[House Report 114-328]
[From the U.S. Government Publishing Office]


114th Congress   }                                       {      Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                       {     114-328

======================================================================



 
            FAIRNESS IN CLASS ACTION LITIGATION ACT OF 2015

                                _______
                                

November 5, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1927]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1927) to amend title 28, United States Code, to 
improve fairness in class action litigation, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page

The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................     3
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................    11
New Budget Authority and Tax Expenditures........................    11
Congressional Budget Office Cost Estimate........................    11
Duplication of Federal Programs..................................    12
Disclosure of Directed Rule Makings..............................    12
Performance Goals and Objectives.................................    12
Advisory on Earmarks.............................................    12
Section-by-Section Analysis......................................    12
Dissenting Views.................................................    13

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Fairness in Class Action Litigation 
Act of 2015''.

SEC. 2. CLASS MEMBER INJURY REQUIRED.

  (a) In General.--No Federal court shall certify any proposed class 
seeking monetary relief for personal injury or economic loss unless the 
party seeking to maintain such a class action affirmatively 
demonstrates that each proposed class member suffered the same type and 
scope of injury as the named class representative or representatives.
  (b) Certification Order.--An order issued under Rule 23(c)(1) of the 
Federal Rules of Civil Procedure that certifies a class seeking 
monetary relief for personal injury or economic loss shall include a 
determination, based on a rigorous analysis of the evidence presented, 
that the requirement in subsection (a) of this section is satisfied.

                          Purpose and Summary

    The Fairness in Class Action Litigation Act is a simple, 
one-page bill that will help ensure common sense principles 
apply in class action lawsuits. Federal class action rules 
currently require that a class share questions of law and fact 
in common, and that the claims and defenses of the 
representative parties are ``typical'' of those of the 
class.\1\ Despite those standards, some courts have allowed 
classes to be certified absent a showing that all the members 
of the class actually share a common injury of the same type, 
and of comparable scope.\2\ For example, in a case brought 
against Whirlpool, the U.S. Court of Appeals for the Sixth 
Circuit affirmed certification of a class of all owners of a 
certain washing machine that allegedly produced moldy smelling 
laundry, even though the overwhelming majority of the absent 
class members experienced no problem with their machines.\3\ 
Similarly, in a case involving allegedly defective roofing 
shingles, the U.S. Court of Appeals for the Seventh Circuit 
recently held that the district court abused its discretion in 
rejecting class certification on the ground that certain class 
members' roofing shingles did not manifest the alleged 
defect.\4\ And in a case brought on behalf of purchasers of 
Jaguar vehicles that allegedly contained a defect resulting in 
premature tire wear, the U.S. Court of Appeals for the Ninth 
Circuit held that ``proof of the manifestation of a defect is 
not a prerequisite to class certification.''\5\
---------------------------------------------------------------------------
    \1\See Fed. R. Civ. P. 23(a)(3).
    \2\Examples of class actions involving uninjured or non-comparably 
injured members include the following: Wolin v. Jaguar Land Rover North 
America, LLC, 617 F.3d 1168 (9th Cir. 2010); Eubank v. Pella Corp., 753 
F.3d 718 (7th Cir. 2014); Butler v. Sears, Roebuck & Co., 702 F.3d 359 
(7th Cir. 2012), cert. granted, judgment vacated, 133 S. Ct. 2768 
(2013), judgment reinstated, 727 F.3d 796 (7th Cir. 2013) and cert. 
denied, 134 S. Ct. 1277 (2014); In re Whirlpool Corp. Front-Loading 
Washer Products Liability Litigation, 722 F.3d 838 (6th Cir. 2013), 
cert. denied, 134 S. Ct. 1277 (2014); In re Zurn Pex Plumbing Products 
Liability Litigation, 644 F.3d 604 (8th Cir. 2011); Lilly v. Jamba 
Juice Co., No. 13-cv-02998-JST, 2014 WL 4652283 (N.D. Cal. Sept. 18, 
2014); Zeisel v. Diamond Foods, Inc., No. C 10-01192 JSW, 2011 U.S. 
Dist. LEXIS 60608 (N.D. Cal. June 7, 2011); Tait v. BSH Home Appliances 
Corp., 289 F.R.D. 466 (C.D. Cal. 2012), cert. denied, 134 S. Ct. 1273 
(2014); Volz v. Coca Cola Co., No. 1:10-cv-00879-MRB (S.D. Ohio 2014); 
Banks v. Nissan North America, Inc., 301 F.R.D. 327 (N.D. Cal. 2013); 
Forcellati v. Hyland's, Inc., No. CV 12-1983-GHK (MRWx), 2014 WL 
1410264 (C.D. Cal. Apr. 9, 2014).
    \3\In re Whirlpool Corp. Front-Loading Washer Products Liability, 
722 F.3d 838, 849 (6th Cir. 2013), cert denied, 134 S. Ct. 1277 (2014).
    \4\In re IKO Roofing Shingle Products Liability Litigation, 757 
F.3d 599, 603 (7th Cir. 2014).
    \5\Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168, 
1173 (9th Cir. 2010).
---------------------------------------------------------------------------
    Class actions like these undermine the proper 
administration of justice and hurt the U.S. economy by lumping 
uninjured people and injured into the same classes, greatly 
inflating the class size, and unduly pressuring companies to 
settle, at the expense of consumers who are forced to pay 
higher prices in order to offset the cost of litigation to U.S. 
companies. At the same time, these courts are potentially 
shortchanging recovery for any legitimately injured class 
members by redirecting limited resources to those who were 
uninjured or non-comparably injured.
    The Fairness in Class Action Litigation Act would overrule 
the unfavorable precedent discussed above by clearly requiring 
that a class be composed of members with injuries of the same 
type and scope. Those injuries could be de minimis, or even 
nonexistent, but members whose injuries were only de minimis or 
nonexistent would have to bring their case in a separate class 
action consisting of only such members. While allowing de 
minimis or no-injury class actions to proceed as long as they 
are brought as separate class actions, the bill would achieve a 
very important reform: clustering actually injured and 
similarly injured class members in their own class. People who 
are injured, or injured much more significantly, deserve to 
have their own class actions in which they can present their 
uniquely powerful cases and get the larger recoveries they 
deserve. Uninjured or less significantly injured people can 
still file class actions under this legislation, but they must 
do so separately, without diminishing the potential recovery of 
actually injured or more significantly injured people. This 
legislation also ensures that plaintiffs cannot circumvent 
state laws that bar no-injury lawsuits by having one allegedly 
injured plaintiff represent thousands of uninjured consumers.

