[House Report 114-328]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-328
======================================================================
FAIRNESS IN CLASS ACTION LITIGATION ACT OF 2015
_______
November 5, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1927]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1927) to amend title 28, United States Code, to
improve fairness in class action litigation, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 3
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 11
New Budget Authority and Tax Expenditures........................ 11
Congressional Budget Office Cost Estimate........................ 11
Duplication of Federal Programs.................................. 12
Disclosure of Directed Rule Makings.............................. 12
Performance Goals and Objectives................................. 12
Advisory on Earmarks............................................. 12
Section-by-Section Analysis...................................... 12
Dissenting Views................................................. 13
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fairness in Class Action Litigation
Act of 2015''.
SEC. 2. CLASS MEMBER INJURY REQUIRED.
(a) In General.--No Federal court shall certify any proposed class
seeking monetary relief for personal injury or economic loss unless the
party seeking to maintain such a class action affirmatively
demonstrates that each proposed class member suffered the same type and
scope of injury as the named class representative or representatives.
(b) Certification Order.--An order issued under Rule 23(c)(1) of the
Federal Rules of Civil Procedure that certifies a class seeking
monetary relief for personal injury or economic loss shall include a
determination, based on a rigorous analysis of the evidence presented,
that the requirement in subsection (a) of this section is satisfied.
Purpose and Summary
The Fairness in Class Action Litigation Act is a simple,
one-page bill that will help ensure common sense principles
apply in class action lawsuits. Federal class action rules
currently require that a class share questions of law and fact
in common, and that the claims and defenses of the
representative parties are ``typical'' of those of the
class.\1\ Despite those standards, some courts have allowed
classes to be certified absent a showing that all the members
of the class actually share a common injury of the same type,
and of comparable scope.\2\ For example, in a case brought
against Whirlpool, the U.S. Court of Appeals for the Sixth
Circuit affirmed certification of a class of all owners of a
certain washing machine that allegedly produced moldy smelling
laundry, even though the overwhelming majority of the absent
class members experienced no problem with their machines.\3\
Similarly, in a case involving allegedly defective roofing
shingles, the U.S. Court of Appeals for the Seventh Circuit
recently held that the district court abused its discretion in
rejecting class certification on the ground that certain class
members' roofing shingles did not manifest the alleged
defect.\4\ And in a case brought on behalf of purchasers of
Jaguar vehicles that allegedly contained a defect resulting in
premature tire wear, the U.S. Court of Appeals for the Ninth
Circuit held that ``proof of the manifestation of a defect is
not a prerequisite to class certification.''\5\
---------------------------------------------------------------------------
\1\See Fed. R. Civ. P. 23(a)(3).
\2\Examples of class actions involving uninjured or non-comparably
injured members include the following: Wolin v. Jaguar Land Rover North
America, LLC, 617 F.3d 1168 (9th Cir. 2010); Eubank v. Pella Corp., 753
F.3d 718 (7th Cir. 2014); Butler v. Sears, Roebuck & Co., 702 F.3d 359
(7th Cir. 2012), cert. granted, judgment vacated, 133 S. Ct. 2768
(2013), judgment reinstated, 727 F.3d 796 (7th Cir. 2013) and cert.
denied, 134 S. Ct. 1277 (2014); In re Whirlpool Corp. Front-Loading
Washer Products Liability Litigation, 722 F.3d 838 (6th Cir. 2013),
cert. denied, 134 S. Ct. 1277 (2014); In re Zurn Pex Plumbing Products
Liability Litigation, 644 F.3d 604 (8th Cir. 2011); Lilly v. Jamba
Juice Co., No. 13-cv-02998-JST, 2014 WL 4652283 (N.D. Cal. Sept. 18,
2014); Zeisel v. Diamond Foods, Inc., No. C 10-01192 JSW, 2011 U.S.
Dist. LEXIS 60608 (N.D. Cal. June 7, 2011); Tait v. BSH Home Appliances
Corp., 289 F.R.D. 466 (C.D. Cal. 2012), cert. denied, 134 S. Ct. 1273
(2014); Volz v. Coca Cola Co., No. 1:10-cv-00879-MRB (S.D. Ohio 2014);
Banks v. Nissan North America, Inc., 301 F.R.D. 327 (N.D. Cal. 2013);
Forcellati v. Hyland's, Inc., No. CV 12-1983-GHK (MRWx), 2014 WL
1410264 (C.D. Cal. Apr. 9, 2014).
