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93–530 PDF 2015

STATE OF CLASS ACTIONS TEN YEARS AFTER 

THE ENACTMENT OF 

THE CLASS ACTION FAIRNESS ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 27, 2015 

Serial No. 114–10 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

RON DeSANTIS, Florida, Vice-Chairman 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

FEBRUARY 27, 2015 

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution and Civil 

Justice ................................................................................................................... 1 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Subcommittee on the Constitution 

and Civil Justice ................................................................................................... 2 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 5 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 6 

WITNESSES 

Andrew J. Pincus, Partner, Mayer Brown, U.S. Chamber Institute for Legal 

Reform 

Oral Testimony ..................................................................................................... 9 

Prepared Statement ............................................................................................. 11 

John Parker Sweeney, President, DRI—The Voice of the Defense Bar 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 28 

Patricia W. Moore, Professor of Law, St. Thomas University School of Law 

Oral Testimony ..................................................................................................... 46 

Prepared Statement ............................................................................................. 48 

Jessica Miller, Partner, Skadden, Arps, Slate, Meagher & Flom LLP 

Oral Testimony ..................................................................................................... 65 

Prepared Statement ............................................................................................. 67 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on the Constitution and Civil Justice ................................................................. 96 

(1) 

STATE OF CLASS ACTIONS TEN YEARS AFTER 

THE ENACTMENT OF THE CLASS ACTION 

FAIRNESS ACT 

FRIDAY, FEBRUARY 27, 2015 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 9:07 a.m., in room 

2141, Rayburn Office Building, the Honorable Trent Franks (Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Goodlatte, DeSantis, King, 

Gohmert, Cohen, Conyers, and Nadler. 

Staff present: (Majority) Zachary Somers, Counsel; Tricia White, 

Clerk; (Minority) James J. Park, Minority Counsel; and Veronica 

Eligan, Professional Staff Member. 

Mr. FRANKS. Good morning. The Subcommittee on the Constitution and Civil Justice will come to order. Without objection, the 

Chair is authorized to declare a recess of the Committee at any 

time. 

10 years ago last week, Congress passed, and President George 

W. Bush signed into law, the Class Action Fairness Act, or CAFA 

as it commonly known. The bill was authorized by Chairman Goodlatte in the House and Chairman Grassley in the Senate, and received strong bipartisan support in both chambers. As it has been 

10 years since CAFA was enacted, it seems like it is time for this 

Subcommittee to examine the current state of class action litigation 

in the Federal courts. 

The class action is a mechanism designed to allow injured parties 

to join together with others who have suffered the same harm 

when their claims are not large enough to make pursuing them individually cost efficient. If used properly, class actions are a valuable tool in our system of justice, but they are only beneficial when 

the redress of actual injuries suffered by class members is the priority of the litigation. 

In recent years, however, class actions have been used with increased frequency in ways that do not promote the interests they 

were intended to serve. CAFA was designed as a balanced approach to address some of the most egregious problems in class action litigation. Its goals were to promote fairness, ensure that inter-
2 

state class actions are tried in Federal court, and establish new 

protections for consumers against abusive class action settlements. 

In many ways, the Act has been highly successful at achieving 

its goals. However, despite CAFA’s successes, many legal commentators have raised concerns about new class action abuses that 

CAFA was not intended to address. One of the problems that has 

emerged with increased frequency is CAFA’s enactment no injury 

class actions. In these cases, attorneys seek damages on behalf of 

a class of plaintiffs who have not suffered any actual harm. Rather, 

plaintiffs in these cases seek compensation for potential injuries 

that may never occur. 

These class actions are being filed despite the fact that it is a 

bedrock principle of both Federal and state law that a civil suit 

may not proceed if there is no injury. By allowing no injury class 

actions to proceed, judges are turning this bedrock principle on its 

head simply because a case is brought as a class action instead of 

by an individual plaintiff. As the Supreme Court has observed, 

class actions will always ‘‘present opportunities for abuse.’’ This 

likelihood for abuse is at its greatest in actions in which the class 

of plaintiff does not need to show that they are actually harmed. 

If no injury class actions are not bad enough, in the wake, CAFA 

attorneys have invented another class action device as well, a class 

action in which no plaintiff exists. These no plaintiff class actions 

are made possible through the use of cy pres settlements. In these 

cases, an uninjured third party with no connection to the litigation, 

usually a non-profit organization, is awarded money as part of a 

settlement because it would be too difficult or costly to identify the 

alleged victims. These settlements present a whole host of problems, not the least of which is that they almost certainly violate 

the Constitution’s Article 3 case or controversy requirement. 

With the advent of no injury and no plaintiff class actions, it is 

not surprising that a recent empirical study conducted by our first 

witness, Andy Pincus, determined that ‘‘class actions do not provide 

class members with anything close to the benefits claimed by their 

proponents, although they can and do enrich attorneys.’’ 

It is also not surprising that a recent independent public opinion 

poll sponsored by DRI found that 78 percent of Americans believe 

that plaintiffs should only be able to join a class action if they can 

show that they were actually harmed, and 85 percent of Americans 

believe that class action lawyers should be required to obtain permission from individuals before enrolling them as plaintiffs. 

I look forward to the witnesses’ testimony, and I hope that 

through this hearing we can begin to examine what improvements 

are needed to ensure that the Federal class action system is functioning in a manner that is fair and efficient for plaintiffs and defendants. 

And with that, I would recognize the Ranking Member for his 

opening statement. 

Mr. COHEN. Thank you, Mr. Chairman. Class actions do benefit 

society by providing plaintiffs access to court. In cases where a defendant may have caused small injuries to a large number of persons, class actions have offered an important way for injured people to obtain remedies they might otherwise not be able to get. I 

see it all the time in my personal life. I open up an envelope, and 
3 

*Note: The information referred to is not reprinted in this hearing record but is on file with 

the Subcommittee, and can be accessed at: http://centerjd.org/content/first-class-relief-howclass-actions-benefit-those-who-are-injured-defrauded-and-violated. 

there is a class action based on something that has happened with 

a stock I have owned. And while I know the attorney is going to 

make a goodly amount of money, I am going to get something and 

knew about it, and never would have gotten anything otherwise. So 

class actions do a lot of good for a lot of people. 

Class actions are a way to stop large-scale wrongdoing by a defendant. By doing so, they can protect our health, promote safe 

products, fight discrimination, ensure fair wages, punish fraud, and 

stockholders get benefits. Unfortunately, the Class Action Fairness 

Act of 2005 made it harder and more expensive for plaintiffs to 

pursue class actions. 

Most controversially, the Act made it easier to remove class actions from State court to Federal court where class actions and litigation generally may be more difficult for plaintiffs to pursue. This 

is true even when the plaintiffs are all from one State that does 

business in that State, and the claim arises under State law. Still, 

it gives an opportunity to move it out of State courts. 

The Act may have denied many people the benefits of class actions over the last decade. This is a shame. The Center for Justice 

and Democracy at New York Law School published a report in October 2014 entitled ‘‘First Class Relief: How Class Actions Benefit 

Those Who Are Injured, Defrauded, and Violated.’’ This report details numerous class actions that have helped to remedy wrongs 

committed against consumers, employees, students, borrowers, 

service members, small businesses. 

I ask unanimous consent at this point, Mr. Chairman, to offer 

this report for the record.* 

Mr. FRANKS. Without objection. 

Mr. COHEN. Thank you, sir. There are simply too many examples 

of the good that class actions have done for people to discuss in detail here. A few examples: Morgan v. Richmond School of Health 

and Technology, a for-profit school settled with 4,000 primarily African-American and low income students, who the school targeted 

for reverse redlining by using deceptive practices to enroll them for 

what the school knew was an inadequate education, saddling students with large debts, but without improved opportunities for employment. The students never would have had a thought about 

bringing an action themselves. Could not have, would not have got 

relief. 

In Re Dynamic Random Access Memory anti-trust litigation 

where defendant manufacturers of dynamic random access memory 

chips used in computers and videogame consoles settled for $242 

million with a class of 19,000 plaintiff companies that purchased 

those chips, with recoveries for class members ranging from $1,000 

to $1 million. 

Carter v. Wells Fargo Advisors, where Wells Fargo settled a gender discrimination class action brought by 1,200 female financial 

advisors who alleged discrimination in pay, promotion, and other 

employment decisions for $32 million, or about $18,000 for each 

class member, and injunctive relief against future discrimination. 
4 

**Note: The information referred to is not reprinted in this hearing record but is on file with 

the Subcommittee, and can be accessed at: 

http://www.consumeradvocates.org/sites/default/files/Class%20Action%20Report%202- 

27-15.pdf. 

Sure, there are interests who would not have wanted that to go 

forth. There are interests that would not want us to have access 

to class actions because they want to continue to discriminate 

against women, take advantage of African-Americans and young 

students, and rip them off, and pay them less. It needs to stop. The 

only way to do that is class actions. 

That is the best, often the only mechanism that can deliver those 

good results. Individual cases may be too costly to pursue and not 

worth the compensation available to the individual victim. But in 

the aggregate, these cases involve large-scale wrongdoing that 

should be stopped, and the attorneys that bring the cases are private attorneys general that are doing the work that government 

otherwise could be doing if the resources were there to work in a 

collective fashion, where the laws were such that this was illegal. 

Well, it would already be illegal, but easier to pursue. 

