H. 
Comm. on the Judiciary (Feb. 14, 2017) (on file with H. Comm. on the 
Judiciary Democratic staff) [hereinafter ``ABA Letter''].
    In recognition of these many concerns, numerous labor, 
consumer rights, and public interest groups oppose H.R. 985, 
including the AFL-CIO, the Alliance for Justice, the American 
Antitrust Institute, the Center for Science in the Public 
Interest, Consumer Federation of America, Consumers Union, the 
Committee to Support the Antitrust Laws, the NAACP, the 
National Association of Consumer Advocates, the National 
Consumer Law Center, the National Employment Law Project, 
Public Citizen, Public Justice, and the Southern Poverty Law 
Center.\5\ The bill is also opposed by a coalition of 121 civil 
rights groups as well as a coalition of 37 disability rights 
groups.\6\ In addition, the Obama Administration threatened to 
veto legislation last Congress that consisted of just one 
section of H.R. 985 because ``it would impair the enforcement 
of important Federal laws [and] constrain access to the 
courts.''\7\ Finally, Professor Arthur Miller, the Nation's 
foremost scholar of Federal civil practice and procedure, wrote 
in opposition to this earlier iteration of the bill because it 
violated the central mandate of the class action device, which 
is to promote judicial efficiency through the use of class 
representatives to establish injury on behalf of all similarly 
situated. Rather than addressing these concerns, the current 
version of H.R. 985 greatly exacerbates them.
    \5\Letter from 72 consumer rights, public interest, and labor 
groups to Bob Goodlatte (R-VA), Chair, & John Conyers, Jr. (D-MI), 
Ranking Member, H. Comm. on the Judiciary (Feb. 14, 2017) (on file with 
H. Comm. on the Judiciary Democratic staff) [hereinafter ``Groups 
Letter'']; Letter from the National Association of Shareholder & 
Consumer Attorneys to Paul Ryan, Speaker of the House, et al. (Feb. 16, 
2017) (on file with H. Comm. on the Judiciary Democratic staff); Letter 
from National Association of Consumer Advocates to Bob Goodlatte (R-
VA), Chair, & John Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the 
Judiciary (Feb. 15, 2017) (on file with H. Comm. on the Judiciary 
Democratic staff).
    \6\Letter from 121 civil rights groups to Bob Goodlatte (R-VA), 
Chair, & John Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the 
Judiciary (Feb. 15, 2017) (on file with H. Comm. on the Judiciary 
Democratic staff) [hereinafter ``Civil Rights Letter'']; Undated letter 
from 37 disability rights groups to Bob Goodlatte (R-VA), Chair, & John 
Conyers, Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary (on file 
with H. Comm. on the Judiciary Democratic staff) [hereinafter 
``Disability Rights Letter''].
    \7\Executive Office of the President, Office of Management and 
Budget, Statement of Administration Policy on H.R. 1927, the ``Fairness 
in Class Action Litigation and Furthering Asbestos Claim Transparency 
Act of 2015,'' Jan. 6, 2016.
    For the foregoing reasons and those discussed below, we 
must respectfully oppose H.R. 985.