                Background and Need for the Legislation

    Following the tenth anniversary of the enactment of the 
Class Action Fairness Act, the House Subcommittee on the 
Constitution and Civil Justice held a hearing on February 27, 
2015, to explore further potential reforms to our class action 
litigation system. One problem highlighted at that hearing was 
that, under current rules, Federal courts are permitting class 
action lawsuits to proceed before there has been a rigorous 
analysis evaluating whether all the members of the class 
actually share comparable injuries. Consequently, classes have 
been certified that include people who are perfectly satisfied 
with a product, but have been forced into a class action 
lawsuit against their will.
    House Judiciary Committee Chairman Bob Goodlatte introduced 
the Fairness in Class Action Litigation Act on April 22, 2015, 
which would tighten Federal class action rules such that a 
Federal class could only be certified upon a showing that all 
unnamed members of the proposed class have suffered injuries of 
the same type and scope as those of the named class 
representatives.

                                Hearings

    The Committee's Subcommittee on the Constitution and Civil 
Justice held a hearing on H.R. 1927 on April 29, 2015. The 
following witnesses presented testimony at the hearing: John 
Biesner, Partner, the Skadden law firm; Mark A. Behrens, Shook, 
Hardy & Bacon; Andrew Trask, McGuire, Woods; and Alexandra D. 
Lahav, University of Connecticut School of Law.

                        Committee Consideration

    On June 24, 2015, the Committee met in open session and 
ordered the bill H.R. 1927 favorably reported with an 
amendment, by a rollcall vote of 24 to 8, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1927.
    1. Amendment #1, offered by Mr. Conyers, to exempt from the 
bill claims for monetary relief under title VII of the Civil 
Rights Act of 1964. Defeated 12 to 13.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................      X
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     12      13
------------------------------------------------------------------------


    2. Amendment #2, offered by Ms. Jackson Lee, to prevent the 
bill from taking effect until the Administrative Office of the 
United States Courts completes an assessment of the likely 
financial and resource cost of the bill on litigants and 
courts. Defeated 13 to 15.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................      X
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     13      15
------------------------------------------------------------------------


    3. Amendment #3, offered by Mr. Cohen, to strike the words 
``or economic loss'' from the bill. Defeated 13 to 15.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................      X
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     13      15
------------------------------------------------------------------------


    4. Amendment #4, offered by Mr. Johnson, to strike the 
words ``and scope'' from the bill. Defeated 11 to 17.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................      X
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     11      17
------------------------------------------------------------------------


    5. Amendment #5, offered by Mr. Johnson, to exempt from the 
bill claims of a violation of Federal or State antitrust law. 
Defeated 10 to 15.

                             ROLLCALL NO. 5
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     10      15
------------------------------------------------------------------------


    6. Amendment #6, offered by Mr. Cicilline, to prevent the 
bill from taking effect until the Judicial Conference of the 
United States approves the changes to class certification 
provided under section 2 of the bill. Defeated 10 to 15.

                             ROLLCALL NO. 6
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................     10      15
------------------------------------------------------------------------


    7. Motion to report H.R. 1927 as amended. The motion was 
agreed to by a rollcall vote of 15 to 10.

                             ROLLCALL NO. 7
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................      X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................      X
Ms. Walters (CA)...............................      X
Mr. Buck (CO)..................................
Mr. Ratcliffe (TX).............................      X
Mr. Trott (MI).................................      X
Mr. Bishop (MI)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................              X
Ms. Chu (CA)...................................              X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
Mr. Peters (CA)................................              X
                                                ------------------------
    Total......................................     15      10
------------------------------------------------------------------------


                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1927, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 30, 2015.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1927, the 
``Fairness in Class Action Litigation Act of 2015.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Marin 
Burnett, who can be reached at 226-2860.
            Sincerely,
                                                Keith Hall,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




      H.R. 1927--Fairness in Class Action Litigation Act of 2015.

