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94–410 PDF 2015

FAIRNESS IN CLASS ACTION LITIGATION ACT 

OF 2015 

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 

ON

H.R. 1927 

APRIL 29, 2015 

Serial No. 114–24 

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 

APRIL 29, 2015 

Page 

THE BILL 

H.R. 1927, the ‘‘Fairness in Class Action Litigation Act of 2015’’ ....................... 3 

OPENING STATEMENTS 

The Honorable Ron DeSantis, a Representative in Congress from the State 

of Florida, and Vice-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 ................................................................................................... 5 

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

of Virginia and Chairman, Committee on the Judiciary .................................. 6 

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

State of Michigan and Ranking Member, Committee on the Judiciary .......... 34 

WITNESSES 

John H. Beisner, Partner, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 39 

Mark Behrens, Partner, Shook, Hardy & Bacon, L.L.P., Washington, DC 

Oral Testimony ..................................................................................................... 56 

Prepared Statement ............................................................................................. 58 

Alexandra D. Lahav, Joel Barlow Professor of Law, University of Connecticut 

School of Law, Hartford, CT 

Oral Testimony ..................................................................................................... 68 

Prepared Statement ............................................................................................. 70 

Andrew Trask, Counsel, McGuireWoods LLP, United Kingdom 

Oral Testimony ..................................................................................................... 82 

Prepared Statement ............................................................................................. 84 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

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 ................................................................. 8 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from John H. Beisner, Partner, Skadden, Arps, Slate, Meagher & 

Flom LLP, Washington, DC ................................................................................ 104 

Prepared Statement of F. Paul Bland, Executive Director, Public Justice ......... 106 
Page

IV 

OFFICIAL HEARING RECORD 

UNPRINTED 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 ................................................................. 7 
(1) 

FAIRNESS IN CLASS ACTION LITIGATION ACT 

OF 2015 

WEDNESDAY, APRIL 29, 2015 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 3:59 p.m., in room 

2141, Rayburn Office Building, the Honorable Ron DeSantis (ViceChairman of the Subcommittee) presiding. 

Present: Representatives DeSantis, Goodlatte, Cohen, Conyers, 

Nadler, and Deutch. 

Staff present: (Majority) Paul Taylor, Chief Counsel; Tricia 

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

Veronica Eligan, Professional Staff Member. 

Mr. DESANTIS. 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. 

On February 27, this Subcommittee held a hearing on the 10th 

anniversary of the enactment into law the Class Action Fairness 

Act to explore further potential reforms to our class action litigation system. One problem highlighted at the hearing was that 

under current rules, Federal courts are allowed to permit class action lawsuits to proceed before there has been a showing that all 

members of the class actually share a common injury of similar 

type and extent. Consequently, classes have been certified to include, for example, all owners of an allegedly defective product, 

when only a very small fraction of those who purchased the product 

suffered any bad results. 

Consequently, people who have had no problems with their purchase because they suffered little or no injury have been forced into 

a lawsuit against their will because members of a class action lawsuit do not have the choice to opt into the lawsuit. They can only 

choose to opt out if they are aware that they are part of the lawsuit 

at all. 

House Judiciary Committee Chairman Bob Goodlatte along with 

Subcommittee Chairman Franks introduced the Fairness in Class 

Action Litigation Act of 2015, which would tighten Federal class action rules so that a Federal class could only be certified upon a 

showing that all unnamed members of the proposed class have suf-
2 

fered an injury of the same type and extent as the named class representatives who are supposed to have injuries that are typical of 

the class. 

A Defense Research Institute poll showed that when asked 

‘‘Would you support or oppose a law saying that in order to join a 

class action lawsuit a person has to show that he or she has actually been harmed,’’ 78 percent of those surveyed they would support such a law, which includes 75 percent of women, 73 percent 

of people age 18 to 29, 71 percent of African-Americans, 75 percent 

of Hispanics, 71 percent of registered Democrats, 73 percent of liberals, 86 percent of registered Republicans, and 85 percent of conservatives. 

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

bill that makes clear that common sense principles should apply in 

class actions and that only those people who share the same type 

and extent of injuries as the class representatives should be allowed to be forced into a class action lawsuit. It would tighten the 

typicality requirements under the Federal class action rules such 

that a Federal class could only be certified upon a showing by a 

preponderance of the evidence that all unnamed members of the 

proposed class have suffered an injury of the same type and extent 

as the named class representatives. 

Currently, under existing Federal class action rules there are requirements that a class share questions of law and fact in common, 

and that the claims and defenses of the representative parties 

would be typical of that class. But under those standards, courts 

have allowed classes to be certified before there has been a showing 

that all members of the class actually share a common injury of 

similar type and extent. 

Consequently, classes have been certified to include, for example, 

all owners of a certain washing machine that allegedly produced 

moldy smelling laundry. But as it turned out, in that case only a 

very small fraction of those who purchased the washing machine 

suffered any adverse result. Yet those people were still lumped into 

the class as members, greatly inflating the class size, and thereby 

unduly pressuring the company to settle by dramatically growing 

the size of the class for which damages could be awarded. The company did not settle in that case, but instead took their case to the 

Supreme Court, which denied cert last year, making clear that the 

Court will not resolve this issue any time soon. 

I look forward to hearing from our witnesses today, and it is my 

pleasure to recognize the Ranking Member of the Subcommittee, 

Mr. Cohen from Tennessee, for his opening statement. 

[The bill, H.R. 1927, follows:] 
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Mr. COHEN. Thank you, Mr. Chair. Monday night we saw Baltimore, riots and flames. Riots on Saturday night in Baltimore, 

Maryland subsequent to the killing of an unarmed African-American male by law enforcement for doing nothing except diverting 

his eyes from the law enforcement officer. Spine broken in two or 

three places, coma, dead within a week. Mr. Gray. 

Charleston, South Carolina, Walter Scott runs from a policeman. 

No offense. Maybe traffic. Shot down on video. Video witnesses it. 

Dead. Cleveland, Ohio, Tamir Rice, video, shot dead, policeman. 

Did nothing. Toy pistol. Eric Garner, Staten Island, dead. Michael 

Brown, dead. 

Committee, civil rights action, zero. No action by this Committee 

of the United States Congress on constitutional rights, on the death 

of human beings. African-American lives count, too, and they are 

being killed on a regular basis and seen in this country, and nobody in this Congress seems to care that has authority to have a 

hearing or to bring a bill to a vote. 

And yet we have got a hearing to destroy class actions, actions 

that take care of little people that have a problem with a large corporation that might have a defective product, and then we have got 

a rule right now that takes care of how you set up a class. But we 

are not concerned about civil rights. We are concerned about destroying what we have had for years, a system of class actions to 

protect the little guy. 

The expert on this subject is a Professor Arthur Miller, pretty 

much an undisputed leading expert on Federal civil procedure, and 

he said this bill will effectively wipe out Rule 23. He noted requiring proof of injury, including the extent of injury prior to certification, will make class actions pointless to eliminating the efficiencies that class actions are supposed to provide. 

And then we have got a little Joseph Heller thrown in, a little 

catch-22. Before you get your action filed, you have got to know 

every member by name. Well, by definition you cannot know that 

because the reason you have a class action is because there are so 

many plaintiffs that you cannot name them all, so you have a representative plaintiff. 

Yes, Eric Garner, Michael Brown, Walter Scott, Tamir Rice, and 

Mr. Gray, dead. This is the civil rights committee, and we are concerned about destroying the little man’s opportunity to have an action taken in a civil system for remedy of damages because a washing machine manufacturer front loader has got a problem, and people are seeking redress of grievances. But life and death, we do 

nothing. 