\3\In re Whirlpool Corp. Front-Loading Washer Products Liability,
722 F.3d 838, 849 (6th Cir. 2013), cert denied, 134 S. Ct. 1277 (2014).
\4\In re IKO Roofing Shingle Products Liability Litigation, 757
F.3d 599, 603 (7th Cir. 2014).
\5\Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168,
1173 (9th Cir. 2010).
---------------------------------------------------------------------------
Class actions like these undermine the proper
administration of justice and hurt the U.S. economy by lumping
uninjured people and injured into the same classes, greatly
inflating the class size, and unduly pressuring companies to
settle, at the expense of consumers who are forced to pay
higher prices in order to offset the cost of litigation to U.S.
companies. At the same time, these courts are potentially
shortchanging recovery for any legitimately injured class
members by redirecting limited resources to those who were
uninjured or non-comparably injured.
The Fairness in Class Action Litigation Act would overrule
the unfavorable precedent discussed above by clearly requiring
that a class be composed of members with injuries of the same
type and scope. Those injuries could be de minimis, or even
nonexistent, but members whose injuries were only de minimis or
nonexistent would have to bring their case in a separate class
action consisting of only such members. While allowing de
minimis or no-injury class actions to proceed as long as they
are brought as separate class actions, the bill would achieve a
very important reform: clustering actually injured and
similarly injured class members in their own class. People who
are injured, or injured much more significantly, deserve to
have their own class actions in which they can present their
uniquely powerful cases and get the larger recoveries they
deserve. Uninjured or less significantly injured people can
still file class actions under this legislation, but they must
do so separately, without diminishing the potential recovery of
actually injured or more significantly injured people. This
legislation also ensures that plaintiffs cannot circumvent
state laws that bar no-injury lawsuits by having one allegedly
injured plaintiff represent thousands of uninjured consumers.
Background and Need for the Legislation
Following the tenth anniversary of the enactment of the
Class Action Fairness Act, the House Subcommittee on the
Constitution and Civil Justice held a hearing on February 27,
2015, to explore further potential reforms to our class action
litigation system. One problem highlighted at that hearing was
that, under current rules, Federal courts are permitting class
action lawsuits to proceed before there has been a rigorous
analysis evaluating whether all the members of the class
actually share comparable injuries. Consequently, classes have
been certified that include people who are perfectly satisfied
with a product, but have been forced into a class action
lawsuit against their will.
House Judiciary Committee Chairman Bob Goodlatte introduced
the Fairness in Class Action Litigation Act on April 22, 2015,
which would tighten Federal class action rules such that a
Federal class could only be certified upon a showing that all
unnamed members of the proposed class have suffered injuries of
the same type and scope as those of the named class
representatives.
Hearings
The Committee's Subcommittee on the Constitution and Civil
Justice held a hearing on H.R. 1927 on April 29, 2015. The
following witnesses presented testimony at the hearing: John
Biesner, Partner, the Skadden law firm; Mark A. Behrens, Shook,
Hardy & Bacon; Andrew Trask, McGuire, Woods; and Alexandra D.
Lahav, University of Connecticut School of Law.
Committee Consideration
On June 24, 2015, the Committee met in open session and
ordered the bill H.R. 1927 favorably reported with an
amendment, by a rollcall vote of 24 to 8, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 1927.
1. Amendment #1, offered by Mr. Conyers, to exempt from the
bill claims for monetary relief under title VII of the Civil
Rights Act of 1964. Defeated 12 to 13.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 12 13
------------------------------------------------------------------------
2. Amendment #2, offered by Ms. Jackson Lee, to prevent the
bill from taking effect until the Administrative Office of the
United States Courts completes an assessment of the likely
financial and resource cost of the bill on litigants and
courts. Defeated 13 to 15.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 13 15
------------------------------------------------------------------------
3. Amendment #3, offered by Mr. Cohen, to strike the words
``or economic loss'' from the bill. Defeated 13 to 15.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 13 15
------------------------------------------------------------------------
4. Amendment #4, offered by Mr. Johnson, to strike the
words ``and scope'' from the bill. Defeated 11 to 17.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT).............................. X
Mr. Marino (PA)................................