      As ordered reported by the House Committee on the Judiciary 
                           on June 24, 2015.




    H.R. 1927 would amend the Federal judicial code to prohibit 
Federal courts from certifying any proposed class unless the 
party seeking to maintain a class action demonstrates that each 
member of that class suffered an injury of the same type and 
degree.
    According to information from the Administrative Office of 
the United States Courts (AOUSC), the legislation would 
probably reduce both the number of class action suits filed and 
the number of plaintiffs in them, while increasing the 
administrative burden on the courts to review class action 
suits that would be filed after enactment of H.R. 1927.
    Based on information from the AOUSC, CBO estimates that the 
additional costs to Federal courts under H.R. 1927 would not be 
significant. Enacting H.R. 1927 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    H.R. 1927 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of State, local, or tribal 
governments.
    The CBO staff contact for this estimate is Marin Burnett. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 1927 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 1927 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1927 will provide greater fairness in class action litigation.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1927 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Fairness in Class Action Litigation Act of 
2015.''
    Sec. 2. Class Member Injury Required. Section 2 provides 
that no Federal court shall certify any proposed class seeking 
monetary relief for personal injury or economic loss unless the 
party seeking to maintain such a class action affirmatively 
demonstrates that each proposed class member suffered the same 
type and scope of injury as the named class representative or 
representatives. Section 2 further provides that an order 
issued under Rule 23(c)(1) of the Federal Rules of Civil 
Procedure that certifies a class seeking monetary relief for 
personal injury or economic loss shall include a determination, 
based on a rigorous analysis of the evidence presented, that 
the requirements in the bill are satisfied.
    To satisfy the requirement set forth above, the named 
plaintiff must come forward with evidence of a common, 
classwide injury. To ascertain the extent of the alleged injury 
in a given case, the plaintiff might propound discovery on the 
defendant seeking certain basic information. For example, in a 
case involving an allegedly defective product, the plaintiff 
could seek discovery regarding incidence of failure in testing 
or the number of complaints received regarding the claimed 
defect at issue in the litigation. The plaintiff could then 
rely on that information in demonstrating that he or she 
suffered the same type of injury as others in the proposed 
class. Expert testimony would then be required to show that 
there is a uniform defect common across the class that affected 
all class members.
    In addition, any order certifying a class action seeking 
money damages must include a specific determination that the 
requirement described above is satisfied.