Somehow or another, Mr. Chairman, we have got to put our priorities in order, and we have got to look after human life and civil 

rights, and care about what is happening in this country, and really care about what is significant, and not just caring about manufacturers and folks who are producing products that others are 

showing may be defective and they owe them damages, and make 

it more difficult for those little people to collect damages. 

But before they can even collect damages or produce those products, they have got to be alive. And I would submit to you, Mr. 

Chairman, that is what this Committee should be dealing with is 

civil rights. I yield back the balance of my time. 
6 

Mr. DESANTIS. The gentleman yields back. The Chair now yields 

5 minutes to the Chairman of the full Committee, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 10 years ago I 

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 forbade Federal courts from hearing most interstate class actions, and allowed those who abused the class action system to victimize those very little people that the gentleman from Tennessee 

just referenced. 

While the reforms contained in the Class Action Fairness Act 

have been integral to improving the civil justice system in the 

United States, abusive class action practices still exist today, and 

there are further 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 for an individual 

plaintiff to sue would far exceed the benefits. 

Yet other than the Class Action Fairness Act, no major reforms 

to the laws governing Federal class actions have been adopted 

since 1966. Judging by some of the problems that have arisen since 

CAFA was enacted 10 years ago, additional reform is needed. I am 

concerned that in the years since CAFA was enacted, there has 

been a proliferation of class actions filed by lawyers on behalf of 

classes, including members who have not suffered any actual injury. These class actions are often comprised of class members that 

do not even know they have been harmed, do not care about the 

minor or nonexistent injuries the lawsuit is based on, and generally 

have no interest in pursuing wasteful litigation. 

When classes are certified that include members who do not have 

the same type and extent of injury as the class representatives, 

those members siphon off limited compensatory resources from 

those who are injured and who have suffered injuries of greater extent, and lead to substantial under compensation for consumers 

who have suffered actual or greater harm. 

Given that class actions lawsuits 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 injured 

in comparable ways, and is fair to both plaintiffs and defendants. 

And to that end, last week I introduced the Fairness in Class Action Litigation Act. The bill requires only that a class be composed 

of members with an injury of the same type and extent, with ‘‘injury’’ defined as ‘‘the alleged impact of the defendant’s actions on 

the plaintiff’s body or property.’’ That type and extent of alleged 

impact of the defendant’s actions could be de minimus or even nonexistent as when statutory damages are allowed in such cases. But 

members whose injuries were only de minimus or nonexistent 

would have to bring their case in a separate class consisting of just 

members with de minimus or nonexistent injuries. 
7 

*Note: The referenced material, a letter from Professor Samuel Issacharoff of NYU School of 

Law, is not printed in this hearing record but is on file with the Subcommittee and can also 

be accessed at: http://docs.house.gov/meetings/JU/JU10/20150429/103386/HHRG-114-JU10- 

20150429-SD003.pdf. 

The bill would thereby achieve a very important reform: clustering actually injured or similarly injured class members in their 

own class. People who are injured deserve to have their own class 

actions in which they present their uniquely powerful cases and get 

the recoveries they deserve. Under this legislation, uninjured or 

non-comparably injured people can still join class actions, but they 

must do so separately without taking away from the potential recovery of actually or comparably injured people. 

This is what this legislation is designed to take care of, is to help 

people, little people, who are truly in need. And I look forward to 

the witness’ testimony today. 

Mr. COHEN. Mr. Chairman? 

Mr. DESANTIS. Yes. 

Mr. COHEN. I would like to enter some letters for the record, letters from different consumer, public interest, civil rights groups: 

Alliance for Justice, American Antitrust Institute, the AFSCME, 

American Civil Liberties Union, Consumer Federation of America, 

Consumers Union, the NAACP, National Consumer Law Center, 

Public Citizen, and the Southern Poverty Law Center; letters from 

Wade Henderson and Nancy Zirkin of the Leadership Conference 

of Civil Rights; Arthur Miller, the professor I noted in my opening 

remarks; Professor Samuel Issacharoff of NYU School of Law;* a 

letter from the Committee to Support Antitrust Law; a letter from 

25 healthcare professional attorneys; and Mr. Richard Seymour, 

among others. 

Mr. DESANTIS. Without objection. 

[The information referred to follows:] 
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Mr. COHEN. Thank you, sir. 

The Chair now recognizes the Ranking Member of the full Committee, Mr. Conyers from Michigan, for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. Members of the Committee and distinguished witnesses, and particularly the one from 

the University of Connecticut School of Law, and visitors here in 

the hearing room, this H.R. 1927 Fairness in Class Action Litigation is yet another measure that would shield corporate wrongdoers 

from being held accountable to victims whom they have harmed. 

And its boldness is a little breathtaking in my view. 

And here is how the bill proceeds to accomplish this shielding of 

wrongdoers. To begin with, H.R. 1927 will make it even more difficult for these victims, particularly those whose civil rights have 

been violated, to obtain relief through the procedure vehicle of class 

actions. Under the current law, the courts have strictly limited the 

grounds pursuant to which a large group of plaintiffs may be certified as a class action. It is not all that easy. 

Rather than improving upon this process, however, H.R. 1927 

imposes even more restrictive requirements that will make the 

process further unfair to plaintiffs. It does it by prohibiting a Federal court from certifying a class action unless a party can prove 

that every putative class member suffered the same injury to the 

same extent. Worse yet, the bill limits what qualifies as an injury 

to only those actions that impact a plaintiff’s ‘‘body or property.’’ 

A literal interpretation of this language could clearly exclude 

civil rights and other types of class actions where the alleged injury 

does not have a tangible impact on a plaintiff’s body or property. 

According to Professor Samuel Issacharoff of the New York University School of Law, Brown v. the Board of Education, under the 

bill’s definition of ‘‘injury,’’ could never have been brought as a 

class action because the class representative in that case could not 

have shown injury to the body or property of each child affected by 

the separate but equal policy. Arthur Miller, a foremost scholar on 

Federal practice and procedure, similarly warned that the bill’s definition of ‘‘injury’’ could threaten substantive rights. While I doubt 

the author of this legislation intended to specifically preclude civil 

rights class actions or other class actions designed to vindicate fundamental constitutional rights, H.R. 1927 before us today has language that could lead to that result. 

Another problem. It will make class certification more difficult 

and expensive to the detriment of all litigants. Class actions allow 

consumers injured in substantially the same manner by the same 

defendants the ability to hold the wrongdoers accountable without 

having to engage in multiple duplicative actions. Most importantly, 

class actions make it economically feasible for those who have 

smaller, but not inconsequential, injuries to obtain justice. These 

actions include such diverse matters as breach of warranty, products liability, and employment discrimination. 

Unfortunately, since the enactment of the Class Action Fairness 

Act a decade ago, class actions have become more difficult, more 

expensive, and cumbersome to pursue, particularly in light of a 

number of Supreme Court decisions further restricting class actions. So taken together, these developments have denied the benefits of the class action device to many. 
35 

This measure before us today will only exacerbate this problem 

by forcing plaintiffs to demonstrate the same alleged impact or 

body or property on behalf of all putative class members before certification. Having to litigate a common factual question, such as the 

extent and nature of an alleged injury prior to certification and 

prior to full discovery defeats the point of having a class action in 

the first place. Undermining such efficiency would be bad, not only 

for plaintiffs, but for defendants as well. It would increase time an 

expense to the litigation that defendants could face by potentially 

forcing them to litigate numerous small cases rather than a single 

class action. 

And finally, the act will increase the workload of our already 

overburdened Federal courts and undermine the rules enabling act 

process. Class actions conserve taxpayer dollars by promoting judicial efficiency. Instead of being inundated by thousands of similar 

lawsuits, a court can determine the issue in a unified class action 

proceeding. By restricting class actions, however, 1927 will substantially add to the caseload of the Federal court system, which 

we already know is overburdened. 