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)............................... X
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA).............................. X
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 11 17
------------------------------------------------------------------------
5. Amendment #5, offered by Mr. Johnson, to exempt from the
bill claims of a violation of Federal or State antitrust law.
Defeated 10 to 15.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)............................... X
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 10 15
------------------------------------------------------------------------
6. Amendment #6, offered by Mr. Cicilline, to prevent the
bill from taking effect until the Judicial Conference of the
United States approves the changes to class certification
provided under section 2 of the bill. Defeated 10 to 15.
ROLLCALL NO. 6
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)............................... X
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 10 15
------------------------------------------------------------------------
7. Motion to report H.R. 1927 as amended. The motion was
agreed to by a rollcall vote of 15 to 10.
ROLLCALL NO. 7
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)............................... X
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 15 10
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1927, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 30, 2015.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1927, the
``Fairness in Class Action Litigation Act of 2015.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Marin
Burnett, who can be reached at 226-2860.
Sincerely,
Keith Hall,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 1927--Fairness in Class Action Litigation Act of 2015.
As ordered reported by the House Committee on the Judiciary
on June 24, 2015.
H.R. 1927 would amend the Federal judicial code to prohibit
Federal courts from certifying any proposed class unless the
party seeking to maintain a class action demonstrates that each
member of that class suffered an injury of the same type and
degree.
According to information from the Administrative Office of
the United States Courts (AOUSC), the legislation would
probably reduce both the number of class action suits filed and
the number of plaintiffs in them, while increasing the
administrative burden on the courts to review class action
suits that would be filed after enactment of H.R. 1927.
Based on information from the AOUSC, CBO estimates that the
additional costs to Federal courts under H.R. 1927 would not be
significant. Enacting H.R. 1927 would not affect direct
spending or revenues; therefore, pay-as-you-go procedures do
not apply.
H.R. 1927 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of State, local, or tribal
governments.
The CBO staff contact for this estimate is Marin Burnett.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 1927 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 1927 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1927 will provide greater fairness in class action litigation.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1927 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Fairness in Class Action Litigation Act of
2015.''
Sec. 2. Class Member Injury Required. Section 2 provides
that no Federal court shall certify any proposed class seeking
monetary relief for personal injury or economic loss unless the
party seeking to maintain such a class action affirmatively
demonstrates that each proposed class member suffered the same
type and scope of injury as the named class representative or
representatives. Section 2 further provides that an order
issued under Rule 23(c)(1) of the Federal Rules of Civil
Procedure that certifies a class seeking monetary relief for
personal injury or economic loss shall include a determination,
based on a rigorous analysis of the evidence presented, that
the requirements in the bill are satisfied.
To satisfy the requirement set forth above, the named
plaintiff must come forward with evidence of a common,
classwide injury. To ascertain the extent of the alleged injury
in a given case, the plaintiff might propound discovery on the
defendant seeking certain basic information. For example, in a
case involving an allegedly defective product, the plaintiff
could seek discovery regarding incidence of failure in testing
or the number of complaints received regarding the claimed
defect at issue in the litigation. The plaintiff could then
rely on that information in demonstrating that he or she
suffered the same type of injury as others in the proposed
class. Expert testimony would then be required to show that
there is a uniform defect common across the class that affected
all class members.
In addition, any order certifying a class action seeking
money damages must include a specific determination that the
requirement described above is satisfied.
Dissenting Views
INTRODUCTION
H.R. 1927, the ``Fairness in Class Action Litigation Act of
2015,'' as amended, represents the latest attempt to shield
corporate wrongdoers and deny plaintiffs access to justice.
Specifically, H.R. 1927 will make it virtually impossible for
plaintiffs to pursue most class actions in Federal court by
adding a new freestanding provision to the end of Title 28 of
the United States Code that would prohibit a Federal court from
certifying any class action unless: (1) the party pursuing the
class action demonstrates; (2) through admissible evidentiary
proof; (3) that each proposed class member; (4) suffered an
injury; (5) of the same type and scope as the injury of the
named class representative.
