President Donald Trump’s budget proposal may eliminate the single greatest funder of civil legal aid in the United States, the Legal Services Corporation—a long-standing goal of Vice President Mike Pence. At the same time, Congress is working to block Americans from seeking justice on their own with the Fairness in Class Action Litigation Act of 2017. This bill was drafted to address an imaginary problem; if it passes, it will have very real, devastating consequences.
For those who face systemic corporate abuses and failures of government, class action lawsuits are a critical tool for seeking justice. Through a class action, a few people or organizations can represent a larger group that has been harmed in a lawsuit against the perpetrator to seek a remedy, whether a change in practices or monetary damages. Actions that aim to force actors to change their behavior—for example, to follow the law or cease a bad practice—are referred to as seeking injunctive relief.
Currently under consideration by the House Judiciary Committee as H.R. 985, this proposal would make it more difficult for people to seek relief or compensation when they have been mistreated by corporations or government agencies. Specifically, this bill would make it harder for people to form a class by narrowing the criteria for banding together to bring a case and complicating—as well as delaying—the process for collecting attorneys’ fees, making it riskier for attorneys to take on class actions to help those who have been harmed.
The bill’s proponents and its sponsor, Rep. Bob Goodlatte (R-VA), claim the legislation would prevent so-called lawyer-driven litigation, or litigation meant to enrich lawyers rather than advance plaintiffs’ interests. But the measures by which it purports to do so just make bringing class actions more difficult altogether. Moreover, if the object is to prevent lawyers from unjust enrichment, the bill would not target the types of cases that aim only to change practices rather than secure damages. But it does just that—and more.
Making it harder to form a class
The Fairness in Class Action Litigation Act would require each class member to have suffered the “same type and scope of injury.” This impractical criterion unnecessarily limits who can sue. Many or most classes in class actions include members who have not been injured but could have been. Moreover, to require the same type and scope of injury all but ends class action as a category: The same type of abuse affects different people in different ways. That is why the Supreme Court has explicitly held that class members need not have suffered the same damage to benefit from a class action. In the class action case brought by retired NFL players who suffered neurocognitive injuries as a result of repeated concussions, for example, the players suffered a wide variety of complications, from Parkinson’s disease to Alzheimer’s disease.
People with different types of disabilities who experienced the same problem differently and have a shared interest in relief have routinely joined together in class actions. For example, people with mobility-related disabilities may bring suit as a group to ensure accessible sidewalks and transportation or to get access to polling places. In Massachusetts, five residents who were eligible for but had not received Medicaid services were able to sue on behalf of all other adults with intellectual or developmental disabilities then waiting on services. To require strict similarity among class members would make it exceedingly difficult for people in these critical cases to get the justice they deserve.
This legislation would also make it riskier for lawyers to bring class action cases. Among other things, the bill would peg attorneys’ fees in injunctive cases to “a reasonable percentage of the value” of the relief. But how can a court calculate the monetary value of an order to require wheelchair access or the implementation of a nondiscrimination policy?
By setting a functionally incalculable standard for attorneys’ fees unrelated to the amount of time and work invested in a case, the bill makes it risky for lawyers to take on cases seeking injunctive relief. That rules out many suits under legislation such as the Americans with Disabilities Act that aim to improve people’s lives going forward by forcing reforms rather than seeking compensation for harms already done.
The act would also condition the payment of attorneys’ fees on full monetary recovery. In practice, this provision could effectively deny attorneys their fees altogether. Defendants would have an incentive to prolong litigation to make continuing unaffordable. And even after a case is resolved, the term of a settlement may stretch on for years. In the NFL concussion case, for example, the settlement will take 65 years. The threat of never receiving attorneys’ fees or waiting years to collect them would be a terrific deterrent to prospective counsel who count on attorneys’ fees to pay staff and maintain their practices.
Like all workers, lawyers deserve to be paid in a timely and efficient fashion. And like all employers or businesses, advocacy organizations and law firms that represent plaintiffs must count on income to pay employees. This legislation would make it impossible for lawyers to predict how much they will be paid and when. This would make lawyers less likely to take on critical cases, delaying justice for victims and allowing corporations and other bad actors to continue their harmful practices.
The Fairness in Class Action Litigation Act of 2017 is just the latest in a series of congressional and executive actions that will precipitously widen the justice gap—the gap between legal needs and services available. The White House budget office is preparing to propose the elimination of the Legal Services Corporation, and under Attorney General Jeff Sessions, the U.S. Department of Justice is not likely to enforce critical legislation—such as the Americans with Disabilities Act and the Fair Housing Act—on Americans’ behalf. Sessions has already announced his intention to limit civil rights actions against law enforcement. Moreover, President Trump’s nominee to the Supreme Court, Judge Neil Gorsuch, may be pro-defendant when it comes to ruling on class action issues, and he outright opposes lawsuits to enforce civil rights statutes.
Without help from government, the ability to seek justice through other means—such as class action suits—will be more critical than ever. But if it passes, H.R. 985 will represent a major step toward closing off even this limited avenue that allows Americans to pursue justice on their own—and the consequences will be devastating.
Rebecca Buckwalter-Poza is a Fellow at the Center for American Progress.
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