                       DESCRIPTION AND BACKGROUND


    H.R. 985 would impose a series of new and burdensome 
statutory requirements for the certification and consideration 
of class actions. In addition, with respect to multidistrict 
litigation, it would, among other things, impose a heightened 
burden on plaintiffs in personal injury actions to demonstrate 
evidentiary support for their factual allegations. Finally, the 
bill amends the remand statute to require Federal courts in 
diversity cases involving two or more plaintiffs in personal 
injury or wrongful death cases to consider each plaintiff 
separately when determining whether they have met the 
requirements of the Federal diversity statute. All of these 
provisions will have the effect of fueling increased litigation 
and costs for plaintiffs with the apparent goal of dissuading 
future plaintiffs from filing suit, even when they have 
meritorious claims. The following described provisions will be 
the primary focus of these views.
    Section 3(a) amends chapter 114 of title 28 of the United 
States Code by adding after section 1715 several new sections 
governing class actions. For example, new section 1716 would 
prohibit a Federal court from certifying any proposed class 
seeking monetary relief for personal injury or economic loss 
unless the party seeking the class action proves that each 
proposed class member suffered the same type and scope of 
injury as the putative class representative. The terms 
``economic loss'' and ``scope of injury'' are undefined. 
Section 1716 further requires a court, in issuing a class 
certification order for any class subject to subsection 2(a), 
to also certify that the requirements of subsection 2(a) have 
been met ``based on a rigorous analysis of the evidence 
    New section 1717 prohibits a Federal court from certifying 
any class action in which a proposed class representative or 
named plaintiff is a relative of, a present or former client of 
(other than with respect to the class action), a present or 
former employee of, or has any contractual relationship (other 
than with respect to the class action) with class counsel. 
Section 1717 requires that in a class action complaint, the 
attorney for the class representative or named plaintiff 
disclose the existence of such a relationship, describe the 
circumstances under which each class representative or named 
plaintiff agreed to be included in the complaint, and identify 
any other class action to which the class representative or 
named plaintiff has a similar role.
    New section 1718 imposes an ``ascertainability'' 
requirement for class action certification. Specifically, it 
prohibits class certification unless ``the class is defined 
with reference to objective criteria and the party seeking to 
maintain such a class action affirmatively demonstrates that 
there is a reliable and administratively feasible mechanism (a) 
for the court to determine whether putative class members fall 
within the class definition and (b) for distributing directly 
to a substantial majority of class members any monetary relief 
secured for the class.'' The bill offers no guidance as to the 
meaning of terms such as ``reference to objective criteria,'' 
``affirmatively demonstrates,'' ``reliable and administratively 
feasible mechanism,'' and ``substantial majority.'' There is 
currently a circuit split on whether such a standard as would 
be codified in new section 1718--which reflects the most 
corporate-defendant friendly view--should be imposed.
    Section 1718(b)(1) prohibits attorneys' fees from being 
determined or paid until any monetary recovery is distributed 
to all class members, even when it is impossible to identify or 
find all class members. This provision contains no ``good 
faith'' or ``honest efforts'' exception, nor does it impose a 
graduated scheme, such as partial payment of fees pending 
complete payment to class members. Rather, it takes an 
absolutist approach, leaving open the real possibility that 
many class counsel will not be paid at all.
    Section 1718(b)(2) specifies that in class actions where a 
judgment or proposed settlement provides for monetary recovery, 
attorneys' fee awards must be limited to ``a reasonable 
percentage of any payments directly distributed to and received 
by class members'' and, in no case may the fee award exceed the 
total amount of money distributed to and received by all class 
members. Section 1718(b)(3) similarly limits attorneys' fees in 
cases seeking equitable relief to ``a reasonable percentage of 
the value of the equitable relief, including any injunctive 
relief.'' The bill fails to offer any guidance as to what would 
constitute a ``reasonable percentage'' as used in the foregoing 
subsections, nor is there any guidance regarding how to 
monetize equitable relief. Moreover, there is no ``good faith'' 
or ``honest efforts'' exception from the prohibition on payment 
of attorneys' fees where an attorney makes honest and 
exhaustive efforts to find all class members, but is unable to 
do so, thereby potentially resulting in an unduly harsh 
    New section 1719, among other things, prohibits the payment 
of attorneys' fees to class counsel until they submit certain 
information regarding the distribution of monetary awards and 
settlements to the Federal Judicial Center and the 
Administrative Office of the United States Courts. As with the 
attorneys' fee provision in section 1718, there is no ``good 
faith'' or ``honest efforts'' exception from the prohibition on 
attorneys' fees being paid for less-than-full compliance with 
this requirement.
    New section 1720 prohibits a Federal court from certifying 
a class action with respect to particular issues unless the 
entire cause of action from which the particular issues arise 
satisfies all of the class certification requirements of Rule 
23. Under current law in all circuits, such ``issue'' class 
actions need not satisfy all of the certification requirements 
of Rule 23.
    New section 1721 provides that in any class action, 
discovery must be stayed whenever any motion to transfer, 
motion to dismiss, motion to strike class allegations, or other 
motion to dispose of class allegations, is pending. Discovery 
is not stayed when any party files a motion asking the court to 
find that ``particularlized discovery is necessary to preserve 
evidence or to prevent undue prejudice to that party.'' The 
bill does not define or provide guidance as to the meaning of 
the terms ``particularlized discovery'' and ``undue 
prejudice.'' Under current law, a court has discretion whether 
to stay discovery in response to a motion. This provision 
effectively makes a stay on discovery the default outcome 
absent certain circumstances that are not well defined.
    New section 1723 provides for mandatory appeal from an 
order granting or denying class certification. Current Rule 
23(f) already provides for discretionary appeals from such 
orders, but at any rate any appeal must be made within 14 days 
of the order.
    Section 4 of the bill amends the remand statute, 28 U.S.C. 
Sec. 1447, by adding a new subsection (d). New subsection 
1447(d)(1) applies to any civil action with two or more 
plaintiffs alleging personal injury or wrongful death claims 
where the action is removed to Federal court on the basis of 
diversity jurisdiction and a motion to remand is made on the 
ground that one or more defendants is a citizen of the same 
state as one or more plaintiffs.
    Subsection 1447(d)(2) requires a court considering a remand 
motion to apply the diversity statute's various requirements 
for establishing diversity jurisdiction to each plaintiffs' 
claims individually, as if each plaintiff was the sole 
plaintiff in the civil action. Subsection 1447(d)(3) requires a 
court, in such circumstances, to sever claims and remand to 
state court only the claims of those plaintiffs that do not 
meet the diversity statute's requirements. The practical effect 
could be to make it easier to establish diversity jurisdiction 
in multi-plaintiff cases involving personal injury or wrongful 
death claims, increasing the number of diversity cases in 
Federal court where diversity might otherwise be defeated 
because of the lack of complete diversity.
    Section 5 of the bill adds new subsections to 28 U.S.C. 
Sec. 1407, which governs multidistrict litigation. Section 
1407(b) provides that a judge or judges may be assigned by the 
Judicial Panel on Multidistrict Litigation to preside over 
coordinated or consolidated pretrial proceedings in cases where 
civil actions involving one or more common questions of fact 
are pending in different districts. Proposed new section 
1407(i) requires that, in any such proceeding involving redress 
for personal injury, plaintiff's counsel must make a submission 
``sufficient to demonstrate that there is evidentiary support 
(including but not limited to medical records) for the factual 
contentions in plaintiff's complaint regarding the alleged 
injury, the exposure to the risk that allegedly caused the 
injury, and the alleged cause of the injury.''
    Additionally, section 1407(i) requires that such submission 
be made within 45 days after the civil action is transferred to 
or filed in the consolidated pretrial proceedings, with no 
extensions. The presiding judge must, within 30 days of the 
submission deadline, determine whether the submission is 
``sufficient'' and must dismiss the action without prejudice if 
it is not. If a plaintiff whose action is dismissed does not 
tender a ``sufficient'' submission within 30 days following 
dismissal, the action must be dismissed with prejudice. The 
bill does not provide any guidance as to what would constitute 
a ``sufficient'' submission to ``demonstrate . . . evidentiary 
support'' for factual contentions regarding an alleged injury. 
New section 1407(i) essentially codifies a practice that some 
courts use at their discretion in certain cases. This provision 
would essentially mandate that every court impose this standard 
in every personal injury multidistrict proceeding.
    New subsection 1407(l) requires that claimants in a 
multidistrict proceeding receive no less than 80 percent of any 
monetary recovery obtained by judgment, settlement, or 
otherwise. It also provides judges assigned to the 
multidistrict proceeding with jurisdiction over any disputes 
regarding compliance with this requirement. In essence, this 
provision codifies a 20 percent cap on attorneys' contingency 
fees, which may present an insurmountable disincentive for 
counsel to undertake such litigation. It also overrides state 
laws governing such fees in personal injury and wrongful death 
cases. Moreover, the provision fails to define or offer any 
guidance as to how the 80 percent monetary recovery is to be 
calculated or who qualifies as a ``claimant'' under this 
    Section 7 of the bill provides, among other things, that 
its provisions will apply to any civil action pending on the 
date of enactment.


