The Republican-controlled House voted March 9 to approve the Fairness in Class Action Litigation Act, which purports to protect consumers but does the opposite by making it harder for people to join class-action lawsuits.
The legislation is among a handful of bills that Republican lawmakers have rushed through the House Judiciary Committee in recent weeks while the attention of the public and press has been elsewhere (read: the president’s Twitter feed).
Each bill addresses some aspect of the legal system that businesses find bothersome but that consumer advocates say fosters accountability.
Ironically, last week’s vote on class actions came during National Consumer Protection Week, which the Federal Trade Commission says is intended to celebrate “empowered consumers.”
How Valley congressmen voted Yes: Devin Nunes, R-Tulare; Tom McClintock, R-Elk Grove; Kevin McCarthy, R-Bakersfield No: Jim Costa, D-Fresno
Robert Weissman, president of the advocacy group Public Citizen, said the actions of Republican lawmakers speak much louder than the FTC’s words.
“People assume they can get their day in court,” he told me. “If they’re injured, they can get redress. What these bills are about is stripping people of that right.”
That’s not how the authors of the various bills tell it, of course. They say they’re fighting the good fight on behalf of beleaguered citizens.
Rep. Bob Goodlatte, R-Va., chairman of the Judiciary Committee and author of the Fairness in Class Action Litigation Act, told me his bill is intended to provide Americans with “an efficient and just legal system.”
“Frivolous lawsuits have no place in our legal system, and the true victims of frivolous lawsuits are often small businesses and individuals who cannot afford to fight these claims,” he said.
Apparently this is an extremely urgent issue because Goodlatte introduced his bill only a month ago. It was approved by his committee’s Republican majority less than a week later without any public hearings or debate.
“The legislation … addresses the abuses within our civil justice system, helps ensure that baseless lawsuits are quickly dispensed with and improves protections for deserving victims so the doors to justice remain open for parties with legitimate claims,” Goodlatte said.
What it really does is impose strict new rules on class actions that make them a lot harder to get off the ground. Not surprisingly, the bill is strongly supported by the business-boosting U.S. Chamber of Commerce, which has spent millions lobbying on its behalf.
The legislation’s key provision would allow a class to be certified – that is, to receive court approval for plaintiffs to band together – only if all members “suffered the same type and scope of injury as the named class representative.”
That’s a spectacularly unfair stipulation for a bill claiming to be all about fairness.
Take air bags. Let’s say the originator of a class-action lawsuit was severely injured by an exploding air bag. If Goodlatte’s bill were law, the only people who could join the suit would be people who received similarly extensive harm.
Someone who sustained lesser or different injuries probably wouldn’t qualify for the case.
“Classes typically include a range of individuals who almost never suffer precisely the same degree of injury,” said Christine Hines, legislative director for the National Association of Consumer Advocates.
If membership in class actions became as narrowly defined as Goodlatte’s bill envisions, she said, far fewer people would be able to participate in seeking redress for defective products or unfair business practices.
That’s why the legislation is opposed by dozens of consumer, civil rights, labor and environmental groups, which said in a letter to the Judiciary Committee that “it would obliterate class actions in America.”
The shame of it is that Goodlatte’s bill also contains some thoughtful provisions, such as limiting lawyers’ payouts to “a reasonable percentage” of whatever plaintiffs are awarded. Often, attorneys walk off with a big chunk of the cash and leave individual class members with relatively little.
But these worthwhile ideas are far outweighed by the ridiculous “same scope of injury” provision.
A blow to civil-rights cases?
On March 10, the House passed another bill rapidly green-lighted by Goodlatte’s committee – the Lawsuit Abuse Reduction Act from Rep. Lamar Smith, R-Texas. The legislation will impose mandatory fines on lawyers if a judge determines a case to be “meritless.” Judges currently have the discretion not to levy penalties in such instances and to just dismiss the lawsuit.
Smith told me his bill would “serve as a disincentive for lawyers to file junk lawsuits.”
Democratic lawmakers say the legislation, which also was championed by the U.S. Chamber of Commerce, could deter lawyers from taking on complex cases that require novel legal arguments, which often are the basis of civil-rights disputes.
Another bill that’s been approved by the Judiciary Committee and still awaits a turn on the House floor is the Furthering Asbestos Claim Transparency Act from Rep. Blake Farenthold, R-Texas.
He told me his legislation is intended to prevent “double dipping” by people submitting more than one claim for asbestos-related harm. It would do this by requiring publication of claimants’ personal information and work history.
Backers of these bills are able to introduce and ram through such pernicious legislation – and then sleep at night – because they don’t talk to those affected, don’t listen to their stories, don’t grapple with the real-life impact of their actions.
Robert Weissman, president of the advocacy group Public Citizen
Critics say the bill uses the prospect of nonexistent fraud to make the claims process “so onerous and so invasive for victims that the payments will be delayed … or victims will be deterred from filing claims entirely,” according to the Asbestos Disease Awareness Organization.
Put it all together and you’ve got a bunch of busy-beaver conservative lawmakers quietly, and quickly, pushing through business-backed legislation that failed for years to get anywhere under a Democratic president. The bills now stand a better-than-fair chance of being signed into law by President Trump.
“Backers of these bills are able to introduce and ram through such pernicious legislation – and then sleep at night – because they don’t talk to those affected, don’t listen to their stories, don’t grapple with the real-life impact of their actions,” Public Citizen’s Weissman said.
Our legal system is far from perfect and, yes, there are abuses of class actions and damages claims. But significantly tilting the playing field in favor of businesses doesn’t improve things.
Consider recent fraud and defective-product scandals involving Wells Fargo, Volkswagen and air bag maker Takata. Consumers and employees responded with class-action lawsuits.
Anyone think those cases are frivolous?