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.
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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 
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.
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    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.


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