Additionally, 1927 circumvents the extremely thorough rules enabling act process. Now, this process allows the Judicial Conference 

of the United States, the policymaking arm of the Federal judiciary, to craft amendments to Federal civil procedure rules using a 

multi-stage, multiyear deliberative process involving input from experts, practitioners, judges, and the public. Indeed, the Judicial 

Conference is currently considering amendments to the class actions rules that have been for several years. Congress ought to let 

that process work as intended first. 

Accordingly, I look forward to hearing from today’s witnesses, 

and I thank them for their participation. And I thank the Chairman for the time. 

Mr. DESANTIS. I thank the gentleman. Without objection, other 

Members’ opening statements will be made part of the record. 

Let me now introduce our witnesses. Our first witness is John 

Beisner, a partner at the Skadden law firm’s Mass Torts, Insurance, and Consumer Litigation Group. He focuses on the defense 

of purported class actions, mass tort matters, and other complex 

civil litigation in both Federal and State courts. He also regularly 

handles appellate litigations and has appeared in matters before 

the U.S. Supreme Court. In 2013, he received a Burton Award for 

Legal Achievement, which recognizes excellence in legal scholarship. 

Our second witness is Mark Behrens, a partners at the Shook, 

Hardy & Bacon law firm. He has authored or co-authored over 150 

amicus briefs on behalf of national and State business and civil justice organizations in cases before the United States Supreme Court 

and other State and Federal courts. He has published over 50 

scholarly articles in leading national journals and law reviews. 

Our third witness is Alexandra Lahav, a professor at the University of Connecticut School of Law. Her research primarily focuses 

on procedural justice and the limits of due process in class actions 

and aggregate litigation. Her work has been cited in Federal district opinions, academic articles, and treatises. She regularly presents to academics and practitioners. She is also the co-author of 
36 

the 4th edition of the popular civil procedure case book, Civil Procedure: Doctrine Practice in Context, and is currently writing a book 

entitled, In Praise of Litigation, which defends lawsuits in America. 

Our final witness is Andrew Trask, counsel at the McGuireWoods 

law firm. Mr. Trask has defended more than 100 class actions involving all stages of the litigation process. While his work has concentrated on products liability and consumer fraud cases, he has 

also defended class actions involving telecommunications products, 

business contracts, securities, ERISA, the U.S. antitrust laws, and 

environmental claims, among others. 

Each of these witnesses’ written statements will be entered into 

the record in their entirety. I ask that each witness summarize his 

or her testimony in 5 minutes or less. To help you stay within the 

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

Before I recognize the witnesses, it is the tradition of the Subcommittee that they be sworn. So please, witnesses, stand and be 

sworn. If you will raise your right hand. 

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.] 

Mr. DESANTIS. You may be seated. All witnesses answered in the 

affirmative. 

It is my pleasure to now recognize our first witness, Mr. Beisner. 

Please turn on your microphone before speaking, and you are recognized for 5 minutes. 

TESTIMONY OF JOHN H. BEISNER, PARTNER, SKADDEN, ARPS, 

SLATE, MEAGHER & FLOM LLP, WASHINGTON, DC 

Mr. BEISNER. Thank you. Good afternoon, Mr. DeSantis, Ranking 

Member Conyers, and Ranking Member Cohen, and Members of 

the Subcommittee. I appreciate the opportunity to appear today on 

behalf of the U.S. Chamber Institute for Legal Reform to voice support for H.R. 1927, the Fairness in Class Action Litigation Act of 

2015. 

Several months ago, this Subcommittee held a hearing exploring 

continuing problems with class action litigation since the 2005 enactment of the Class Action Fairness Act. One of the primary 

abuses identified in that session was the increasing frequency with 

which some Federal courts are certifying overbroad or no injury 

class actions. What I am talking about are lawsuits brought by a 

person who allegedly experienced a problem with a product or service, and then seeks to represent every other person who bought the 

product or service regardless of whether they experienced a problem. 

As I have detailed in my written testimony and as shown by the 

record from that earlier hearing, this problem is real. These 

overbroad, no injury cases have a highly distortive effect at several 

levels. First of all, they improperly magnify the value and magnitude of the claims asserted. In some Federal courts the law 

seems to be that one disgruntled customer can dramatically exag-
37 

gerate the value of an idiosyncratic product defect lawsuit by suing 

on behalf of thousands of others who are not disgruntled at all. 

Further, these class actions can have a highly distortive effect at 

trial. Let me give an example. If a consumer buys a new car and 

experiences an oil leak, he might bring a class action on behalf of 

others who bought the same model of vehicle. If the proposed class 

is certified and the case gets to trial, that person as the class representative would tell his oil leak story to the jury, and if the jury 

was sympathetic to that story, it might award damages to everyone 

in the class, even though no one had an oil leak problem. 

The distortion is clear. If a class member who had no problem 

with his vehicle had to present his case to a jury individually, he 

would be laughed out of court. His testimony would go something 

like this: Question, Mr. Plaintiff, have you had any problem with 

your vehicle? No. Are you satisfied with your vehicle? Yes. Did the 

vehicle meet your expectations? Yes. Did you get what you paid 

for? Yes. So what are you doing here presenting a claim to this 

jury? What do you want? Well, I want you to order the car manufacturer to pay me some money because some other guy had an oil 

leak in his car. Obviously this scenario is absurd, but that is what 

overbroad, no injury class actions are all about. 

This bill presents a simple, elegant solution to the problem. It 

says that if a person brings a lawsuit alleging personal injury or 

economic loss, he can proceed on a class basis only if he shows that 

each proposed class member suffered an injury of the same type or 

extent he did. So going back to our example, our friend who had 

the oil leak can bring a class action and try to represent other owners of that same model of vehicle who also had an oil leak. But he 

would not be allowed to represent and seek compensation for people who have not had the oil leak problem. 

Although very important, the enactment of this bill would not affect a sea change in class action law. The bill would simply emphasize what the Supreme Court and certain other Federal courts have 

already said. It would highlight and codify Rule 23(a)(3) of the Federal Rules of Civil Procedure by making clear that the claims of the 

class representative must be typical of those putative class members she seeks to represent. 

Now, I have seen some commentary saying the bill would be the 

death knell of civil rights cases and intangible loss cases in which 

no personal injury or tangible economic loss is alleged. I do not 

think that is correct. The bill simply says that if the class representative alleges personal injury or economic loss, she can represent only those who suffered the same type and extent of injury, 

but if the class representative does not allege personal injury or 

economic loss, the bill would have no effect. In such a case, the bill 

would not require a showing of anything. It would not pose an 

independent barrier to class treatment in such cases. 

I have also seen assertions that the bill would undermine, as one 

commentator put it, State common law remedies for people who 

buy toasters that turn out not to be able to prepare toast. The bill 

would not change any of that. If a person brought a class action 

alleging that his toaster malfunctioned, this bill would not preclude 

class treatment, but the class could only include persons who had 

that problem. 
38 

This bill is a common sense solution to a growing problem that 

is perverting the purposes of class actions, and I respectfully urge 

its enactment. Thank you. 

[The prepared statement of Mr. Beisner follows:] 
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Mr. DESANTIS. I thank the gentleman. 

I now recognize our second witness, Mr. Behrens. Please turn on 

your microphone before you speak, and you are recognized for 5 

minutes. 

TESTIMONY OF MARK BEHRENS, PARTNER, 

SHOOK, HARDY & BACON, L.L.P., WASHINGTON, DC 

Mr. BEHRENS. Thank you, Mr. Chairman, Ranking Member Conyers, Ranking Member Cohen, and other Members of the Subcommittee. I am testifying today on behalf of the IADC, the International Association of Defense Counsel, which is a global organization of lawyers who practice in the area of civil defense. IADC 

supports fair compensation for genuine injuries. This bill would 

support that mission. It is about providing fairness to people with 

genuine injuries and not those who are not injured. 

