59–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 114–328 

FAIRNESS IN CLASS ACTION LITIGATION ACT OF 2015 

NOVEMBER 5, 2015.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. GOODLATTE, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 1927] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 1927) to amend title 28, United States Code, to improve fairness in class action litigation, having considered the same, reports 

favorably thereon with an amendment and recommends that the 

bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 3 

Hearings ................................................................................................................... 3 

Committee Consideration ........................................................................................ 4 

Committee Votes ...................................................................................................... 4 

Committee Oversight Findings ............................................................................... 11 

New Budget Authority and Tax Expenditures ...................................................... 11 

Congressional Budget Office Cost Estimate .......................................................... 11 

Duplication of Federal Programs ............................................................................ 12 

Disclosure of Directed Rule Makings ..................................................................... 12 

Performance Goals and Objectives ......................................................................... 12 

Advisory on Earmarks ............................................................................................. 12 

Section-by-Section Analysis .................................................................................... 12 

Dissenting Views ..................................................................................................... 13 


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1See Fed. R. Civ. P. 23(a)(3). 2 Examples of class actions involving uninjured or non-comparably injured members include 

the following: Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168 (9th Cir. 2010); 

Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014); Butler v. Sears, Roebuck & Co., 702 F.3d 

359 (7th Cir. 2012), cert. granted, judgment vacated, 133 S. Ct. 2768 (2013), judgment reinstated, 

727 F.3d 796 (7th Cir. 2013) and cert. denied, 134 S. Ct. 1277 (2014); In re Whirlpool Corp. 

Front-Loading Washer Products Liability Litigation, 722 F.3d 838 (6th Cir. 2013), cert. denied, 

134 S. Ct. 1277 (2014); In re Zurn Pex Plumbing Products Liability Litigation, 644 F.3d 604 

(8th Cir. 2011); Lilly v. Jamba Juice Co., No. 13-cv-02998–JST, 2014 WL 4652283 (N.D. Cal. 

Sept. 18, 2014); Zeisel v. Diamond Foods, Inc., No. C 10–01192 JSW, 2011 U.S. Dist. LEXIS 

60608 (N.D. Cal. June 7, 2011); Tait v. BSH Home Appliances Corp., 289 F.R.D. 466 (C.D. Cal. 

2012), cert. denied, 134 S. Ct. 1273 (2014); Volz v. Coca Cola Co., No. 1:10-cv-00879–MRB (S.D. 

Ohio 2014); Banks v. Nissan North America, Inc., 301 F.R.D. 327 (N.D. Cal. 2013); Forcellati 

v. Hyland’s, Inc., No. CV 12–1983–GHK (MRWx), 2014 WL 1410264 (C.D. Cal. Apr. 9, 2014). 3 In re Whirlpool Corp. Front-Loading Washer Products Liability, 722 F.3d 838, 849 (6th Cir. 

2013), cert denied, 134 S. Ct. 1277 (2014). 4 In re IKO Roofing Shingle Products Liability Litigation, 757 F.3d 599, 603 (7th Cir. 2014). 5Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168, 1173 (9th Cir. 2010). 

The Amendment 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Fairness in Class Action Litigation Act of 2015’’. 

SEC. 2. CLASS MEMBER INJURY REQUIRED. 

(a) IN GENERAL.—No Federal court shall certify any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking to maintain 

such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives. 

(b) CERTIFICATION ORDER.—An order issued under Rule 23(c)(1) of the Federal 

Rules of Civil Procedure that certifies a class seeking monetary relief for personal 

injury or economic loss shall include a determination, based on a rigorous analysis 

of the evidence presented, that the requirement in subsection (a) of this section is 

satisfied. 

Purpose and Summary 

The Fairness in Class Action Litigation Act is a simple, one-page 

bill that will help ensure common sense principles apply in class 

action lawsuits. Federal class action rules currently require that a 

class share questions of law and fact in common, and that the 

claims and defenses of the representative parties are ‘‘typical’’ of 

those of the class.1 Despite those standards, some courts have allowed classes to be certified absent a showing that all the members 

of the class actually share a common injury of the same type, and 

of comparable scope.2 For example, in a case brought against 

Whirlpool, the U.S. Court of Appeals for the Sixth Circuit affirmed 

certification of a class of all owners of a certain washing machine 

that allegedly produced moldy smelling laundry, even though the 

overwhelming majority of the absent class members experienced no 

problem with their machines.3 Similarly, in a case involving allegedly defective roofing shingles, the U.S. Court of Appeals for the 

Seventh Circuit recently held that the district court abused its discretion in rejecting class certification on the ground that certain 

class members’ roofing shingles did not manifest the alleged defect.4 And in a case brought on behalf of purchasers of Jaguar vehicles that allegedly contained a defect resulting in premature tire 

wear, the U.S. Court of Appeals for the Ninth Circuit held that 

‘‘proof of the manifestation of a defect is not a prerequisite to class 

certification.’’ 5


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Class actions like these undermine the proper administration of 

justice and hurt the U.S. economy by lumping uninjured people 

and injured into the same classes, greatly inflating the class size, 

and unduly pressuring companies to settle, at the expense of consumers who are forced to pay higher prices in order to offset the 

cost of litigation to U.S. companies. At the same time, these courts 

are potentially shortchanging recovery for any legitimately injured 

class members by redirecting limited resources to those who were 

uninjured or non-comparably injured. 