    H.R. 985 pertains to class actions and multidistrict 
litigation. A class action is a type of lawsuit filed by one or 
more individuals on behalf of a larger group of people. Class 
actions can be beneficial to consumers and courts. They are 
beneficial to consumers because they give a potentially large 
group of individuals who are injured in the same manner by the 
same defendants the ability to hold the wrongdoers accountable. 
Class actions make it economically feasible for these 
plaintiffs to seek justice for smaller, but not 
inconsequential, injuries in areas as diverse as products 
liability, wage and hour litigation, and employment 
discrimination. As a result, class actions help level the 
playing field between injured consumers and powerful corporate 
defendants. They also help promote private enforcement of 
public policy, particularly when there is large-scale wrong-
doing by an institutional actor.\8\
    \8\For outlines of the policy reasons supporting the existence of 
the class action mechanism, see Fairness in Class Action Litigation Act 
of 2015: Hearing on H.R. 1927 Before the Subcomm. on the Constitution 
and Civil Justice of the H. Comm. on the Judiciary, 114th Cong. (2015) 
[hereinafter ``Subcommittee Hearing''] (statement of Alexandra Lahav, 
Joel Barlow Professor, University of Connecticut Law School, at 2); The 
State of Class Actions Ten Years After The Enactment of the Class 
Action Fairness Act: Hearing Before the Subcomm. on the Constitution 
and Civil Justice of the H. Comm. on the Judiciary, 114th Cong. (2015) 
[hereinafter ``CAFA Hearing''] (statement of Patricia W. Moore, 
Professor of Law, St. Thomas University School of Law, at 2).
    Additionally, class actions can be beneficial for courts 
because they promote judicial efficiency. The class action is 
an efficient mechanism to deal with what would otherwise be a 
large number of small and repetitive cases involving common 
legal and factual questions. Through class certification, 
courts can consolidate similar cases and conserve judicial 
    Federal Rule of Civil Procedure 23 governs class actions 
filed in Federal courts. Rule 23(a) specifies four 
prerequisites necessary for the certification of a class:

        (1) Lthe class is so numerous that joinder of all 
        members is impracticable;

        (2) Lthere are questions of law or fact common to the 

        (3) Lthe claims or defenses of the representative 
        parties are typical of the claims or defenses of the 
        class; and

        (4) Lthe representative parties will fairly and 
        adequately protect the interests of the class.\10\
    \10\Fed. R. Civ. P. 23(a).

Additionally, Rule 23(b) specifies the findings that a court 
must make prior to certifying a class action, assuming that the 
requirements of Rule 23(a) have been met. These findings 
include, among other things, whether the prosecution of 
separate actions by or against individual class members would 
create the risk of inconsistent or varying adjudications, 
whether the party opposing the class has acted or refused to 
act on grounds that apply generally to the class such that 
relief would be appropriate for the class as a whole, and 
whether common questions of law or fact predominate over any 
other questions affecting only individual class members and 
that a class action would be superior to other methods of 
adjudicating the controversy fairly and efficiently.\11\
    \11\Fed. R. Civ. P. 23(b). Rule 23 contains a number of other 
provisions that are not relevant to this bill.
    Multidistrict litigation is a Federal legal procedure 
allowing cases that have one or more common factual questions 
to be consolidated and transferred from one court, the 
transferor, to another court, the transferee, ``for the 
convenience of parties and witnesses'' and to ``promote the 
just and efficient conduct of such actions.''\12\ The Judicial 
Panel on Multidistrict Litigation decides whether cases should 
be consolidated and transferred.\13\ Cases are sent from one 
court to another for all pretrial proceedings and discovery and 
are remanded to the transferor court at or before the 
conclusion of such proceedings.\14\ Proceedings for transfer 
may be initiated by the Judicial Panel on its own initiative or 
by a motion filed with the Panel by any party.\15\
    \12\28 U.S.C. Sec. 1407(a) (2017) (``When civil actions involving 
one or more common questions of fact are pending in different 
districts, such actions may be transferred to any district for 
coordinated or consolidated pretrial proceedings.'').
    \15\Id. at Sec. 1407(c)(i)-(ii).

                         CONCERNS WITH H.R. 985


    There is no need for H.R. 985 because plaintiffs already 
must satisfy many rigorous requirements in order to pursue a 
class action, and the bill's proponents offer no evidence that 
the Federal courts systematically fail to apply these 
standards. As explained above, Rule 23 requires plaintiffs 
seeking class action certification to make substantial 
showings, including commonality of factual and legal questions 
and typicality of the putative representative's claims compared 
to those of putative class members. Moreover, case law 
demonstrates that the Federal courts vigorously enforce Rule 
23's requirements. Pursuing a class action also requires 
extensive discovery and motion practice, which mandate a 
significant expenditure of time and resources. H.R. 985 would 
only make these procedural hurdles even more burdensome and 
potentially cost-prohibitive. Indeed, the real aim of the bill 
does not seem to be to make class actions fairer, but to tilt 
the playing field decisively in defendants' favor.
    Much of the initial justification of this bill from the 
114th Congress was based on the false notion that too many 
class actions were fraudulent or otherwise improper because 
most putative class members suffered no actual injury. In 
support of this allegation, the bill's proponents cited 
``benefit of the bargain'' cases and cases asserting statutory 
damages for violations of consumer protection statutes. In 
fact, however, these are not ``no injury'' cases. As Professor 
Alexandra Lahav explained in testimony before the Subcommittee 
on the Constitution and Civil Justice in the 114th Congress, 
plaintiffs in such cases have suffered a real injury. In 
``benefit of the bargain'' cases, for instance, plaintiffs have 
suffered financial injury in the form of paying a price for 
what turned out to be a defective product that is, in reality, 
worth less than what the plaintiff bargained for. Similarly, in 
many state consumer protection statutes, and in civil rights, 
employment, or privacy statutes, the injury, while very real, 
is difficult to quantify in monetary terms. Legislatures, 
therefore, set statutory damage levels to simplify the process 
of quantifying damages, to deter corporate wrongdoing, and to 
encourage access to the courts.
    Other than proposed new section 1716, the Judiciary 
Committee has held no hearing on any of the other provisions of 
H.R. 985. As a result, none of these provisions or the 
purported justifications for them has ever been vetted by our 
Committee. For instance, the bill's proponents offer absolutely 
no evidence warranting H.R. 985's so-called ``conflict of 
interest'' provision, which prohibits class certification where 
a class representative or named plaintiff is a relative of, 
current or former client of, current or former employee of, or 
has a contractual relationship with the plaintiffs' counsel. We 
are unaware of any justification supporting the implication 
that such relationships are per se problematic. As it is, 
courts must exercise judgment as to whether a particular 
relationship with class counsel poses a conflict of interest 
pursuant to Rule 23(a)(4), which requires a court to consider 
whether class counsel ``will fairly and adequately protect the 
interests of the class.''\16\
    \16\Fed. R. Civ. P. 23(a)(4). Professor John C. Coffee, Jr. of 
Columbia Law School has written that H.R. 985's conflict of interest 
provision arguably is unconstitutional, as the Fifth Amendment's Due 
Process Clause has been interpreted to preclude the government in a 
civil case from unreasonably interfering with a citizen's choice of 
hired counsel. John C. Coffee, Jr., How Not to Write a Class Action 
``Reform'' Bill, The CLS Blue Sky Blog, Feb. 21, 2017, available at