IADC is concerned about overly broad, no injury class actions. As 

Mr. Beisner talked about, these are cases where the named plaintiff has suffered a concrete harm, but by and large the countless 

others that that person seeks to represent in the class have suffered no actual injury whatsoever. This is not a case of widespread 

product defect. These are cases where most of the people are perfectly happy with the product they have and it has not malfunctioned. Yet what we have is somebody who is very atypical, who 

has a concrete injury that is trying to bring a lawsuit on behalf of 

everybody else who has not. 

These types of lawsuits undercompensate people who have genuine harm, and at the same time they overcompensate people who 

have not been harmed at all and may never be. They raise prices 

for all consumers and put a strain on our economy. In my written 

testimony I mention several other problems, and I will go into an 

example of exactly how this could happen. 

In washing machine cases, now there have been class actions 

filed against washing machine manufacturers that make front loading washing machines. We all probably have one in our home. 

These lawsuits are so large in scope, they would pull in more than 

10 million American consumers. There was a case that went forward in Ohio in a bellwether case under the 6th Circuit where the 

Federal court in Cleveland was asked to certify a class, and did, 

that involved over 200,000 Ohio residents. 

The two named plaintiffs both alleged that they had smelly 

washers, that they had washers that for them created an experience where their clothes smelled moldy. Most of the other people 

in the class never had any problems. The Consumer Union reports 

that only 1 percent of washer owners complained that they ever 

had this type of problem after 4 years of using their product. So 

here we have two named plaintiffs who are atypical of virtually everybody else that is in the class. 

The case was certified and affirmed by the 6th Circuit. It went 

to the United States Supreme Court, came back down, was re-certified again. Went to trial in Cleveland. The jury deliberated 2 

hours and came back and found that the products were not defective. The general counsel or head of litigation at Whirlpool at the 

time said, ‘‘Nobody has been injured, and only 1 to 2 percent of the 
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people have any complaints. This is lawyer driven, not customer 

driven, litigation.’’ 

Yet some might say that this is a victory, that Whirlpool was 

able to vindicate itself. Well, it spent 9 years in litigation and millions of dollars to defend a lawsuit where most of the people in the 

class were perfectly satisfied with the product, and the incidence 

of malfunction was very remote. So who ends up paying for that? 

The people that bought the very washers that are in the class action end up paying more for their product for something that they 

were already satisfied with to begin with. These are, as he said, 

lawyer-driven class actions. 

The Fairness in Class Action Litigation Act is a modest and targeted reform that would deal with this situation. It is not going to 

eviscerate class actions as has been alleged. It is simply going to 

promote the requirement that is in Rule 23 right now that the 

named class representative is typical of the members of the class. 

It would better align the interest of the named representative and 

the people that that person purports to represent. That is all the 

legislation does, requires them to have the same type and extent 

of injury. 

There is precedent in Congress for enacting class action reform. 

You all had a hearing about 2 months ago that looked at the success of the Class Action Fairness Act. That was an example back 

in 2005 where the Committee heard testimony of certain abuses in 

the class action system and focused on just dealing with those 

abuses, coupon settlements and having some State courts dictate 

nationwide policy. 

And you all fixed that, but the law has evolved over the last decade. This is the problem we face today, that American businesses 

face, and it is one that the Committee should change. The DRI 

president was here also I know and testified about data and his 

poll that showed about 75 percent of Americans believe that if you 

are going to be brought into a class action lawsuit, you should have 

a genuine injury and not simply a potential that an injury could 

occur. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Behrens follows:] 
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Mr. DESANTIS. The gentleman’s time has expired. 

I now recognize our third witness, Ms. Lahav, for 5 minutes. 

TESTIMONY OF ALEXANDRA D. LAHAV, JOEL BARLOW PROFESSOR OF LAW, UNIVERSITY OF CONNECTICUT SCHOOL OF 

LAW, HARTFORD, CT 

Ms. LAHAV. Thank you so much for inviting me. It is a real honor 

to be here. You have asked me to testify about House Bill 1927. 

I think this bill is a terrible idea. It will eliminate class actions 

for legitimate claims and prevent people from asserting their rights 

and liberties. It will violate federalism principles by usurping 

States’ rights to make their own contract and consumer protection 

law. It is probably unconstitutional under the 7th Amendment. It 

is not necessary, and it is wasteful. The rule makers are currently 

considering changes to Rule 23 in a fair, open, and professional 

process, and we should allow that process to play out. 

I understand that the defense lawyers who are testifying here 

today are upset about a certain narrow category of class actions alleging State law contract claims. Passing this bill is like cutting off 

your hand if you have a splinter. This bill would wipe out class actions in civil rights cases seeking injunctive relief, in employment 

discrimination cases seeking back pay, in cases enforcing important 

laws that protect competition in our economy, like antitrust laws, 

and in cases enforcing our liberty and privacy interests which Congress has protected by legislation. 

How will the bill do this? It is because of the language. The bill 

requires that in any class action—any—plaintiffs prove—that 

means having a full-blown trial at the outset—that they have each 

suffered the same ‘‘type and extent of impact on their body or property.’’ Let us start with same type and extent. In the testimony 

that I read in preparation for today from Mr. Beisner and Mr. 

Trask, they said that this language just tracks Rule 23. So if that 

were true, I do not see the point in passing a law. But the fact is 

that the plain language reading, the reading that courts are likely 

to give this bill, would require that each plaintiff allege the same 

injury, an identical injury. 

So let me give you an example since we are all about stories. Let 

us say that a bank decides to charge a $2 illegal fee every time you 

use your ATM card. John uses the ATM 5 times. He has a $10 injury. Mary uses the ATM 100 times. She has a $200 injury. They 

have not suffered an injury of the same extent, right? One guy has 

got $10, the other one has $200. Well, under this law that case 

could not be brought as a class action, but nobody in their right 

mind is going to bring a lawsuit for $10. And that means that the 

bank gets away with stealing $10 from John. That is not right. 

Not only that, but if they did bring a lawsuit somehow, they 

would have to have a full-blown trial to figure out class certification, what exactly happened to prove what happened to John and 

Mary. So this creates a lot of needless work for everyone, not just 

judges, but all the lawyers involved, right? And in any event, if you 

have a full-blown trial before class certification, you have to ask is 

a jury going to be impaneled for that trial. And if not, the law violates the 7th Amendment. If the jury is impaneled, then the second 

jury that is going to decide the merits case is going to have to reex-
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amine the finding of the first jury. That also violates the 7th 

Amendment. 

All right. Now, let us turn to the definition of ‘‘injury.’’ ‘‘Injury’’ 

is defined as an alleged impact on body or property. Now, the word 

‘‘body’’ does not do any work here because generally you cannot 

bring a personal injury class action. But there are bigger problems 

here because the law does not contemplate injunctive class actions, 

so that would kill, as we heard, the type of class action that everyone agrees is legitimate, class actions like Brown v. Board of Education. 

Procedural law like this should not abridge people’s substantive 

rights, and that is what this bill would do. The purpose of procedure is not to block cases. The purpose of procedure is to help 

judges reach the merits of the case. I understand that defendants 

have raised a lot of criticisms about some consumer laws. I do not 

agree with their criticisms, but it really does not matter because 

no matter what you think about the benefit of the bargain type 

lawsuit, under the Uniform Commercial Code, this law is not going 

to solve that because these are State lawsuits, and Federal courts 

cannot make State law. That is the federalism problem with this 

legislation. 