The Fairness in Class Action Litigation Act would overrule the 

unfavorable precedent discussed above by clearly requiring that a 

class be composed of members with injuries of the same type and 

scope. Those injuries could be de minimis, or even nonexistent, but 

members whose injuries were only de minimis or nonexistent 

would have to bring their case in a separate class action consisting 

of only such members. While allowing de minimis or no-injury class 

actions to proceed as long as they are brought as separate class actions, the bill would achieve a very important reform: clustering actually injured and similarly injured class members in their own 

class. People who are injured, or injured much more significantly, 

deserve to have their own class actions in which they can present 

their uniquely powerful cases and get the larger recoveries they deserve. Uninjured or less significantly injured people can still file 

class actions under this legislation, but they must do so separately, 

without diminishing the potential recovery of actually injured or 

more significantly injured people. This legislation also ensures that 

plaintiffs cannot circumvent state laws that bar no-injury lawsuits 

by having one allegedly injured plaintiff represent thousands of 

uninjured consumers. 

Background and Need for the Legislation 

Following the tenth anniversary of the enactment of the Class 

Action Fairness Act, the House Subcommittee on the Constitution 

and Civil Justice held a hearing on February 27, 2015, to explore 

further potential reforms to our class action litigation system. One 

problem highlighted at that hearing was that, under current rules, 

Federal courts are permitting class action lawsuits to proceed before there has been a rigorous analysis evaluating whether all the 

members of the class actually share comparable injuries. Consequently, classes have been certified that include people who are 

perfectly satisfied with a product, but have been forced into a class 

action lawsuit against their will. 

House Judiciary Committee Chairman Bob Goodlatte introduced 

the Fairness in Class Action Litigation Act on April 22, 2015, 

which would tighten Federal class action rules such that a Federal 

class could only be certified upon a showing that all unnamed 

members of the proposed class have suffered injuries of the same 

type and scope as those of the named class representatives. 

Hearings 

The Committee’s Subcommittee on the Constitution and Civil 

Justice held a hearing on H.R. 1927 on April 29, 2015. The following witnesses presented testimony at the hearing: John Biesner, 

Partner, the Skadden law firm; Mark A. Behrens, Shook, Hardy & 


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Bacon; Andrew Trask, McGuire, Woods; and Alexandra D. Lahav, 

University of Connecticut School of Law. 

Committee Consideration 

On June 24, 2015, the Committee met in open session and ordered the bill H.R. 1927 favorably reported with an amendment, by 

a rollcall vote of 24 to 8, a quorum being present. 

Committee Votes 

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

1927. 

1. Amendment #1, offered by Mr. Conyers, to exempt from the 

bill claims for monetary relief under title VII of the Civil Rights 

Act of 1964. Defeated 12 to 13. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) .............................................................

Mr. Forbes (VA) .........................................................

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Mr. Farenthold (TX) .................................................. X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) .....................................................

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ...........................................................

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) ......................................................... X 

Mr. Gutierrez (IL) .....................................................


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) .................................................... X 

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) .......................................................

Mr. Cicilline (RI) ....................................................... X 

Mr. Peters (CA) ......................................................... X 

Total ............................................................. 12 13 

2. Amendment #2, offered by Ms. Jackson Lee, to prevent the 

bill from taking effect until the Administrative Office of the United 

States Courts completes an assessment of the likely financial and 

resource cost of the bill on litigants and courts. Defeated 13 to 15. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) .............................................................

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) .................................................. X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ...........................................................

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) ......................................................... X 

Mr. Gutierrez (IL) .....................................................


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) .................................................... X 

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Mr. Peters (CA) ......................................................... X 

Total ............................................................. 13 15 

3. Amendment #3, offered by Mr. Cohen, to strike the words ‘‘or 

economic loss’’ from the bill. Defeated 13 to 15. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) .................................................. X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) .......................................................

Mr. Buck (CO) ...........................................................

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) ......................................................... X 

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) .................................................... X 


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ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Mr. Peters (CA) ......................................................... X 

Total ............................................................. 13 15 

4. Amendment #4, offered by Mr. Johnson, to strike the words 

‘‘and scope’’ from the bill. Defeated 11 to 17. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ...................................................... X 

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) .................................................. X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) ....................................................... X 

Mr. Buck (CO) ...........................................................

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) .................................................... X 

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ....................................................... X 


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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Mr. Cicilline (RI) ....................................................... X 

Mr. Peters (CA) ......................................................... X 

Total ............................................................. 11 17 

5. Amendment #5, offered by Mr. Johnson, to exempt from the 

bill claims of a violation of Federal or State antitrust law. Defeated 

10 to 15. 

