H.R. 985 (The Misnamed "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017")
RECENT DEVELOPMENTS & ACTION ALERTS...
01.04.19: With the adjournment of the 115th Congress yesterday, H.R. 985 is officially dead, but not (lest we relax our vigilance) buried. We must remain watchful, as doubtless the shamans of those who would breathe new life into fresh legislation bide their time.
03.19.18 More than a year after H.R. 985 was passed by the House, a species of companion bill has arisen in the Senate: S. 2564 - the so-called "Protect Asbestos Victims Act" sponsored by Senators Grassley, Cornyn, and Tillis. It is different from the Furthering Asbestos Claim Transparency (FACT) Act (which was incorporated into H.R. 985) and the new Senate Bill doesn't pick up the class actions limb of H.R. 985, but based on this description from Senator Grassley, it is still cause for concern. The Asbestos Disease Awareness Organization has issued a press release based on Grassley’s statement.
07.28.17 More than four months after the House Vote...crickets. Even the Bill's fiercest lobbyist, the U.S. Chamber of Commerce, seems to accept that H.R. 985 is on life support at this stage: Business-Friendly Litigation Overhaul Stalls in Senate by Bruce Kaufman, Bloomberg BNA.
05.18.17 Two months on from the House vote... no movement.
03.09.17 The Bill squeaks past the House, 220-201, with 14 republicans making a stand for free and fair access to civil justice. The bill which was fast-tracked in the House - with no public hearings - faces an uphill battle in the Senate, should it surface there, with more Republican defections predicted and an almost certain filibuster. Stay tuned for developments.
03.07.17 We send to Speaker Paul Ryan and Leader Nancy Pelosi a letter of strong opposition to H.R. 985 signed by 123 civil rights organizations. The letter concludes, "These serious issues warrant, at a minimum, careful consideration and public hearings. A rush to pass such far-reaching and flawed legislation will deny access to justice for many and undermine the rule of law."
03.01.17 The House of Representatives is voting on the class action bill next week. Our best guess is that this will happen on Wednesday. The House has decided to tack the Asbestos Bill (was H.R. 905) onto the Class Action Bill and is changing the name to the “Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017.” The bill number remains H.R. 985. Read a plain language interpretation of the bill here.
02.14.17, the Impact Fund submitted a letter on behalf of 121 civil rights non-profit organizations and advocates, joined by 87 ally law firms, to oppose H.R. 985 (“Fairness in Class Action Litigation Act of 2017”). [Note: The Bill has since been amended - see above for new version] The bill severely undermines the enforcement of U.S. civil rights law by making it practically impossible to bring a class action lawsuit.
The Impact Fund wrote to remind the Committee that class actions are a critical mechanism for enforcing civil rights law, including laws prohibiting discrimination in employment, housing, education, and access to public areas and services. In the letter, we highlight some of the most egregious aspects of H.R. 985 that would restrict the public's access to justice.
More About The BILL...
We are not alone in our opposition to H.R. 985. Read the letters and statements in opposition to the bill also submitted by:
American Bar Association on behalf of its 400,000 members
Civil Rights Education and Enforcement Center on behalf of more than 30 Disability Rights Groups
Center for Justice & Democracy on behalf of over 70 advocacy organizations
The Leadership Conference on behalf of more than 200 national advocacy organizations
House Liberty Caucus on behalf of the 28 (or so) Republican members of the House of Representatives dedicated to the principles of limited government, economic freedom, and individual liberty
Prof. Myriam Gilles of the Benjamin N. Cardozo School of Law at Yeshiva University
Prof. Elizabeth Burch of University of Georgia School of Law
Prof. Howard M. Erichson of Fordham University School of Law
Judge David Campbell & Judge John Bates on behalf of the Committee on Rules of Practice & Procedure of the Judicial Conference of the United States
The bill was marked up for consideration on 02.15.17, with no opportunity given for public hearings. The committee voted on partisan lines 19-12 to recommend the bill and forward it to the full House of Representatives for a vote. The full committee proceedings on the bill can be seen here (time marker 8:58:26 to end).
It should come as no surprise that H.R. 985 has the enthusiastic support of the U.S. Chamber of Commerce. Big business has already spent tens of millions of dollars lobbying to block access to justice by promoting H.R. 985 and other bills filled with items on the wish list of corporate America.
We take a different view. We believe that ordinary men and women should not have their right to hold corporate America accountable taken away.