                            Dissenting Views

                              INTRODUCTION

    H.R. 1927, the ``Fairness in Class Action Litigation Act of 
2015,'' as amended, represents the latest attempt to shield 
corporate wrongdoers and deny plaintiffs access to justice. 
Specifically, H.R. 1927 will make it virtually impossible for 
plaintiffs to pursue most class actions in Federal court by 
adding a new freestanding provision to the end of Title 28 of 
the United States Code that would prohibit a Federal court from 
certifying any class action unless: (1) the party pursuing the 
class action demonstrates; (2) through admissible evidentiary 
proof; (3) that each proposed class member; (4) suffered an 
injury; (5) of the same type and scope as the injury of the 
named class representative.
    H.R. 1927 is highly problematic for several reasons. To 
begin with, the bill is a solution in search of a problem as it 
is based on the false premise that Federal courts are routinely 
certifying class actions where not all putative class members 
have suffered the alleged injury or where the alleged injury is 
insufficient to meet constitutional standing requirements. In 
addition, by requiring that class action plaintiffs effectively 
prove the merits of their case as a condition of class 
certification--which is only a preliminary stage of 
litigation--the bill would make many class actions almost 
impossible to pursue. In particular, in many types of cases--
including civil rights, antitrust, and privacy cases--it is 
virtually impossible to prove that all class members suffered 
the exact same ``type'' or ``scope'' of injury at the 
certification stage, as the bill requires. This requirement 
would undermine judicial efficiency and limit access to Federal 
courts for those with claims that are too small or too 
burdensome to pursue on an individual basis.
    The bill will raise litigation costs by effectively 
requiring plaintiffs to prove the merits of their case twice, 
once at the certification stage and once during the trial on 
the merits of their case, potentially dissuading plaintiffs 
from pursing meritorious claims and straining Federal court 
resources. Finally, the bill is yet another attempt by Congress 
to circumvent the careful and thorough Rules Enabling Act 
process for amending Federal civil procedure rules. This is 
particularly disconcerting given that the Judicial Conference 
of the United States, the Federal judiciary's policymaking arm, 
is currently in the midst of studying changes to Rule 23, which 
governs certification of class actions.
    For the foregoing reasons and others, numerous groups 
oppose H.R. 1927\1\, including the American Civil Liberties 
Union, the American Federation of State, County, and Municipal 
Employees, the American Antitrust Institute, the Center for 
Effective Government, the Center for Science in the Public 
Interest, Consumer Federation of America, Consumers Union, the 
NAACP, the National Association of Consumer Advocates, the 
National Consumer Law Center, the National Employment Law 
Project, the National Fair Housing Alliance, the National 
Immigration Law Center, the Natural Resources Defense Council, 
Public Citizen, Public Justice, and the Southern Poverty Law 
Center.\2\ Similarly, the Leadership Conference on Civil and 
Human Rights wrote in opposition to H.R. 1927, noting that the 
bill would ``undermine the ability of civil rights litigants to 
bring class action cases to vindicate their legal rights.''\3\ 
The Committee to Support Antitrust Laws opposes H.R. 1927 
because ``it could entirely eliminate all antitrust class 
actions, including those against international cartels causing 
billions of dollars in damages to U.S. consumers and 
companies.''\4\ Finally, Professor Arthur Miller, the Nation's 
foremost scholar on Federal civil practice and procedure, wrote 
in opposition to H.R. 1927 stating that the bill violates the 
central mandate of the class action device, which is to promote 
judicial efficiency through the use of class representatives to 
establish injury on behalf of all similarly situated 
persons.\5\
---------------------------------------------------------------------------
    \1\Although the bill was amended at markup to be limited to claims 
for monetary relief for physical injury or economic loss, it still 
raises many of the same basic concerns expressed in these letters and 
could still effectively preclude many types of claims from class action 
treatment in Federal court, including antitrust claims and employment 
discrimination claims.
    \2\Letter from 55 groups to Chairman Trent Franks (R-AZ) & Ranking 
Member Steve Cohen (D-TN), Subcomm. on the Constitution and Civil 
Justice of the H. Comm on the Judiciary (Apr. 29, 2015) (on file with 
H. Comm. on the Judiciary Democratic staff) [hereinafter ``Groups 
Letter''].
    \3\Letter from Wade Henderson, President and CEO, & Nancy Zirkin, 
Executive Vice President, The Leadership Conference on Civil and Human 
Rights to Members of the Subcomm. on the Constitution and Civil Justice 
of the H. Comm. on the Judiciary (Apr. 29, 2015) (on file with H. Comm. 
on the Judiciary Democratic staff) [hereinafter ``LCCHR Letter''].
    \4\Letter from Daniel C. Hedlund, President, Committee to Support 
the Antitrust Laws, to Chairman Trent Franks (R-AZ) & Ranking Member 
Steve Cohen (D-TN), Subcomm. on the Constitution and Civil Justice of 
the H. Comm. on the Judiciary (Apr. 29, 2015) (on file with H. Comm. on 
the Judiciary Democratic staff) [hereinafter ``COSAL Letter''].
    \5\Letter from Arthur R. Miller, University Professor, New York 
University School of Law, to Chairman Trent Franks (R-AZ) & Ranking 
Member Steve Cohen (D-TN), Subcomm. on the Constitution and Civil 
Justice of the H. Comm. on the Judiciary (Apr. 27, 2015) (on file with 
H. Comm. on the Judiciary Democratic staff) [hereinafter ``Miller 
Letter''].
---------------------------------------------------------------------------
    For the foregoing reasons and those discussed more fully 
below, we respectfully dissent and urge our colleagues to 
oppose this misguided legislation.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    H.R. 1927, as amended, would prohibit a Federal court from 
certifying any proposed class seeking monetary relief for 
personal injury or economic loss unless the party seeking the 
class action proves that each proposed class member suffered 
the same type and scope of injury as the putative class 
representative.\6\ The bill does not define the terms 
``economic loss'' and ``scope of injury.'' As introduced, the 
bill had required a demonstration of the same ``extent'' of 
injury, but it does not appear that replacing the term 
``extent'' with ``scope'' in the Manager's Amendment actually 
changed the meaning of this requirement in substance.\7\
---------------------------------------------------------------------------
    \6\H.R. 1927, 114th Cong. Sec. 2(a) (as ordered reported by H. 
Comm. on the Judiciary, June 24, 2015).
    \7\The term ``scope of injury'' is inherently vague and uncertain, 
as there are multiple dictionary definitions for ``scope,'' including 
the following definition: ``extent of treatment, activity, or 
influence.'' Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/scope (last visited Oct. 26, 2015). As 
Representative Jerrold Nadler (D-NY) noted during the Committee markup, 
the term ``scope'' is vague enough that it could lead to substantial 
litigation over its meaning, leading to increased litigation costs. Tr. 
of Markup of H.R. 1927, the ``Fairness in Class Action Litigation Act 
of 2015,'' by the H. Comm. on the Judiciary, 114th Cong., at 40-41 
(Jun. 24, 2015) [hereinafter ``Markup Transcript''].
---------------------------------------------------------------------------
    The bill requires a court, in issuing a class certification 
order for any class subject to the bill's requirements, to also 
certify that those requirements have been met ``based on a 
rigorous analysis of the evidence presented. . . .''\8\
---------------------------------------------------------------------------
    \8\H.R. 1927, 114th Cong. Sec. 2(b) (as ordered reported by H. 
Comm. on the Judiciary, June 24, 2015).
---------------------------------------------------------------------------