ROLLCALL NO. 5 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) .........................................................

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) .................................................. X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) ....................................................... X 

Mr. Buck (CO) ...........................................................

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 


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ROLLCALL NO. 5—Continued 

Ayes Nays Present 

Mr. Peters (CA) ......................................................... X 

Total ............................................................. 10 15 

6. Amendment #6, offered by Mr. Cicilline, to prevent the bill 

from taking effect until the Judicial Conference of the United 

States approves the changes to class certification provided under 

section 2 of the bill. Defeated 10 to 15. 

ROLLCALL NO. 6 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) ....................................................... X 

Mr. Buck (CO) ...........................................................

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 


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ROLLCALL NO. 6—Continued 

Ayes Nays Present 

Mr. Peters (CA) ......................................................... X 

Total ............................................................. 10 15 

7. Motion to report H.R. 1927 as amended. The motion was 

agreed to by a rollcall vote of 15 to 10. 

ROLLCALL NO. 7 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ......................................................

Mr. Farenthold (TX) ..................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Ms. Walters (CA) ....................................................... X 

Mr. Buck (CO) ...........................................................

Mr. Ratcliffe (TX) ...................................................... X 

Mr. Trott (MI) ............................................................ X 

Mr. Bishop (MI) ......................................................... X 

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Mr. Peters (CA) ......................................................... X 


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ROLLCALL NO. 7—Continued 

Ayes Nays Present 

Total ............................................................. 15 10 

Committee Oversight Findings 

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

New Budget Authority and Tax Expenditures 

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 1927, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, July 30, 2015. 

Hon. BOB GOODLATTE, CHAIRMAN, Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1927, the ‘‘Fairness in 

Class Action Litigation Act of 2015.’’ 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Marin Burnett, who can 

be reached at 226–2860. 

Sincerely, 

KEITH HALL, DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

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

As ordered reported by the House Committee on the Judiciary 

on June 24, 2015. 


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H.R. 1927 would amend the Federal judicial code to prohibit Federal courts from certifying any proposed class unless the party 

seeking to maintain a class action demonstrates that each member 

of that class suffered an injury of the same type and degree. 

According to information from the Administrative Office of the 

United States Courts (AOUSC), the legislation would probably reduce both the number of class action suits filed and the number of 

plaintiffs in them, while increasing the administrative burden on 

the courts to review class action suits that would be filed after enactment of H.R. 1927. 

Based on information from the AOUSC, CBO estimates that the 

additional costs to Federal courts under H.R. 1927 would not be 

significant. Enacting H.R. 1927 would not affect direct spending or 

revenues; therefore, pay-as-you-go procedures do not apply. 

H.R. 1927 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of State, local, or tribal governments. 

The CBO staff contact for this estimate is Marin Burnett. The estimate was approved by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 

Duplication of Federal Programs 

No provision of H.R. 1927 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

Disclosure of Directed Rule Makings 

The Committee estimates that H.R. 1927 specifically directs to be 

completed no specific rule makings within the meaning of 5 U.S.C. 

§ 551. 

Performance Goals and Objectives 

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 1927 will provide greater fairness in class action litigation. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 1927 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(e), 9(f), or 9(g) of Rule XXI. 

Section-by-Section Analysis 

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short title. Section 1 sets forth the short title of the bill 

as the ‘‘Fairness in Class Action Litigation Act of 2015.’’ 

Sec. 2. Class Member Injury Required. Section 2 provides that no 

Federal court shall certify any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking 


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to maintain such a class action affirmatively demonstrates that 

each proposed class member suffered the same type and scope of 

injury as the named class representative or representatives. Section 2 further provides that an order issued under Rule 23(c)(1) of 

the Federal Rules of Civil Procedure that certifies a class seeking 

monetary relief for personal injury or economic loss shall include 

a determination, based on a rigorous analysis of the evidence presented, that the requirements in the bill are satisfied. 

To satisfy the requirement set forth above, the named plaintiff 

must come forward with evidence of a common, classwide injury. 

To ascertain the extent of the alleged injury in a given case, the 

plaintiff might propound discovery on the defendant seeking certain basic information. For example, in a case involving an allegedly defective product, the plaintiff could seek discovery regarding 

incidence of failure in testing or the number of complaints received 

regarding the claimed defect at issue in the litigation. The plaintiff 

could then rely on that information in demonstrating that he or she 

suffered the same type of injury as others in the proposed class. 

Expert testimony would then be required to show that there is a 

uniform defect common across the class that affected all class members. 

In addition, any order certifying a class action seeking money 

damages must include a specific determination that the requirement described above is satisfied. 

Dissenting Views 

INTRODUCTION

H.R. 1927, the ‘‘Fairness in Class Action Litigation Act of 2015,’’ 

as amended, represents the latest attempt to shield corporate 

wrongdoers and deny plaintiffs access to justice. Specifically, H.R. 

