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Class Action "Reform"Steven J. Greenfogel

A Bill titled the "Fairness In Class Action Litigation Act of 2017" is now making its way through the U.S. House of Representatives, where it will undoubtedly pass without change and move on to the Senate for more serious consideration. As an attorney whose practice is almost exclusively involved in prosecuting class actions, I view the Bill in its present form as a clear effort by the Big Business lobby to kill, once and for all, class actions as a means of redress for American consumers and others who have been harmed by illegal actions of the business community.

Since its inception in the 1960's as a vehicle for redressing consumer rights, the class action has been a target of business interests who seek to curtail protections for consumers. In addition to Congressional lobbying over the years, the U.S. Chamber of Commerce has been successful in its efforts to curb class actions by filing numerous amicus briefs in the Supreme Court. In a series of opinions by the Roberts Court, class actions were dealt a heavy blow when it was decided that contracts with arbitration clauses, no matter how onerous or adhesive, would not be heard before a Court but, instead, must be dealt with through arbitration. It is still unclear whether an arbitrator can use the class action device in rendering a decision.

Now, with conservative interests in control in both Houses of Congress as well as the White House, Big Business has taken the opportunity to act. The manner in which they have chosen to do so is quite simple. They seek to require that all members of a class, in order to recover, suffer the same type and scope of injury. While the meaning of that, as written, is somewhat unclear, it is certainly designed to defeat Supreme Court precedent that has upheld class certification even though class member damages may vary widely. It could prove to be impossible to show that every member of a class suffered the identical amount of damage.

Additionally, the Bill tries to limit the ability of individuals to serve as class representatives by eliminating relatives of anyone working at the law firm bringing the class action from serving as a class plaintiff, not allowing a client of a law firm from to serve as a class plaintiff more than once, adopting by rule the unrealistic ascertainability requirements set forth by the Third Circuit in cases such as Carrera v. Bayer, 727 F.3d 300 (3d Cir. 2013), even though other Circuits have rejected those requirements, stay all discovery pending a ruling on a motion to dismiss or during an opposition to class certification, and make it more difficult for plaintiffs' counsel to recover attorneys' fees if, somehow under these new rules, they were successful in bringing their suit. Finally, the Bill would apply to all class action suits presently pending, including those filed before the Bill is enacted.

A fair reading of what is being sought through this legislation is nothing more than the destruction of the main method through which consumers and small businesses can recover some of the damage that they suffer when businesses choose to violate the law. It is critical that those harmed by predations of the unscrupulous be permitted to redress their injury directly, rather than hope forlornly that the government might intervene on their behalf. This unjust, one-sided legislation must be stopped by the Senate which, hopefully, has not already been bought by Big Business interests.