HR 985 Crushes Consumer Rights While Protecting Big Businesses

A bill wending its way through Congress would give businesses every change they want in class action lawsuit procedures, at the expense of consumers’ ability to enforce their rights.

On March 9, H.R. 985 passed the House with a 220 to 201 vote. This bill would enact substantial changes in the way federal courts handle significant consumer protection and civil rights litigation.

The bill is now formally known as the “Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017,” after House members merged it with another bill addressing claims for asbestos-related illnesses.

In principle, this bill is based on the myth of a supposedly abusive plaintiff’s bar reaping windfalls by filing frivolous litigation against innocent corporations. The bill’s proponent, House Judiciary Chairman Bob Goodlatte, claims it will “keep[] baseless class action suits away from innocent parties.”

But in fact, H.R. 985 makes it easier for businesses to get away with unlawful acts at consumers’ expense. By making class action litigation slower and more difficult for plaintiffs, H.R. 985 would make it easier for defendant businesses to get away with fraud, negligence, false advertising, and other unlawful acts that can affect consumers on a Class-wide basis.

Among other changes, the bill would prevent courts from granting Class certification unless all proposed Class Members “suffered the same type and scope of injury.”

Suppose, for example, that a bank’s overdraft protection policy results in some customers being overcharged $5 and others being overcharged $10. These customers all suffered a financial loss stemming from a single policy by a single bank.

Under current law, these customers could resolve their claims against the bank as a single Class. But under the provisions of H.R. 985, these customers may have to litigate separately, merely because their alleged losses are not exactly the same for each purported Class Member.

As another example, suppose a company produces a shampoo and a conditioner and labels them both as “all natural” even though they contain synthetic ingredients. The products are closely related, the false advertising on their labels is essentially the same, and the acts at issue were committed by the same company.

But under H.R. 985, stopping that company’s false advertising could require plaintiffs to bring two separate class action lawsuits – one for the shampoo and another for the conditioner – if the harm to consumers were different for each of those products.

The bill would also impose slower and more burdensome procedural requirements for pretrial discovery and administration of payments to Class Members.

These changes would be a solution looking for a problem. For years, the federal court system, the legal profession, and the settlement administration industry have handled discovery and payment administration without trouble. The new restrictions would serve only to delay the process.

By imposing these and other restrictions, H.R. 985 would make class action litigation considerably more burdensome on plaintiffs.

Anything that makes class action litigation more difficult for plaintiffs makes it better for defendants. The extra burdens imposed by H.R. 985 would be an advantage for the businesses who find themselves defendants in these claims. They would face fewer actions from smaller classes. The alleged damage amounts would be lower, too.

Civil right organizations, law professors, consumer advocacy organizations, and the American Bar Association all have spoken out in opposition to H.R. 985. You can speak out against it too. Contact your state’s senators and ask them to vote NO on H.R. 985, the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017.

What Can I Do to Stop H.R. 985 From Passing?

If you want to see Consumer Rights protected, contact your state’s U.S. Senators today and tell them to vote NO on H.R. 985, the Fairness in Class Action Litigation Act of 2017. Your senators can be reached by calling the Capitol Switchboard at (202) 224-3121 and asking the operator to connect you with their offices.

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