1927 will make it virtually impossible for plaintiffs to pursue most 

class actions in Federal court by adding a new freestanding provision to the end of Title 28 of the United States Code that would 

prohibit a Federal court from certifying any class action unless: (1) 

the party pursuing the class action demonstrates; (2) through admissible evidentiary proof; (3) that each proposed class member; (4) 

suffered an injury; (5) of the same type and scope as the injury of 

the named class representative. 

H.R. 1927 is highly problematic for several reasons. To begin 

with, the bill is a solution in search of a problem as it is based on 

the false premise that Federal courts are routinely certifying class 

actions where not all putative class members have suffered the alleged injury or where the alleged injury is insufficient to meet constitutional standing requirements. In addition, by requiring that 

class action plaintiffs effectively prove the merits of their case as 

a condition of class certification—which is only a preliminary stage 

of litigation—the bill would make many class actions almost impossible to pursue. In particular, in many types of cases—including 

civil rights, antitrust, and privacy cases—it is virtually impossible 

to prove that all class members suffered the exact same ‘‘type’’ or 

‘‘scope’’ of injury at the certification stage, as the bill requires. This 

requirement would undermine judicial efficiency and limit access to 

Federal courts for those with claims that are too small or too burdensome to pursue on an individual basis. 


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1 Although the bill was amended at markup to be limited to claims for monetary relief for 

physical injury or economic loss, it still raises many of the same basic concerns expressed in 

these letters and could still effectively preclude many types of claims from class action treatment in Federal court, including antitrust claims and employment discrimination claims. 2Letter from 55 groups to Chairman Trent Franks (R-AZ) & Ranking Member Steve Cohen 

(D-TN), Subcomm. on the Constitution and Civil Justice of the H. Comm on the Judiciary (Apr. 

29, 2015) (on file with H. Comm. on the Judiciary Democratic staff) [hereinafter ‘‘Groups Letter’’]. 3Letter from Wade Henderson, President and CEO, & Nancy Zirkin, Executive Vice President, The Leadership Conference on Civil and Human Rights to Members of the Subcomm. on 

the Constitution and Civil Justice of the H. Comm. on the Judiciary (Apr. 29, 2015) (on file with 

H. Comm. on the Judiciary Democratic staff) [hereinafter ‘‘LCCHR Letter’’]. 4Letter from Daniel C. Hedlund, President, Committee to Support the Antitrust Laws, to 

Chairman Trent Franks (R-AZ) & Ranking Member Steve Cohen (D-TN), Subcomm. on the Constitution and Civil Justice of the H. Comm. on the Judiciary (Apr. 29, 2015) (on file with H. 

Comm. on the Judiciary Democratic staff) [hereinafter ‘‘COSAL Letter’’]. 5Letter from Arthur R. Miller, University Professor, New York University School of Law, to 

Chairman Trent Franks (R-AZ) & Ranking Member Steve Cohen (D-TN), Subcomm. on the Constitution and Civil Justice of the H. Comm. on the Judiciary (Apr. 27, 2015) (on file with H. 

Comm. on the Judiciary Democratic staff) [hereinafter ‘‘Miller Letter’’]. 

The bill will raise litigation costs by effectively requiring plaintiffs to prove the merits of their case twice, once at the certification 

stage and once during the trial on the merits of their case, potentially dissuading plaintiffs from pursing meritorious claims and 

straining Federal court resources. Finally, the bill is yet another 

attempt by Congress to circumvent the careful and thorough Rules 

Enabling Act process for amending Federal civil procedure rules. 

This is particularly disconcerting given that the Judicial Conference of the United States, the Federal judiciary’s policymaking 

arm, is currently in the midst of studying changes to Rule 23, 

which governs certification of class actions. 

For the foregoing reasons and others, numerous groups oppose 

H.R. 1927 1, including the American Civil Liberties Union, the 

American Federation of State, County, and Municipal Employees, 

the American Antitrust Institute, the Center for Effective Government, the Center for Science in the Public Interest, Consumer Federation of America, Consumers Union, the NAACP, the National 

Association of Consumer Advocates, the National Consumer Law 

Center, the National Employment Law Project, the National Fair 

Housing Alliance, the National Immigration Law Center, the Natural Resources Defense Council, Public Citizen, Public Justice, and 

the Southern Poverty Law Center.2 Similarly, the Leadership Conference on Civil and Human Rights wrote in opposition to H.R. 

1927, noting that the bill would ‘‘undermine the ability of civil 

rights litigants to bring class action cases to vindicate their legal 

rights.’’ 3 The Committee to Support Antitrust Laws opposes H.R. 

1927 because ‘‘it could entirely eliminate all antitrust class actions, 

including those against international cartels causing billions of dollars in damages to U.S. consumers and companies.’’ 4 Finally, Professor Arthur Miller, the Nation’s foremost scholar on Federal civil 

practice and procedure, wrote in opposition to H.R. 1927 stating 

that the bill violates the central mandate of the class action device, 

which is to promote judicial efficiency through the use of class representatives to establish injury on behalf of all similarly situated 

persons.5

For the foregoing reasons and those discussed more fully below, 

we respectfully dissent and urge our colleagues to oppose this misguided legislation. 


