Alarm: H.R. 985 is an Attempt to Undermine Multidistrict Litigation

Howard M. Erichson, Professor of Law, Fordham University
Howard M. Erichson, Professor of Law, Fordham University

Several law professors, including Fordham Law Professor Howard Erichson, are ringing alarm bells about a new bill that just passed the House Judiciary Committee that “is a crass attempt to undermine any effort by plaintiffs to seek justice in mass disputes.”

The bill, H.R. 985, the “Fairness in Class Action Litigation Act of 2017,” seeks to reduce defendants’ exposure to liability for mass harms by:

  • Tightening the standard for class certification
  • Imposing an ascertainably requirement
  • Delaying the payment of class counsel fees
  • Limiting the use of issue class actions
  • Expanding diversity jurisdiction
  • Mandating Lone Pine orders in MDL
  • Banning trials in an MDL
  • Capping MDL personal injury attorneys’ fees at 20%

As Beth Burch noted, the bill does not make things fairer for those who have been wronged.

“The abuses in class actions and non-class mass litigation happen mostly in settlement, not litigation and adjudication,” Erichson says. “But that is not what this bill would address. Instead, its provisions are aimed mostly at protecting defendants from the kinds of class actions and mass litigation that actually empower consumers, employees, citizens, and others to fight corporate and government wrongdoing.

“Even where the bill aims at real problems, it goes too far, failing to match its solution to the problem of magnet jurisdiction in nationwide mass disputes,” he says. “In my letter to Congressional leaders, I attempt to explain which of the provisions of H.R. 985 are especially problematic, and why.”

Click to download Erichson’s HR985 letter

Following is a round-up of the commentary thus far according to the Mass Tort Litigation Blog.

John Coffee (Columbia):   Download Coffee – How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog

Myriam Gilles (Cardozo):  Download Gilles Letter to James Park on HR 985

Elizabeth Chamblee Burch (Georgia):  Download Burch Final Comments on Fairness in Class Action Litigation Act

For those of you who like up to the minute commentary, several academics and reporters keep very active twitter accounts that track the bill: @adam_zimmerman, @elizabethcburch, @HowardErichson@PerryECooper

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