                               BACKGROUND

    A class action is a type of lawsuit filed by one or more 
individuals on behalf of a larger group of people. Class 
actions can be beneficial to consumers and courts. They are 
beneficial to consumers because they give a potentially large 
group of individuals who are injured in the same manner by the 
same defendants the ability to hold the wrongdoers accountable. 
Class actions make it economically feasible for these 
plaintiffs to seek justice for smaller, but not 
inconsequential, injuries in areas as diverse as products 
liability, wage and hour litigation, and employment 
discrimination. As a result, class actions help level the 
playing field between injured consumers and powerful corporate 
defendants. They also help promote private enforcement of 
public policy, particularly when there is large-scale wrong-
doing by an institutional actor.\9\
---------------------------------------------------------------------------
    \9\For outlines of the policy reasons supporting the existence of 
the class action mechanism, see H.R. 1927, the ``Fairness in Class 
Action Litigation Act of 2015'': Hearing Before the Subcomm. on the 
Constitution and Civil Justice of the H. Comm. on the Judiciary, 114th 
Cong. (2015) [hereinafter ``Subcommittee Hearing''] (statement of 
Alexandra D. Lahav, Joel Barlow Professor, University of Connecticut 
Law School, at 2-5); The State of Class Actions Ten Years After The 
Enactment of the Class Action Fairness Act: Hearing Before the Subcomm. 
on the Constitution and Civil Justice of the H. Comm. on the Judiciary, 
114th Cong. (2015) (statement of Patricia W. Moore, Professor of Law, 
St. Thomas University School of Law, at 2).
---------------------------------------------------------------------------
    Additionally, class actions can be beneficial for courts 
because they promote judicial efficiency. They are an efficient 
mechanism to deal with what would otherwise be a large number 
of small and repetitive cases involving common legal and 
factual questions. Through class certification, courts can 
consolidate similar cases and conserve judicial resources.\10\
---------------------------------------------------------------------------
    \10\Id.
---------------------------------------------------------------------------
    Federal Rule of Civil Procedure 23 governs class actions 
filed in Federal courts. Rule 23(a) sets forth the 
prerequisites necessary for the establishment of a class, which 
are that:

        (1) Lthe class is so numerous that joinder of all 
        members is impracticable;

        (2) Lthere are questions of law or fact common to the 
        class;

        (3) Lthe claims or defenses of the representative 
        parties are typical of the claims or defenses of the 
        class; and

    (4) Lthe representative parties will fairly and adequately 
protect the interests of the class.\11\
---------------------------------------------------------------------------
    \11\Fed. R. Civ. P. 23(a).

Additionally, Rule 23(b) specifies the findings that a court 
must make prior to certifying a class action, assuming that the 
requirements of Rule 23(a) have been met. These findings 
include, among other things, whether the prosecution of 
separate actions by or against individual class members would 
create the risk of inconsistent or varying adjudications, 
whether the party opposing the class has acted or refused to 
act on grounds that apply generally to the class such that 
relief would be appropriate for the class as a whole, and 
whether common questions of law or fact predominate over any 
other questions affecting only individual class members and 
that a class action would be superior to other methods of 
adjudicating the controversy fairly and efficiently.\12\
---------------------------------------------------------------------------
    \12\Fed. R. Civ. P. 23(b). Rule 23 contains a number of other 
provisions that are not relevant to this bill.
---------------------------------------------------------------------------

                        CONCERNS WITH H.R. 1927

           I. H.R. 1927 IS A SOLUTION IN SEARCH OF A PROBLEM.

    There is no need for H.R. 1927 because plaintiffs already 
must satisfy rigorous requirements in order to pursue a class 
action. As explained above, Rule 23 requires a plaintiff 
seeking class action certification to make substantial 
showings, including commonality of factual and legal questions 
and typicality of the putative representative's claims compared 
to those of putative class members. Moreover, Federal courts 
vigorously enforce Rule 23's requirements, and pursuing a class 
action already requires discovery and motion practice, which 
mandate a significant expenditure of time and resources.\13\ 
H.R. 1927 would only make these procedural hurdles even more 
burdensome and potentially cost-prohibitive.
---------------------------------------------------------------------------
    \13\Subcommittee Hearing (Lahav Statement at 5-6, 9-10).
---------------------------------------------------------------------------
    Additionally, the bill is based on the false premise that 
Federal courts are inappropriately certifying classes where 
putative class members have not suffered any injury. In 
particular, the bill's proponents claim that ``benefit of the 
bargain'' cases constitute such ``no-injury'' class actions. In 
such cases, plaintiffs allege that they have been injured after 
purchasing a defective product because they did not receive the 
full value of what they thought they were paying for (i.e., a 
non-defective product.)\14\ As Professor Alexandra Lahav 
explained at the hearing on this bill before the Subcommittee 
on the Constitution and Civil Justice, plaintiffs in such cases 
have, in fact, suffered a real injury--namely, financial injury 
in the form of paying a price for a product that is, in fact, 
worth less than what the plaintiff bargained for.\15\ In the 
product liability context, this means that where a consumer 
purchases a product with a design defect, that consumer has 
suffered an injury regardless of whether the defect manifests 
in any other harm to the consumer.\16\ In sum, the consumer has 
not received the product that he or she paid for, but, instead, 
one that is worth less than what the consumer thought he or she 
was buying at the time of purchase.\17\ It is perhaps telling 
that, in two ``benefit of the bargain'' cases involving 
Whirlpool front-loading washing machines that H.R. 1927's 
proponents point to as a reason to support the bill, the 
Supreme Court has denied appeals of class certification based 
on the argument that these class actions amounted to ``no-
injury'' class actions.\18\
---------------------------------------------------------------------------
    \14\Id. at 10.
    \15\Id.
    \16\Id.
    \17\Id. By way of further example, Professor Lahav testified