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6 H.R. 1927, 114th Cong. § 2(a) (as ordered reported by H. Comm. on the Judiciary, June 24, 

2015). 7The term ‘‘scope of injury’’ is inherently vague and uncertain, as there are multiple dictionary definitions for ‘‘scope,’’ including the following definition: ‘‘extent of treatment, activity, 

or influence.’’ Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/ 

scope (last visited Oct. 26, 2015). As Representative Jerrold Nadler (D-NY) noted during the 

Committee markup, the term ‘‘scope’’ is vague enough that it could lead to substantial litigation 

over its meaning, leading to increased litigation costs. Tr. of Markup of H.R. 1927, the ‘‘Fairness 

in Class Action Litigation Act of 2015,’’ by the H. Comm. on the Judiciary, 114th Cong., at 40– 

41 (Jun. 24, 2015) [hereinafter ‘‘Markup Transcript’’]. 8 H.R. 1927, 114th Cong. § 2(b) (as ordered reported by H. Comm. on the Judiciary, June 24, 

2015). 9For outlines of the policy reasons supporting the existence of the class action mechanism, 

see H.R. 1927, the ‘‘Fairness in Class Action Litigation Act of 2015’’: Hearing Before the 

Subcomm. on the Constitution and Civil Justice of the H. Comm. on the Judiciary, 114th Cong. 

(2015) [hereinafter ‘‘Subcommittee Hearing’’] (statement of Alexandra D. Lahav, Joel Barlow 

Professor, University of Connecticut Law School, at 2–5); The State of Class Actions Ten Years 

After The Enactment of the Class Action Fairness Act: Hearing Before the Subcomm. on the Constitution and Civil Justice of the H. Comm. on the Judiciary, 114th Cong. (2015) (statement of 

Patricia W. Moore, Professor of Law, St. Thomas University School of Law, at 2). 10 Id. 

DESCRIPTION AND BACKGROUND

DESCRIPTION

H.R. 1927, as amended, would prohibit a Federal court from certifying any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking the class action 

proves that each proposed class member suffered the same type 

and scope of injury as the putative class representative.6 The bill 

does not define the terms ‘‘economic loss’’ and ‘‘scope of injury.’’ As 

introduced, the bill had required a demonstration of the same ‘‘extent’’ of injury, but it does not appear that replacing the term ‘‘extent’’ with ‘‘scope’’ in the Manager’s Amendment actually changed 

the meaning of this requirement in substance.7

The bill requires a court, in issuing a class certification order for 

any class subject to the bill’s requirements, to also certify that 

those requirements have been met ‘‘based on a rigorous analysis of 

the evidence presented. . . .’’ 8

BACKGROUND

A class action is a type of lawsuit filed by one or more individuals on behalf of a larger group of people. Class actions can be beneficial to consumers and courts. They are beneficial to consumers 

because they give a potentially large group of individuals who are 

injured in the same manner by the same defendants the ability to 

hold the wrongdoers accountable. Class actions make it economically feasible for these plaintiffs to seek justice for smaller, but not 

inconsequential, injuries in areas as diverse as products liability, 

wage and hour litigation, and employment discrimination. As a result, class actions help level the playing field between injured consumers and powerful corporate defendants. They also help promote 

private enforcement of public policy, particularly when there is 

large-scale wrong-doing by an institutional actor.9

Additionally, class actions can be beneficial for courts because 

they promote judicial efficiency. They are an efficient mechanism 

to deal with what would otherwise be a large number of small and 

repetitive cases involving common legal and factual questions. 

Through class certification, courts can consolidate similar cases and 

conserve judicial resources.10


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11Fed. R. Civ. P. 23(a). 12Fed. R. Civ. P. 23(b). Rule 23 contains a number of other provisions that are not relevant 

to this bill. 13Subcommittee Hearing (Lahav Statement at 5–6, 9–10). 14 Id. at 10. 

Federal Rule of Civil Procedure 23 governs class actions filed in 

Federal courts. Rule 23(a) sets forth the prerequisites necessary for 

the establishment of a class, which are that: 

(1) the class is so numerous that joinder of all members is 

impracticable; 

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

(3) the claims or defenses of the representative parties are 

typical of the claims or defenses of the class; and 

(4) the representative parties will fairly and adequately protect 

the interests of the class.11

Additionally, Rule 23(b) specifies the findings that a court must 

make prior to certifying a class action, assuming that the requirements of Rule 23(a) have been met. These findings include, among 

other things, whether the prosecution of separate actions by or 

against individual class members would create the risk of inconsistent or varying adjudications, whether the party opposing the 

class has acted or refused to act on grounds that apply generally 

to the class such that relief would be appropriate for the class as 

a whole, and whether common questions of law or fact predominate 

over any other questions affecting only individual class members 

and that a class action would be superior to other methods of adjudicating the controversy fairly and efficiently.12

CONCERNS WITH H.R. 1927

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

There is no need for H.R. 1927 because plaintiffs already must 

satisfy rigorous requirements in order to pursue a class action. As 

explained above, Rule 23 requires a plaintiff seeking class action 

certification to make substantial showings, including commonality 

of factual and legal questions and typicality of the putative representative’s claims compared to those of putative class members. 