The majority witnesses will say today that class actions do not 

benefit class members and are not worth the costs they impose on 

corporate defendants. They will assert that class actions primarily 

benefit plaintiffs’ lawyers. Well, that is not true, and the plaintiff 

lawyers deserve the pay they get because they are acting in the 

public interest and do benefit the public. In making these assertions, they rely on no objective data. Instead we will hear about a 

deeply flawed study conducted by the Mayer Brown law firm, otherwise a firm that I think well of for they employ Toby Moffett, a 

great American. But the study that they use critics have noted has 

cherry picked data and mischaracterization of cases to support its 

conclusions. 

Today, the American Association for Justice and the National Association of Consumer Advocates released a report called ‘‘Class Actions are a Cornerstone of Our Civil Justice System: A Review of 

Class Actions Filed in 2009.’’ This report contains a detailed caseby-case rebuttal of the Mayer Brown study that the majority witnesses today rely on in support of their assertions, attacking class 

actions and plaintiffs’ lawyers. And I ask unanimous consent that 

it be made a part of the record. Mr. Chairman?** 

Mr. FRANKS. Without objection. 

Mr. COHEN. Thank you. The NACA and AAJ report shows that, 

in fact, class members did benefit in the cases cited in the Mayer 

Brown study. These people included Bernie Madoff’s victims, employees who lost retirement funds due to misconduct by retirement 

fund members, and disabled tenants in public housing. 

I also take issue with the assertion that class actions simply benefit plaintiffs’ lawyers. All the benefits of class actions outlined 

would not be possible but for the hard work and dedication of the 

lawyers who are willing to fight such actions on behalf of victims. 

They ought to be commended for their work, not attacked. 

Finally, I note that the Rules Advisory Committee of the Judicial 

Conference of the United States is currently considering amendments to Rule 23, which governs class actions. Given that Federal 

judges deal routinely with class actions, the consequences of CAFA, 
5 

we should leave it to their expertise to determine what changes 

need to be made. It is amazing that we worry about the attorneys 

and what they make when they bring class actions on behalf of 

who have been wronged when the courts have found it wrong, but 

we do not worry about the tremendous salaries that are paid to the 

executives of the companies that are doing the unlawful work. That 

is one of the greatest flaws in our system today in America, the disparity in wealth and what the corporate CEOs are making and taking home and getting in benefits. 

I will yield back the remainder of my time. 

Mr. FRANKS. And I thank the gentleman, and I would now yield 

to the distinguished Chairman of the Committee, Mr. Goodlatte, 

from Virginia. 

Mr. GOODLATTE. Thank you, Mr. Chairman. Mr. Chairman, 10 

years ago, I introduced and helped usher the Class Action Fairness 

Act through Congress and to the President’s desk where it was 

signed into law. This legislation corrected a serious flaw in our 

Federal jurisdictional statutes that forbid Federal courts form hearing most interstate class actions. 

While the reforms contained in the Class Action Fairness Act 

have been integral in improving the civil justice system in the 

United States, abusive class action practices still exist today. I 

hope that through this hearing, the Committee can begin to examine some of the current problems in Federal class action litigation, 

and look for ways to improve the system to ensure that class action 

lawsuits are benefitting the victims they are intended to compensate. 

The class action device is a necessary and important part of our 

legal system. It promotes efficiency by allowing plaintiffs with similar claims to adjudicate their cases in one proceeding, and it promotes fairness by allowing claims to be heard in cases in which 

there are small harms to a large number of people that would otherwise go unaddressed because the cost of an individual plaintiff to 

sue would far exceed the benefits. 

In the 1960’s and 70’s, class actions that sought injunctive relief 

were used to accomplish landmark civil rights reform, such as integrating public school systems, improving conditions in our prison 

systems, and challenging discriminatory housing and public accommodation laws. Today’s class action litigation, however, has in 

large part shifted far away from these important civil rights suits, 

and is now dominated by class actions brought by enterprising 

plaintiffs’ attorneys seeking money damages on behalf of consumers. 

The rules that govern class action litigation have not kept up 

with this shift. In fact, other than the Class Action Fairness Act, 

no other major reforms to the laws governing Federal class actions 

have been adopted since 1966. Judging by some of the problems 

that have arisen since Class Action Fairness Act was enacted 10 

years ago, additional reform is likely needed. 

I am concerned that in the years since the Class Action Fairness 

Act was enacted, there has been a proliferation of class actions 

filed by entrepreneurial attorneys on behalf of whole classes of 

plaintiffs that have not suffered any actual injury. These class actions are often comprised of class members that do not even know 
6 

that they have been harmed, do not care about the minor injuries 

that the lawsuit is based on, and generally have no interest in pursuing litigation. 

These co-called no injury class actions appear to violate Article 

3 of the Constitution, which requires a plaintiff suffer an actual 

and concrete injury in order to have standing to sue in Federal 

court. This principle does not change simply because a case is 

brought as a class action instead of by an individual. Alarmingly, 

however, many Federal courts have departed from this constitutional requirement and certified class actions in which the class 

members have not suffered any actual harm. 

No injury class actions appear to be to no one’s benefit except the 

lawyers who are able to generate large fees litigating and settling 

these no injury cases. In fact, no injury class actions can actually 

harm the very class members on whose behalf they are purportedly 

brought. This harm occurs when individuals who have actually 

been injured are forced to sacrifice valid claims in order to preserve 

the lesser claims that everyone in the class can assert, or when 

consumers who are currently uninjured forgo real claims on future 

injuries in order to pursue more minor no injury claims. In short, 

no injury class actions can lead to substantial under compensation 

for consumers who have suffered actual harm. 

I am also concerned that we may be witnessing a significant increase in class action settlements that produce little or no benefit 

to the members of the class. We tried to address this trend in the 

Class Action Fairness Act by putting significant restrictions on coupon settlements. But in the wake post-CAFA innovations, we may 

need to consider more reform to restrict parasitic settlements that 

benefit no one other than the attorney who brought the class action. 

Given that class action lawsuit involve more money and touch 

more Americans than virtually any other litigation pending in our 

legal system, it is important that we have a Federal class action 

system that benefits those who have been truly injured and is fair 

to both plaintiffs and defendants. I look forward to the witnesses’ 

testimony and any suggestions they may have for improving the 

laws governing class actions in Federal court. 

And I thank the Chairman, and yield back. 

Mr. FRANKS. I thank the gentleman, and I would now yield to the 

Ranking Member of the Committee, Mr. Conyers from Michigan. 

Mr. CONYERS. Thank you, Mr. Chairman. Members of the Committee, I may be the only one on this Subcommittee that was here 

when the Class Action Fairness Act was sped through the Congress 

in 2005, and here we are again. 

When Congress considered the measure 10 years ago, I warned 

that it would simply benefit corporate wrongdoers to the detriment 

of large numbers of people who suffer great harm. This is because 

the Act makes it relatively easy for corporate defendants to have 

their cases removed from State courts to the Federal courts, a 

venue where they believe they have greater advantages. And unfortunately, my concerns have proven to be correct over 10 years since 

the Act’s passage. 

Although proponents of this legislation claimed in 2005 that the 

Act was necessary to curb forum shopping by plaintiffs, in reality 
7 

this law has proved to be the ultimate tool for forum shopping by 

defendants. There are several reasons why the changes effected by 

the Class Action Fairness Act are so problematic. 

To begin with, the Act offends federalism by undermining State 

laws in State courts. You see, State law often is the source of many 

critical consumer and environmental protections through common 

law, tort, and statutory provisions. In turn, class actions are vital 

to enforcing these rights as they allow aggregation of small claims 

that otherwise might not warrant individual litigation. Nevertheless, the Class Action Fairness Act makes virtually every class action removable to Federal court, thereby divesting State courts of 

the ability to interpret and develop State law. 

In addition, by making it easier to remove class actions to Federal court, the Act makes class certification more difficult and expensive. Back in 2005, I correctly predicted that Federal courts 

would be less likely to certify class actions. This has become a reality because of a series of adverse Federal precedents that make 

it more difficult to establish the class action certification requirements under Rule 23 of the Federal Rules of Civil Procedure. 

For instance, in 2011, the Supreme Court substantially narrowed 

the scope of Rule 23’s commonality requirement in the Walmart 

Stores case. This case denied class certification in an employment 

discrimination class action suit seeking to vindicate the rights of as 

many as one and a half million female workers. The Court in a 5 

to 4 decision, along ideological lines on the basic issue presented 

in the case, namely whether the purported class satisfied Rule 23’s 

requirement that there be questions of law or fact common to the 

class of female employees. 

The Court’s conservative justices found it did not, giving what 

many critics say is a very narrow reading of Rule 23’s commonality 

requirement. This narrow reading severely constrains the ability of 

plaintiffs to band together in large class actions, even when as in 

Dukes, the plaintiffs alleged the same type of injury, which in that 

case was gender-based employment discrimination. This decision 

has effectively made the Federal courts an even more favorable 

forum for defendants in consumer, anti-trust, environmental, and 

employment discrimination cases. 

Finally, the Act increases the work load of an already overburdened Federal court system. In 2005, we were concerned about the 

effect that the Act would have on Federal courts considering the 

number of judicial vacancies, which at the time was 5 percent of 

the Federal judicial positions. Well, as you might suspect, the number has climbed to 7 percent as of last October. And I also note that 

there are only 1,500 Federal judges as compared to 30,000 State 

judges. 