      if I purchase a car that has a faulty ignition switch, 
      which has a propensity to turn off while I am driving on 
      the highway, I should not have to wait until I suffer a 
      potentially catastrophic accident to bring a lawsuit to 
      assert my rights. In fact, the law should not want me to 
      wait, as I will have created a much greater risk for myself 
      and those around me and increased the damages the defendant 
      would have to pay. A car that has a faulty ignition switch 
      is worth less than full price, and that gives me standing 
      to sue before I get on the road and prove that there is a 
---------------------------------------------------------------------------
      defect by endangering innocent lives. 

Id at 11.
---------------------------------------------------------------------------
    \18\Glazer v. Whirlpool Corp., 722 F.3d 838 (6th Cir. 2013), cert. 
denied, 134 S. Ct. 1277 (2014); Butler v. Sears, Roebuck & Co., 702 
F.3d 369 (7th Cir. 2012), cert. denied, 134 S. Ct. 1277 (2014).
---------------------------------------------------------------------------
    Similarly, the claim by the bill's proponents that class 
actions based solely on statutory damages provisions are 
examples of ``no-injury'' class actions is without merit. In 
many state consumer protection statutes, and in employment, 
civil rights, or privacy statutes, the injury, while very real, 
is difficult to quantify in monetary terms. Congress and state 
legislatures, therefore, set statutory damage levels to 
simplify the process of quantifying damages, to deter corporate 
wrongdoing, and to encourage access to courts. The individual 
class members, however, may only be entitled to a small amount 
of damages under the statute, so these cases can only feasibly 
be brought as a class action. The injury such actions seek to 
remedy, however, is very real.\19\
---------------------------------------------------------------------------
    \19\To the extent that H.R. 1927's proponents base their support 
for the bill on the argument that violation of a statute, alone, does 
not constitute a sufficient ``injury'' for purposes of meeting the 
Constitution's standing requirements, the bill may be premature, as the 
Supreme Court will be considering this issue this term. See Robins v. 
Spokeo, Inc., 732 F.3d 409 (9th Cir. 2014), cert. granted, 135 S.Ct. 
1892 (2015).
---------------------------------------------------------------------------

   II. H.R. 1927 EFFECTIVELY MAKES MOST CLASS ACTIONS IMPOSSIBLE TO 
            PURSUE, DENYING ACCESS TO JUSTICE FOR PLAINTIFFS

    By requiring that a plaintiff show that each potential 
class member suffered the exact same type and scope of injury 
at the class certification stage, H.R. 1927 undermines the core 
purpose of class actions, which is to provide for efficiency in 
the disposition of numerous but substantially the same claims 
and to provide access to courts for parties that, individually, 
would not have the incentive or resources to pursue otherwise 
meritorious claims. Moreover, its requirement that the 
plaintiff show the that each proposed class member suffered the 
exact same injury is virtually impossible to meet as a 
practical matter at the certification stage. While the 
Manager's Amendment changed the bill's language by replacing 
the requirement that a plaintiff demonstrate the same 
``extent'' of injury with a requirement that she demonstrate 
the same ``scope'' of injury for each proposed class member, 
this change makes no substantive difference in our view and 
does not vitiate our concerns.
    By requiring a putative class representative to prove 
injury of every absent member of the putative class at the 
certification stage, H.R. 1927 requires a decision on the 
merits before trial and before appropriate class members can 
even be individually identified. To prove injury, a plaintiff 
would have to prove the alleged violation that caused the 
injury for each possible class member, i.e., litigation on the 
merits. As Professor Arthur Miller, the Nation's foremost 
expert of Federal practice and procedure, noted in his letter 
in opposition to H.R. 1927, the

        core function of a class representative is to try to 
        establish injury on behalf of similarly situated 
        persons. Thus the bill effectively wipes out Rule 23, 
        under which class representatives litigate common 
        questions on behalf of the class. The represented 
        persons are absent until after entry of a judgment that 
        binds them, at which point (upon a favorable judgment) 
        they are asked to come forward to prove their damages. 
        Until that time, the identity of many of the class 
        members is unknown, indeed possibly even 
        unknowable.\20\
---------------------------------------------------------------------------
    \20\Miller Letter at unnumbered 2.