Moreover, Federal courts vigorously enforce Rule 23’s requirements, and pursuing a class action already requires discovery and 

motion practice, which mandate a significant expenditure of time 

and resources.13 H.R. 1927 would only make these procedural hurdles even more burdensome and potentially cost-prohibitive. 

Additionally, the bill is based on the false premise that Federal 

courts are inappropriately certifying classes where putative class 

members have not suffered any injury. In particular, the bill’s proponents claim that ‘‘benefit of the bargain’’ cases constitute such 

‘‘no-injury’’ class actions. In such cases, plaintiffs allege that they 

have been injured after purchasing a defective product because 

they did not receive the full value of what they thought they were 

paying for (i.e., a non-defective product.)14 As Professor Alexandra 

Lahav explained at the hearing on this bill before the Subcommittee on the Constitution and Civil Justice, plaintiffs in such 

cases have, in fact, suffered a real injury—namely, financial injury 


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15 Id. 16 Id. 17 Id. By way of further example, Professor Lahav testified 

if I purchase a car that has a faulty ignition switch, which has a propensity to turn 

off while I am driving on the highway, I should not have to wait until I suffer a potentially catastrophic accident to bring a lawsuit to assert my rights. In fact, the law 

should not want me to wait, as I will have created a much greater risk for myself and 

those around me and increased the damages the defendant would have to pay. A car 

that has a faulty ignition switch is worth less than full price, and that gives me standing to sue before I get on the road and prove that there is a defect by endangering innocent lives. 

Id at 11. 

18Glazer v. Whirlpool Corp., 722 F.3d 838 (6th Cir. 2013), cert. denied, 134 S. Ct. 1277 (2014); 

Butler v. Sears, Roebuck & Co., 702 F.3d 369 (7th Cir. 2012), cert. denied, 134 S. Ct. 1277 

(2014). 19To the extent that H.R. 1927’s proponents base their support for the bill on the argument 

that violation of a statute, alone, does not constitute a sufficient ‘‘injury’’ for purposes of meeting 

the Constitution’s standing requirements, the bill may be premature, as the Supreme Court will 

be considering this issue this term. See Robins v. Spokeo, Inc., 732 F.3d 409 (9th Cir. 2014), 

cert. granted, 135 S.Ct. 1892 (2015). 

in the form of paying a price for a product that is, in fact, worth 

less than what the plaintiff bargained for.15 In the product liability 

context, this means that where a consumer purchases a product 

with a design defect, that consumer has suffered an injury regardless of whether the defect manifests in any other harm to the consumer.16 In sum, the consumer has not received the product that 

he or she paid for, but, instead, one that is worth less than what 

the consumer thought he or she was buying at the time of purchase.17 It is perhaps telling that, in two ‘‘benefit of the bargain’’ 

cases involving Whirlpool front-loading washing machines that 

H.R. 1927’s proponents point to as a reason to support the bill, the 

Supreme Court has denied appeals of class certification based on 

the argument that these class actions amounted to ‘‘no-injury’’ class 

actions.18

Similarly, the claim by the bill’s proponents that class actions 

based solely on statutory damages provisions are examples of ‘‘noinjury’’ class actions is without merit. In many state consumer protection statutes, and in employment, civil rights, or privacy statutes, the injury, while very real, is difficult to quantify in monetary 

terms. Congress and state legislatures, therefore, set statutory 

damage levels to simplify the process of quantifying damages, to 

deter corporate wrongdoing, and to encourage access to courts. The 

individual class members, however, may only be entitled to a small 

amount of damages under the statute, so these cases can only feasibly be brought as a class action. The injury such actions seek to 

remedy, however, is very real.19

II. H.R. 1927 EFFECTIVELY MAKES MOST CLASS ACTIONS IMPOSSIBLE TO

PURSUE, DENYING ACCESS TO JUSTICE FOR PLAINTIFFS

By requiring that a plaintiff show that each potential class member suffered the exact same type and scope of injury at the class 

certification stage, H.R. 1927 undermines the core purpose of class 

actions, which is to provide for efficiency in the disposition of numerous but substantially the same claims and to provide access to 

courts for parties that, individually, would not have the incentive 

or resources to pursue otherwise meritorious claims. Moreover, its 

requirement that the plaintiff show the that each proposed class 

member suffered the exact same injury is virtually impossible to 

meet as a practical matter at the certification stage. While the 


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20Miller Letter at unnumbered 2. 21 Id. at unnumbered 3. 22 Id. 

Manager’s Amendment changed the bill’s language by replacing the 

requirement that a plaintiff demonstrate the same ‘‘extent’’ of injury with a requirement that she demonstrate the same ‘‘scope’’ of 

injury for each proposed class member, this change makes no substantive difference in our view and does not vitiate our concerns. 