Growing caseloads force Federal judges to have even less time for 

case management and supervision, thereby resulting in delayed 

justice in class actions and other Federal cases, and creates the 

risk that judges will dismiss cases or encourage less than optimal 

settlements to clear their dockets. 

So I conclude with the observation that this Act, Class Action 

Fairness, has made it increasingly difficult for consumers, employees, small businesses, to vindicate their rights and to seek rem-
8 

edies for harmful acts of corporate wrongdoers. It was bad policy 

then, and remains so today. 

And I thank the Chairman for allowing some extra time. 

Mr. FRANKS. And I thank the gentleman. And without objection, 

other Members’ opening statements will be made part of the 

record. 

So now, I will introduce our witnesses. Our first witness is Andrew Pincus, a partner at Mayer Brown, who focuses his practice 

on briefing and arguing cases in the Supreme Court and other appellate courts, as well as on developing legal arguments in trial 

courts. He has argued 24 cases in the Supreme Court and filed 

briefs in more than 150 cases in that Court. 

Mr. Pincus served as General Counsel to the U.S. Department of 

Commerce from 1997 to 2000, and as an assistant to the Solicitor 

General in the Justice Department from 1984 to 1988. Thank you 

for being here, sir. 

Our second witness is John Parker Sweeney, president of DRI - 

the Voice of the Defense Bar. With 22,000 members, DRI is the Nation’s largest professional association of civil defense attorneys. In 

addition, Mr. Sweeney is a partner at a law firm here in Washington. He has over 30 years of complex litigation experience, including defending major class actions and serving as national counsel in class action and mass tort cases across the country. Welcome, 

sir. 

Our third witness is Patricia Moore, a professor of law at St. 

Thomas University School of Law where she teaches civil procedure, evidence, pre-trial litigation, and complex litigation. She has 

published over a dozen law review articles, including several articles on class action litigation. 

Prior to entering academia, Professor Moore was a civil litigation 

partner at a national firm where she was the first woman to rise 

through the ranks and become partner in the firm’s litigation department. Welcome. 

Our final witness is Jessica Miller, a partner at Skadden Arps, 

who has brought experience in the defense of class actions and 

other complex civil litigation with a focus on product liability matters and multidistrict litigation proceedings. She has litigated in 

numerous Federal and State trial courts, and also has extensive 

appellate experience. In addition, Ms. Miller has been involved in 

several major Federal legislative efforts, and has written extensively on class action and tort reform issues. 

Each of the witness’ written statements will be entered into the 

record in its entirety, and I would ask each witness to summarize 

his or her testimony in 5 minutes or less. And to help to help you 

stay within that time, there is a timing light in front of you. The 

light will switch from green to yellow indicating that you have 1 

minute to conclude your testimony, and, of course, when the light 

turns red, it indicates that the witness’ 5 minutes have expired. 

So now, before I recognize the witnesses, it is the tradition of this 

Subcommittee that they be sworn, so if you will please stand. 

Do you solemnly swear that the testimony that you are about to 

give will be the truth, the whole truth, and nothing but the truth, 

so help you God? 

[A chorus of ayes.] 
9 

Mr. FRANKS. You may be seated. Let the record reflect that the 

witnesses have answered in the affirmative. 

I would now recognize our first witness, Mr. Pincus. And, Mr. 

Pincus, if you will turn that microphone on before you. Yes, sir. 

TESTIMONY OF ANDREW J. PINCUS, PARTNER, MAYER BROWN, 

U.S. CHAMBER INSTITUTE FOR LEGAL REFORM 

Mr. PINCUS. Thank you, Mr. Chairman. Chairman Franks, Ranking Member Cohen, and Members of the Subcommittee, it is an 

honor to appear before you on behalf of the Chamber of Commerce 

and its Institute of Legal Reform. And, Congressman Cohen, thank 

you for your very kind comments about my friend, Toby Moffett. 

We are very proud to have him at Mayer Brown. 

In 1966, nearly 50 years ago, the Federal Courts Rules Committee authorized new class action procedures with little historical 

precedent, in particular, the catch-all damages class action permitted by Rule 23(b)(3). As several Members of the Subcommittee 

have noted, the Committee acted with the laudable goals of making 

it easier for plaintiffs with small claims to obtain access to justice, 

and enabling the courts to manage disputes involving large numbers of claimants. 

Serious questions have been raised about how well that innovation is working, particularly how it is interacting with other significant changes in the litigation system over the past 5 decades. That 

debate has largely been a war of anecdotes. People on the plaintiff 

side point to class actions that achieved great results. People on 

the defense side point to class actions that did not. It is not a very 

satisfying discussion. 

As several Members of the Subcommittee noted, my law firm 

tried to answer the question in a more systematic way by undertaking an empirical analysis of a neutrally-selected sample of punitive employee and consumer class action lawsuits. And just a word 

about the methodology because I know some people have criticized 

it. What we did was basically, since there is no database of all the 

class actions filed in the Federal courts, was to look in the reporters that report for the legal community about class actions, and 

take the ones that were mentioned as being filed in 2009. So we 

did not cherry pick the sample. It was whatever was reported in 

those publications, and then we tried to follow through on what 

happened. 

And I am certainly looking forward to reading and responding to 

the report that Congressman Cohen mentioned. I am sorry that it 

was not released a few days earlier so I could have responded to 

it here today, but we will definitely respond. 

But let me talk a little about the results that we found. Not one 

of the class actions ended in a final judgment on the merits. Every 

one that was resolved was either dismissed or settled, and the vast 

majority of resolved cases produced no benefits for members of the 

class. One-third of those that were resolved were dismissed voluntarily by the plaintiffs, so no benefit to the class. Just under another third were dismissed by the courts on the merits. Again, no 

benefits. So the remaining one-third were all settled on a class 

basis. What happened in those settlements? 
10 

***Note: The supplemental material submitted with this witness statement is not printed in 

this hearing record but is on file with the Subcommittee. The complete statement can be 

accessed at: http://docs.house.gov/meetings/JU/JU10/20150227/103030/HHRG-114-JU10-WstatePincusA-20150227.pdf. 

As several Members of the Subcommittee have noted, a lot of 

those settlements these days provide for a significant share of the 

money to go to lawyers, and often a significant share of the settlement dollars to go to third parties through the cy pres process, not 

to the members of the class. 

With respect to the funds that the agreements allocate to members of the class, it is very hard to figure out whether any members 

of the class actually receive them because information regarding 

the actual distribution of the money as opposed to the settlement 

that says X million dollars or X tens of millions of dollars for the 

class. How much do members of the class actually pick up is often 

not public, almost always not public. 

In our study, we tried to find data to the extent we could, and 

we could for six cases. One of them, as someone has mentioned, 

was a Madoff case, which obviously involved very, very large prospective recoveries to the members of the class. The others delivered funds to only miniscule percentages of the class—.00006 percent, .33 percent, 1.5 percent, 9.66 percent, and 12 percent. 

These results are not unusual. A senior consultant at a claims 

administrator, the settlement administrators that perform the distribution processes, says that ‘‘In consumer class actions, the 

claims rate’’—in other words, the rate of members of the punitive 

class that get money—‘‘is almost always less than 1 percent, and 

the median claims rate is .023 percent.’’ So 1 out of 4,350 class 

members actually recovers. 

Does this mean that every class action is unjustified? No. Does 

it mean that there are significant problems in our class action system? I think yes, and I think what it means is the incentive structure that we have in class actions today does not work for plaintiffs 

lawyers, for judges, and for defense counsel. 

And I see that my time is up, and I will be happy to elaborate 

on that and answer any other questions that the Subcommittee 

has. Thank you. 

[The prepared statement of Mr. Pincus follows:]*** 
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Mr. FRANKS. Thank you, Mr. Pincus. 

And I will now recognize our second witness, Mr. Sweeney. And 

I hope you turn on your microphone, sir. 

TESTIMONY OF JOHN PARKER SWEENEY, PRESIDENT, 

DRI—THE VOICE OF THE DEFENSE BAR 

Mr. SWEENEY. Good morning, Mr. Chairman. 

Mr. FRANKS. Is that microphone on, Mr. Sweeney? 

Mr. SWEENEY. Yes, it is. 

Mr. FRANKS. Okay. Maybe pull it a little closer. 

Mr. SWEENEY. First, I want to thank the Subcommittee for inviting DRI to appear here today. With 22,000 members, DRI is the 

largest association of lawyers defending American businesses in 

court. Over the past 4 years, DRI has submitted two dozen briefs 

to the United States Supreme Court providing our views in class 

action cases for their benefit. DRI also conducts the Nation’s only 

annual national opinion poll devoted exclusively to the civil justice 

system. 

I would like to express our appreciation today for the time and 

skill that went into the enactment of the Class Action Fairness Act 

of 2005. This legislation brought increased fairness, consistency, 

and efficiency to the civil justice system. As with most important 

legislation, however, experience with the Act reveals opportunities 

to make the Act more effective and address threats to its purposes. 

Although we discuss other issues in my full statement, I would 

like to concentrate my opening remarks this morning on the issue 

of no injury class actions. Our clients want to do the right thing 

by their customers, and they want and try to play by the rules. 

These no injury class actions unfairly burden them as they unfairly 

burden our judicial system. 

The Supreme Court has held that Article 3 standing requires a 

plaintiff to have suffered an injury in fact. This is a bedrock prerequisite for access to the courts. Yet American businesses face 

many actions brought by plaintiffs who have admitted they have 

not been harmed, and propose a class of equally unharmed individuals. 