We will strenuously oppose all attempts to pass such far-reaching and flawed legislation that will deny access to justice for many and undermine the rule of law.
Read the blog written for legal practitioners which highlights the most egregious provisions of the bill.
Read the plain language interpretation of what this bill means for ordinary everyday people and those who are marginalized.
George Mason's Law & Economics Institute hosted a debate at the beginning of April, 2017 for Congressional staff, between John Beisner (Skadden), Ted Frank (class action objector) and Paul Bland (Public Justice). Watch the debate below and pay particular attention to the segment around 31:10 - 33:00 during discussion of the "type and scope of injury" language in the bill. Franks states: "I think it's sufficiently ambiguous that it's going to get litigated for several years until folks figure out what it means." Besiner agrees with him: "Ted is right... it is going to go through some time of interpretation." So much for for clarity and efficiency!
Bloomberg BNA Business-Friendly Litigation Overhaul Stalls in Senate by Bruce Kaufman
Bloomberg BNA Senate Prospects for Class Action Bill Still Murky by Perry Cooper
The New York Times Proposed Law Could Be a New Attack on Civil Rights by Chris Sagers and Joshua P. Davis
Bloomberg BNA House Approves Sweeping Class Action Overhaul Legislation by Bruce Kaufman with assistance from Perry Cooper
National Law Journal Chamber Cheers and Advocates Fret as House Passes Sweeping Class Action Reform by Amanda Bronstad
Tribune Media Republicans introduce bill to 'kill' class action lawsuits by Ese Olumhense
The Legal Examiner House Proposes Two Bills that Would Severely Restrict Consumer Rights by Roopal Luhana
Reuters The most intriguing idea in House Republicans’ bill to gut class actions by Alison Frankel
Forbes House Republicans OK Proposed Changes To Country's Legal System Over Dems' Objections by Jessica Karmasek
Bloomberg BNA Bill Targeting Class Actions, MDLs Sent to House by Perry Cooper
Huffington Post Despite Trump, Federal "Tort Reform" Makes a Hasty Retreat by Joanne Doroshow, Executive Director, Center for Justice & Democracy at New York Law School.
Law360 Bundle Up, Defense Counsel: Winter's Coming by Daniel Karon, Karon LLC. Dan chairs the American Bar Association’s National Institute on Class Actions.
Law360 Thinking Fast And Slow About Class Action Reform by Michael Donovan, Donovan Litigation Group, LLC
Bloomberg Class Action Report Congress's Judicial Mistrust, by Prof. Elizabeth Chamblee Burch, Charles H. Kirbo Chair of Law at the University of Georgia School of Law and Prof. Myriam Gilles, Vice Dean and Prof. Paul R. Verkuil, Research Professor of Law at Benjamin N. Cardozo School of Law
Law360 What's Wrong With Consumer Class Actions? by Gary E. Mason of Whitfield Bryson & Mason, LLP
Law360 Defective Process Cripples Class Action Proposal by Fred Taylor Isquith of Wolf Haldenstein Adler Freeman & Herz, LLP.
Law360 Why The Fairness In Class Action Litigation Act Is Unjust by Carol Gilden and Michael Eisenkraft of Cohen Milstein Sellers & Toll, PLLC.
Law360 Killing Class Actions Means Everybody Loses by Daniel Karon, Karon LLC. Dan chairs the American Bar Association’s National Institute on Class Actions.
Law360 New Class Action Bill's Impact On Employment Cases by William C. Jhaveri-Weeks and Raymond A. Wendell, Goldstein Borgen Dardarian & Ho
Consumer Law Blog Beware Intended Consequences of Class Action Reform, Too by Andre Mura.
OpEd in The Hill Chamber of Commerce sets its sights on our civil justice system by Dan Dudis
Legal Reader A Grand Crusade Against Consumers and Class-Action Lawsuits by Ryan J. Farrick
The Marshall Project A Critical Civil Rights Tool is on the Chopping Block by Jenn Rolnick Borchetta
Center for American Progress Unfairness in Class Action: A New Attack on Civil Rights by Rebecca Buckwalter-Poza
Huffington Post Congress Intends to Destroy Your Rights and Hopes You Won’t Notice by Joanne Doroshow
Columbia Law School's Blog on Corporations and the Capital Markets How Not to Write a Class Action "Reform" Bill by Prof. John C. Coffee, Jr.
F. Paul Bland of Public Justice writes:
New House Bill Threatens Future of Class Actions by Andrew j. McGuinness
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