H.R. 1927 is highly problematic for several reasons. To
begin with, the bill is a solution in search of a problem as it
is based on the false premise that Federal courts are routinely
certifying class actions where not all putative class members
have suffered the alleged injury or where the alleged injury is
insufficient to meet constitutional standing requirements. In
addition, by requiring that class action plaintiffs effectively
prove the merits of their case as a condition of class
certification--which is only a preliminary stage of
litigation--the bill would make many class actions almost
impossible to pursue. In particular, in many types of cases--
including civil rights, antitrust, and privacy cases--it is
virtually impossible to prove that all class members suffered
the exact same ``type'' or ``scope'' of injury at the
certification stage, as the bill requires. This requirement
would undermine judicial efficiency and limit access to Federal
courts for those with claims that are too small or too
burdensome to pursue on an individual basis.
The bill will raise litigation costs by effectively
requiring plaintiffs to prove the merits of their case twice,
once at the certification stage and once during the trial on
the merits of their case, potentially dissuading plaintiffs
from pursing meritorious claims and straining Federal court
resources. Finally, the bill is yet another attempt by Congress
to circumvent the careful and thorough Rules Enabling Act
process for amending Federal civil procedure rules. This is
particularly disconcerting given that the Judicial Conference
of the United States, the Federal judiciary's policymaking arm,
is currently in the midst of studying changes to Rule 23, which
governs certification of class actions.
For the foregoing reasons and others, numerous groups
oppose H.R. 1927\1\, including the American Civil Liberties
Union, the American Federation of State, County, and Municipal
Employees, the American Antitrust Institute, the Center for
Effective Government, the Center for Science in the Public
Interest, Consumer Federation of America, Consumers Union, the
NAACP, the National Association of Consumer Advocates, the
National Consumer Law Center, the National Employment Law
Project, the National Fair Housing Alliance, the National
Immigration Law Center, the Natural Resources Defense Council,
Public Citizen, Public Justice, and the Southern Poverty Law
Center.\2\ Similarly, the Leadership Conference on Civil and
Human Rights wrote in opposition to H.R. 1927, noting that the
bill would ``undermine the ability of civil rights litigants to
bring class action cases to vindicate their legal rights.''\3\
The Committee to Support Antitrust Laws opposes H.R. 1927
because ``it could entirely eliminate all antitrust class
actions, including those against international cartels causing
billions of dollars in damages to U.S. consumers and
companies.''\4\ Finally, Professor Arthur Miller, the Nation's
foremost scholar on Federal civil practice and procedure, wrote
in opposition to H.R. 1927 stating that the bill violates 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
persons.\5\
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\1\Although the bill was amended at markup to be limited to claims
for monetary relief for physical injury or economic loss, it still
raises many of the same basic concerns expressed in these letters and
could still effectively preclude many types of claims from class action
treatment in Federal court, including antitrust claims and employment
discrimination claims.
\2\Letter from 55 groups to Chairman Trent Franks (R-AZ) & Ranking
Member Steve Cohen (D-TN), Subcomm. on the Constitution and Civil
Justice of the H. Comm on the Judiciary (Apr. 29, 2015) (on file with
H. Comm. on the Judiciary Democratic staff) [hereinafter ``Groups
Letter''].
\3\Letter from Wade Henderson, President and CEO, & Nancy Zirkin,
Executive Vice President, The Leadership Conference on Civil and Human
Rights to Members of the Subcomm. on the Constitution and Civil Justice
of the H. Comm. on the Judiciary (Apr. 29, 2015) (on file with H. Comm.
on the Judiciary Democratic staff) [hereinafter ``LCCHR Letter''].
\4\Letter from Daniel C. Hedlund, President, Committee to Support
the Antitrust Laws, to Chairman Trent Franks (R-AZ) & Ranking Member
Steve Cohen (D-TN), Subcomm. on the Constitution and Civil Justice of
the H. Comm. on the Judiciary (Apr. 29, 2015) (on file with H. Comm. on
the Judiciary Democratic staff) [hereinafter ``COSAL Letter''].
\5\Letter from Arthur R. Miller, University Professor, New York
University School of Law, to Chairman Trent Franks (R-AZ) & Ranking
Member Steve Cohen (D-TN), 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''].
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For the foregoing reasons and those discussed more fully
below, we respectfully dissent and urge our colleagues to
oppose this misguided legislation.
DESCRIPTION AND BACKGROUND
DESCRIPTION
H.R. 1927, as amended, 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.\6\ The bill does not define the terms
``economic loss'' and ``scope of injury.'' As introduced, the
bill had required a demonstration of the same ``extent'' of
injury, but it does not appear that replacing the term
``extent'' with ``scope'' in the Manager's Amendment actually
changed the meaning of this requirement in substance.\7\
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\6\H.R. 1927, 114th Cong. Sec. 2(a) (as ordered reported by H.
