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From Products Liability Law Daily, January 11, 2016

House passes legislation requiring preliminary proof of same injury in asbestos class actions

By Pamela C. Maloney, J.D.

The U.S. House of Representatives, voted 211 – 188 on Friday, January 8, 2016, to approve the Fairness in Class Action Litigation Act of 2015, a measure that would prohibit federal courts from certifying any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking to maintain the class action affirmatively demonstrates that each proposed class member suffered an injury of the same type and scope as the injury of the named class representatives. H.R. 1927 was introduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) on April 22, 2015.

According to the Judiciary Committee’s report accompanying House passage, under current rules, federal courts are permitting class action lawsuits to proceed before conducting a rigorous analysis to evaluate whether all the members of the class actually share comparable injuries. As a result, courts have certified classes that include people who are perfectly satisfied with a product, but have been forced into a class action lawsuit against their will.

To satisfy the same injury requirement, the bill would require the named plaintiff to come forward with evidence of a common, class-wide injury. To ascertain the extent of the alleged injury in a given case, the plaintiff might propound discovery on the defendant seeking certain basic information. The committee report explains by way of example that in a case involving an allegedly defective product, the plaintiff could seek discovery regarding incidence of failure in testing or the number of complaints received regarding the claimed defect at issue in the litigation. The plaintiff could then rely on that information in demonstrating that he or she suffered the same type of injury as others in the proposed class. Expert testimony would then be required to show that there is a uniform defect common across the class that affected all class members.

According to interest groups opposed to the measure, H.R. 1927 is problematic for several reasons. First, they claim that the bill is a solution in search of a problem as it is based on the false premise that federal courts are routinely certifying class actions in which not all putative class members have suffered the alleged injury or those in which the alleged injury is insufficient to meet constitutional standing requirements. Second, by requiring that class action plaintiffs effectively prove the merits of their case as a condition of class certification—which is only a preliminary stage of litigation—the bill would make many class actions almost impossible to pursue. In particular, in many types of cases—including civil rights, antitrust, and privacy cases—it is virtually impossible to prove that all class members suffered the exact same ‘‘type’’ or ‘‘scope’’ of injury at the certification stage, as the bill requires. This requirement would undermine judicial efficiency and limit access to Federal courts for those with claims that are too small or too burdensome to pursue on an individual basis. The opposition noted that even though the bill was amended at markup to be limited to claims for monetary relief for physical injury or economic loss, it still raises many of the same basic concerns expressed in the letters sent to Congress by these groups, and still could be effective in precluding many types of claims from class action treatment in Federal court, including antitrust claims and employment discrimination claims.

Groups opposed to the measure include: the American Civil Liberties Union, the American Federation of State, County, and Municipal Employees, the American Antitrust Institute, the Center for Effective Government, the Center for Science in the Public Interest, Consumer Federation of America, Consumers Union, the NAACP, the National Association of Consumer Advocates, the National Consumer Law Center, the National Employment Law Project, the National Fair Housing Alliance, the National Immigration Law Center, the Natural Resources Defense Council, Public Citizen, Public Justice, the Southern Poverty Law Center, and the Leadership Conference on Civil and Human Rights, the Committee to Support Antitrust Laws.

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