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
goals.
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\
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\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
Letter''].
\3\Id.
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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\
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\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''].
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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.
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For the foregoing reasons and those discussed below, we
must respectfully oppose H.R. 985.
DESCRIPTION AND BACKGROUND
DESCRIPTION
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
presented[.]''
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
outcome.
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
provision.
Section 7 of the bill provides, among other things, that
its provisions will apply to any civil action pending on the
date of enactment.
BACKGROUND
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\
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\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).
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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
resources.\9\
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\9\Id.
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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
class;
(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\
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\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\
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\11\Fed. R. Civ. P. 23(b). Rule 23 contains a number of other
provisions that are not relevant to this bill.
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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\
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\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.'').
\13\Id.
\14\Id.
\15\Id. at Sec. 1407(c)(i)-(ii).
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CONCERNS WITH H.R. 985
I. H.R. 985 IS A SOLUTION IN SEARCH OF A PROBLEM
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\
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\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
http://clsbluesky.law.columbia.edu/2017/02/21/how-not-to-write-a-class-
action-reform-bill/.
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II. H.R. 985 UNDERMINES THE ABILITY OF PLAINTIFFS TO PURSUE MOST CLASS
ACTIONS AND MULTIDISTRICT LITIGATION BY IMPOSING NUMEROUS BURDENSOME
REQUIREMENTS
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
unknowable.\17\
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\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\
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\18\Miller Letter at 3.
\19\Id.
---------------------------------------------------------------------------
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\
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\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
Letter''].
\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''].
\23\Id.
\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
19.
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
counsel.
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.
\36\Id.
\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
Courts
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
prejudice.
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
19.
III. H.R. 985 WOULD STRAIN LIMITED JUDICIAL RESOURCES, OVERRIDE
JUDICIAL DISCRETION, AND CIRCUMVENT THE RULES ENABLING ACT PROCESS
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.
\43\Id.
---------------------------------------------------------------------------
CONCLUSION
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.