Comm. on the Judiciary, June 24, 2015).
\7\The term ``scope of injury'' is inherently vague and uncertain,
as there are multiple dictionary definitions for ``scope,'' including
the following definition: ``extent of treatment, activity, or
influence.'' Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/scope (last visited Oct. 26, 2015). As
Representative Jerrold Nadler (D-NY) noted during the Committee markup,
the term ``scope'' is vague enough that it could lead to substantial
litigation over its meaning, leading to increased litigation costs. Tr.
of Markup of H.R. 1927, the ``Fairness in Class Action Litigation Act
of 2015,'' by the H. Comm. on the Judiciary, 114th Cong., at 40-41
(Jun. 24, 2015) [hereinafter ``Markup Transcript''].
---------------------------------------------------------------------------
The bill requires a court, in issuing a class certification
order for any class subject to the bill's requirements, to also
certify that those requirements have been met ``based on a
rigorous analysis of the evidence presented. . . .''\8\
---------------------------------------------------------------------------
\8\H.R. 1927, 114th Cong. Sec. 2(b) (as ordered reported by H.
Comm. on the Judiciary, June 24, 2015).
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BACKGROUND
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.\9\
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\9\For outlines of the policy reasons supporting the existence of
the class action mechanism, see H.R. 1927, the ``Fairness in Class
Action Litigation Act of 2015'': Hearing 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 D. Lahav, Joel Barlow Professor, University of Connecticut
Law School, at 2-5); 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) (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. They are 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.\10\
---------------------------------------------------------------------------
\10\Id.
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Federal Rule of Civil Procedure 23 governs class actions
filed in Federal courts. Rule 23(a) sets forth the
prerequisites necessary for the establishment of a class, which
are that:
(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.\11\
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\11\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.\12\
---------------------------------------------------------------------------
\12\Fed. R. Civ. P. 23(b). Rule 23 contains a number of other
provisions that are not relevant to this bill.
---------------------------------------------------------------------------
CONCERNS WITH H.R. 1927
I. H.R. 1927 IS A SOLUTION IN SEARCH OF A PROBLEM.
There is no need for H.R. 1927 because plaintiffs already
must satisfy rigorous requirements in order to pursue a class
action. As explained above, Rule 23 requires a plaintiff
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, Federal courts
vigorously enforce Rule 23's requirements, and pursuing a class
action already requires discovery and motion practice, which
mandate a significant expenditure of time and resources.\13\
H.R. 1927 would only make these procedural hurdles even more
burdensome and potentially cost-prohibitive.
---------------------------------------------------------------------------
\13\Subcommittee Hearing (Lahav Statement at 5-6, 9-10).
---------------------------------------------------------------------------
Additionally, the bill is based on the false premise that
Federal courts are inappropriately certifying classes where
putative class members have not suffered any injury. In
particular, the bill's proponents claim that ``benefit of the
bargain'' cases constitute such ``no-injury'' class actions. In
such cases, plaintiffs allege that they have been injured after
purchasing a defective product because they did not receive the
full value of what they thought they were paying for (i.e., a
non-defective product.)\14\ As Professor Alexandra Lahav
explained at the hearing on this bill before the Subcommittee
on the Constitution and Civil Justice, plaintiffs in such cases
have, in fact, suffered a real injury--namely, financial injury
in the form of paying a price for a product that is, in fact,
worth less than what the plaintiff bargained for.\15\ In the
product liability context, this means that where a consumer
purchases a product with a design defect, that consumer has
suffered an injury regardless of whether the defect manifests
in any other harm to the consumer.\16\ In sum, the consumer has
not received the product that he or she paid for, but, instead,
one that is worth less than what the consumer thought he or she
was buying at the time of purchase.\17\ It is perhaps telling
that, in two ``benefit of the bargain'' cases involving
Whirlpool front-loading washing machines that H.R. 1927's
proponents point to as a reason to support the bill, the
Supreme Court has denied appeals of class certification based
on the argument that these class actions amounted to ``no-
injury'' class actions.\18\
---------------------------------------------------------------------------
\14\Id. at 10.
\15\Id.
\16\Id.