    H.R. 985 presents many obstacles to the pursuit of class 
actions and multidistrict litigation. These include: (1) 
requiring that a putative class representative prove that every 
class member suffered the ``same type and scope of injury;'' 
(2) requiring a putative class representative to ascertain all 
class members at the certification stage; (3) effectively 
eliminating courts' ability to certify ``issue'' class actions; 
(4) a default stay of discovery in response to any motion to 
dispose of class allegations absent a finding by a court on the 
need for ``particularized'' discovery in certain circumstances; 
(5) providing for mandatory appeal from any order granting or 
denying a motion for class certification; (6) imposing a 
significant threshold of proof and draconian deadlines on 
plaintiffs and courts in multidistrict personal injury 
litigation, and (7) imposing harsh attorneys' fee and 
``conflict of interest'' provisions aimed specifically at class 
counsel. Taken together, these provisions undermine the core 
purpose of class actions and multidistrict litigation, which is 
to provide for efficiency in the disposition of numerous, but 
substantially the same claims or factual questions and to 
provide access to courts for parties that, individually, would 
not have the incentive or resources to pursue otherwise 
meritorious claims.
A. LSection 1716 Imposes Impossible Standard to Establish Same Type and 
        Scope of Injury
    H.R. 985's requirement that a plaintiff show that, for 
class actions seeking monetary relief for personal injury or 
economic loss, each proposed class member suffered the exact 
same ``type and scope'' of injury would be virtually impossible 
to meet as a practical matter, especially for many types of 
claims where the exact ``scope'' of an injury, such as in 
antitrust, employment discrimination, or privacy matters, 
cannot be measured with any precision. Moreover, by requiring a 
putative class representative to make such showings at the 
certification stage--a nascent stage of litigation, before 
there has been any substantial discovery--H.R. 985 effectively 
requires a decision on the merits before trial and before 
appropriate class members can even be identified, an extremely 
difficult if not impossible standard to meet.
    To prove injury, a plaintiff would have to prove the 
alleged violation that caused the injury for each possible 
class member--i.e., litigation on the merits. As Professor 
Arthur Miller, the Nation's foremost expert of Federal practice 
and procedure, noted in a letter in opposition to prior 
legislation that was nearly identical to H.R. 985's proposed 
section 1716:

        [the] core function of a class representative is to try 
        to establish injury on behalf of similarly situated 
        persons. Thus the bill effectively wipes out Rule 23, 
        under which class representatives litigate common 
        questions on behalf of the class. The represented 
        persons are absent until after entry of a judgment that 
        binds them, at which point (upon a favorable judgment) 
        they are asked to come forward to prove their damages. 
        Until that time, the identity of many of the class 
        members is unknown, indeed possibly even 
    \17\Letter from Arthur R. Miller, University Professor, New York 
University School of Law, to Trent Franks (R-AZ), Chair, & Steve Cohen 
(D-TN), Ranking Member, Subcomm. on the Constitution and Civil Justice 
of the H. Comm. on the Judiciary (Apr. 27, 2015) (on file with H. Comm. 
on the Judiciary Democratic staff) [hereinafter ``Miller Letter''].

