Fairness in Class Action Bill Does Not Live Up to Its Name

April 28, 2015

Last week, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Constitution and Civil Justice Subcommittee Chairman Trent Franks (R-Ariz.) introduced the “Fairness in Class Action Litigation Act of 2015” (H.R. 1927). A press release announced how the bill purports “to strengthen federal class action lawsuit rules by ensuring victims who have experienced actual or comparable injury are justly compensated.”

Despite the rosy title and seemingly benevolent goal behind the bill, H.R. 1927 is anything but rosy and benevolent. The bill’s draconian nature is revealed in the title of the amendment that the bill seeks to add to the United States Code: “Limitation on certification of class.” Indeed, the limits that H.R. 1927 would impose on class action lawsuits are drastic. The bill would require federal courts to strike down all class actions unless it is “affirmatively demonstrate[d] through admissible evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named representative or representatives.”

The problems with this requirement are four-fold.

First, at the class certification stage, “admissible evidentiary proof” is not required. Nowhere does Federal Rule of Civil Procedure 23—governing the prerequisites and types of proper class actions—mention such a requirement. “Admissible evidentiary proof” is only required at trial. Therefore, H.R. 1927 puts the cart before the horse by requiring members of a class action to prove their case before trial.

Second, by imposing such a requirement, H.R. 1927 improperly bypasses the Rules Enabling Act, which authorizes the Supreme Court to promulgate rules of procedure that have the force and effect of law. Today, the principal policy-making body of the U.S. Courts is the Judicial Conference, which carries on a continuous study of the operation and effect of the federal rules. H.R. 1927 disregards the authority given by the Rules Enabling Act to the judiciary and the expertise of the Judicial Conference.

Third, the “Fairness” that H.R. 1927 purports to achieve is a farce. Subcommittee Chairman Franks issued a statement in support of the bill saying, “Class action lawsuits should allow those with serious injuries to have their own day in court.” Yet, under H.R. 1927, millions of injured individuals would never have a day in court due to the difficulty of proving “an injury of the same type and extent as the injury of the named representative or representatives.” The following historical class action lawsuits, among many others, likely would have never seen the inside of a courtroom under H.R. 1927:

  • Brown v. Board of Education of Topeka, the landmark case that declared “separate but equal” schools unconstitutional. H.R. 1927 likely would have prevented this class action case, because the different ways school facilities were unequal could not have satisfied “an injury of the same type and extent.”
  • Lois E. Jenson v. Eveleth Taconite Co., the first sexual harassment class action lawsuit, which forever changed state and federal laws protecting workers. H.R. 1927 likely would have prevented this class action because the physical harassment and intimidation suffered by different female mineworkers could not have satisfied “an injury of the same type and extent.”
  • Anderson v. Pacific Gas & Electric Co. was brought by residents of a town that alleged that PG&E knowingly dumped wastewater contaminated with a carcinogen into the region’s groundwater. H.R. 1927 likely would have prevented this case due to the different types and extent of injuries suffered by the residents.

Fourth, H.R. 1927’s requirement and Chairman Goodlatte’s statement in support of the bill—“Only those people who share injuries of the same type and extent should be part of a class action lawsuit”—are contrary to the justifications that led to the development of class actions. H.R. 1927 forces individuals with different injuries, however minor or trivial, to litigate on their own or attempt to pursue a class action only with others whose body or property were injured in precisely the same way and to exactly the same extent. That situation would either effectively prevent numerous individuals from seeking compensation for their injuries due to the impracticality of litigating alone or result in a multiplicity of lawsuits over one injurious act. As a result, the justifications for the class action device, articulated by the Supreme Court,[1] are thrown to the wayside by H.R. 1927.

These four problems reveal the bill’s true draconian nature as a drastic limit on class actions. As such, H.R. 1927 is more aptly named “Demolition of Class Action Litigation Act of 2015.”

On Wednesday, April 29, the U.S. House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice will hold a hearing on the bill. In advance of the hearing, you can send comments to your congressman via opencongress.org.



[1] SeeUnited States Parole Comm’n v. Geraghty, 445 U.S. 388, 402-403 (U.S. 1980) (listing the justifications for class actions as: protection of  the defendant from inconsistent obligations, the protection of the interests of absentees, the provision of a convenient and economical means for disposing of similar lawsuits, and the facilitation of the spreading of litigation costs among numerous litigants with similar claims).

Your Comment