By requiring a putative class representative to prove injury of 

every absent member of the putative class at the certification stage, 

H.R. 1927 requires a decision on the merits before trial and before 

appropriate class members can even be individually identified. To 

prove injury, a plaintiff would have to prove the alleged violation 

that caused the injury for each possible class member, i.e., litigation on the merits. As Professor Arthur Miller, the Nation’s foremost expert of Federal practice and procedure, noted in his letter 

in opposition to H.R. 1927, the 

core function of a class representative is to try to establish 

injury on behalf of similarly situated persons. Thus the bill 

effectively wipes out Rule 23, under which class representatives litigate common questions on behalf of the class. 

The represented persons are absent until after entry of a 

judgment that binds them, at which point (upon a favorable judgment) they are asked to come forward to prove 

their damages. Until that time, the identity of many of the 

class members is unknown, indeed possibly even unknowable.20

Professor Miller further noted that the Supreme Court has rejected 

the notion that a class representative must first establish that it 

will win on the merits in order to obtain class certification.21 He 

further noted that class membership does not equate to entitlement 

to damages.22

In short, class actions exist in order to resolve claims of large 

groups of similarly situated people. Particularly when the individual damages are small, it is economically viable to bring suit for 

wrongdoing only through a class action. If, as H.R. 1927 requires, 

each proposed class member’s injury must be proven at the certification stage—often a practical impossibility at a time when each 

class member cannot be individually identified—in order to even 

proceed as a class, this requirement defeats the point of the class 

action device, which is to promote the efficient adjudication of substantially the same claims based on substantially the same facts by 

a class representative on behalf of absent class members. As Professor Miller notes, the bill’s requirement that potential class representatives prove that each proposed class member suffered that 

exact same injury as a condition of class certification inappropriately conflates the class certification inquiry with a decision on the 

merits and an assessment of each individual class member’s damages. 

To address these concerns in part, Representative Steve Cohen 

(D-TN), the Ranking Member of the Subcommittee on the Constitution and Civil Justice, offered an amendment that would have 

stricken claims for monetary relief alleging economic loss from the 

bill’s reach. He explained that the concerns expressed by Professor 


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23Markup Transcript at 53–54. 24 Id. at 63. 25Groups Letter. 26 Id. 27Letter from 25 Health Care Professionals and Attorneys to Chairman Trent Franks (R-AZ) 

and Ranking Member Steve Cohen (D-TN), Subcomm. on the Constitution and Civil Justice of 

the H. Comm. on the Judiciary, (Apr. 28, 2015) (on file with H. Comm. on the Judiciary Democratic staff). 28 42 U.S.C. § 2000e et seq. (2015). 29Markup Transcript at 34. 

Miller and others about the impact of H.R. 1927 on the ability of 

plaintiffs to pursue class actions were particularly heightened in 

the case of economic loss claims because it is especially difficult to 

identify plaintiffs at the earliest stages of such a case and to assess 

whether every potential class member suffered the exact same injury in such cases.23 Notwithstanding these concerns, the Committee defeated the amendment by a 13 to 15 vote.24

The bill’s requirement that a plaintiff prove each potential class 

member suffered the exact same injury at the certification stage 

would essentially undermine the ability of plaintiffs to obtain class 

action certification. As a broad coalition of consumer and civil 

rights groups noted in opposing H.R. 1927, this requirement ‘‘would 

sound the death knell for class actions’’ because classes ‘‘inherently 

include a range of affected individuals, and virtually never does 

every member of the class suffer the same extent of injury even 

from the same wrongdoing.’’ 25 This kind of ‘‘commonality of damages’’ requirement for class certification, as this coalition noted, has 

been rejected by the Federal courts.26 Similarly, a group of health 

professionals and attorneys criticized the required showing of the 

exact same injury for each class member, noting that such a requirement ‘‘violates basic medical scientific principles’’ that make 

‘‘very clear that each individual responds somewhat differently to 

a health hazard’’ based on the person’s genetic makeup, health, 

age, gender, and many other factors.27

At a minimum, the terms ‘‘type’’ and ‘‘scope’’ of injury as used in 

H.R. 1927 are inherently vague and undefined. As a result, the bill 

will spawn litigation over their meaning as well as preclude a large 

number of class actions depending on how these terms are interpreted. For example, it is unclear whether a civil rights plaintiff 

whose employment is terminated because of race suffered the same 

‘‘type’’ or ‘‘scope’’ of injury as another plaintiff of the same race who 

is terminated from a different position by the same employer because of race. Under the bill, these plaintiffs arguably would not 

be able to pursue a class action because, although they may have 

been subject to the same racially discriminatory employment policy 

or practice based on their shared race, they each may have been 

affected in a different manner or to a different degree. 