Professor Miller further noted that the Supreme Court has 
rejected the notion that a class representative must first 
establish that it will win on the merits in order to obtain 
class certification.\18\ He observed that class membership does 
not equate to entitlement to damages, a distinction that H.R. 
985's proponents appear deliberately to be trying to blur.\19\
    \18\Miller Letter at 3.
    Other civil procedure experts concur. For example, 
Professor John C. Coffee, Jr., wrote that this provision only 
adds unnecessary ``ambiguity'' to current law, noting that 
``under this proposed standard, a person who suffered a 
slightly different economic or personal injury from the class 
representative might have to be excluded'' from a class.\20\ 
Professor Elizabeth Chamblee Burch wrote that ``this proposal 
demands a degree of similarity that is both ill defined and 
unnecessary,'' and noted that the Supreme Court held last year 
that ``parties should be able to enjoy the benefits of class 
actions even when damages vary'' and that ``[p]ersonal injury 
and economic losses will inevitably affect class members 
differently.''\21\ Professor Myriam Gilles noted that ``it is 
impossible to exclude zero-damage plaintiffs from a class 
because `many of the members of the class may be unknown, or if 
they are known still the facts bearing on their claims may be 
unknown.'''\22\ Moreover, excluding ``zero-damage plaintiffs 
from class actions . . . serves no policy purpose'' because the 
``presence of uninjured members within a defined class does not 
increase the aggregate damages that the defendant must 
pay.''\23\ Also, ``the `scope' requirement would eliminate 
damages class actions, period'' because ``the amount of damage 
always (or almost always) varies across class members.''\24\
    \20\Memorandum Regarding A Brief and Selective Overview of the 
``Fairness in Class Action Litigation Act of 2017'' from John C. 
Coffee, Jr., Adolf A. Berle Professor of Law, Columbia Law School, to 
Democratic Staff, H. Comm. on the Judiciary Democratic Staff, at 1-2 
(Feb. 13, 2017) [hereinafter ``Coffee Memo''].
    \21\Letter from Elizabeth Chamblee Burch, Charles H. Kirbo Chair of 
Law, The University of Georgia School of Law, to Democratic Staff, H. 
Comm. on the Judiciary, at 1 (Feb. 13, 2017) [hereinafter ``Burch 
    \22\Letter from Myriam Gilles, Vice Dean, & Paul R. Verkuil 
Research Chair Professor of Law, Benjamin N. Cardozo Law School, to 
Democratic Staff, H. Comm. on the Judiciary, at 2 (Feb. 13, 2017) 
(quoting Kohen v. Pacific Inv. Mgmt. Co. LLC, 571 F.3d 672, 677 (7th 
Cir. 2009)) [hereinafter ``Gilles Letter''].
    \24\Id. at 3.
    The American Bar Association, writing in opposition to H.R. 
985, noted that the ``same type and scope of injury'' 
requirement ``places a nearly insurmountable burden for people 
who have suffered personal injury or economic loss at the hands 
of large institutions with vast resources, effectively barring 
them from bringing class actions.''\25\ Similarly, a coalition 
of 121 civil rights groups observed that at the class 
certification stage of a civil rights class action, ``it is 
frequently impossible to identify all of the victims or the 
precise nature of each of their injuries'' and that ``even if 
this information were knowable, class members' injuries would 
not be `the same,''' thereby precluding most civil rights class 
actions were this requirement to be enacted.\26\ Indeed, as 
another coalition of consumer rights, labor, environmental, and 
public interest groups explained, ``virtually never does every 
member of the class suffer the same `scope' of injury from the 
same wrongdoing''' and that this requirement ``alone would 
sound the death knell for most class actions.''\27\
    \25\ABA Letter.
    \26\Civil Rights Letter.
    \27\Groups Letter.
B. LSection 1718(a)'s Ascertainability Requirement Has Been Rejected by 
        Most Courts for Good Reason
    Proposed section 1718(a) creates a statutory 
``ascertainability'' requirement in money damages class 
actions, under which a plaintiff must identify every class 
member in order to obtain class certification, a virtual 
impossibility in most consumer cases where individual claims 
may be small, where consumers who purchased a product at issue 
may not come forward or may not have kept a receipt or other 
evidence of purchase. The kind of rigid ``ascertainability'' 
requirement contained in H.R. 985 has been debated among the 
Federal courts of appeals, and most courts of appeals have 
rejected it. This provision essentially codifies the more 
corporate-defendant-friendly view that classes are 
ascertainable at the certification stage, with the practical 
effect that in many small-claim consumer cases, where class 
members are inherently difficult to identify, defendants can 
escape liability because the class is not ascertainable even if 
there is overwhelming evidence of the defendant's 
wrongdoing.\28\ Moreover, section 1718(a)'s vague requirement 
that the class be ``defined with reference to objective 
criteria'' and that the putative class representative 
``affirmatively demonstrate[] that there is a reliable and 
administratively feasible mechanism'' for the court to 
determine whether putative class members fall within the class 
and for distributing monetary relief to a substantial majority 
of such class members is unnecessary, cumbersome, costly, and 
invites further litigation over their meaning.
    \28\Plaintiffs' counsel typically define class members in terms of 
people harmed by the defendant's conduct, employ a mix of subjective 
and objective criteria, and invoke criteria dependent on the merits. 
Plaintiffs' counsel often revise their class definition after receiving 
class discovery from defendants. Burch Letter at 2 and fn.2.
C. LSection 1720 Will Have a Particularly Devastating Impact on Civil 
        Rights Class Actions
    Proposed section 1720 in H.R. 985 further threatens to 
undermine class actions, particularly in civil rights cases. 
This provision would prohibit certification of ``issue'' class 
actions unless the entire cause of action meets all of Rule 
23's class action certification requirements, changing current 
law dramatically and effectively barring or at least severely 
limiting issue class actions. Rule 23(c)(4) provides that 
``when appropriate, an action may be brought or maintained as a 
class action with respect to particular issues.''\29\ 
Currently, all Federal circuit courts read Rule 23(c)(4) to 
permit courts to certify a class for the limited purpose of 
deciding an issue common to a group of plaintiffs within a case 
even when the putative class has not yet been certified. This 
allows a court, for example, to decide the issue of liability 
only, rather than also consider damages and other questions in 
the case. Being able to decide common questions within a case 
while allowing other issues to be decided on an individual 
basis would be in keeping with one of the purposes of class 
actions, namely, promoting judicial efficiency. Yet, as 
Professor Gilles noted, H.R. 985 ``would abolish such issue 
classes'' using an approach that ``is maximalist and harsh'' 
and not justified by any evidence that defendants' due process 
rights are threatened by the use of issue classes.\30\
    \29\Fed. R. Civ. P. 23(c)(4).
    \30\Gilles Letter at 7.
    In particular, making issue class actions harder to pursue 
would have an especially adverse impact on civil rights class 
actions, which depend on issue class actions to a greater 
extent than other kinds of claims. Doing so would have a 
devastating impact on race and gender class actions that often 
can only be maintained as to particular issues such as 
liability. Requiring that an entire cause of action be 
certified as a class before any common issue can be decided 
will have the practical effect of denying many such plaintiffs 
their day in court, where it may not be practicable for 
individual plaintiffs to pursue individual cases on their own. 
As a coalition of civil rights groups has written in opposition 
to H.R. 985, ``the bill's limitation on `issue classes' will 
impede the enforcement of civil rights laws'' because such 
classes ``can promote both efficiency and fairness'' by 
allowing ``class certification for the core question of 
liability (often a complex proceeding).''\31\
    \31\Civil Rights Letter at 2.
    For the foregoing reasons, and, in particular, because of 
the potentially disproportionate impact that this provision 
would have on civil rights cases, including legal challenges to 
President Donald Trump's Executive Order banning refugees and 
travelers from certain majority-Muslim countries, 
Representative Pramila Jayapal (D-WA) offered an amendment to 
strike the bill's ``issue classes'' provision. The Committee, 
however, rejected her amendment by a party-line vote of 12 to 
D. LSection 1721's Default Stay of Discovery Will Exponentially 
        Increase Litigation
    Proposed section 1721 in H.R. 985 would needlessly extend 
class action litigation, which is already an expensive and 
cumbersome process. The provision would stay discovery and 
other proceedings while any motion to dispose of the class 
allegations is pending, including motions to strike class 
allegations, motions to dismiss, and motions to transfer unless 
the court finds, on motion of a party, that ``particularlized 
discovery'' is needed to preserve evidence or to prevent undue 
prejudice to that party. Currently, motions to stay discovery 
may be granted at the discretion of the district court. Section 
1721 appears to significantly reduce this discretion, making a 
stay mandatory unless a party can either show the need to 
preserve evidence, notwithstanding the potential absence of any 
discovery up to that point in the case, or satisfy the vague 
standard that it would suffer ``undue prejudice.'' Even under 
such circumstances, discovery can only be ``particularized,'' 
though the bill provides no guidance as to what this term means 
in this context. The effect of this provision would be to 
increase litigation burdens and costs on plaintiffs, provide 
another opportunity for corporate defendants to engage in 
dilatory tactics by filing multiple motions each of which would 
trigger a stay of discovery and litigation over whether 
discovery should then be permitted, and dissuade future 
plaintiffs from pursuing meritorious claims.
    As Professor Coffee wrote, the bill's stay of discovery 
``provision can easily be exploited by defendants to delay 
class litigation indefinitely by making each of these motions 
[to dispose of class allegations] in seriatim fashion. 
Predictably, motions will follow motions in order to delay 
discovery.''\32\ Professor Burch noted that this ``proposal 
will unduly prolong litigation that is already protracted'' and 
``would make it difficult for the court and the parties to 
conduct discovery and make informed decisions about whether to 
certify the class.''\33\
    \32\Coffee Memorandum at 5.
    \33\Burch Letter at 5.
    For the foregoing reasons, Representative Ted Deutch (D-FL) 
offered an amendment to strike the bill's stay of discovery 
provision. The Committee, however, rejected the amendment by a 
party-line vote of 12 to 19.
E. LSection 1723's Mandatory Right of Appeal Provides More Chances for 
        Delay and Increases Burdens and Costs
    Proposed new section 1723 establishes a mandatory right of 
appeal to a Federal court of appeals of the grant or denial of 
a motion to certify a class. Under current Rule 23(f), such 
appeals may be heard at the discretion of the appeals court and 
must be filed within 14 days of the entry of such order.\34\ As 
with most other provisions in H.R. 985, this mandatory appeal 
provision would give defendants yet another opportunity to 
delay consideration of class actions and thereby further 
increase litigation burdens and costs for plaintiffs.
    \34\Fed. R. Civ. P. 23(f).
F. LThe Bill Imposes Unreasonable Restrictions on Class Counsel
    Various provisions in H.R. 985 appear intended to target 