Right now the Judicial Conference is considering Rule 23. They 

are experts. Procedure, you have to understand, is like chess. Every 

time you move a piece, you have to think three steps ahead. What 

are all the other pieces on the board doing? All the possible implications of changing the procedural rules have to be considered, and 

I do not think they have been in this case. It is better to let the 

Rules Committee think through all the possible implications and 

problems and decide whether or not this type of change is a good 

change before you go ahead and make major, major changes to the 

class action rule. 

Thank you so much for your time. 

[The prepared statement of Ms. Lahav follows:] 
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Mr. DESANTIS. Thank you. 

I now recognize our fourth and final witness, Mr. Trask. You are 

recognized for 5 minutes. 

TESTIMONY OF ANDREW TRASK, COUNSEL, 

McGUIREWOODS LLP, UNITED KINGDOM 

Mr. TRASK. Thank you, Mr. Chairman, Ranking Member Cohen, 

and other Members of the Subcommittee. Thank you for the opportunity to testify today. 

I think as you have heard from each of the witnesses, the real 

concern here that everyone has regardless of how we come out on 

this bill is how the bill would affect primarily the absent class 

member. That is, the member of the class who is not in the caption 

itself and who is not the one who elected to come before the court, 

but would be bound by the decision that occurs regardless of what 

happens. It is my considered opinion after litigating a number of 

these cases and after looking over this bill that the interests of that 

absent class member are best served by the language of this bill. 

This bill puts forward a very modest reform that would prevent 

some of the abuses that currently mean that absent class members 

do not get the relief that they ought to have. 

I would like to talk about one very specific example for the few 

minutes that I have remaining. You have already heard about the 

Whirlpool cases, which are an example of what happens if an 

overbroad, no injury class action goes to trial. The vast majority of 

class actions, however, do not go to trial. They are settled or they 

are disposed of on the merits in another way. So let us talk about 

settlement for a moment and what happens when you have an 

overbroad, no injury class action that is settled. 

The case I would like to refer to you has gone under several 

names, most commonly Pella Corp. v. Saltzman and EUBank v. 

Pella Corporation. It has been up in front of the 7th Circuit several 

times. The allegation here was against Pella Corporation, which 

makes casement windows. Those are the windows that go in your 

house like this, and the allegation in the complaint was that these 

casements had an inherent defect. Under the right conditions after 

a certain amount of time it is possible that these could let water 

into the frame. Water is in the frame is bad because it makes the 

wood wet, and wet wood warps and does all kinds of other things 

that we do not like. 

A class was certified in this case. In fact, two classes were certified by Judge Zagel of the Northern District of Illinois. And before 

I go any further, Judge Zagel is a very good, very conscientious jurist, and what he did was he looked at what was being put forward, 

and he certified nationwide a no injury class where no one had an 

injury yet, but were all claiming that there might be a potential injury, and it gave them the opportunity to seek declaratory relief. 

It then certified a second set of subclasses under six sets of State 

law—a tongue twister if I have ever heard one. And for people who 

were actually seeking injury, those were the six state laws that 

would allow them to seek injury. 

The defendants appealed the certification. If I had been the defendant there I would have advised my client to do so. The 7th Circuit Court of Appeals, led by Judge Posner in this particular case 
83 

who wrote the opinion, affirmed the certifications. Let me also say 

Judge Posner is a really careful, really conscientious, really very, 

very respectable jurist. His focus was on the inherent defect that 

could potentially cause harm. He believed that they could put off 

the injury inquiry until after there had been the trial on liability 

itself, and he stressed the importance of how Judge Zagel had certified these six separate state law subclasses for people who had 

suffered injury, pointing out that he had tried very hard to group 

like with like. 

Now, frankly, this would have passed muster under the bill that 

is going forward now. The opinion affirming certification occurred 

in 2010. 4 years later the case settled, and I will go very briefly 

over what happened there. There was a single unified settlement 

class. It was no longer these separated classes. There was a claim 

procedure for injured members. There was a $750 cap or $6,000 

cap, depending on the procedure you elected. The ultimate claim 

rate was 1 and a half percent. That means that out of 225,000 notices that were sent out to class members, 1,276 claims were submitted and paid money, on average about $1,075 per claim. That 

meant the aggregate value of the settlement was $1.5 million. 

Most of the no injury class members received a warranty extension. That is what the settlement claimed. In fact, they received 

the warranty extension a year beforehand from Pella Corporation, 

but it was reiterated in the settlement in order to secure a release 

of any claims that they might have going forward. So that was a 

full release of claims. 

So $1.5 million, warranty extension you have already received, 

full release of claims. The attorneys received $11 million in fees. 

The terms were so egregious that four of the named plaintiffs, four 

of the people in the caption, objected to the settlement. Their counsel removed them from the case, replaced them with more compliant-named plaintiffs, and proceeded to get the settlements certified 

by Judge Zagel. On appeal, Judge Posner overturned the settlement calling it scandalous. 

If this statute had been in place, there would have been a certification of a trial class given Judge Zagel’s considered opinion. However, there would not have been the settlement of the settlement 

class because it mixed together these people who did not have the 

same injury and should not have received the same relief. 

Very briefly, under the proposed amendments that the Judiciary 

Committee, or not the Judiciary Committee, but the Committee on 

Civil Rules has put forward, in fact, there would have been almost 

automatic certification of the settlement class, and that is what we 

are dealing with on the other end of this. That is the reason why 

this particular bill is such a good idea in this case. 

Thank you very much, and I look forward to your questions. 

[The prepared statement of Mr. Trask follows:] 
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Mr. DESANTIS. Thank you for your testimony. We will now proceed under the 5-minute rule with questions, and I will begin by 

recognizing myself for 5 minutes. 

You know, Mr. Beisner, if someone went to court and said, Judge 

someone has a problem with their washing machine, mine works 

fine, but give me some money anyway, I think we all would agree 

that that case would not be taken seriously. So then why should 

a class member recover money in a class action if he or she would 

never be able to recover an individual action? 

Mr. BEISNER. They should not in that circumstance, but that is 

how these class actions are often brought is to include all of these 

individuals who have had no problem. I was taken by one of the 

witnesses talking earlier about this bill cutting off one’s hand to 

address a splinter. That is sort of what we are talking about with 

these class actions. You create this class of millions of people because allegedly a small number had a problem, and rather than addressing the problem they had, you get this gargantuan class action. 

Mr. DESANTIS. So, I mean, why would we want an individual to 

be paid for a product that functions properly and has satisfied his 

or her expectations? 

Mr. BEISNER. You should not, and the reason is that, as has been 

noted in several decisions in my testimony by judges ranging from 

John Minor Wisdom to Frank Easterbrook over the years have 

made clear, all this does is means that the people who really are 

injured probably are not going to be properly compensated, and you 

drive up prices for everybody else because you are just redistributing money to address claims that do not involve any real injury. 

Mr. DESANTIS. And so, for some courts, I mean, every product 

that is mass produced, there are going to be some problems somewhere along the line with some of the consumers. So basically 

under the approach of some courts, you could potentially have a 

class action for almost any product that is produced in the country, 

correct? 

Mr. BEISNER. That is the concern, and that is the worry that is 

happening here that you find one person that, as I used in the example, had an oil leak, and it mushrooms into a lawsuit that frankly wastes a lot of the court’s time dealing with claims that really 

are not out there. 

Mr. DESANTIS. If the percentage of class members who typically 

submit claims forms in a class action settlement is between 1 and 

5 percent, then who is the one benefitting from the class actions? 

Mr. BEISNER. Well, I think that is one of the concerns that was 

highlighted at the Subcommittee’s hearing several months ago was 

the fact that in a very large percentage of consumer class action 

settlements anyway, the claims rates are low. And it is commonplace that the aggregate amount that the class gets is substantially 

less than what the attorney’s fees are that are awarded in the case. 