For these reasons, Ranking Member John Conyers, Jr. (D-MI) offered an amendment at markup that would have exempted claims 

for monetary relief under Title VII of the Civil Rights Act of 1964, 

which prohibits discriminatory employment practices on the basis 

of race, sex, and other protected characteristics and allows recovery 

of back pay and compensatory and punitive damages.28 The 

amendment, however, was defeated by a 12 to 13 vote.29

Representative Hank Johnson (D-GA), the Ranking Member of 

the Subcommittee on Regulatory Reform, Commercial and Antitrust Law, also offered an amendment to address concerns about 


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30 Id. at 73. 31 COSAL Letter at 2. 32 Id. 33Markup Transcript at 84. 34Subcommittee Hearing, Lahav Statement at 6. 35Miller Letter at unnumbered 3. 36Markup Transcript at 51. 

the required showing that each proposed class member suffered the 

same scope of injury. That amendment would have struck the bill’s 

requirement that a plaintiff demonstrate the same ‘‘scope’’ of injury 

for each proposed class member in order to obtain class certification, but was defeated by an 11 to 17 vote.30

The Committee to Support the Antitrust Laws (COSAL), which 

represents the private antitrust bar, also criticized H.R. 1927’s requirement that class representatives prove that every potential 

class member suffered the exact same injury, noting that ‘‘this is 

a standard that could rarely if ever be met’’ because very ‘‘few antitrust classes, if any, will be composed of members with damages 

in the exact same dollar amount.’’ 31 COSAL also noted that the 

‘‘100% injury requirement will make class certification impossible 

even in cases where the vast majority—above 95% or more—of 

class members have suffered harm.’’ 32

In light of this concern, Representative Johnson offered an 

amendment that would have exempted antitrust claims from the 

bill. The Committee, however, defeated this amendment by a 10 to 

15 vote.33

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

COURTS AND LITIGANTS

Given the already resource-intensive nature of class actions, H.R. 

1927 would further burden courts and litigants. As Professor Lahav 

testified, H.R. 1927 would be ‘‘inefficient’’ because it would require 

a ‘‘full blown trial at the outset of every class action’’ and another 

trial on ‘‘the merits again at the end of the litigation in order to 

obtain a judgment, wasting both judicial and party resources.’’ 34

Similarly, Professor Miller told the Committee that by ‘‘demanding 

a pre-certification determination of ‘injury,’ the bill would create 

enormous work and litigation burdens—for the Federal judges as 

well as the litigants—that would destroy the utility of the class 

procedure. The class certification process is already freighted with 

complexity and protraction; this bill would exacerbate that and create further inefficiencies.’’ 35

The increased costs and burdens to plaintiffs that H.R. 1927 

would impose could dissuade them from pursuing class actions in 

the first place, even when their claims have merit. Even if it did 

not have such an effect, however, there is little doubt that courts 

would bear the burden of holding trials on the entire case twice— 

first at the certification stage in order to find sufficient facts to determine whether every class member suffered the same type and 

scope of injury, and then a second time before a jury. For these reasons, Representative Sheila Jackson Lee (D-TX) offered an amendment at markup that would have delayed the bill’s effective date 

until the Administrative Office of the United States Courts completed an assessment of the bill’s likely financial and resource costs 

on litigants and courts. The amendment, however, was defeated by 

a 13 to 15 vote.36


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37 28 U.S.C. §§ 2071 et seq. (2015). 

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

H.R. 1927, like many other civil justice bills designed to deny 

plaintiffs their access to courts, also circumvents the exhaustive 

and deliberative Rules Enabling Act process, which permits public 

participation.37 This process also incorporates the judiciary’s dayto-day, real-world experience with the application of the Federal 

civil procedure rules, including Rule 23. Moreover, Congress retains 

the power to review those rules and to accept, modify, or reject any 

proposed changes pursuant to the extensive Rules Enabling Act 

process. In fact, the Judicial Conference of the United States is currently considering changes to Rule 23, and the process should be 

permitted to run its course. 

To address this concern, Representative David Cicilline (D-RI) offered an amendment to condition the bill’s effective date on the Judicial Conference approving the amendments to class action certification made by the bill. This amendment was defeated by 10 to 15 

vote. 

CONCLUSION

H.R. 1927 is an unnecessary bill that threatens to deny millions 

of plaintiffs access to Federal courts by creating potentially insurmountable obstacles to class action certification and raising litigation costs. Moreover, it disrespects the Federal courts by imposing 

new burdens on them and by circumventing the congressionallycreated Rules Enabling Act process by which Federal civil procedure rules are amended after extensive input from the bench and 

bar. For all the foregoing reasons, we strongly oppose H.R. 1927. 

MR. CONYERS, JR. 

MR. NADLER. 

MS. LOFGREN. 

MS. JACKSON LEE. 

MR. COHEN. 

MR. JOHNSON, JR. 

MS. CHU. 

MR. DEUTCH. 

MR. GUTIERREZ. 

MS. BASS. 

MR. RICHMOND. 

MS. DELBENE. 

MR. JEFFRIES. 

MR. CICILLINE. 

Æ 


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