class counsel and threaten the ability of plaintiffs to obtain 
legal representation in class actions. For instance, several 
provisions, including proposed sections 1718(b) and 1719, would 
delay the payment of any attorneys' fees under certain strict 
conditions or until class counsel complies with certain 
settlement information accounting requirements, respectively. 
These provisions, which do not apply to defense counsel, appear 
to be unduly harsh and aimed at discouraging lawyers from 
taking the risk of representing class action plaintiffs by 
creating a strong financial disincentive.
    Section 1718(b)(1) delays payment of attorneys' fees until 
all monetary recovery has been paid to class members. Yet some 
class settlements may take many years to distribute, and under 
this provision, plaintiffs' counsel would have to wait 
potentially years before receiving any payment. Moreover, as 
discussed earlier, sometimes it is simply impossible to 
identify all class members. Under this provision, which makes 
no exception for honest, good faith efforts by class counsel to 
identify and ensure payment to all class members, it is 
possible that counsel will not be paid at all. While ensuring 
class members are paid is an important goal, H.R. 985's 
proponents appear to be more interested in disincentivizing 
plaintiffs' lawyers, rather than fashioning a reasonable 
solution, such as an interim fee distribution or some other 
less draconian approach.
    Similarly, although section 1718(b)(2) limits payments to 
class counsel to a reasonable percentage of the class members' 
monetary recovery, it fails to account for situations where 
funds may remain because class members may be difficult to 
identify, monetary awards are too small to distribute to 
individual class members, or funds are simply unclaimed. As 
with other provisions, this ambiguity could lead to further 
litigation and increased costs, as well as disincentivizing 
attorneys from representing class plaintiffs.
    A similar concern arises with respect to section 
1718(b)(3), which applies a similar ``reasonable percentage'' 
standard in cases where the class members are awarded or agree 
to equitable relief, such as in many civil rights cases. In 
these cases, there is the additional ambiguity of determining 
how to monetize equitable relief for purposes of determining a 
reasonable attorneys' fee award, further heightening concerns 
about the ability of plaintiffs to obtain adequate legal 
representation in such cases.
    Finally, the already-discussed ``conflict of interest'' 
provision of section 1717(b) would deny class certification in 
all cases where the class representative or named plaintiff is 
a relative of, present or former client of, present or former 
employee of, or has a contractual relationship with the class 
counsel, without exception. This unnecessary provision wrongly 
assumes that all of these relationships raise impermissible 
conflicts of interest per se and, based on this false premise, 
effectively denies plaintiffs the right to choose their 
    H.R. 985's class action provisions aimed at class counsel 
will have a particularly adverse impact on civil rights 
plaintiffs. As civil rights organizations opposing H.R. 985 
note, the bill's ``reasonable percentage of equitable relief'' 
standard is arbitrary and unworkable.\35\ These organizations 
rightly ask ``how is a judge to determine the cash value of an 
integrated school, a well-operating foster care system, the 
deinstitutionalization of individuals with disabilities, or 
myriad other forms of equitable relief secured by civil rights 
class actions?''\36\ The ultimate result, they explain, is that 
``[n]on-profit organizations cannot bear the risk of these long 
and expensive cases if, at the end, their fees are calculated 
under this incoherent and capricious standard. Indeed, the bill 
creates an incentive for defendants to prolong the litigation 
so as to make it economically impossible for plaintiffs' 
attorneys to continue to prosecute the litigation.''\37\
    \35\Civil Rights Letter at 3.
    \37\Id.; see also Disability Rights Letter at 1 (``By severely 
limiting attorneys' fees in cases seeking only injunctive relief, [H.R. 
985] would remove class actions as an essential tool for those who seek 
to improve the systems that serve people with disabilities.'').
    For the foregoing reasons, Ranking Member John Conyers, Jr. 
(D-MI) offered an amendment that would have exempted all civil 
rights cases from H.R. 985's class action provisions. The 
Committee, however, rejected his amendment by a party-line vote 
of 11 to 14.
    The bill's various class action provisions would similarly 
stifle the ability of plaintiffs in a wide spectrum of cases to 
pursue justice. For instance, those injured by fraudulent 
conduct, including the former students of Trump University who 
sued President Donald Trump for allegedly bilking thousands of 
dollars out of students while never providing the University's 
advertised educational services, would effectively be precluded 
from having their day in court. To address this particular 
shortcoming of the bill, Representative Hank Johnson (D-GA) 
offered an amendment that would have exempted all fraud cases 
from all of the bill's class action provisions. The Committee, 
however, rejected this amendment as well by voice vote.
G. LSection 4's Remand Provisions Would Unnecessarily Burden Federal 
    Section 4 of the bill would amend the remand statute, 28 
U.S.C. Sec. 1447, to add a new provision that applies: (1) in 
personal injury or wrongful death cases; (2) where there are 
two or more plaintiffs; (3) the case has been removed to 
Federal court on the basis of diversity jurisdiction; and (4) a 
motion to remand the case is made on the ground that one or 
more plaintiffs is a citizen of the same state as one or more 
defendants. In such a case, the court deciding the remand 
motion must apply the requirements of the Federal diversity 
statute\38\ to the claims of each plaintiff individually and 
remand only those claims of the plaintiff that does not satisfy 
the diversity statute's requirements.
    \38\28 U.S.C. Sec. 1332(a) (2017). Under this provision, in order 
for a Federal court to exercise diversity jurisdiction over what would 
otherwise be a state law case, there must be at least $75,000 amount in 
controversy and the plaintiff and the defendant must be citizens of 
different states.
    While it is unclear exactly what problem the bill's 
sponsors intend for this provision to address, it seems that in 
cases where one plaintiff is a citizen of the same state as one 
defendant and another plaintiff is a citizen of a different 
state as that defendant, this provision would make it easier 
for defendants to keep at least one of the plaintiffs' cases in 
Federal court, even if the plaintiffs assert the same legal 
claims arising from the same set of operative facts. This would 
seem to unnecessarily burden Federal courts with parallel 
consideration of a case at the same time that a proceeding on 
the same facts and legal claims takes place in state court.
H. LSection 5's Multidistrict Litigation Evidentiary Support 
        Requirement Is Unreasonable and Unjustified and Its Arbitrary 
        Cap on Attorneys' Fees Could Undermine the Ability of 
        Plaintiffs to Obtain Representation
    Section 5 of the bill amends 28 U.S.C. Sec. 1407, the 
statutory provision governing multidistrict litigation. Under 
that provision, cases in different districts raising common 
issues of fact may be transferred to a designated judge or 
judges for pretrial proceedings. H.R. 985 would add a new 
section 1407(i) requiring plaintiffs to produce proof of their 
allegations early on in such proceedings. Specifically, it 
requires that plaintiffs in personal injury cases make a 
submission ``sufficient to demonstrate that there is 
evidentiary support (including but not limited to medical 
records) for the factual contentions in plaintiff's complaint 
regarding the alleged injury, the exposure to the risk that 
allegedly caused the injury, and the alleged cause of the 
injury'' within the extremely strict deadline of 45 days after 
the civil action is transferred to or filed in the consolidated 
pretrial proceedings, with no extensions. The presiding judge 
must, within 30 days of the submission deadline, determine 
whether the submission is ``sufficient'' and must dismiss the 
action without prejudice if it is not. If the action is 
dismissed, a plaintiff would then have only 30 days to make a 
``sufficient'' submission or the case must be dismissed with 
    This provision places a significant burden on plaintiffs to 
prove their allegations to a considerable degree at the 
beginning of their case, denying them the ability to further 
develop their claims through the discovery process. It also 
codifies a procedure that some courts have adopted in some 
cases, but, as with the ``ascertainability'' requirement, there 
is no consensus among courts as to whether it is even 
appropriate to impose such a high burden at such an early stage 
on plaintiffs.\39\
    \39\Professor Burch further notes that, in addition to denying 
courts the necessary flexibility to adapt case management orders to 
specific circumstances, this provision may also raise federalism 
concerns to the extent that it conflicts with state law that may not 
require an allegation of specific cause of harm. Burch Letter at 6-7.
    New section 1407(j) would prohibit trials in multidistrict 
proceedings unless all the parties consent. This provision may 
be aimed at preventing ``bellwether trials,'' or trials of 
randomly selected cases in multidistrict litigation to test the 
parties' arguments and help to resolve the overall litigation. 
The requirement that all parties consent to trial means that it 
is unlikely that any such cases would go to trial, meaning 
further cost and delay for plaintiffs.
    Section 5 would also add a new section 1407(l) to title 28, 
United States Code, which would require that 80 percent of any 
monetary recovery in personal injury multidistrict litigation 
be paid to plaintiffs, effectively codifying a 20 percent cap 
on attorneys' contingent fees in personal injury multidistrict 
litigation. By codifying a 20 percent cap on attorneys' 
contingency fees, this provision may present an insurmountable 
disincentive for counsel to undertake such litigation. It also 
may conflict with state laws governing such fees in personal 
injury and wrongful death cases. The provision is also 
ambiguous in some respects, leaving unclear, for example, who 
would pay for experts or reimburse insurers on plaintiffs' 
medical bills. It is not even clear who might be a ``claimant'' 
entitled to part of the 80 percent of the monetary recovery. As 
with other provisions in the bill, this ambiguity opens the 
door to more litigation, cost, and delay.
I. LH.R. 985's Will Impose New Burdens on Pending Cases
    Section 7 makes the bill's various provisions applicable to 
all cases pending on the date of enactment. In this way, the 
bill unjustly changes class action and other procedural rules 
on cases in the midst of litigation, burdening plaintiffs with 
new requirements they had no way of preparing for.
    Given the tremendous costs and increased burdens of the 
bill's various provisions on litigants and courts, 
Representative Sheila Jackson Lee (D-TX) offered an amendment 
to delay the bill's effective date until the Administrative 
Office of the United States Courts completed an assessment of 
the costs the bill would impose on litigants and the courts. 
The Committee, however, rejected this sensible amendment by a 
party-line vote of 12 to 17.
    Because the bill would impose onerous requirements on 
plaintiffs and effectively make much civil litigation cost-
prohibitive in Federal court, Representative David Cicilline 
(D-RI) offered an amendment that would have exempted from the 
entire bill all civil actions, to the extent permitted by law, 
concerning injuries caused by a firearm. The Committee, 
however, rejected this amendment by a party-line vote of 12 to 