Professor Miller further noted that the Supreme Court has 
rejected the notion that a class representative must first 
establish that it will win on the merits in order to obtain 
class certification.\21\ He further noted that class membership 
does not equate to entitlement to damages.\22\
---------------------------------------------------------------------------
    \21\Id. at unnumbered 3.
    \22\Id.
---------------------------------------------------------------------------
    In short, class actions exist in order to resolve claims of 
large groups of similarly situated people. Particularly when 
the individual damages are small, it is economically viable to 
bring suit for wrongdoing only through a class action. If, as 
H.R. 1927 requires, each proposed class member's injury must be 
proven at the certification stage--often a practical 
impossibility at a time when each class member cannot be 
individually identified--in order to even proceed as a class, 
this requirement defeats the point of the class action device, 
which is to promote the efficient adjudication of substantially 
the same claims based on substantially the same facts by a 
class representative on behalf of absent class members. As 
Professor Miller notes, the bill's requirement that potential 
class representatives prove that each proposed class member 
suffered that exact same injury as a condition of class 
certification inappropriately conflates the class certification 
inquiry with a decision on the merits and an assessment of each 
individual class member's damages.
    To address these concerns in part, Representative Steve 
Cohen (D-TN), the Ranking Member of the Subcommittee on the 
Constitution and Civil Justice, offered an amendment that would 
have stricken claims for monetary relief alleging economic loss 
from the bill's reach. He explained that the concerns expressed 
by Professor Miller and others about the impact of H.R. 1927 on 
the ability of plaintiffs to pursue class actions were 
particularly heightened in the case of economic loss claims 
because it is especially difficult to identify plaintiffs at 
the earliest stages of such a case and to assess whether every 
potential class member suffered the exact same injury in such 
cases.\23\ Notwithstanding these concerns, the Committee 
defeated the amendment by a 13 to 15 vote.\24\
---------------------------------------------------------------------------
    \23\Markup Transcript at 53-54.
    \24\Id. at 63.
---------------------------------------------------------------------------
    The bill's requirement that a plaintiff prove each 
potential class member suffered the exact same injury at the 
certification stage would essentially undermine the ability of 
plaintiffs to obtain class action certification. As a broad 
coalition of consumer and civil rights groups noted in opposing 
H.R. 1927, this requirement ``would sound the death knell for 
class actions'' because classes ``inherently include a range of 
affected individuals, and virtually never does every member of 
the class suffer the same extent of injury even from the same 
wrongdoing.''\25\ This kind of ``commonality of damages'' 
requirement for class certification, as this coalition noted, 
has been rejected by the Federal courts.\26\ Similarly, a group 
of health professionals and attorneys criticized the required 
showing of the exact same injury for each class member, noting 
that such a requirement ``violates basic medical scientific 
principles'' that make ``very clear that each individual 
responds somewhat differently to a health hazard'' based on the 
person's genetic makeup, health, age, gender, and many other 
factors.\27\
---------------------------------------------------------------------------
    \25\Groups Letter.
    \26\Id.
    \27\Letter from 25 Health Care Professionals and Attorneys to 
Chairman Trent Franks (R-AZ) and Ranking Member Steve Cohen (D-TN), 
Subcomm. on the Constitution and Civil Justice of the H. Comm. on the 
Judiciary, (Apr. 28, 2015) (on file with H. Comm. on the Judiciary 
Democratic staff).
---------------------------------------------------------------------------
    At a minimum, the terms ``type'' and ``scope'' of injury as 
used in H.R. 1927 are inherently vague and undefined. As a 
result, the bill will spawn litigation over their meaning as 
well as preclude a large number of class actions depending on 
how these terms are interpreted. For example, it is unclear 
whether a civil rights plaintiff whose employment is terminated 
because of race suffered the same ``type'' or ``scope'' of 
injury as another plaintiff of the same race who is terminated 
from a different position by the same employer because of race. 
Under the bill, these plaintiffs arguably would not be able to 
pursue a class action because, although they may have been 
subject to the same racially discriminatory employment policy 
or practice based on their shared race, they each may have been 
affected in a different manner or to a different degree.
    For these reasons, Ranking Member John Conyers, Jr. (D-MI) 
offered an amendment at markup that would have exempted claims 
for monetary relief under Title VII of the Civil Rights Act of 
1964, which prohibits discriminatory employment practices on 
the basis of race, sex, and other protected characteristics and 
allows recovery of back pay and compensatory and punitive 
damages.\28\ The amendment, however, was defeated by a 12 to 13 
vote.\29\
---------------------------------------------------------------------------
    \28\42 U.S.C. Sec. 2000e et seq. (2015).
    \29\Markup Transcript at 34.
---------------------------------------------------------------------------
    Representative Hank Johnson (D-GA), the Ranking Member of 
the Subcommittee on Regulatory Reform, Commercial and Antitrust 
Law, also offered an amendment to address concerns about the 
required showing that each proposed class member suffered the 
same scope of injury. That amendment would have struck the 
bill's requirement that a plaintiff demonstrate the same 
``scope'' of injury for each proposed class member in order to 
obtain class certification, but was defeated by an 11 to 17 
vote.\30\
---------------------------------------------------------------------------
    \30\Id. at 73.
---------------------------------------------------------------------------
    The Committee to Support the Antitrust Laws (COSAL), which 
represents the private antitrust bar, also criticized H.R. 
1927's requirement that class representatives prove that every 
potential class member suffered the exact same injury, noting 
that ``this is a standard that could rarely if ever be met'' 
because very ``few antitrust classes, if any, will be composed 
of members with damages in the exact same dollar amount.''\31\ 
COSAL also noted that the ``100% injury requirement will make 
class certification impossible even in cases where the vast 
majority--above 95% or more--of class members have suffered 
harm.''\32\
---------------------------------------------------------------------------
    \31\COSAL Letter at 2.
    \32\Id.
---------------------------------------------------------------------------
    In light of this concern, Representative Johnson offered an 
amendment that would have exempted antitrust claims from the 
bill. The Committee, however, defeated this amendment by a 10 
to 15 vote.\33\
---------------------------------------------------------------------------
    \33\Markup Transcript at 84.
---------------------------------------------------------------------------

