Sometimes individuals are wronged and it’s because of a system-wide problem. In those cases, there is strength in numbers, and class action lawsuits – lawsuits on behalf of groups of people who were similarly injured – are often the most effective tool for change. For example, Loevy & Loevy has won class action lawsuits against jailers who forced mass, illegal strip searches. It has prevailed in class action suits attacking squalid, inhumane prison conditions and prisons’ failure to provide people with desperately needed medical care. Also, it has successfully used class action suits to address excessive force in prisons, where classes of prisoners were subjected to abuses. In class action lawsuits like these, if the injured individual had sued alone, the injury sometimes wouldn’t have been significant enough to foster meaningful change. One person illegally subjected to a humiliating body cavity search has been injured, but her damages alone would not be enough to tackle an institution’s illegal policy. But when the complaint is brought on behalf of a class of similarly injured people, attacking a systemic wrong, the case can be a powerful catalyst for change.
Against that backdrop, it is deeply troubling to see Republican lawmakers working to strip away the power of the class action lawsuit. Yesterday, the House passed the so-called “Fairness in Class Action Litigation Act of 2017” (H.R. 985), a bill aimed at making class action suits a whole lot harder to bring. If it becomes law, this bill will undermine an important tool of civil rights advocacy. The bill imposes a bunch of hurdles and new requirements that would reward gamesmanship, delay the cases for years, and make it nearly impossible to bring class action suits like the ones I’ve told you about. What’s worse is that the class action system is not broken – the problem is simply that it is used against powerful interests.
The American Bar Association argued to the House Judiciary Committee that the bill creates a “nearly insurmountable burden for people. . . effectively barring them from bringing class actions.” Similarly, a group of 121 civil rights groups sent a letter complaining that the “sweeping and poorly drafted legislation will create needless chaos in the courts without actually solving any demonstrated problem.” Consumer watchdog groups have been vocally opposed to the bill.
One of the changes that the law would impose would make it nearly impossible for most classes of plaintiffs to sue together anymore. Class plaintiffs would have to demonstrate at the outset that members of the class “suffered the same type and scope of injury” as the named class representative. So, for a prison that deprives inmates of medical care, where each sick inmate suffers from the same wrong, but the injury manifests in different ways (untreated cancer symptoms are different from being deprived of essential heart medications), class action lawsuits would no longer be a viable option. Likewise, a policy of using excessive force in a prison could cause varying types and degrees of injuries, so those plaintiffs would similarly be out of luck. Other changes from the new law would build lengthy delays into the litigation and gut attorneys’ ability to get paid for this labor intensive work, particularly when there is a civil right at issue that doesn’t relate to expensive injuries.
With control of the House, Senate, and White House, Republicans seem intent on ravaging our civil rights laws. If it becomes law, H.R. 985 will create a desolate landscape for class action civil rights cases. Our Constitution’s Bill of Rights was enacted to limit the government’s power to oppress citizens. Those rights include the protection that no person can be deprived of his or her rights without due process. The new administration seems intent on testing whether that protection still holds.