Class action lawsuits could become much harder to bring—and to win—under a bill introduced into the House of Representatives. Representative Robert Goodlatte, R-VA and chairman of the House Judiciary Committee, presented HR 985, “Fairness in Class Action Litigation Act of 2017” in February 2017.

The main points of the bill exhibit a distinctive anti-class-action bias that would make it easier for businesses to escape consequences when their product has brought about real injury and suffering for those who bought and used it in good faith. Rep. Goodlatte has characterized his bill as making it easier “to maximize recoveries by deserving victims and weed out unmeritorious claims that would otherwise siphon resources away from innocent parties,” but we beg to differ.

While no one wants frivolous lawsuits clogging up our court system, a lot of us also don’t want injured families to suffer because redressing wrongs in court becomes so much more difficult. There are at least five ways in which this bill restricts the rights of consumers to participate in a class action suit. Thus, it is not truly about expanding fairness for all.

What is a Class Action Suit?

In a class action lawsuit, a group of people with the same, or similar, injuries caused by the same product or action can band together to sue as a group. Class action suits can also be called “multi-district litigation” (MDL) or “mass tort litigation.” Such suits can involve products like Takata airbags, prescription drugs such as Abilify, medical devices such as the Sorin 3T, and other items. Other types of class action suits can involve securities (investment) fraud, consumer fraud, or any case in which many persons are injured by a specific item or in a specific situation, such as an airplane crash.

Why Is HR 985 a Bad Idea?

The bill is complex, with many points that delve into the technical details of litigation. However, it was not difficult to discover several ways in which the bill’s provisions would be harmful to the average class action plaintiff who has suffered at the hands of a U.S. corporation. Here are our five objections:

  1. HR 985 limits class certification to those who have suffered “the same type and scope of injury.” On its surface, that might not appear to be a bad thing—those suing as a group should have similar complaints. But in reality, the bill could prevent injured parties from banding together to sue if their injuries were even slightly different. One example could be when a product caused one form of brain damage in one plaintiff, but a different form in another plaintiff. The brain damage might not be seen as similar enough under this bill. The bill also bars certification unless the court is able to verify class membership. The end result: It would discourage lawsuits among legitimately related plaintiffs who are suffering from a wide variety of damages.
  2. In multi-district litigation (MDL), plaintiffs bringing their case would be required to submit evidence detailing their injury within 45 days of their case’s transfer to the multidistrict proceeding. If the plaintiffs did not do so under this tight deadline, their cases would risk being dismissed. The appellate courts could also be required to consider appeals that result in the termination of some of the cases involved in an MDL situation.
  3. Class action lawyers would not be allowed to represent “repeat clients.” While this provision might not necessarily damage consumers or other individuals, it could have a chilling effect on, for example, institutional plaintiffs such as pension funds pursuing securities fraud cases. Antitrust and securities fraud cases require specialized, sophisticated legal expertise. To limit available legal help by not allowing an ongoing relationship with a plaintiff simply makes no sense if you are supposed to be pursuing justice.
  4. In certain cases, the bill would throttle the discretion normally left to judges, and would override consensus in the appellate court. The situation mainly affects cases where it is extremely difficult to determine monetary damages across the entire class. Because of such difficulties, over the past 20 years the federal courts have come up with the concept of “issue classes.” Briefly, it means that the defendant’s liability is first tried by class, with proceedings for individual damages following the class litigation proceedings. HR 985 would wreck this accepted procedure that benefits class members.
  5. HR 985 requires proof such as medical records soon after a plaintiff sues, and also requires judges to decide whether proof is sufficient within 30 days of its receipt. In class action suits involving many thousands of plaintiffs, such as the more than 40,000 injured involved in the painkiller Vioxx case (Merck Pharmaceuticals), the deadline represents an impossibility. No judge has enough clerks or hours to assess evidence from tens of thousands of plaintiffs within 30 days. Additionally, this new restriction is simply not needed. The Federal Rules of Civil Procedure already provide a path for handling this type of situation.

The class action lawsuit process is far from perfect, but it is currently the best way we have for persons who have suffered harm to receive some form of justice. While the process does have room for improvement, unfortunately, this bill does not provide it. As Elizabeth Chamblee Burch and Myriam Gilles detail in their article (found here), Rep. Goodlatte’s bill instead appears to have the elimination of group litigation as its goal. As such, it would be a step backward for the average injured U.S. citizen who has limited resources to pursue justice when compared with the assets available to U.S. corporations.

Listening hard. Working harder.

If you or someone you care about was seriously injured by a defective product such as a prescription drug, an automobile part, or a consumer item, you should speak with a South Carolina personal injury attorney at the Louthian Law Firm as soon as possible. We have been securing justice for hardworking people and families of South Carolina since 1959. A personal injury award won in court or through a negotiated settlement can help a person harmed by a defective product move forward toward health and wholeness.

At the Louthian Law Firm, we will listen to your individual circumstances and analyze the merits of your case absolutely free of charge. We work on a contingency basis, and you will pay no fees until we recover compensation for your injuries. Call us at 1-803-454-1200 or use our convenient online inquiry form to get started.