Mr. DESANTIS. So in your opinion, do you think a class action in 

which one plaintiff experienced a problem and the vast majority of 

the class did not should satisfy the typicality requirement? 

Mr. BEISNER. It should not. The class representative, if the 

typicality requirement is properly invoked and imposed, should 
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limit the class to people who had the same experience as the class 

representative. 

Mr. DESANTIS. Now, how do victims suffer under a class action 

system in which those who are minimally injured or not injured at 

all occupy the same class action as those who do have significant 

injuries? 

Mr. BEISNER. Well, I think the problem in that circumstance is 

that if a settlement is negotiated, the people who have had the bad 

experience, if there are some there, may be undercompensated in 

order to provide some benefit to those who have not had the problem. And as I said earlier, I think another problem with these is 

it just jacks up problems on various things because somebody has 

got to pay to provide relief who had a perfectly satisfactory experience with the product or service that they purchased. 

Mr. DESANTIS. Now, when you have injured and non-injured 

members in a class, how does that, if at all, diminish due process 

rights for the defendant who is defending against it? 

Mr. BEISNER. Well, I think the problem with the due process perspective with sort of the trial example I was talking about earlier 

is if you put before the jury a person who comes in with their 

truckload of laundry that they think is moldy and say please give 

me compensation, it does not fairly tell the jury about the fact that 

most of the people who are in the class that that person represents 

are perfectly happy with their product, which is a situation we 

have in a lot of these cases. 

Mr. DESANTIS. Thank you. My time has expired, and I will now 

recognize for 5 minutes the Ranking Member of the Subcommittee, 

Mr. Cohen. 

Mr. COHEN. Thank you, sir. Mr., is it Beisner? 

Mr. BEISNER. It is actually Beisner. Thank you. 

Mr. COHEN. Beisner. Are you familiar with Professor Arthur Miller? 

Mr. BEISNER. Yes, I am. 

Mr. COHEN. Tell me what you know about Professor Arthur Miller’s background. 

Mr. BEISNER. He is a professor who used to teach at Harvard. 

Was at Michigan before that, and he is now at NYU, and he is a 

plaintiff’s lawyer. He is affiliated with a plaintiff’s law firm in 

Houston, Texas. 

Mr. COHEN. Is he considered an expert on the subject of class actions? 

Mr. BEISNER. I think he appears in court. He is an advocate on 

that. He is an expert, and you have got a row of experts at this 

panel here as well. 

Mr. COHEN. Professor Miller says this is a kill class actions bill. 

Ms. Lahav, why would you think he would say such, this expert on 

class actions? 

Ms. LAHAV. Because it is a fact. The way the bill is drafted, it 

is drafted in such a way that there is no class that can meet the 

requirements of the bill as an ordinary court would read the language of the bill. So that is the reason why Professor Miller would 

say that. I just would like to say one other thing about Professor 

Miller is that one of his claims to fame is he actually represented 

the defendants in a case called Shutts, which is the most famous 
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class action case. So I would say he is in between everybody in 

terms of his position. 

Mr. COHEN. Lots of suggestions that in the Whirlpool case there 

were no damages to a lot of people. What is your position? What 

do you believe about that? Is there such a thing as—— 

Ms. LAHAV. No. Actually Mr. Beisner said earlier, he said did you 

get what you paid for. That is what these types of class actions are. 

I like to think of them of benefit of the bargain class actions. No, 

I did not like litigate the Whirlpool or any case—— 

Mr. COHEN. Mr. Beisner, you are litigating the Whirlpool case, 

is that correct? 

Mr. BEISNER. I am not in the Whirlpool case, no. 

Mr. COHEN. Have you been in the Whirlpool case? 

Mr. BEISNER. No. 

Mr. COHEN. Have you been in a case that would be affected by 

this litigation? 

Mr. BEISNER. Well, I mean, I am in a number of class actions 

that would be affected by the legislation. 

Mr. COHEN. Okay. Go ahead, Ms. Lahav. Thank you, sir. 

Ms. LAHAV. He may be doing one of the Washington cases. But 

at any rate, here is what I understand not being directly involved 

in the cases. The alleged defect was mold, that the washing machines got moldy. Sometimes that means that the laundry smells, 

but in any event the washing machine gets moldy. 

And then what the manufacturer did is they sold a product that 

purported to fix the mold problem. It was called Affresh. So the 

idea is, well, you bought this washing machine. I do not know how 

much that one cost. Mine cost $750, we will call it $750. It is not 

an exorbitant amount, but anyway you paid $750 for it. And then 

they say, well now you are going to have to buy all these extra tablets to put in your washing machine for, you know, $300 over the 

life of the machine. 

And there was a warranty, but when plaintiffs asked the company to fix the mold as part of the warranty, the company said, no, 

it is your fault that the machine got moldy, and thus, as I understand, the lawsuit was born. 

So the real actual question and legal question is when people buy 

a washing machine, do they expect it to be moldy or not? I do not, 

but that is me. And in any event, the point is that that question 

is not for us to decide in this hearing. That is a question for a court 

to decide, whether people in that class got the benefit of the bargain. And that case did go to trial, and the jury did make a decision in that case, and that is how litigation is supposed to work. 

Mr. COHEN. There is a study going on right now in the judicial 

branch of this particular issue, the Judicial Conference of the 

United States. It is a study of potential amendments to Rule 23. 

Why should we not let the judicial branch give us a remedy if there 

is a problem? 

Ms. LAHAV. I think that is the way to go. First of all, the people 

at the FJC, the Federal Judicial Center, who do those studies, they 

are really superb in terms of the level of competence that they 

have. And I think the judges are in a position to determine what 

is the best course of action in terms of reforming Rule 23. It happens that they really are studying it right now, and they plan to 
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have a proposal this calendar year, so it does seem to me like waiting and seeing what happens with that is the better course of action. 

Mr. COHEN. And there was some issue about possible civil rights 

cases being affected, and I think Mr. Beisner did not think they 

would be affected. Do you think they would be affected? 

Ms. LAHAV. They certainly would be affected. All injunctive actions would be affected by this bill the way it is written. That is 

correct. I do not see a way around that. 

Mr. COHEN. I yield back the balance of my time. 

Mr. DESANTIS. The gentleman yields back. The Chair recognizes 

the gentleman from Michigan, the Ranking Member of the full 

Committee, for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. Let me ask Attorney 

Lahav the following question. Professor Arthur Miller, arguably the 

foremost expert on Federal practice and procedure, has said this: 

‘‘H.R. 1927 is truly a solution in search of a problem,’’ because Rule 

23 doctrines and procedures are capable of dealing with overly 

broad theoretical classes. Is that a fair statement of law as you understand it? 

Ms. LAHAV. Yes, that is correct. I mean, I think that the courts 

have since the passage of the Class Action Fairness Act and also 

a procedural rule that permits appeals from class certification decisions, that the law in class actions has developed pretty significantly. And courts are very rigorous in their interpretation of Rule 

23 and their application of it, and you saw in 2011 with the 

Walmart case that that level of rigor is being affirmed by the Supreme Court. 

The plaintiffs in class actions have to show that they are typical 

of the class members, and if they cannot show that, then they do 

not get a class. And actually I think that Mr. Trask’s testimony 

about the Pella case and the first judge, whose name I forget, his 

initial decision demonstrates how careful judges are in crafting 

class actions. And there are lots of cases I can cite you from Judge 

Easterbrook, and Judge Posner, judges on the 1st Circuit and the 

2nd Circuit, you name your circuit, the 5th Circuit, who are doing 

a great job looking at class actions, policing class actions. And I 

think that we can trust them to apply the law fairly and rigorously 

in this area, and that is what they have been doing. 

Mr. CONYERS. Thank you. Now, is there such a thing as a no injury class action? This is a kind of new one on me. What do you 

know about that? 