In these no injury class actions, plaintiffs ask the courts to ignore 

the requirement of injury-in-fact, often by seeking to recover some 

fixed amount or range of statutory damages without any showing 

of injury on the part of them or the members of the class they purport to represent. 

Examples include claims brought under the Consumer Fraud or 

Deceptive Practices Act of various States. In a typical case, the 

plaintiff contends the defendant committed widespread technical 

violations of some statute, admits that he and the class he seeks 

to represent sustain no actual harm as a result of violations, or if 

some are harmed, most are not, and then seeks to have the court 

award aggregate damages based on some formulaic calculation or 

range of statutory penalties unrelated to any actual injury-in-fact. 

These cases fail to meet Article 3 standing requirements, both for 

the class representatives themselves and for the absent class members. They also raise broad policy concerns about using the civil 

justice system to punish defendants for technical statutory viola-
27 

tions. And punishment it is because if class members are by definition unharmed, there is nothing compensatory about the process. 

Permitting aggregated actions by unharmed individuals places 

enormous pressure on defendants to settle claims that would be 

valueless if tried on an individual basis, and needlessly divert limited judicial resources. These settlements raise the same concern 

the 109th Congress had with coupon settlements that Class Action 

Fairness Act was passed to address. 

Congress also passed the Rules Enabling Act to prevent the use 

of procedural rules to abridge or enlarge substantive rights. Permitting class actions under Rule 23 on behalf of unharmed absent 

class members who lack Article 3 standing flies in the face of this 

important congressional mandate. 

Because some courts permit such aggregation of no injury claims 

while others do not, the current environment is unpredictable for 

our members and our clients. More importantly, permitting litigation by and on behalf of unharmed parties impairs the ability of 

the civil justice system to process deserving claims for actual harm. 

As an organization devoted to improving the civil justice system, 

we believe a hard look at addressing the problem no injury actions 

is warranted. We are not alone in that belief. For the past 3 years, 

we have conducted our national opinion poll. We have asked class 

action questions on each of our polls. In 2013, 68 percent said they 

would require plaintiffs to show actual harm to join a class action. 

In 2014, we asked if respondents would support a law requiring a 

person to show they were actually harmed by a company’s products, service, or policies. 78 percent would support such a law. 

Large majorities support this reform across 12 demographic categories, Republicans and Democratic, and liberals and conservatives alike. 

Mr. Chairman, the American public thinks it makes no sense to 

pay damages to people who have suffered no harm. They support 

reform. It is just common sense to them as it is to us. Thank you. 

I look forward to answering the Subcommittee’s questions. 

[The prepared statement of Mr. Sweeney follows:] 
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Mr. FRANKS. Thank you, Mr. Sweeney. 

And I would now recognize our third witness, Ms. Moore. Ms. 

Moore, please turn on your microphone and pull it close. 

TESTIMONY OF PATRICIA W. MOORE, PROFESSOR OF LAW, 

ST. THOMAS UNIVERSITY SCHOOL OF LAW 

Ms. MOORE. Thank you, Mr. Chairman, Ranking Member Cohen, 

and Members of the Committee and the Subcommittee. It is my 

privilege to testify before you here today. 

The majority witnesses largely ignore the types of class actions 

which harm class members much more than by a small amount of 

money. Employment discrimination, wage and hour litigation, civil 

rights cases, anti-trust cases, securities cases—there is hardly a 

nod to these critically important types of class actions that vindicate the rights of workers, small business, members of minority 

groups, and institutional investors who are watching out for people’s retirement funds. 

The majority witnesses misplace their focus on compensation in 

consumer class actions. For small value claims, compensation is not 

the most important societal goal. The key question for society is 

whether the defendant has been required to internalize the cost of 

breaking the law by cheating a whole bunch of consumers out of 

a small amount of money each. Without the payment of money as 

a result of a class action, the company has no deterrent to ignoring 

the law. 

It has been a decade since CAFA was enacted into law, and the 

consensus of litigants on both sides and academics is that CAFA 

has been extremely successful in bringing actions based on State 

law into Federal court. The majority witnesses admit this. Even 

more importantly than their victory on CAFA, defendants have 

won major victories on class actions in the Supreme Court. One allows corporations to make consumers, simply by clicking on a 

mouse, give up their right to go to court and give up their constitutional right to appear before a jury. Another case makes it very 

hard for employees to band together to fight unlawful discrimination against them on the basis of race or gender. 

The evidence that the majority witnesses rely on here primarily 

is the Mayer Brown study and a DRI survey. However, the methodological flaws in these so-called empirical studies could be picked 

out by a college student in a beginning statistics class. 

The Mayer Brown study was conducted by a biased party with 

a financial stake in the outcome of the study. The study sample 

was not randomly selected, nor was the study comprehensive. 

Mayer Brown cherry picked 188 cases, which is about 6 percent of 

all class actions filed in Federal court every year. The DRI survey 

is just that, an opinion survey. It in no way attempts to empirically 

measure class actions. Many of the questions that they asked people were totally misleading and assumed false premises in the way 

they were stated. 

The majority witnesses have talked a lot about this concept of 

class members having no injury. Even a cursory review of cases 

that I have seen would call into question the premise that class 

members are receiving compensation for no injury. For example, 

the poster child for this so-called no injury class is the BP litiga-
47 

tion, in which BP recently attempted to gain cert in the Supreme 

Court so that they could overturn the Deep Water Horizon settlement by telling the Supreme Court that the class included people 

along the Gulf Coast who had suffered no injury. This was not true 

because the very settlement agreement that BP itself had agreed 

to and negotiated defined the class to include only those people 

who had suffered an injury. 

Besides sometimes mischaracterizing what actually happens in 

these cases, the majority witnesses are really arguing that they do 

not like the remedies that are granted by the substantive law 

itself. If a Federal or a State statute says you are entitled to statutory damages if a company breaks the law, the legislature itself 

has said we think it is an important public policy that this law be 

obeyed. 

And for Members of Congress who are very concerned about 

States’ rights, the majority witnesses are trying to overturn what 

the State law has defined as an injury. If the State legislature has 

said that something is an injury under State law, then it is an injury even if the Chamber thinks it is no big deal or that it is a 

technical violation. 

One of CAFA’s purposes was to ensure that important cases 

based on State law should be in Federal court. So amending CAFA 

may affect important rights created by the States. 

Thank you very much for your attention. I look forward to answering your questions. 

[The prepared statement of Ms. Moore follows:] 
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Mr. FRANKS. Thank you, and thank you all for your testimony. 

We will now proceed under the—— 

Forgive me, Ms. Miller. I now recognize Ms. Miller for 5 minutes, 

and please turn on your microphone. 

TESTIMONY OF JESSICA MILLER, PARTNER, SKADDEN, 

ARPS, SLATE, MEAGHER & FLOM LLP 

Ms. MILLER. Good morning, Chairman—— 

Mr. FRANKS. Would you pull that microphone close to you and 

make sure that—— 

Ms. MILLER. Can you not hear me? Is that better? 

Mr. FRANKS. Yes, ma’am. Yes, ma’am. 

Ms. MILLER. Good morning, Chairman Franks, Ranking Member 

Cohen, and Members of the Subcommittee. If I had walked into 

this hearing today just off the street and listened to the opening 

statements of the Chairman, the Ranking Member, and the Committee Members, I am pretty sure that my sympathies would naturally have been with those of you who were talking about racial 

discrimination, civil rights, private attorneys general. Those are all 

things that are really important to me. 

But I practice in the class action area every day, and I have done 

so for 20 years, and that is not what it is about. That is not the 

reality of what is happening in class actions today. The reality is 

shakedowns by plaintiffs’ lawyers who are bringing class actions 

not against companies that are cheating consumers. They are 

bringing class actions on behalf of people who have products that 

work. And I think the most obvious example of that are these roofing class actions and these washing machine class actions, which 

are being brought against every single manufacturer. So it is not 

like there is a bad guy out there. Everybody in America who has 

a front load washing machine has been a plaintiff in a class action. 

And I think that is so important to think about because if you 

go to somewhere like Europe, all they have got is front load washing machines. There is no great conspiracy by the washing machine 

industry to trick Americans into buying, you know, energy efficient 

front load washers. 

And I think another good example are these roofing class actions, 

right? You have got roofs. They are sitting out there. It is snowing. 

It is hailing. You know, things happen to roofs. And what happens 

with a no injury or over broad class action is that plaintiffs’ lawyers find one person whose roof had a problem. Well, yes, roofs 

have problems. And then suddenly you have got a nationwide class 

action on behalf of every single person who has ever had a roof in 

America because one person had a problem with a roof. 

And so, that is where you get these over broad and no injury 

class actions we are talking about today. We are not talking civil 

rights here. We are talking about people whose roofs are functioning fine, who do not have any desire to be part of a class action, 

and all of a sudden we have some Federal courts are certifying 

these cases. And then you have these settlements, and what happens? A bunch of people who never had a problem with their roof 

suddenly get a couple of dollars in the mail that they did not want. 

Half of them do not even, you know, cash the checks. 
66 

I think the most poignant example of what is wrong with our 

class action system is the Pella class action in the 7th Circuit. So, 

this was a class action that involved allegedly rotting windows, and 

the defendant tried to avoid class certification by telling the court 

there are lots of people whose windows did not rot. There are lots 

of people whose windows were installed improperly. There were a 

lot of different experiences that people had with these windows. 

