Just past the House and on its way to the Senate, H.R. 985 bears the optimistic-sounding name Fairness in Class Action Litigation Act, but its ramifications are unlikely to be positive for future class members looking for legal relief. Congressman Bob Goodlatte (R-Va.) introduced the bill, noting that “class action lawsuits were created so Americans could have strength in numbers” when bringing a suit to court.
Agreed. And we’d add that these suits also make the system more efficient by addressing all injuries that arise from the same source in one suit rather than dozens or even thousands of cases. In fact, class action suits have not only enabled recovery for people who’ve suffered injury and would otherwise have no recourse, but they’ve helped shape public policy, as when the plaintiffs in Brown v. Board of Education of Topeka joined in a case that ended school segregation.
True enough: not all is rosy and bright in the world of class action lawsuits, and a common criticism is that bringing suit in a large group of plaintiffs leads to a small settlement for each individual. That can certainly be an outcome when a large group of people has been injured. The flipside is that in cases with large classes of plaintiffs, it’s generally the total amount in question that even allows the case to proceed.
In other words? A hundred injuries succeed where one will not.
But back to the bill. Goldlatte’s stated purpose is to prevent abuse of the class action system. Part of his solution is to require that each member of a class “suffered the same type and scope of injury.” That’s a tough one—maybe even an obstacle too high to climb.
To require that the way one person’s healthy body responded to, say, contaminants in water must be the same as that of someone with a compromised immune system is to miss the point: Both were injured by something that they shouldn’t have had to face.
To give a recent example, veterans in a class action suit against the Veterans Administration demonstrated a very broad range of injuries resulting from delayed claims. They started in different places physically, and the delay of their treatment by the VA necessarily affected them in different ways. The Fairness in Class Action Litigation Act would likely bar their suit. That’s a bitter pill to swallow, especially since just last year, the Supreme Court ruled that a class can include even members who haven’t suffered an injury.
Goodlatte’s bill ups the risk factor for attorneys representing plaintiffs in a class action. Many of these cases seek equitable relief, which boils down to “we want you to stop doing this harmful thing” rather than “we want you to pay for our injuries.” If the bill passes, it would limit attorneys’ fees to “a reasonable percentage of the value of any equitable relief.” What’s the monetary value of social progress? Of ensuring equal rights or fair employment practice?
The U.S. Chamber of Commerce backs Goodlatte’s bill, which may speak to what’s really at play here. Making it tougher for citizens to bring suit against companies who do harm has a clear beneficiary: corporations.
When citizens must jump through more and more hoops to get a case before a judge, and attorneys face greater risks in representing those clients, corporations spend less to defend their actions. And at what cost? The accountability factor of class action litigation has led to meaningful change regarding truth in advertising, sexual harassment, accessibility, and many more social and public health issues.
Nobody wants the courts to be gunked up with frivolous suits, but fortunately we’ve reached an era where checks are in place to keep such suits out of the courtroom. And class action suits have to meet their own stringent set of standards.
In a recent study of class actions in four federal districts, 407 suits were filed, but only 152 were certified as class actions (meaning they meet the federal criteria and can proceed), and 59 of those were certified only for settlement purposes. Eighteen of these cases made it to trial, and only one resulted in a judgment for the plaintiffs. Five cases ended in settlement after trial began.
It’s very, very difficult to get a class action to trial. These suits are designed to change harmful behavior from powerful companies or agencies as well as to provide relief for those whom they’ve injured.
A bill that makes it harder for David to even approach Goliath seems unnecessary and unfair, no matter what you call it.