    H.R. 985 would strain already-limited judicial resources. 
Without doubt, the bill's numerous new and vaguely-worded 
standards would foster extensive litigation to resolve their 
meaning and application. This would be in addition to the 
already resource-intensive process that courts must follow when 
considering class action certification motions. For instance, 
as Professor Coffee noted, the bill's mandatory appeal 
provision alone could substantially increase the burdens on 
appellate courts possibly by as much as five-fold because 
appeals courts currently permit relatively few appeals under 
Rule 23(f).\40\ Similarly, the automatic third-party litigation 
funding disclosure requirement in proposed section 1722 will 
needlessly burden Federal courts by creating more chances for 
discovery disputes.
    \40\Coffee Memorandum at 6.
    The bill also significantly reduces judicial discretion in 
a number of ways. For example, its stay of discovery provision 
significantly reduces the discretion that courts currently have 
to stay, or to allow, discovery in response to a motion. 
Similarly, the bill's mandatory appeal provision adds to the 
burden of appellate courts while taking away their authority to 
determine when an appeal of a class certification order might 
be warranted. Likewise, the bill's ``conflict of interest'' 
provision denies courts any discretion to determine whether 
certain relationships actually pose a conflict of interest, 
imposing instead a per se rule requiring denial of class 
certification if certain relationships exist between class 
counsel and a named plaintiff or class representative. Finally, 
the bill's multidistrict litigation provision imposes draconian 
deadlines on both plaintiffs and courts to make determinations 
about the sufficiency of a plaintiff's factual allegations, 
with no ``good cause'' or other exception to allow a court some 
flexibility in setting deadlines. It also requires dismissal by 
the court if it makes certain findings, rather than leaving 
that decision to the court's discretion.
    Finally, H.R. 985 circumvents the highly prudential and 
deliberative Rules Enabling Act process, a process that 
reflects input not only from the Federal judiciary, but also 
from other interested parties and the public generally.\41\ In 
fact, the Judicial Conference of the United States is in the 
midst of a multi-year study of Rule 23 that ``has considered 
many of the issues addressed in H.R. 985.''\42\ Accordingly, 
the Conference has ``strongly urge[d] Congress not to amend the 
class action procedures found in Rule 23.''\43\ Although H.R. 
985 includes a provision stating that nothing in the bill 
should be interpreted to prohibit the Supreme Court or the 
Judicial Conference from using the Rules Enabling Act process, 
the measure nonetheless clearly circumvents that process. 
Indeed, several provisions contained in H.R. 985, such as the 
bill's ``ascertainability'' standard and its changes to 
consideration of ``issue'' class actions, have already been 
considered and rejected by the Advisory Committee on Civil 
Rules as part of the Judicial Conference's consideration of 
Rule 23 amendments.
    \41\28 U.S.C. Sec. Sec. 2071 et seq. (2017).
    \42\Judicial Conference Letter.