But the court said we are going to certify this class action even 

though you guys are saying it is over broad. 

And so, then what happened? So the class action settled, and 

that is not a surprise because if you are a defendant, even if you 

make a great product, one person’s product is going to fail. Someone’s windows are going to rot. Somebody is going to have forgotten 

to close the windows, or to repaint the windows, or something. 

Something is going to happen. There is going to be one person in 

America whose windows rot no matter how good American corporations are, right? And if that person is before the wrong jury, all of 

a sudden this defendant could have millions of dollars of liability 

or hundreds of millions of dollars. So Pella settled the case. 

And then what happened? Well, only one-half of 1 percent of 

class members expressed any interest in the settlement. One-half 

of 1 percent showed up to get their money. And this was not one 

of those class actions where they only offered you a couple of bucks. 

This was actually a class action with some real money for those 

who were motivated or cared about it. But nobody was interested. 

So then, the court said, oh, we have a problem here. This settlement is no good because all the money went to the lawyers and no 

money went to the consumers. But what everybody is missing is 

that no money went to consumers because consumers were happy 

with their windows. 

So that is what we are talking about when we say no injury class 

actions. We are not talking about, you know, any sort of corporate 

conspiracy to harm America. We are talking about basically people 

recruiting somebody, sending out emails. Has anybody had a problem with your roofing shingles, because I can get you some money. 

And then we can leverage that into money for everyone in America 

who has roofing shingles, whether they are good, bad, or have not 

had any problems. And that is what we feel Congress needs to address. That is not promoting justice in this country. There is no 

benefit to these types of class actions. 

And I think the solution that would help address this problem 

is legislation that would say we can only have class actions proceeding to Federal court if all the class members have suffered the 

same type of injury as the named plaintiff. And the reason I say 

is think about my roofing case. Think about my washing machine 

case. If the named plaintiff claims to have mold, or if the named 

plaintiff claims to have a problem, there may, in fact, have been 

a manufacturing defect with one person’s shingles. 

But you do not want to have a system where that person cannot 

bring in money for millions of other people who have not had a 

problem. And if you have legislation that says everybody has got 

to suffer the same type of injury, then it is not eradicating class 

actions. It is eradicating meritless class actions. 

Thanks, and I look forward to answering any questions. 
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[The prepared statement of Ms. Miller follows:] 
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Mr. FRANKS. And thank you, Ms. Miller, and thank you all for 

your testimony. And we will now proceed under the 5-minute rule 

with questions, and I will begin by recognizing myself for 5 minutes. And, Mr. Pincus, if it is all right, I will start with you, sir. 

As I mentioned in my opening statement, I have some serious 

concerns with these no injury class actions. And these lawsuits, as 

you are aware, the class of plaintiffs has not personally experienced 

any actual injury. These class actions seems to pose a host of constitutional problems under Article 3 and the due process clause. So 

if you could briefly describe some of the constitutional problems 

with no injury class actions. 

Mr. PINCUS. Sure. Thank you, Mr. Chairman. Let me start out 

by talking about a different category of no injury class actions than 

the ones that Ms. Miller was talking about that I do talk about in 

my testimony, which is this increasing phenomenon of cases where 

Congress has provided for statutory damages, it is true, often for 

regulatory violations. And so, a claim is brought for a claimed violation of what often is a very complicated regulatory scheme. And 

even the named plaintiff cannot show that he or she has suffered 

any actual injury. 

For example, if it is a claim about a credit report, the plaintiff 

cannot say someone has relied on this false credit report, and it 

somehow has injured my ability to get a loan, or injured my reputation, or in some other way. There is no actual damage in the 

traditional sense that this person can say here is how I was hurt. 

The person says, I do not have to show I was actually hurt because 

it has provided for statutory damages, and everyone is in the class 

is entitled to the $100 or $1,000 of statutory damages. 

So what does that mean? First of all, it means that the courts 

are, if this theory were accepted, hearing claims that do not satisfy 

the fundamental Article 3 requirement of an actual injury in order 

to access the Federal courts. But it also means in practical terms 

the ability in the economy we have today for one uninjured person 

to assert a claim on behalf of a million or millions of similarly 

uninjured people, and claim that each one is entitled to $1,000. So 

pretty quickly you have got a claim for a billion dollars where nobody suffered any actual injury, and where, if that claim is accepted, the other class action criteria are sort of easy to meet because 

you do not have to show reliance by anybody who caused the injury. You do not have to show causation in terms of the fact that 

the statutory violation actually injured the particular people in the 

class. And you do not have to quantify the amount of the actual 

injury. 

So combining these two developments—statutory damages, the 

no injury claim, and class actions—puts together a very powerful 

weapon to file a class action and get a very large settlement when, 

in fact, nobody may be injured. And I think one of the fundamental 

problems with these no injury cases is of the type that Ms. Miller 

was talking about. When you combine a big class with people who 

may have been injured and people who have not been injured, that 

pot of money is going to be allocated amongst everybody. So what 

happens to the consumers in that punitive class? The people who 

are really injured are going to get less because the people who are 
82 

not injured are sharing in the pot. And that does not seem an appropriate result for anybody. 

Mr. FRANKS. Thank you, sir. Ms. Miller, I was fascinated by your 

legislative suggestion, and, you know, and kind of staying on this 

subject, would you elaborate a little bit more on what kind of legislation could address these types of lawsuits? And also if you could 

express whether or not you think placing any restrictions on these 

lawsuit would eliminate the deterrent effect, which I think is ostensibly the most powerful argument that no injury class actions provide. 

Ms. MILLER. Sure. Rule 23(b)(3), which is currently the rule that 

governs whether a class can be certified, has a requirement in it 

of typicality, right? Rule 23 has a requirement of typicality. The 

named plaintiff is supposed to be typical of the class members. 

And for many years, the types of class actions we are talking 

about today would not have been certified by most Federal courts 

because courts said the named plaintiff needs to be typical of everyone else. And if I have a rotting roof, I am not typical of all the 

people who do not have a rotting roof. For some reason, a number 

of courts have just moved away from that, and have sort of watered 

down the typicality requirement of Rule 23, such that you can now 

have a class action where the named plaintiff is not at all typical 

of everyone else. 

And so, the sort of legislation I am talking about, which would 

say that all the class members have to suffer the same type of injury as the named plaintiff, it is really not anything dramatically 

different from what really is in Rule 23 and should be the law right 

now. It would basically just be legislating that when Rule 23 says 

typicality, that typicality requirement is actually is a legitimate 

valid thing that courts need to be considering. 

So to the extent that there was discussion today about gender 

discrimination suits, this would not affect that sort of suit, right, 

because if you have a suit where everybody was discriminated 

against, that is not what this is talking about. This is talking about 

where the named plaintiff suffered one type of injury, and that is 

not representative of what was suffered by the absent class members or, in 99 percent of the cases, not suffered by the absent class 

members. 

Mr. FRANKS. Well, thank you very much. And I would now yield 

to the Ranking Member for his questions for 5 minutes. 

Mr. COHEN. Thank you, Mr. Chair. Ms. Miller, your testimony 

was quite good, and I think Uncle Frank would be happy to have 

heard it and proud of you. Lautenberg that is, one of my heroes. 

But is there not good that comes out of class actions on gender and 

race issues, some areas like that, consumer issues? 

Ms. MILLER. I think that one of the problems is that there has 

developed this notion that a class action is a means of effectuating 

societal good, and that a class action has certain public policy benefits. And I think when Rule 23 was developed, it really was a procedural tool. And a class action can have some good, but it is only 

going to have some good if the requirements of Rule 23 are satisfied and everybody suffered the same injury. 

Mr. COHEN. All right. I understand. 

Ms. MILLER. Right. So if you have—— 
83 

Mr. COHEN. But when everybody suffers the injury, all the 

women, all the African-Americans, is there not good that comes 

from those class actions? 

Ms. MILLER. I think there can be good that comes from class actions. 

Mr. COHEN. Maybe a situation where there is not good that 

comes when women or African-Americans are part of a class action 

and a court rules that they were harmed. 

Ms. MILLER. Right. I want to make a couple of points. First of 

all, remember that we are talking about CAFA. And what CAFA 

did was CAFA brought class actions into Federal court that would 

never have been in Federal court. It was not the gender discrimination and the race discrimination, which are brought under Federal 

law. Those cases were already in Federal court. So really what 

CAFA brought into Federal court were class actions based on consumer protection statutes, so this really is a consumer protection 

issue. 

There absolutely can be good that comes from class actions regardless of the topic, but there can only be good if the rules are 

satisfied, because if you have a named plaintiff who does not represent everybody else, then the class action just becomes a tool of 

blackmail. And regardless of what you are trying to promote, regardless of what social norms you are trying to promote, it has to 

be done fairly. 

Mr. COHEN. Ms. Moore—— 

Ms. MILLER. And I am obviously not—— 

Mr. COHEN. Thank you. Thank you, Ms. Miller. Ms. Moore, what 

do you think of Ms. Miller’s remedy that she suggests that we 

should only have people that have the same injury in a class action? 