III. H.R. 1927 WILL INCREASE THE COSTS AND RESOURCE BURDENS FOR COURTS 
                             AND LITIGANTS

    Given the already resource-intensive nature of class 
actions, H.R. 1927 would further burden courts and litigants. 
As Professor Lahav testified, H.R. 1927 would be 
``inefficient'' because it would require a ``full blown trial 
at the outset of every class action'' and another trial on 
``the merits again at the end of the litigation in order to 
obtain a judgment, wasting both judicial and party 
resources.''\34\ Similarly, Professor Miller told the Committee 
that by ``demanding a pre-certification determination of 
`injury,' the bill would create enormous work and litigation 
burdens--for the Federal judges as well as the litigants--that 
would destroy the utility of the class procedure. The class 
certification process is already freighted with complexity and 
protraction; this bill would exacerbate that and create further 
inefficiencies.''\35\
---------------------------------------------------------------------------
    \34\Subcommittee Hearing, Lahav Statement at 6.
    \35\Miller Letter at unnumbered 3.
---------------------------------------------------------------------------
    The increased costs and burdens to plaintiffs that H.R. 
1927 would impose could dissuade them from pursuing class 
actions in the first place, even when their claims have merit. 
Even if it did not have such an effect, however, there is 
little doubt that courts would bear the burden of holding 
trials on the entire case twice--first at the certification 
stage in order to find sufficient facts to determine whether 
every class member suffered the same type and scope of injury, 
and then a second time before a jury. For these reasons, 
Representative Sheila Jackson Lee (D-TX) offered an amendment 
at markup that would have delayed the bill's effective date 
until the Administrative Office of the United States Courts 
completed an assessment of the bill's likely financial and 
resource costs on litigants and courts. The amendment, however, 
was defeated by a 13 to 15 vote.\36\
---------------------------------------------------------------------------
    \36\Markup Transcript at 51.
---------------------------------------------------------------------------

        IV. H.R. 1927 CIRCUMVENTS THE RULES ENABLING ACT PROCESS

    H.R. 1927, like many other civil justice bills designed to 
deny plaintiffs their access to courts, also circumvents the 
exhaustive and deliberative Rules Enabling Act process, which 
permits public participation.\37\ This process also 
incorporates the judiciary's day-to-day, real-world experience 
with the application of the Federal civil procedure rules, 
including Rule 23. Moreover, Congress retains the power to 
review those rules and to accept, modify, or reject any 
proposed changes pursuant to the extensive Rules Enabling Act 
process. In fact, the Judicial Conference of the United States 
is currently considering changes to Rule 23, and the process 
should be permitted to run its course.
---------------------------------------------------------------------------
    \37\28 U.S.C. Sec. Sec. 2071 et seq. (2015).
---------------------------------------------------------------------------
    To address this concern, Representative David Cicilline (D-
RI) offered an amendment to condition the bill's effective date 
on the Judicial Conference approving the amendments to class 
action certification made by the bill. This amendment was 
defeated by 10 to 15 vote.

                               CONCLUSION

    H.R. 1927 is an unnecessary bill that threatens to deny 
millions of plaintiffs access to Federal courts by creating 
potentially insurmountable obstacles to class action 
certification and raising litigation costs. Moreover, it 
disrespects the Federal courts by imposing new burdens on them 
and by circumventing the congressionally-created Rules Enabling 
Act process by which Federal civil procedure rules are amended 
after extensive input from the bench and bar. For all the 
foregoing reasons, we strongly oppose H.R. 1927.

                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Ms. Chu.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Ms. DelBene.
                                   Mr. Jeffries.
                                   Mr. Cicilline.

                                 [all]