\17\Id. By way of further example, Professor Lahav testified
if I purchase a car that has a faulty ignition switch,
which has a propensity to turn off while I am driving on
the highway, I should not have to wait until I suffer a
potentially catastrophic accident to bring a lawsuit to
assert my rights. In fact, the law should not want me to
wait, as I will have created a much greater risk for myself
and those around me and increased the damages the defendant
would have to pay. A car that has a faulty ignition switch
is worth less than full price, and that gives me standing
to sue before I get on the road and prove that there is a
---------------------------------------------------------------------------
defect by endangering innocent lives.
Id at 11.
---------------------------------------------------------------------------
\18\Glazer v. Whirlpool Corp., 722 F.3d 838 (6th Cir. 2013), cert.
denied, 134 S. Ct. 1277 (2014); Butler v. Sears, Roebuck & Co., 702
F.3d 369 (7th Cir. 2012), cert. denied, 134 S. Ct. 1277 (2014).
---------------------------------------------------------------------------
Similarly, the claim by the bill's proponents that class
actions based solely on statutory damages provisions are
examples of ``no-injury'' class actions is without merit. In
many state consumer protection statutes, and in employment,
civil rights, or privacy statutes, the injury, while very real,
is difficult to quantify in monetary terms. Congress and state
legislatures, therefore, set statutory damage levels to
simplify the process of quantifying damages, to deter corporate
wrongdoing, and to encourage access to courts. The individual
class members, however, may only be entitled to a small amount
of damages under the statute, so these cases can only feasibly
be brought as a class action. The injury such actions seek to
remedy, however, is very real.\19\
---------------------------------------------------------------------------
\19\To the extent that H.R. 1927's proponents base their support
for the bill on the argument that violation of a statute, alone, does
not constitute a sufficient ``injury'' for purposes of meeting the
Constitution's standing requirements, the bill may be premature, as the
Supreme Court will be considering this issue this term. See Robins v.
Spokeo, Inc., 732 F.3d 409 (9th Cir. 2014), cert. granted, 135 S.Ct.
1892 (2015).
---------------------------------------------------------------------------
II. H.R. 1927 EFFECTIVELY MAKES MOST CLASS ACTIONS IMPOSSIBLE TO
PURSUE, DENYING ACCESS TO JUSTICE FOR PLAINTIFFS
By requiring that a plaintiff show that each potential
class member suffered the exact same type and scope of injury
at the class certification stage, H.R. 1927 undermines the core
purpose of class actions, which is to provide for efficiency in
the disposition of numerous but substantially the same claims
and to provide access to courts for parties that, individually,
would not have the incentive or resources to pursue otherwise
meritorious claims. Moreover, its requirement that the
plaintiff show the that each proposed class member suffered the
exact same injury is virtually impossible to meet as a
practical matter at the certification stage. While the
Manager's Amendment changed the bill's language by replacing
the requirement that a plaintiff demonstrate the same
``extent'' of injury with a requirement that she demonstrate
the same ``scope'' of injury for each proposed class member,
this change makes no substantive difference in our view and
does not vitiate our concerns.
By requiring a putative class representative to prove
injury of every absent member of the putative class at the
certification stage, H.R. 1927 requires a decision on the
merits before trial and before appropriate class members can
even be individually identified. 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 his letter
in opposition to H.R. 1927, 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.\20\
---------------------------------------------------------------------------
\20\Miller Letter at unnumbered 2.
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.\21\ He further noted that class membership
does not equate to entitlement to damages.\22\
---------------------------------------------------------------------------
\21\Id. at unnumbered 3.
\22\Id.
---------------------------------------------------------------------------
In short, class actions exist in order to resolve claims of
large groups of similarly situated people. Particularly when
the individual damages are small, it is economically viable to
bring suit for wrongdoing only through a class action. If, as
H.R. 1927 requires, each proposed class member's injury must be
proven at the certification stage--often a practical
impossibility at a time when each class member cannot be
individually identified--in order to even proceed as a class,
this requirement defeats the point of the class action device,
which is to promote the efficient adjudication of substantially
the same claims based on substantially the same facts by a
class representative on behalf of absent class members. As
Professor Miller notes, the bill's requirement that potential
class representatives prove that each proposed class member
suffered that exact same injury as a condition of class
certification inappropriately conflates the class certification
inquiry with a decision on the merits and an assessment of each
individual class member's damages.