Ms. MOORE. Well, I think it is important to remember that whatever legislation might be passed would not only affect some washing machine case, but it would also affect employment discrimination cases. In fact, one of the reasons the Supreme Court struck 

down the certification of the Walmart v. Dukes class was because 

it argued that you could not say that all of these women had been 

discriminated against. That was not the premise of that suit at all 

as believed by the Supreme Court. 

And so, if you start saying, well, you are going to have to show 

us you were discriminated against, or you are going to have to 

show us there is something wrong with your washing machine before you can even walk into the door, that is contrary to our entire 

system of justice, which says, you know, two people have two sides 

of a story. And our traditional way of deciding that was to have a 

jury or another trier of fact decide it. So this is a way to move 

these merits decisions closer and closer to the beginning of the 

case. 

Mr. COHEN. So you are saying that her proposed remedy sounds 

good, but does not fit a lot of cases maybe? 

Ms. MOORE. I think that in the first place, I do not agree that 

class actions are being certified that have people in them that have 

literally had no injury. And even if we believe that and we try to 

have legislation that would just deal with that issue, it is bound 

to spill over into other class actions, like discrimination class ac-
84 

tions, which, by the way, are very, very hard to maintain in Federal court today. 

Mr. COHEN. Mr. Sweeney and Mr. Pincus, do you have any suggested remedies to the problems with CAFA and certification that 

would not affect employment discrimination, or gender, or race 

issues, how to distinguish those? 

Mr. PINCUS. Well, I think one of the problems that CAFA did not 

get at is there are some fundamental incentive problems in the system today. I think it is important to recognize that, you know, the 

fact that there is a problem does not mean plaintiffs’ lawyers are 

bad, or defense lawyers are bad, or courts are necessarily doing the 

wrong thing. Everyone is responding to the incentives that they 

now have, and those incentives for plaintiffs’ lawyers and the class 

members are often not appropriately lined, as many, many commentators have recognized. 

The rational defendant, there is a reason why in my study and 

in almost every other study class actions that survive a motion to 

dismiss are settled, because everybody at that point has an interest 

in settlement. The plaintiff’s lawyer, often settlement maximizes 

the hourly rate of return in terms of his investment in the case. 

The defendant is looking to avoid costs of litigation, and if the settlement cost is not going to be much more or less than the cost of 

the litigation, why not settle? And the judge says, I have a lot of 

work to do, I am happy to get this case off my docket. 

The protection there is supposed to be judges looking at settlements, but I think what we have learned is judges really need an 

adversary process. And when both parties before the court are saying this is a great settlement, it is awfully hard, even for a judge 

who wants to get behind that, to have the information to do it. 

Only in the last couple of years where we have had objectors coming into court and pointing out problems in settlements have there 

begun to be, mostly at the appellate level, settlements that are 

looked at and set aside. 

But there is one additional problem in the current system. A 

judge cannot say I do not like this settlement because the defendant should not settle. I think this case is bogus. That is not an option for a judge today, but that is often a problem in a lot of these 

cases. In fact, there are some cases, albeit in New York State court, 

in which a judge just turned down a settlement in a case involving 

a challenge to a merger because the judge said I think this settlement is unfair to the corporation’s shareholders. They are being 

asked to pay money to these plaintiffs who do not have a good 

claim. I am going to force the defendant to litigate the case because 

that is the only option I have. 

So we have a system that does not quite have the tools or the 

incentive alignment to produce the kind of results we want. 

Mr. COHEN. Thank you. 

Mr. SWEENEY. Mr. Chairman, if I may respond? 

Mr. FRANKS. Briefly, Mr. Sweeney. 

Mr. SWEENEY. I started my career—— 

Mr. FRANKS. Sir, would you turn that microphone on? 

Mr. SWEENEY. I started my career at the United States Securities and Exchange Commission in the post-Watergate era. I know 

something about the power of the civil injunction to require Amer-
85 

ican business to comply with the law. I also know something about 

the power of the class action where consumers have been injured 

to correct injustice. 

But in 30 years in private practice representing American business, I have not seen many of those class actions in practice. And 

what I see are class actions that squander transactional costs and 

do not provide a significant benefit to consumers. And what we 

need is a law which says if you are not injured, you do not need 

to be in the class action. 

Mr. FRANKS. Thank you, sir. And I would now recognize the gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman, and I want to thank 

all of our witnesses. And, Ms. Miller, I especially appreciate your 

giving the examples of the washing machines and the roofers. And 

I would say in response to Ms. Moore’s point that we want to use 

our civil justice system to allow people to get into court, and claim 

injuries, and have that decided by the process. But that is not what 

happens with class action lawsuits where somebody is brought into 

court without having even consented to doing that. 

In a traditional case, the plaintiff makes a decision in consultation with their attorney whether or not they want to go into court 

and seek relief for a harm they have had. But in a class action, 

that is not what happens. Someone else makes that decision. In 

fact, those same people make the decision in conjunction with the 

defendants and with the consent of the court to settle the case 

without ever consulting that plaintiff. So if there is no injury on 

the part of an individual, I think we need to look at making sure 

that that happens. 

So, Ms. Miller, I wonder if you would comment on this. Would 

placing restrictions on no injury class actions eliminate the deterrent effect of no injury cases and allow corporations to violate the 

law with impunity? 

Ms. MILLER. I do not think it would. I think, if I may, and I am 

not sure I am answering your question exactly. But I think one 

thing that has sort of been lost here today is a very fundamental 

concept in U.S. justice, and that is due process. And we were talking earlier about how both sides, there are two sides to every story. 

The problem with the class action of the type that we are describing today is that the other side of the story never gets told to the 

jury because the jury only sees that named plaintiff. The jury does 

not see everybody else. 

And so, there is no due process, and there is no fairness to a trial 

where you have one person sitting before the jury, millions of people that the jury never sees and never hears from, who all never 

had a problem with the product. So there is no fairness in that 

process. 

In terms of deterrence, I understand that there is concern, oh, if 

we do not have class actions, we will not be deterring companies 

from acting improperly. But if a company acted improperly, if a 

company made bad roofing shingles, then everybody would have 

problems. Lots of people would have problems. If a company made 

bad shingles, right, then you would be able to bring a class action 

under this proposed legislation because the named plaintiff’s experiences would be typical of those of the absent class members. 
86 

What we are talking about here are products that do not have 

any widespread problems, services that are not causing lots of people problems. So I am not really sure what you deter by having a 

class action where most of the class members—— 

Mr. GOODLATTE. Got it. Let me turn to Mr. Pincus and ask if he 

wants to comment on that same question about placing restrictions 

on no injury class actions. Would that eliminate the deterrent effect 

of no injury cases and allow corporations to violate the law with 

impunity? And then I have a follow-up question for you as well, 

Mr. Pincus, and that is, what cost do class actions that give more 

benefits to the plaintiffs’ attorneys than to the actual class members impose on society as a whole? So give us your cost benefit 

analysis here. 

Mr. PINCUS. Well, Mr. Chairman, to take your first question first, 

I think if there is no injury, first of all, it is hard to see what we 

are deterring. There is sort of a statutory violation in the air that 

seems a much more appropriate role for law enforcement or a government enforcement agency if it is a significant enough problem, 

rather than—— 

Mr. GOODLATTE. And law enforcement can also be a civil regulatory agency as well. 

Mr. PINCUS. Yes, civil regulatory if it is bad, but if it was bad 

you would think there would be some injury, some other government agency. But it seems very odd to give sort of a roving deputization to, you know, what is in the real world, cases that are put 

together by plaintiffs’ lawyers to sort of say, gee, there is no injury 

here, but I think it is a bad thing. I am going to bring this lawsuit, 

trigger all of these costs. 

Mr. GOODLATTE. Okay. Now, shift to my second question because 

I am running out of time. 

Mr. PINCUS. So with respect to your second question, it is sort 

of relates to the first. I think one of the problems in the current 

system, the incentive alignment that I was talking about, is either 

in the bringing of the case or the negotiation of the settlement, the 

class action lawyer and the class have somewhat different interests 

because they are both going to be paid out of the same pot. And 

we do not really have a very good system for supervising how that 

works. And as a result, we have these settlements, as I talked 

about in my testimony, where a disproportionate amount of money 

goes to the lawyers. 

Mr. GOODLATTE. I am going to go back to Ms. Miller for one more 

question. In either of the two examples you gave or other examples, 

can you speak to this issue of the disproportionate benefit of attorneys’ fees to what benefitted the plaintiffs in particular cases? 

Ms. MILLER. Well, I think that pretty much happens in every 

class action. As I noted in the appellate class action, only one-half 

of 1 percent of class members participated in the settlement, and 

that is pretty typical. 

Mr. GOODLATTE. What did the attorneys get in that case? 

Ms. MILLER. Several million, hundreds of millions, I believe. 

Mr. GOODLATTE. Lots of money relative to very little gain for all 

the people who are brought into court. 

Ms. MILLER. And, you know, some people say, oh, it was an unfair settlement because the consumers got so little and the lawyers 
87 

got so much. But really I have a hard time saying that because the 

consumers really had no injury. They did not want the money, so 

it is not like the consumers were harmed in this. It is just really 

a shakedown. 

Mr. GOODLATTE. Thank you. 

Mr. FRANKS. And I thank the gentleman, and I now recognize 

Mr. Conyers for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. Professor Moore, Mr. 

Pincus cites a study conducted by his firm that suggests that class 

actions do not really benefit class members, only class counsel. Do 

you have a comment about that? 