Ms. LAHAV. Not that you can get certified. There is something 

called a benefit of the bargain theory of law. It is State consumer 

law under the Uniform Commercial Code, the UCC, which I have 

to confess I found exceedingly boring when I was in law school. 

And what I understand that means is if you buy something you 

should get what you pay for. So if you buy roofing tiles and you 

think that they meet the requirements of the National Roofers Association or whatever it is, and then it turns out that they are 

shoddy roofing tiles, you can get compensation for that under the 

UCC, under State law, even if your roofing tile did not fall apart. 

And that is the idea of did you get what you paid for. 
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And there are other examples that I can give. One of the cases 

gives a great example of if you buy a gold ring and the gold ring, 

they tell you it is 18-carat gold, and then it turns out it is 10-carat 

gold. You did not get what you paid for. You might be just as 

happy with the ring, right? I wear my wedding ring. I am happy 

with it. But if I learned that it was not 18-carat gold, well, I would 

think that the person who sold it to me should give me the difference of the value there. That is what a benefit of the bargain 

class action is. 

Mr. CONYERS. Now, your fellow witness, Mr. Beisner, says that 

H.R. 1927 is merely a codification of an interpretation of Rule 23’s 

typicality requirement that is already applied by some Federal 

courts. Do you think that that is accurate, or do you support that? 

Ms. LAHAV. No, I do not. I think that is not a correct description 

of the law of class actions. 

Mr. CONYERS. What is the problem? 

Ms. LAHAV. Well, so it is correct in every court in the United 

States you have to have a rigorous showing by a preponderance of 

the evidence that you are typical of the other class members. But 

you do not have to show that you have the same and extent of injury. That is the language in this bill. So that is my John and 

Mary. 

John and Mary are similar in the sense that the bank, you know, it is a story, right, an illegal fee of $2 for each transaction, but they 

had different transactions, so the extent of their injury is different. 

The John and Mary case could be certified today under the current 

law. It could not be certified under H.R. 1927, so that would be a 

difference that this bill would create. 

Mr. CONYERS. I thank you very much for your responses to my 

question. Thank you, Mr. Chairman. 

Mr. DESANTIS. Thank the gentleman. The Chair now recognizes 

the gentleman from New York for 5 minutes. 

Mr. NADLER. Thank you. Mr. Beisner, let us go ahead with Professor Lahav’s hypothetical. You have got this bank that is cheating everybody by putting a $2 illegal fee on all ATM transactions. 

And let us say it is a small bank, so it is 4 million people who uses 

its ATM machines. Now, under this bill, in order to certify a class, 

they have to affirmatively demonstrate through admissible evidentiary proof that each proposed class member, all 4 million of 

them, suffered an ‘‘injury of the same type and extent as the injury 

of the named class representative/representatives.’’ So you have to 

show by this language. 

Why does that not mean that they have to have 4 million witnesses or documentary evidence as to the extent of the damages to 

4 million people by name? 

Mr. BEISNER. No, they would not need that at all. This is the 

same sort of, first of all—— 

Mr. NADLER. Why would they not? 

Mr. BEISNER. Why would they not? Because when you do class 

certification, there is a normal process where you have to already 

demonstrate class-wide proof of the—— 

Mr. NADLER. Yes, but this hinders that. 

Mr. BEISNER. No, it does not because, you know, this idea of the 

full-blown trial is needed. There is no mention of a trial in here. 
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Mr. NADLER. It says ‘‘affirmatively demonstrates through admissible evidentiary proof.’’ 

Mr. BEISNER. Right. 

Mr. NADLER. How else would you meet that phrase? 

Mr. BEISNER. That is required now to get class certification. 

Mr. NADLER. I am not talking about right now. How would you 

meet that phrase without bringing in all these witnesses or documentary evidence for each of these witnesses? Not witnesses—— 

Mr. BEISNER. You would not. As I stated in my testimony, you 

would get evidence from the bank of the records, and you would 

demonstrate that these people got less money than they were entitled to. That is how it is done. 

Mr. NADLER. And you have got a different amount of less money, 

why would they not fall out of the class? 

Mr. BEISNER. I do not—— 

Mr. NADLER. Actually why would they not invalidate the class 

because they did not suffer an injury of the same type and extent. 

Mr. BEISNER. Sure. Depending, you know, if you had dramatic 

differences in the amounts of money, it may not qualify here. 

Mr. NADLER. It does not say ‘‘dramatic.’’ It says ‘‘the same.’’ 

Mr. BEISNER. The same type—— 

Mr. NADLER. Some are $2, some are $10. 

Mr. BEISNER. The same type and extent. It does not say ‘‘identical amount.’’ This would be—— 

Mr. NADLER. Ms. Lahav, why is he wrong? Ms. Lahav, why is he 

wrong or disingenuous? 

Ms. LAHAV. Because it says ‘‘same.’’ It does not say ‘‘kind of,’’ 

‘‘similar,’’ ‘‘in the same family,’’ you know. It says ‘‘same type and 

extent.’’ So a court—— 

Mr. NADLER. And ‘‘extent’’ means $2, not $6. 

Ms. LAHAV. That is my reading of it. I think that a court would 

read it and say you do not have the same type and extent of injury. 

You lost $200, and you $10, and you are different. 

Mr. NADLER. And, Mr. Beisner, why are we wrong in saying that 

Section B of the bill, it says ‘‘The term ’injury’ means the alleged 

impact of the defendant’s actions on the plaintiff’s body or property,’’ means that civil rights lawsuits and other types of intangible 

or non-damage to the body are not excluded from class actions? 

Ms. BEISNER. I think there is a simple answer to that. If you are 

in a civil rights suit and if the named plaintiff is not alleging that 

they had damage to property of any sort, they are then alleging the 

same type of injury as all class members. 

Mr. NADLER. But it does not say that. 

Mr. BEISNER. Yes, it does. 

Mr. NADLER. ‘‘’Injury’ means the alleged impact of the defendant’s actions to plaintiff’s body or property.’’ As I read that, as anybody familiar with the English language would read that, it means 

that you have to have an injury to the body or property. 

Mr. BEISNER. No, I do not think so. It said each proposed class 

member suffered injury to body or property of the same type or extent. He would say I—— 

Mr. NADLER. Section B says ‘‘The term ’injury’ means the alleged 

impact of defendant’s actions on the plaintiff’s body or property.’’ 

Mr. BEISNER. Right. 
98 

Mr. NADLER. You would be correct if this bill only had Section 

A but not Section B. 

Mr. BEISNER. No. 

Mr. NADLER. Why is Section B in here? What is the point of it? 

Mr. BEISNER. To deal with precisely the thing you are talking 

about, to take injunctive relief cases out of the bill, what they 

would say, let us read that in there. Each proposed class member 

suffered A, and then insert in there ‘‘injury to plaintiff’s body or 

property of the same type or extent as the injury of the named 

class representative/representatives.’’ What the class representative 

would say is I did not suffer any bodily or economic harm here. I 

am here for injunctive relief, and that is what the class member—— 

Mr. NADLER. That is very nice, but that is not what the bill says. 

Mr. BEISNER. No—— 

Mr. NADLER. The bill says ‘‘The term ’injury,’’’ and you can only 

get a class action for an injury of the same type and extent. It has 

got to be an injury of the same type and extent. 

Mr. BEISNER. No. 

Mr. NADLER. And then it says ‘‘An ’injury’ means alleged impact 

on the plaintiff’s body or property.’’ Ms. Lahav, is he being disingenuous? 

Ms. LAHAV. Under this reading it is okay to have a no injury 

class action. I thought the whole point of it was that we do not 

want no injury class actions anymore. 