To address these concerns in part, Representative Steve
Cohen (D-TN), the Ranking Member of the Subcommittee on the
Constitution and Civil Justice, offered an amendment that would
have stricken claims for monetary relief alleging economic loss
from the bill's reach. He explained that the concerns expressed
by Professor Miller and others about the impact of H.R. 1927 on
the ability of plaintiffs to pursue class actions were
particularly heightened in the case of economic loss claims
because it is especially difficult to identify plaintiffs at
the earliest stages of such a case and to assess whether every
potential class member suffered the exact same injury in such
cases.\23\ Notwithstanding these concerns, the Committee
defeated the amendment by a 13 to 15 vote.\24\
---------------------------------------------------------------------------
\23\Markup Transcript at 53-54.
\24\Id. at 63.
---------------------------------------------------------------------------
The bill's requirement that a plaintiff prove each
potential class member suffered the exact same injury at the
certification stage would essentially undermine the ability of
plaintiffs to obtain class action certification. As a broad
coalition of consumer and civil rights groups noted in opposing
H.R. 1927, this requirement ``would sound the death knell for
class actions'' because classes ``inherently include a range of
affected individuals, and virtually never does every member of
the class suffer the same extent of injury even from the same
wrongdoing.''\25\ This kind of ``commonality of damages''
requirement for class certification, as this coalition noted,
has been rejected by the Federal courts.\26\ Similarly, a group
of health professionals and attorneys criticized the required
showing of the exact same injury for each class member, noting
that such a requirement ``violates basic medical scientific
principles'' that make ``very clear that each individual
responds somewhat differently to a health hazard'' based on the
person's genetic makeup, health, age, gender, and many other
factors.\27\
---------------------------------------------------------------------------
\25\Groups Letter.
\26\Id.
\27\Letter from 25 Health Care Professionals and Attorneys to
Chairman Trent Franks (R-AZ) and Ranking Member Steve Cohen (D-TN),
Subcomm. on the Constitution and Civil Justice of the H. Comm. on the
Judiciary, (Apr. 28, 2015) (on file with H. Comm. on the Judiciary
Democratic staff).
---------------------------------------------------------------------------
At a minimum, the terms ``type'' and ``scope'' of injury as
used in H.R. 1927 are inherently vague and undefined. As a
result, the bill will spawn litigation over their meaning as
well as preclude a large number of class actions depending on
how these terms are interpreted. For example, it is unclear
whether a civil rights plaintiff whose employment is terminated
because of race suffered the same ``type'' or ``scope'' of
injury as another plaintiff of the same race who is terminated
from a different position by the same employer because of race.
Under the bill, these plaintiffs arguably would not be able to
pursue a class action because, although they may have been
subject to the same racially discriminatory employment policy
or practice based on their shared race, they each may have been
affected in a different manner or to a different degree.
For these reasons, Ranking Member John Conyers, Jr. (D-MI)
offered an amendment at markup that would have exempted claims
for monetary relief under Title VII of the Civil Rights Act of
1964, which prohibits discriminatory employment practices on
the basis of race, sex, and other protected characteristics and
allows recovery of back pay and compensatory and punitive
damages.\28\ The amendment, however, was defeated by a 12 to 13
vote.\29\
---------------------------------------------------------------------------
\28\42 U.S.C. Sec. 2000e et seq. (2015).
\29\Markup Transcript at 34.
---------------------------------------------------------------------------
Representative Hank Johnson (D-GA), the Ranking Member of
the Subcommittee on Regulatory Reform, Commercial and Antitrust
Law, also offered an amendment to address concerns about the
required showing that each proposed class member suffered the
same scope of injury. That amendment would have struck the
bill's requirement that a plaintiff demonstrate the same
``scope'' of injury for each proposed class member in order to
obtain class certification, but was defeated by an 11 to 17
vote.\30\
---------------------------------------------------------------------------
\30\Id. at 73.
---------------------------------------------------------------------------
The Committee to Support the Antitrust Laws (COSAL), which
represents the private antitrust bar, also criticized H.R.