    H.R. 985 purports to help plaintiffs, but it will in fact 
deny plaintiffs any justice by greatly diminishing the 
availability of class actions and multidistrict litigation. The 
bill's proponents offer no credible evidence that such 
draconian legislation is needed and, in the absence of any 
hearing to assess most of the bill's provisions, the 
justifications for those provisions are unclear at best. If 
anything, the bill is so skewed in favor of corporate 
defendants' interests that the obvious inference is that its 
aim is to rig the procedural rules governing class actions and 
multidistrict litigation to ensure defendant-friendly outcomes 
rather than to guarantee fairness or address abuses. In 
addition, H.R. 985's various requirements are so vague or 
impossible to meet that they would provide numerous 
opportunities for defendants to engage in dilatory tactics, 
raising litigation costs and burdens for plaintiffs to the 
point of dissuading future plaintiffs from even filing suit. 
Finally, the bill would substantially and needlessly increase 
resource burdens on the Federal courts, significantly reduce 
judicial discretion in many respects, and unnecessarily 
circumvent the Rules Enabling Act process.
    For all of the foregoing reasons, we respectfully dissent 
and we urge our colleagues to oppose H.R. 985.

                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Mr. Jeffries.
                                   Mr. Cicilline.
                                   Mr. Swalwell.
                                   Mr. Lieu.
                                   Mr. Raskin.
                                   Ms. Jayapal.