Ms. MOORE. Yes, Congressman. As I mentioned in my opening 

remarks, it would take me far more than 5 minutes to describe the 

methodological flaws of this study. They candidly admit that it is 

not a random sample. When you do a study and you try to argue 

from the sample that you find that this is true of the whole population that is out there, you must have a sample that is statistically random and valid, and this is nothing of the kind. 

We know even though we have very little data on the number 

of class actions that are filed, we know that more than 3,000, probably 4,000 class actions per year are filed in Federal court. They 

say, well, we went to these reporters, BNA and Mealey’s, and 

found, you know, some cases that were there that they thought 

were important to put on there. And so, we thought they were important to include, too, and then, you know, they ignore everything 

else. 

I can tell you that the percentage of consumer class actions that 

they found in their 188 cases is way larger than what real statistical studies show is the percentage of consumer class actions. 

Mr. CONYERS. Thank you. Let me—— 

Mr. PINCUS. Can I respond, Congressman? 

Mr. CONYERS. Just a moment. I have got a couple of questions 

and only 5 minutes. You know, there is a claim that the courts are 

certifying class actions when there is allegedly no injury, and, 

therefore, these courts have violated our Article 3 standing requirement. Do you want to elaborate on that a little bit? 

Ms. MOORE. Sure. There are so many restrictions on the filing, 

the maintenance of class actions and the settlement of class actions. In fact, the whole reason that—well, one of the reasons that 

the proponents of CAFA wanted to be in Federal court was that 

they said that Federal judges were much tougher on class certification that State court judges. And, you know, we dispute whether 

that might have been the case, but that is certainly what they believed. 

In fact, Mayer Brown’s study actually, you know, to the extent 

you look at what it found, it actually shows how hard it is for class 

actions to succeed. And so, there are so many road blocks in the 

way of the successful pursuit of a class action. There are cases out 

there all over the place that turn down class actions in Federal 

court because they do not meet ascertainability requirements. 

And so, this goes back to my point about the lack of data. You 

know, you pick one case out out of 4,000 and say, oh, here is this 

terrible case. We need a broader understanding of what is out 

there. 
88 

Mr. CONYERS. I am sympathetic to that. But why is it problematic, Professor, that there are no publicly-available court data on 

class actions, and how does it relate to the claims made by some 

of the majority witnesses? 

Ms. MOORE. Okay. If we had even access to the data that the administrative office of the courts has, we could go in and we could 

run a list of all the cases that have been filed this year that say 

that they are class actions. We could then take a random sample 

of that whole universe and go, you know, look at 200 cases randomly selected, and go look at those. That would give us a much 

more valid basis for saying here is a good sample of what is going 

on. We can infer from that to the larger population. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Mr. FRANKS. And I thank the gentleman, and now recognize the 

gentleman from Iowa, Mr. King. 

Mr. KING. Thank you, Mr. Chairman, and I thank the witnesses, 

and I appreciate your testimony here. First, I wanted to comment, 

as I picked up the opening statements along the way, I think I 

merged two of them together. But the phrase came out in my mind 

as I listened, ‘‘entrepreneurial attorneys pursuing parasitic settlements.’’ I think that summarizes what we are talking about here. 

But I wanted to turn to Mr. Pincus first and ask, in this discussion, are you also considering when government is involved as a defendant? 

Mr. PINCUS. The cases that we looked did not look at government 

defendant cases. These were private cases. 

Mr. KING. Yes. So you have not considered them? Do you have 

any experience with that? 

Mr. PINCUS. I have some, and, you know, I think to some extent, 

you know, some cases against the government are really parallels 

of private actions, but some are often brought to vindicate other 

kinds of rights, privacy rights and things that are sort of unique 

to the government context and may present a different situation. 

Also, it is important to note that in most cases against the government, damages are not available, right, because the government 

has sovereign immunity. So they are cases for injunctive relief for 

the most part, not entirely, obviously not in the employment context. But that changes the incentives that surround the cases to a 

pretty significant degree. 

Mr. KING. I am going to go with parallel cases and leave that 

component at that. But I want to turn to Mr. Sweeney, and I think 

you made the strongest statements about standing in your testimony, and that is a bedrock prerequisite for access to the court, 

and yet we are having a discussion here whereby any logical observation of damage, there would not be standing in the entire class. 

What is the rationale that the judges are using when they grant 

standing to a class where no one in the class has been injured? 

Mr. SWEENEY. Usually what happens at the certification stage is 

the court punts the question down the road without demanding of 

the proponents of the class, the class counsel, proof of harm to all 

the members of the punitive class. They go ahead and they certify 

a class. That leaves the American business in a horrible situation. 

Very, very, very few class certification rulings are permitted interlocutory appeal in our circuit courts under Rule 23(f). When that 
89 

was originally passed in 1998, about a little more than a third of 

all interlocutory appeals were permitted. It is down to less than a 

quarter now. So in every case that I have tried to get a certification 

ruling heard on interlocutory appeal, it has been turned down, 

which means there is no accountability, unless the corporation 

takes the claim to verdict. 

What happens then? When you have a verdict that is potentially 

against a large class of unharmed individuals, the amount in question can be astronomic, and that presents two huge problems for 

American business. One, can they even afford an appeal bond? 10 

percent of a billion dollars is going to bankrupt most companies. 

They cannot afford to appeal that adverse ruling. 

And even if they can appeal it, if they are a publicly-held company, an astronomic verdict like that has a huge depressive effect 

on their stock value. So is there any wonder that they settle these 

claims, claims which are not meritorious, prior to a verdict like 

that? 

Mr. KING. Well, do you, Mr. Sweeney, have any experience with 

a class where the list is sealed by the courts, or a negotiated settlement that seals that list of class members? 

Mr. SWEENEY. Well, I do not know about sealing lists per se, but 

most settlements are confidential. 

Mr. KING. Yes. 

Mr. SWEENEY. And one of the reasons why it is so difficult to garner any data in this area is precisely because of that, and for good 

reason. What company which has been extorted into paying settlement money where they did not think they did anything wrong is 

going to want that to be on the public record? 

Mr. KING. Okay. I am running out of time, Mr. Sweeney, so I 

would like to turn to, and I thank you. I would like to turn to Ms. 

Miller. And, you know, we see cases here often where there is a 

plaintiff or a class of plaintiffs, and more likely, a plaintiff, that 

has a legitimate claim, but they have great difficulty achieving 

standing. And so, is it your opinion that if we saw those cases and 

Congress decided to write standing into legislation, do we have the 

constitutional authority to define ‘‘standing’’ in our legislation so 

that the courts would react to that and grant the standing? 

Ms. MILLER. Well, I think the answer to that question is yes because I think what we are talking about is completely consistent 

with Article 3 standing notions. And if I could have 1 second, I just 

want to clarify an answer I gave earlier, that Pella settlement 

would have given $11 million to the attorneys. 

Mr. KING. Thank you. And if I could just do a general quick 

question. 

Mr. FRANKS. I thank the gentleman—— 

Mr. KING. Does anybody disagree with the response of Ms. Miller 

on the standing and Congress’ authority to draft and write standing into legislation? 

[Nonverbal response.] 

Mr. KING. I see nobody said no. Then I am going to take that as 

Ms. Miller’s response stands, and I thank you all, and yield back, 

Mr. Chairman. 

Mr. FRANKS. I thank the gentleman, and we are going to try to 

get these last two in before votes, so I am going to ask everyone 
90 

to stick close to the 5 minutes. And with that, I recognize Mr. Nadler. 

Mr. NADLER. Thank you. Let me start by asking Ms. Moore, I 

have been sitting here listening puzzled because what I have been 

hearing from the three witnesses against class actions is that the 

courts ignore Article 3 and ignore standing requirements, and 

allow people with no injury at all to be plaintiffs in lawsuits. I hear 

from Mr. Sweeney when he is asked how do they get away with 

that, he says, well, they punted down the case, then they get a verdict. But he did not explain how they get a verdict without considering that question first. He then goes into interlocutory appeals. 

Ms. Moore, is it the case that a court will never rule on the question of injury? And if that is not the case, why are we talking about 

no injury plaintiffs? Do courts not enforce the case in the controversy stand of Article 3? 

Ms. MOORE. Well, of course. I do not think anyone is arguing 

with the abstract proposition that if you have suffered no injury, 

you should not get compensation. But that is not what is happening here, and we are hearing about hypothetical cases. 

Mr. NADLER. We are hearing about hypothetical cases where allegedly people suffered no injury get compensation. Is that real? 

Ms. MOORE. No. 

Mr. NADLER. It is nonsense. It does not happen. 

Ms. MOORE. There are so many restrictions on cases. There is so 

much case law has developed as to what is standing, and who 

should get compensation, and what a makes a class cohesive 

enough to certify. That, you know, this discussion is proceeding as 

if there is no case law out there that guides and restricts the things 

that are being talked about. 

Mr. NADLER. So in other words, this is just as much nonsense 

when we hear from the Chamber Institute for Legal Reform. It is 

just as much nonsense as it was when they assured this Committee 

10 years ago that if we pass the then pending, which we did Bankruptcy Act, every American would get a $400 reduction in interest 

rates from his bank. That turned out to be not true, and this is 

equally nonsense? 

Ms. MOORE. Well, that is not my area of expertise, Congressman, 

but I take your point. 

Mr. NADLER. This is also nonsense. Now, let me ask you a second 

question. I do not think even Mr. Sweeney, Mr. Pincus, and Ms. 

