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Antitrust & Competition and Product Liabilit y,
Mass Torts & Consumer Class Actions
Practices
March 15, 2017 | Number
2093
Class Action Defendants Likely to Benefit if House Bill
Becomes Law
The Fairness in Class Action Litigation Act, passed by the House of Representatives on
March 9, 2017, may significantly change how class action cases proceed under Rule 23.
Key Points:
• The Act addresses a range of issues related to class action litigatio n, including class certificatio n
requirements, appeals, and attorne ys’ fees in class settlements.
• While most provisions are likel y to benefit defendants, a few have the potential to disadvantage
both sides, particularly in certain k inds of settlements.
Introduction
On March 9, 2017, the U.S. House of R epresentatives passed H.R. 985, the Fairn ess in Class Action
Litigation Act of 2017 (the Act), by a vote of 220-201. The Act’s stated purposes are to “assure fair and
prompt recoveries,” to “diminish abuses ,” and to “restore the intent of the fram ers” in the context of class
action litigation.1 T he Act is the most recent attempt by the Hous e Judiciary Committee to implement c lass
action litigation reform. A similar bil l, H.R. 1927, was introduced in 2015 b ut failed to get through
Congress.
In some respects, the Act merely codif ies existing law. Nonetheless, if enacted, the legislation could
significantly change class action litigat ion, particularly at and before the certif ication stage. Although most
of the provisions are likely to benefit d efendants by making certification requirem ents more stringent,
some may disadvantage both sides b y discouraging judicial approval of certai n types of settlements.
When the Senate plans to take up the bill rem ains unclear, but reports indicate that when it does, the Act
will face strong opposition. The c lass action plaintiffs’ bar and numerous nat ional organizations also
reportedly are working hard to prevent th e Act’s passage. Nonetheless, given t hat President Trump is
believed to be supportive of the legisla tion, companies that are involved in or reg ularly face class litigation
should monitor the Act’s progression carefully. In that regard, it is import ant to note that if passed by the
Senate in its current form, the Act will appl y to all civil actions that are pending on the date of its
enactment.
This Client Alert highlights several of the most important provisions in the Act, and how they would
change and/or impact current law.
