With the media covering the daily drama manufactured by President Trump and his administration, it can be difficult to keep track of the disturbing steps taken by the House of Representatives in the last few weeks. A number of bills, however, are quietly being pushed through Congress that could seriously destabilize protections for individual Americans.
On March 9th, the House of Representatives passed The Fairness in Class Action Litigation Bill of 2017 (H.R. 985), which imposes significant obstacles for individuals who seek justice through a class action. Class action lawsuits are an important mechanism for insuring that individuals are represented fairly in cases where the defendant is a large company with vastly more resources than a single person. Class actions are designed to hold large corporations accountable for small injustices done to millions of people, in an effort to ensure that they don’t get away with such harmful actions down the line.
For consumers and workers, this bill will make it much more difficult to find an attorney who could handle their case. And for attorneys, it will be harder to help victims because it would disallow them the opportunity to join a large group of people together – a class – and fight for justice on all of their behalves. In a statement released by the American Association for Justice (AAJ), CEO Linda Lipsen writes:
“Today, the House of Representatives made it clear that it would rather shield powerful corporations from being held accountable for scamming, injuring, and discriminating against Americans, than protect our right to pursue justice.”
Even worse, in addition to class actions, it also directly impacts people suffering from mesothelioma and other asbestos related diseases. In the March 9 hearing, House Republicans successfully combined the Furthering Asbestos Claim Transparency Act of 2017 (H.R. 906) with H.R. 985. Formally known as the “FACT” Act, this unfair portion of the bill will burden asbestos victims, many of them veterans, in the interest of the companies who injured them.
And yet, H.R. 985 passed by a vote of 220-201. House Democrats were joined in their united opposition to the bill by 14 Republicans. On March 13, the bill was received by the Senate. In the last Congress, a very similar bill passed the house and died in the Senate because, like this one, there were very conservative Republicans who could not support it. At that time, then President Obama would have likely vetoed the senseless bill.
A Trump White House will likely favor the proposed changes and, should this combined bill become law, it will deliver a 1-2-punch to asbestos victims.
First, the landscape of class action lawsuits will be tilted in favor of large corporations. Second, because the “FACT” Act is included, victims of asbestos will be forced to make sensitive information public while guilty employers continue to keep future victims in the dark.
The “FACT” Act Is Combined with the Fairness in Class Action Litigation Bill
Because the FACT Act was folded into H.R. 985, legislators have put individuals with mesothelioma at risk on 2 fronts. Both their ability to join voices in class actions and their privacy are in jeopardy.
Veterans groups strongly oppose the FACT Act because it forces victims to make sensitive information public while requiring nothing of the companies. Victims’ names and exposure histories along with the last four digits of their Social Security Numbers would become public information. As if this wasn’t enough, the FACT Act is also designed to delay justice; this is especially problematic for mesothelioma victims because they have a short life expectancy after diagnosis. But this, of course, is a key part of the corporate-friendly bill: To delay justice for people who do not have a lot of time left.
According to Lipsen, this will make victims “vulnerable to identity theft and online predators.” Essentially, she writes, “The bill re-victimizes families impacted by asbestos disease, while doing nothing to protect Americans from future asbestos exposures.”
Thinking about future asbestos exposures, it is important to keep in mind the recent report from the Center for Disease Control (CDC). Not only are deaths from malignant mesothelioma are on the rise, but:
“…the continuing occurrence of mesothelioma deaths among persons aged <55 years suggests ongoing occupational and environmental exposures to asbestos fibers… despite regulatory actions by the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) aimed at limiting asbestos exposure.”
As President Trump’s unelected advisors seek to roll back the regulatory power of federal agencies, the CDC is reporting that people are still getting sick from asbestos. This is not the time to take power away from sick individuals and transfer it to the companies that injured them. In a statement from ADAO, President and CEO Linda Reinstein made it clear just how unbalanced the so-called FACT Act is. She writes:
“Corporations that have knowingly and recklessly exposed Americans to a known carcinogen should be held accountable. It is reprehensible that the House has passed legislation that will let asbestos corporations off the hook, create significant privacy risks for victims, and delay compensation and justice.”
None of these developments are good. Now that this dangerous bill is in the Senate, one wonders if the Senators on the Judiciary Committee, unlike their colleagues in the House, will call a single victim to testify before them.