Miller would maintain that there are not people who are, in fact, 

injured. But I do take it from the gravamen of their testimony, 

they would like to eliminate class actions all together. No? 

[Nonverbal response.] 

Mr. NADLER. No, okay. I am glad to hear that because I do not 

understand how we would, A, get compensation to people who are 

truly injured, and B, how we would hold the General Motors of the 

world who think it is okay to hide the fatal defects in automobiles 

as more people get killed if we did not have class action suits to 

bring that out. Mr. Moore, how would we? 

Ms. MOORE. I do not think there is a good way of deterring that 

kind of abuse. 

Mr. NADLER. Let me ask you a last question. Well, maybe a last 

question. Has the CAFA, the law that we are talking about now 
91 

in 10 years, how has that harmed legitimate plaintiffs and the public safety? 

Ms. MOORE. That is a very hard question to answer because, of 

course, the theory is that Federal judges and State judges are both 

trying to do the right thing. To the extent that Federal judges and 

Federal court procedural rules are more tough on plaintiffs than 

are State court rules, then plaintiffs have been harmed. 

Mr. NADLER. And by ‘‘more tough,’’ you mean harder to certify 

a class. 

Ms. MOORE. Not just for class actions. There is a whole panoply 

of procedural rules that favor defendants, and over the last 20, 30 

years have gradually more and more favored defendants over plaintiffs in Federal court, and that is one of the reasons they want to 

be in Federal court. It goes well beyond class actions. 

Mr. NADLER. And finally, given what you just said, what are the 

implications for the ongoing development of state law if State 

courts are routinely deprived of the opportunity to address certain 

areas, and the Federal courts are asked almost exclusively to say 

what the state courts would say about interpretation of state law, 

and are barred, I think, from ongoing development of common law 

on State grounds? 

Ms. MOORE. I think it shows perhaps a disrespect for State law 

and for State judges to say, well, you know, they have made up this 

law for statutory damages, and we do not really think that that is 

very important. So we want to have some legislation that we do not 

have to follow that. 

Mr. NADLER. And lastly on that point, what would you say about 

the contention that we cannot trust State judges, or we have to 

bring it into the Federal courts, they do a better job, from people 

who generally support States’ rights? 

Ms. MOORE. I think that there is no empirical evidence that 

State court judges are not tough on class actions. 

Mr. NADLER. And this is certainly an anti-States’ rights—— 

Mr. FRANKS. The gentleman’s time has expired. 

Mr. NADLER. Would you answer that last question, please? This 

is certainly an anti-states’ rights—— 

Mr. FRANKS. The gentleman time has expired. I will now recognize Mr. Gohmert. 

Mr. NADLER. Would you answer the question, please? You did not 

cut anybody else off like this. 

Mr. FRANKS. The gentleman’s time has expired. I told you I 

would hold everybody to 5 minutes. 

Mr. NADLER. Yes, only for the last two. 

Mr. FRANKS. The gentleman’s time has expired. 

Mr. NADLER. She could have finished answering that question by 

now. 

Mr. FRANKS. She finished the last question. Mr. Gohmert? 

Mr. GOHMERT. Thank you, and I appreciate you being here. And 

we do have a vote that is about to expire, and so I appreciate your 

patience this morning. I may come at this issue from a little different perspective than most having been a judge that was asked 

by my State to take over what was called the lawsuit from hell that 

had existed for 11 years, been through five or six judges that had 

been reamed by PR firms that went after them that were hired. 
92 

And most people blamed the plaintiffs, and they certainly included 

thousands of plaintiffs perhaps that did not have similar injuries, 

Ms. Miller. 

But what I also found was the defendants had a distinct pecuniary interest in delaying the outcome of the litigation as much or 

more than the plaintiffs because they were working hourly. And 

within 6 months, I dismissed, I think, 200 or 300 defendants. And 

one of the lawyers was waiting for me for some of the defendants 

when I went into the clerk’s office after the hearing, and he said, 

Judge, I have been sitting here talking to some other folks. We do 

not know what we are going to do. I put two kids through college 

and law school on this case. I do not know what I am going to do. 

But what I found was that if you have a judge that properly does 

his or her homework, finds that on the Daubert issue you do not 

have to have months of hearings on someone’s qualifications as an 

expert, that unless the law has changed since I ruled on this and 

set a scheduling order, you do not have to take live testimony at 

trial. You put a discovery order in place, scheduling order, and you 

are not deviating, and you better get all of the questions asked that 

you need asked to prove expertise or to show a lack of it. 

And you do not have to have months’ long hearings over expertise. You just say we are taking no live testimony. Same on venue 

issues, other things. There are no requirements, at least they did 

not use to exist, that there be live testimony. And so, there are 

ways to get around that. So I think there are things that judges 

could do in a more activist role to police themselves that is not 

being done. And by the way, that whole litigation was disposed of 

basically in 2 years. 

But, Ms. Miller, I am intrigued by your suggestion that we limit 

litigants to having the same injury. And I am wondering, like, for 

example, say you have got a products issue of an accelerator sticking, and perhaps some plaintiffs had that same problem, but they 

only had property damage and were not actually injured, no medical records, nothing to show in the way of dollars, pain and suffering. But then you have others who were killed or had dramatic 

injuries. 

If we use the injury rule, then you might say, well, gee, these 

have property damage, these have personal injury, so the property 

damage does not count when actually they were injured by the 

same thing. I am wondering if perhaps it might be more appropriate to look at having the same proximate cause or having the 

same specific issue out of the lawsuit from hell that I took over outside my district. You know, there were some very legitimate cases, 

but there were some that should never have been brought. So I am 

wondering, what brought you to exclude the possibility of us limiting to specific proximate cause or specific items that did the injury. 

Ms. MILLER. Well, I think if you have somebody, using your example. You talked about somebody who was killed, so there are a 

couple of things I would note. First of all, if you have a serious personal injury like that, everybody says, oh, we need class actions because people with small injuries, you know, cannot recover. If you 

have somebody who is killed or has a serious physical injury, as 

you know from watching late night TV, that person’s family will be 
93 

barraged by thousands of lawyers who want to represent a person 

who’s been injured. 

So class actions are not typically used in a situation where somebody has suffered a severe injury like those. Those suits would proceed alone. The problem with—— 

Mr. GOHMERT. Well, some of them have been sucked up into 

class actions sometimes kicking and screaming, but that has been 

an issue. 

Ms. MILLER. So most Federal courts would not include personal 

injury cases with non-personal injury cases. 

Mr. GOHMERT. It has been years ago, but some have been. 

Ms. MILLER. Right. 

Mr. GOHMERT. Could I just ask—— 

Mr. FRANKS. The gentleman’s time has expired. 

Mr. GOHMERT [continuing]. Every witness to provide your 

thoughts on the issue of limited—— 

Mr. FRANKS. The gentleman’s time has expired. We are over 

time. 

Mr. GOHMERT. I am asking unanimous consent that we allow the 

witnesses to respond to that answer after the hearing. 

Mr. FRANKS. Without objection for the record. 

Mr. GOHMERT. Thank you. 

Mr. FRANKS. And I now recognize the gentleman from Florida, 

Mr. DeSantis. 

Mr. DESANTIS. Mr. Pincus, are no injury class actions consistent 

with Article 3 of the Constitution, which requires a discreet case 

or controversy? 

Mr. PINCUS. No, Congressman, they are clearly not. 

Mr. DESANTIS. So how are courts getting around that standing 

requirement? 

Mr. PINCUS. Well, what some courts say if the named plaintiffs 

have standing, that that is enough. And so, they will certify cases, 

for example, nationwide classes where the plaintiffs have zero 

chance of recovering under the law of some States. They may have 

under others, the classes nationwide, and it all sort of gets 

smooshed together. Sometimes this happens in the settlement context. Sometimes it happens in the litigation context. 

The other way that this happens it that some courts say that 

statutory damages can be a substitute for actual injury instead of 

merely substitute for quantifying actual injury. 

Mr. DESANTIS. Ms. Miller, do you see a conflict between Article 

3 of the Constitution and no injury class actions? 

Ms. MILLER. I believe there is a conflict between Article 3 and 

no injury class actions, as well as over broad class actions. Both 

class actions present a problem because in the over broad class actions, the absent class members have no standing. And in those 

cases, that just never gets litigated in reality because what happens is the case settles, or the court says, well, you know, everybody over paid for this washing machine by like 50 cents because 

of this problem, so we are going to say everybody has standing. 

Mr. DESANTIS. Great. Well, I have some time left, but we are 

going to vote. I really appreciate the Chairman moving this along 

so I could just get in that question. I think it is an important issue. 

Mr. FRANKS. Well, I thank the gentleman very much. 
94 

Mr. DESANTIS. I yield back the balance of my time. 

Mr. FRANKS. I thank the gentleman very much, and I thank the 

witnesses, and I thank the Members here. This will conclude today’s hearing, and thanks to all of our witnesses for attending. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

And, again, I thank the witnesses, and the Members, and the audience, and this hearing is adjourned. 

Mr. SWEENEY. Thank you, Mr. Chairman. 

Ms. MOORE. Thank you, Mr. Chairman. 

Ms. MILLER. Thank you, Chairman. 

[Whereupon, at 10:40 a.m., the Subcommittee was adjourned.] 
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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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Material submitted by the Honorable Steve Cohen, a Representative in 

Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice 
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