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There is Nothing Fair about H.R. 985 “Fairness in Class Action Litigation Act”

While the hoopla of Trump and whatever ridiculous/unconstitutional/hateful thing he has tweeted/said at a press conference/signed into an executive order rolls along, some members of Congress are taking advantage of the distraction.  And, no, not to plan a really fun surprise for America.  Instead, it’s more of a “kill your puppy and leave the carcass for you to find” kind of a surprise.

On February 9, Representative Bob Goodlatte introduced a bill entitled H.R. 985, the “Fairness in Class Action Litigation Act of 2017.”  This name is absurdly misleading, as if Congress decided to start selling jars of crushed up rat droppings with the label “Powdered Kitchen Counter Cleaner and Disinfectant.”  Because both do the exact opposite of what they claim and both are terrible for human beings.

I mean, look at him...

Goodlatte, being Badlatte.

Now I understand that class actions don’t really arouse the passions quite like all the other race-baiting, treaty-breaking, family-wrecking stuff.  But you should care about this!  Why?  Because — as we learned with the Muslim travel ban — the courts are the only real line of defense you have.  And Goodlatte is doing his best to make the courts be something that protects only corporations, not individuals.  To be very clear: if Goodlatte succeeds with this bill, my references to aforementioned dead puppies and powdered rat poop will not have been overblown.  Because the enforcement of our civil rights laws (and consumer protections) will grind to a halt.  Not just get harder or slower.  Halt — Stop — End.

The Professionals Paying Attention To This Are Strongly Opposed

In light of that terrifying prospect, an impressive assortment of groups — many of whom do not typically weigh in on these sorts of things — have banded together to express dismay and strong opposition against this bill.

  • First, there are over 120 civil rights organizations, 30 disability rights organizations, and another 70 public interest and advocacy groups who have written letters condemning the proposed law.  So, for those of you who care about public interest and civil rights, virtually all of the professionals in the space have stepped up to raise the alarm.
  • Second, 87 law firms who routinely represent people in anti-discrimination, civil rights and other non-profit cases against corporate and government overreach have also written a letter.  If you don’t care what the bleeding-heart liberal lawyers who actually enforce the laws that protect your individual rights have to say, consider this next bit of information.  The American Bar Association — the association that represents lawyers of all different political persuasions and is dominated by corporate defense lawyers — also wrote a letter in opposition.  Law professors who have dedicated their career to studying what does and doesn’t work about class actions also have written two letters opposing the bill.
  • Third, if that still isn’t enough for you to be fully convinced that we are at whatever end of the DEFCON scale is worst, this should do it.  Federal judges have something called the Judicial Conference, and its committees are responsible for setting the rules that govern how lawsuits in this country proceed.  This group is a serious big deal and is completely non-partisan.  For context, Neil Gorsuch — Trump’s nominee to the Supreme Court — is the Chair of the Appellate Rules Committee.   Gorsuch’s counterparts who chair the Committee that set rules for trial courts also have written a letter, opposing the bill and reminding Congress that the Judicial Conference are the ones who are supposed to handle these sorts of issues.

So, to recap, professionals who dedicate their careers to protecting the interests of their fellow man have raised overwhelming opposition to the bill.  The lawyers who litigate cases on both sides of the aisle oppose the bill, and academics who study what does and doesn’t work about the courts today oppose it.  Most important perhaps, federal judges (who actually oversee class cases) also oppose the bill.

It’s so indefensible that Goodlatte had to ram the bill through the Congressional Committee tasked with reviewing these kinds of laws not only while everybody was distracted by Trump but also at the eleventh hour and without any of the sort of process and review that typically happens.  Here’s Representative Conyer’s statement on that aspect:

I am speechless that this matter of such significance could be brought up as the last item on people who are trying desperately to conclude a long and burdensome day’s worth of judicial activity. It is an insult to the [Congressional] committee [on the Judiciary] to be considering something of this magnitude without any hearings. . . . This is a huge matter that changes the administration of law in this country. . .

Representative Cicilline explained the problems with pushing through the legislation without a hearing or review as follows:

I think the American people should be shocked and stunned and appalled that we would even consider completely overthrowing the class action mechanism in the United States of America without even having so much as a hearing on the bill. This means we have not heard from victims of asbestos poisoning; we have not heard from victims of lead poisoning, victims of breast implants, victims of toxic torts, victims of mass consumer fraud, victims of civil rights discrimination, sexual harassment, investor fraud on Wall Street, and so on. We have not heard from the people for whom class action law created.

Should you wish, you can read the entire transcript of the brief session on the bill (wherein the Republicans voted down every proposed amendment on party lines).  Discussion of the bill begins at page 382.

Who Likes This So-Called “Fairness In Class Action Litigation Act”?

The Chamber of Commerce — the lobbyists for corporate interests who spent more than $104 Million in 2016 alone in order to have and keep multiple members of Congress in their pockets.

That’s it.

Why?

Why does the Chamber of Commerce like it?  Why does everyone else who cares about the fair adjudication of cases and/or about civil rights (either will do) hate it?  Because, notwithstanding it’s misleading name, the bill is designed to shield corporate interests from even the teeniest bit of accountability.  And it does that by making it impossible for the little guys (in this case, average Americans) to join together to take on the corporate Goliaths of the world.

Any of the letters linked above explain all of the ways that this bill is garbage.  In short, the bill kills class actions through a series of seemingly benign procedural changes that look innocuous and are incredibly technical and tedious.   Consider this, again from Rep. Cicilline (who was ON FIRE):

This legislation would slam the door shut in the face of people trying to form class actions to get justice.  Millions of Americans are going to be harmed by this. The class action vehicle was created in the wake of Brown vs. Board in the Civil Rights Movement because there were lots of judges ruling on civil rights cases just for the individual plaintiffs themselves. And so committees in this Congress said we need mechanisms by which lots of people can get relief when their rights have been violated.  And now, through a series of procedural restrictions, this legislation would put the class action mechanism in a stifling straightjacket, and I oppose it very strongly for that reason.

And why is this a post on a feminist blog?  Because this is how they come for us.  This is how they win.  By closing the doors of the courts in order to silence our voices when raised in objection or opposition.  So while you still have your voice, start raising high-holy-hell with your Representatives.  HR 985, the profoundly unfair “Fairness in Class Action Litigation Act” has got to die.

Katherine Kimpel

Katherine Kimpel

Kate Kimpel is the Senior Editor of Shattering the Ceiling and is also an accomplished civil rights lawyer. She represents women and people of color in discrimination cases (and other kinds of employment and civil rights matters).  When not lawyering, she likely is bragging about her hound dog Ulysses, inventing cocktails to serve at her next dinner party, or convincing her husband to watch reruns of a Joss Whedon television show (any of them will do). 

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