Mr. BEISNER. No, that is—— 

Mr. NADLER. And let me ask you one last question. You say that 

there was no injury, for instance, in the Whirlpool washing machine case. If there is no injury there, why did the Supreme Court 

not throw it out on standing? 

Mr. BEISNER. Well, the Supreme Court did not cite the case. 

They did not consider, so they did not throw it out on that ground. 

They did send it back to the—— 

Mr. NADLER. Why did they deny cert then if there is clearly no 

standing? 

Mr. BEISNER. The vast majority of cases they do deny cert. They 

just do not reach the issue. 

Mr. NADLER. Ms. Lahav? 

Ms. LAHAV. Look under State law. There is standing. Judge 

Easterbrook said it. Judge Jones said it. 

Mr. NADLER. And if there is standing, that means there is injury. 

And if there is standing that means that the court found there is 

injury. 

Ms. LAHAV. It is a State law question. 

Mr. NADLER. But if the State court said there was standing, they 

said there was injury. Without injury there is no standing, correct? 

Ms. LAHAV. Correct, yes. 

Mr. NADLER. Thank you. 

Ms. LAHAV. Under State law there is an injury. 

Mr. NADLER. Thank you. 

Mr. DESANTIS. The gentleman’s time has expired. The Chair now 

recognizes the gentleman from Florida for 5 minutes. 

Mr. DEUTCH. If I did not have a few comments I would like to 

offer, I would probably just say that the defense rests. [Laughter.] 
99 

Thank you, Mr. Chairman. Look, today’s hearing may be on the 

Fairness in Class Action Litigation Act, but it is really, I believe, 

a hearing on the 7th Amendment of the United States, to the U.S. 

Constitution. The 7th Amendment guarantees all Americans the 

right to a trial by jury in civil cases. It is part of the Bill of Rights. 

It is kind of important. 

Our Nation’s framers understood that the right to jury trial in 

civil disputes would ensure a level playing for all Americans, not 

just the wealthy and the well connected. Class actions are also an 

essential feature of our legal system because they allow individuals 

in similar situations to file lawsuits that would be far too expensive 

to file on their own. And they might be too expensive for our courts 

to hear on their own, too. 

In an era of overloaded dockets and overstretched financial resources, class actions help our courts administer justice fairly and 

efficiently. They make it possible for the courts to resolve cases 

that involve large numbers of people harmed by a similar practice 

or with similar claims to be heard at the same time. Class actions 

also prevent and deter future actions that violate individuals’ 

rights or threaten the health and safety of our communities. And 

the ability to gain access to the courts through a class action is an 

effective check outside the Federal regulatory system on potentially 

bad behavior by large and powerful entities. 

Our laws already provide strong oversight to prevent class actions abuse. Under Rule 23, for example, only after confirming numerous findings may courts even grant class certification, a point 

that Mr. Beisner just acknowledged. And these findings allow 

courts to permit discovery, conduct hearings, and consider testimony, and collect evidence before issuing certification of a class. 

Afterwards, it is not the parties involved in the litigation that decide whether to certify, but the judge who has reviewed the evidence. In other words, we have a mechanism in place to weed out 

frivolous claims, and unless you consider the findings of an impartial judge to be frivolous, then the system we have works. 

This legislation does not improve class actions. It is meant to add 

class actions. The bill would prohibit a Federal court from certifying a class unless the parties seeking class certification produces 

evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named representative. That is the experience that we just heard. 

This legislation would make it impossible for victims to form a 

class. It would close the doors of the courtroom to the most in need 

of a remedy or judicial protection. It would guarantee that only 

those with the financial means to file extensive litigation get their 

day in court, and it would shut out Americans unable to pay the 

toll for justice. And it would pile on the backlog that our courts 

face, making it harder for all Americans to have their cases heard. 

Class actions are a critical component of our legal system and 

protect the 7th Amendment rights of people seeking relief. As 

former Supreme Court Justice William O. Douglas described, ‘‘The 

class action is one of the few legal remedies that a small claimant 

has against those who command the status quo.’’ For example, this 

bill would make it impossible for the homeowners in Hobby v. RCR 

Holdings to be brought in the Eastern District of Louisiana in 2013 
100 

to receive relief, relief that some of my own constituents would 

have been denied without this class action. 

This case provided relief to class members in condominiums in 

Boynton Beach, Florida whose homes were built with tainted Chinese drywall between 2005 and 2007 after Hurricane Katrina. The 

defective drywall used in these condos devastated the families who 

owned them. Not only did a sulfuric smell leak from their walls 

and permeate their homes, but it caused real damage. That damage ranged in some instances from mild to severe, corroding of electrical systems, and wires, and pipes, breaking cooling units, destruction of other household appliances. Sometimes what they endured from the Chinese drywall differed from the contaminated 

Chinese drywall, but the struggles that they faced were the same. 

Sometimes they were sick. Sometimes other members of their family became ill. 

This class action compensated members for their property damage as well as other financial losses, such as foreclosure and rental 

vacation properties rendered impossible to rent. Under this bill, 

Chinese drywall victims with contaminated drywall would have 

been on their own and out of luck. That is how this would have 

affected my constituents. 

Ms. Lahav, in the remaining few seconds that I have, this definition that in this bill would be a bar to bringing civil rights cases. 

Can you just explain that to us? 

Ms. LAHAV. Yes. It says you have to have an impact on the body 

or property of the individual, but often in civil rights cases we are 

defending rights that do not have a direct impact on body or property, such as due process rights, the right to vote, the right to be 

free from certain kinds of discrimination. You might be seeking an 

injunction instead of damages for the thing that happened to you. 

None of that is accounted for in this bill. And it says ‘‘no Federal 

court shall certify any proposed class.’’ That includes all those 

cases. 

Mr. DEUTCH. Thus, Mr. Chairman, we would find ourselves in a 

situation where we would be curtailing the rights of individuals to 

pursue their 7th Amendment rights, at the same time that they are 

pursuing those rights to uphold other constitutional rights. 

Mr. DESANTIS. The gentleman’s time has expired. Mr. Trask, I 

saw you in some of these exchanges. Do you have anything to interject about some of the issues that the minority side has raised? 

Mr. TRASK. Nothing that is not already in my written testimony, 

but I am more than happy to say that I really do believe that the 

way that the bill has been constructed was specific enough to make 

sure that civil rights class actions would, in fact, still be protected. 

There is a longstanding statutory canon that says expressio unius 

exclusio alterius. And if you will forgive my horrible high school 

Latin, what that means is when you single out one or two things, 

you leave everything else alone. In this case, the definition as it 

was written in singled out injury to body or property as being the 

things that have to be similar. That means that any other kinds 

of injuries that are asserted would be left alone. 

Moreover, and I think Ms. Lahav pointed out that I was trying 

very hard to point out that we have some very careful and conscientious jurists on the bench. Jurists like Judge Zagel and Judge 
101 

Posner, to name just a few, are the types of judges who are not 

going to allow language to completely eviscerate the class action. 

About every 10 years it appears that there is some class action reform proposed, either CAFA or the PSLRA. And every 10 years 

what happens is various interests get up and claim that either the 

securities class action or the class action in general is going to be 

eviscerated and die. 

And I have to tell you I keep defending the things, which means 

that so far they are doing fine. I do not think that this bill is going 

to do any worse harm than CAFA did. And frankly, I think what 

it is going to do is protect the interest of those absent class members that are there. Thank you. 

Mr. DESANTIS. Great. Well, thank you to the witnesses. This concludes today’s hearing. Thanks to all 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. 

Thank you again. Thanks to the Members. This hearing is adjourned. 

[Whereupon, at 5:14 p.m., the Subcommittee was adjourned.] 

(103) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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Letter from John H. Beisner, Partner, Skadden, Arps, Slate, 

Meagher & Flom LLP, Washington, DC 
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