The House of Representatives has passed legislation that will fundamentally change class actions as we know them. The Fairness in Class Action Litigation Act of 2017 (the “Act” or “H.R. 985”) leaves no stage of class action litigation untouched. For example, the provisions require stricter “typicality” requirements for class members, the disclosure of conflicts of interest between class counsel and named plaintiffs, an administratively feasible way to identify class members, capping distribution fees to class counsel, staying discovery pending motion practice, and automatic appeals of class certification rulings. The bill also proposes changes to the multidistrict litigation (MDL) procedure, including that plaintiffs claiming personal injury must submit evidence of the harm and causation within 45 days of filing or transfer.

H.R. 985 is not an isolated bill—it is part of a larger effort to pass litigation reform through Congress in the era of President Trump. There are five other pending bills related to legal reform that address issues such as the fraudulent joinder of parties (H.R. 725), EPA Settlement of citizen suits (H.R. 469), Department of Justice settlement funds (H.R. 732), sanctions for frivolous litigation (H.R. 720), and reporting of payments to plaintiffs in asbestos cases (H.R. 906). All six bills are expected to pass (or have passed) the House. Given the sweeping nature of the bills, many of the issues are likely to be hotly contested as the bills head to the Senate.

Background

On February 9, 2017, Representative Robert Goodlatte (R-Va.) introduced H.R. 985, which, if enacted, would fundamentally alter class action litigation. Rep. Goodlatte is no stranger to class action reform. He was the author of the 2005 Class Action Fairness Act (CAFA) and has introduced a variety of proposed class action reforms since that time. The Act, however, is by far the most comprehensive reform proposed since CAFA.

The U.S. Chamber of Commerce is also a leading supporter of the Act, and recently published a case study likely intended to demonstrate a need for legal form: The Food Court, Trends in Food and Beverage Class Action Litigation. (U.S. Chamber Institute for Legal Reform, February 2017.) In addition to providing an overview of the surge in food class actions and theories, the publication discusses the need for legislative action to ensure class actions benefit consumers instead of lawyers.

From Cradle to Grave: Examples of the Act’s Broad Changes to Every Aspect of Class Action Litigation

H.R. 985 proposes changes to every aspect of class action litigation, from inception to settlement. Below is a summary of some of the key provisions of the bill.

Class Member Typicality. Current law requires that class representatives have claims that are “typical” of the other class members. Under the Act, class representatives are subject to a heightened typicality requirement: they must demonstrate that each proposed class member suffered the same type and scope of injury they did. This change would ensure that class actions are only available where the named plaintiffs can show that all class members incurred actual harm. It would prohibit plaintiffs from including uninjured individuals in their class definition—a question the United States Supreme Court ducked in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), and that is the subject of a Circuit split.

Plaintiffs’ firms have already lambasted the provision as limiting the availability of the class action device for individuals who are affected by alleged abuses in different ways. On the other hand, the proposed change would ensure that class actions are addressing real consumer harms and not imaginary harms for the benefit of class action attorneys.

Class Counsel Conflicts of Interest. The Act requires class counsel to disclose whether the proposed class representative is a relative, former or current employee, or former or current client (aside from the current action). If the proposed representative falls into any of those categories, the court is prohibited from certifying the class. This provision would send major shockwaves through the plaintiffs’ bar, as many class representatives are repeat players and have some relationship to class counsel.

Ascertainability: Administratively Feasible Method of Identifying Class Members. The Act officially adds an “ascertainability” prong to the class certification inquiry. Under the Act, a class representative must demonstrate that there is a reliable and administratively feasible means to identify class members and to distribute payment to the class. This change would resolve a current Circuit split regarding the ascertainability requirement and would side with the Third Circuit’s decision in Carrea v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), and overrule the Ninth Circuit’s recent decision in Briseno v. ConAgra Foods, Inc., ___ F.3d ___ (Jan. 3, 2017), which held that Rule 23 does not require plaintiffs to establish an “administratively feasible” means of identifying putative class members.

While the Act does not address whether affidavits attesting to class membership would be considered a feasible mechanism, this added provision would strengthen the case for affirmance (or even moot the appeal) of the Northern District of California’s decision in Jones v. ConAgra Foods, Inc., 3:12-cv-01633 (June 14, 2014), wherein the court found that such affidavits were insufficient when there were multiple label changes and the purchase price was small.[1] This provision could have broad implications, as it could effectively eliminate class actions against companies that sell small dollar items and do not track who obtains their products.

Limitations on Class Counsel’s Recovery of Attorneys’ Fees. The Act also aims to curb actions where the main beneficiaries of the actions are the class counsel. The Act prohibits fee distribution until the distribution of monetary relief to the class has been completed, and the fee determination must be based on the money actually distributed to the class. In no event can the attorney fee award exceed the amount of monetary relief received by the class; however, class counsel can still receive compensation for obtaining equitable relief. This provision could also be costly for defendants, as plaintiffs are likely to insist on more expansive and expensive class notice to increase claims rate.

No Issue-Only Classes. The Act prohibits courts from granting certification to a class as to a particular issue under Rule 23(c)(4) unless the entirety of the cause of action satisfies all the class certification requirements of Rules 23(a) and (b). This provision is an attempt to limit the class action device where there is no classwide damage, and it is an effort to overrule the Sixth and Seventh Circuit Whirlpool cases, Glazer v. Whirlpool Corp., 722 F.3d 838 (6th Cir. 2013) and Butler v. Sears, Roebuck and Co., 727 F.3d 796 (7th Cir. 2013), in which the plaintiffs were able to avoid Comcast v. Behrend, 133 S.Ct. 1426 (2013), (only a small percentage of the class has a defect manifest) by certifying liability-only classes. The Supreme Court in Comcast held that certification was improperly granted where plaintiffs had not shown that common issues predominated as to damages.

Stay of Discovery Pending Motions. The Act also stays discovery during the pendency of any motion to transfer, dismiss, or strike class allegations, unless the court finds that particularized discovery is necessary to preserve evidence or prevent undue prejudice. This change would enable defendants to fight claims without being subject to costly discovery. This change could be viewed as at odds with the recent amendments to the Federal Rules of Civil Procedure, which permit parties to serve discovery even prior to the initial case management conference.

Right to Appeal Class Certification Decisions. Grants or denials of class certification would be immediately appealable—eliminating the courts of appeals’ discretion in determining whether such decisions warrant review. While this would give defendants an immediate appeal for an erroneous class certification decision, it would likely increase plaintiffs’ appeals as well. This would also effectively eliminate the issue pending before the Supreme Court in Baker v. Microsoft, No. 15-457, which is whether a court of appeals has jurisdiction to hear an appeal of a denial of class certification where the plaintiffs voluntarily dismiss the action with prejudice, as plaintiffs would no longer need to dismiss the claim to obtain review.

MDL Procedural Changes. While the Act provides for several procedural changes, the most noteworthy change is that in any consolidated or coordinated MDL proceeding seeking recovery for personal injuries, the plaintiff must submit evidentiary support, including medical records, for the alleged injury, the exposure that allegedly caused the injury, and the alleged cause of the injury within 45 days of transfer or filing. No extensions of this deadline are permitted.

Conclusion

The Act would change the landscape of class action litigation. We expect passage of the key provisions of the Act in the Senate to be contentious. We will continue to track the Act through the legislative process and will update this client alert with any developments.

[1] Jones is currently stayed pending the Supreme Court’s decision in Baker v. Microsoft, No. 15-457.