Anti-Class Action Bill Would Gut Consumer Rights

A bill currently making its way through Congress would severely restrict consumers’ ability to seek legal recourse through class action lawsuits.

The bill – H.R. 985, titled the “Fairness in Class Action Litigation Act of 2017” – is written to serve business interests at consumers’ expense.

It would hamstring consumers’ ability to enforce many legal protections against fraudulent and occasionally dangerous corporate behavior, rendering useless many laws passed in the public interest throughout the 20th century.

Among many other provisions, the bill would prevent courts from certifying a plaintiff Class unless the named plaintiff demonstrates that each proposed Class Member suffered the same “type and scope” of injury as the named plaintiff.

In reality, this proposed change is a solution without a problem. Court rules already limit plaintiff Classes to those who share common interests against the named defendant.

At the same time, the current rules are flexible enough to provide more efficient resolution of broader claims. So for example, in a case where a single design defect manifests in two different products, the parties may resolve all related issues in a single legal action.

The new bill would result in smaller Classes and more lawsuits. It would require many claims to be litigated as separate actions, grossly overburdening the federal courts’ already packed dockets.

Another bill provision would require plaintiffs to demonstrate an “administratively feasible” way to identify and pay Class Members.

Feasibility, however, is just another non-issue. Federal courts know full well how to handle claims administration. For years, they and the contractors that administer class action settlements have managed to determine Class Members and verify their actual harm without difficultly.

These and other provisions in the proposed bill would do far more than just advance the preferences of one set of litigants. In practice, they would severely impair class action lawsuits from serving their true purpose.

Class action lawsuits prevent businesses from getting away with scams that spread their negative effects among large numbers of consumers. Spread the effects thinly enough, and no one consumer would have the incentive to do anything about it. Meanwhile, the unscrupulous business gets away with its ill-gotten gains.

There’s a whole universe of potential wrongs that would not be worth fighting on an individual basis if class action lawsuits weren’t available. Many claims under antitrust, products liability, false advertising, employee rights and civil rights laws would simply not be worth litigating for any one plaintiff.

The class action system responds to that problem by providing incentive awards for the lead plaintiff. These awards compensate the named plaintiff over and above the smaller payments that each Class Member receives. They are often worth several thousand dollars – enough to make bringing the claim worth at least one plaintiff’s effort.

Despite the harm this bill would cause consumers, its proponents are deceptively promoting it in consumer-friendly terms. Rep. Bob Goodlatte of Virginia announced the bill as one that would “improve access to justice for American consumers.”

Goodlatte has a history of shepherding business-friendly changes in class action procedure, such as the 2005 Class Action Fairness Act that expanded federal court jurisdiction over class actions originally filed in state courts.

Business interests have chipped away at the class action system through a decades-long smear campaign, propagating the myth of an abusive plaintiff’s bar reaping excessive attorneys’ fees at consumers’ expense. The current bill would exploit that myth, leaving consumers and their advocates hamstrung.

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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