1927's requirement that class representatives prove that every
potential class member suffered the exact same injury, noting
that ``this is a standard that could rarely if ever be met''
because very ``few antitrust classes, if any, will be composed
of members with damages in the exact same dollar amount.''\31\
COSAL also noted that the ``100% injury requirement will make
class certification impossible even in cases where the vast
majority--above 95% or more--of class members have suffered
harm.''\32\
---------------------------------------------------------------------------
\31\COSAL Letter at 2.
\32\Id.
---------------------------------------------------------------------------
In light of this concern, Representative Johnson offered an
amendment that would have exempted antitrust claims from the
bill. The Committee, however, defeated this amendment by a 10
to 15 vote.\33\
---------------------------------------------------------------------------
\33\Markup Transcript at 84.
---------------------------------------------------------------------------
III. H.R. 1927 WILL INCREASE THE COSTS AND RESOURCE BURDENS FOR COURTS
AND LITIGANTS
Given the already resource-intensive nature of class
actions, H.R. 1927 would further burden courts and litigants.
As Professor Lahav testified, H.R. 1927 would be
``inefficient'' because it would require a ``full blown trial
at the outset of every class action'' and another trial on
``the merits again at the end of the litigation in order to
obtain a judgment, wasting both judicial and party
resources.''\34\ Similarly, Professor Miller told the Committee
that by ``demanding a pre-certification determination of
`injury,' the bill would create enormous work and litigation
burdens--for the Federal judges as well as the litigants--that
would destroy the utility of the class procedure. The class
certification process is already freighted with complexity and
protraction; this bill would exacerbate that and create further
inefficiencies.''\35\
---------------------------------------------------------------------------
\34\Subcommittee Hearing, Lahav Statement at 6.
\35\Miller Letter at unnumbered 3.
---------------------------------------------------------------------------
The increased costs and burdens to plaintiffs that H.R.
1927 would impose could dissuade them from pursuing class
actions in the first place, even when their claims have merit.
Even if it did not have such an effect, however, there is
little doubt that courts would bear the burden of holding
trials on the entire case twice--first at the certification
stage in order to find sufficient facts to determine whether
every class member suffered the same type and scope of injury,
and then a second time before a jury. For these reasons,
Representative Sheila Jackson Lee (D-TX) offered an amendment
at markup that would have delayed the bill's effective date
until the Administrative Office of the United States Courts
completed an assessment of the bill's likely financial and
resource costs on litigants and courts. The amendment, however,
was defeated by a 13 to 15 vote.\36\
---------------------------------------------------------------------------
\36\Markup Transcript at 51.
---------------------------------------------------------------------------
IV. H.R. 1927 CIRCUMVENTS THE RULES ENABLING ACT PROCESS
H.R. 1927, like many other civil justice bills designed to
deny plaintiffs their access to courts, also circumvents the
exhaustive and deliberative Rules Enabling Act process, which
permits public participation.\37\ This process also
incorporates the judiciary's day-to-day, real-world experience
with the application of the Federal civil procedure rules,
including Rule 23. Moreover, Congress retains the power to
review those rules and to accept, modify, or reject any
proposed changes pursuant to the extensive Rules Enabling Act
process. In fact, the Judicial Conference of the United States
is currently considering changes to Rule 23, and the process
should be permitted to run its course.
---------------------------------------------------------------------------
\37\28 U.S.C. Sec. Sec. 2071 et seq. (2015).
---------------------------------------------------------------------------
To address this concern, Representative David Cicilline (D-
RI) offered an amendment to condition the bill's effective date
on the Judicial Conference approving the amendments to class
action certification made by the bill. This amendment was
defeated by 10 to 15 vote.
CONCLUSION
H.R. 1927 is an unnecessary bill that threatens to deny
millions of plaintiffs access to Federal courts by creating
potentially insurmountable obstacles to class action
certification and raising litigation costs. Moreover, it
disrespects the Federal courts by imposing new burdens on them
and by circumventing the congressionally-created Rules Enabling
Act process by which Federal civil procedure rules are amended
after extensive input from the bench and bar. For all the
foregoing reasons, we strongly oppose H.R. 1927.
Mr. Conyers, Jr.
Mr. Nadler.
Ms. Lofgren.
Ms. Jackson Lee.
Mr. Cohen.
Mr. Johnson, Jr.
Ms. Chu.
Mr. Deutch.
Mr. Gutierrez.
Ms. Bass.
Mr. Richmond.
Ms. DelBene.
Mr. Jeffries.
Mr. Cicilline.
[all]