The Deceptive “Fairness” of the Class Action Litigation Bill
The class action bill, which was sponsored by Rep. Bob Goodlatte (R-VA), has the stated purpose of changing procedures in class action and multidistrict litigation “to assure fairer, more efficient outcomes for claimants and defendants, and for other purposes.”
The reality, however, is that Sen. Goodlatte’s bill accomplishes the very opposite. Many of the proposed changes to gut class actions are essentially the talking-points of business lobbyists, and they will make it much harder for victims to get the just outcome they deserve. In the aftermath of the vote, Rep. Jamie Ruskin (D-MD) argued that there is nothing fair about this bill:
“I oppose this misguided legislation because it sends another huge valentine and wet kiss to large corporate polluters and tortfeasors, but gives the finger to millions of American citizens who suffer injuries from these defendants.”
H.R. 985 makes it so that parties seeking to join class action lawsuits must demonstrate that “each proposed class member suffered the same type and scope of injury.” At best, this could be seen as carelessly worded. At worst, the intent of this change is to destroy the careful framework built up by judges in order to address class action lawsuits in favor of a clumsy guideline that favors business interests.
Problems with the Poorly Worded Bill
In a letter opposing the bill, Elizabeth Chamblee Burch, a law professor from the University of Georgia, writes that “this proposal demands a degree of similarity that is both ill-defined and unnecessary.” It is ill-defined because the language ignores the obvious reality of class action lawsuits. She writes that:
“Personal injury and economic losses will inevitably affect class members differently. In the NFL Concussion cases, for example, some plaintiffs experienced Parkinson’s while others suffered from Alzheimer’s. What’s important from the standpoint of adequate representation is that a named representative will have a self-interested reason to care about the same remedial measures (damages, injunctive relief, etc.) as the class members—not that each suffers from precisely the ‘same type and scope of injury.’”
Should NFL players be denied from uniting their voices because they suffered different “types” of horrible injuries? It just makes no sense.
As Burch notes, “almost every court, including the Supreme Court. . . has said that parties should be able to enjoy the benefits of class actions even when damages vary.” The truth is that class actions are more complicated than this bill takes into account.
Myriam Gilles, the Vice Dean of Cardozo Law School, another veteran class action law professor, argues that federal courts have over 50 years of experience handling class actions, and, “over that time, they have developed a nuanced understanding of just when class member interests are sufficiently cohesive to warrant class-wide adjudication.”
What this bill does, then, is discard half a century of the law’s thoughtful evolution in favor of a poorly-worded, insensible proposal that does nothing to advance the bill’s stated purpose of trying “to assure fairer, more efficient outcomes for claimants and defendants”
Essentially, the Fairness in Class Action Litigation Bill of 2017 is a corporate shield; an attempt by Big Business to lobby Congress to undermine the ability of individuals to seek damages.
As Gilles says, this pronouncement from “the Congressional mountaintop . . . should not please anyone concerned with the rational development of the law.”
The Next Dishonestly Titled Bill
After sitting on their hands while President Obama was in office, Congressional Republicans have wasted no time trying to push their business-friendly agenda through the House and Senate. One of the next bills they will consider is Protecting Access to Care Act (H.R. 1215). If anything, this Act seeks to limit the care victims can seek.
The Protecting Access to Care Act, among other things, sets a $250,000 cap on compensation for “non-economic” injuries. As noted by Joanne Doroshow of the Center for Justice and Democracy (CJD), this would apply to injuries like paralysis, trauma, and reproductive harm. It would override the laws of states that have found those caps to be unconstitutional. She writes, “That same cap would apply whether a parent lost a child, a senior citizen were harmed in a nursing home, or a family breadwinner were permanently disabled due to reckless medical care.” Like the “Fairness” in Class Act Litigation Bill, Republicans are using their power to overturn carefully written state legislation that covers complex situations.
Another one of the mandates is a more restrictive statute of limitations. This means that, after a certain time, people can no longer file a meritorious lawsuit against the company that injured them. This proposal is particularly hostile towards people suffering from asbestos-related injury and disease, from which victims may take decades to develop symptoms. Because people are still being exposed to asbestos, this new statute essentially frees companies of responsibility for their health.
In this dangerous environment, created by Republicans and the interests of powerful lobbyists and even more powerful corporations who have their ear, it is more important than ever that individuals have access to the adequate representation that class actions provide.
By prioritizing bills like these, House Republicans have demonstrated that, in their view, justice for individual Americans comes second to the desires of the Big Business that contribute to their re-election bids.