Class Action Reform

Problem

Today, some class actions are meritless cases in which thousands, or millions, of plaintiffs with unique injuries and grievances are granted class status, often without the knowledge of class members.  In many of these cases, plaintiffs’ counsel negotiate settlements with the defendants early on that allow the defendants to avoid costly litigation, and rewards the plaintiffs’ counsel with millions in legal fees.  Meanwhile, the class members, who play no role in the negotiation process, and who often have no idea that plaintiffs’ lawyers are advancing a lawsuit on their behalf, often receive pennies or nearly-worthless coupons. 

ATRA's Position:

ATRA supports state legislation that allows only similar plaintiffs from the forum state with similar claims against similar defendants to be certified as a class.  ATRA also supports legislation that allows the interlocutory (immediate) appeal of class action certification orders. 


Opposition Opinion:

The personal injury bar’s argument against meaningful class action certification standards — that flexible standards make the process more efficient by incorporating all like claims, and more fair by ensuring representation for plaintiffs with claims that would not otherwise be profitable for attorneys — fails to address the hardship imposed by abuse of the device on class members, (who receive pennies, while their lawyers receive millions), defendants, (who are often forced to settle unmeritorious lawsuits), and consumers, (who ultimately bear the burden of class actions through increased costs). 

The personal injury bar’s argument against the interlocutory appeal of class action certification orders — that such orders are appealable at the end of a case — fails to take into account the strong incentive that defendants have to settle an unmeritorious case once the class is certified in order to save unnecessary litigation costs.

Rules of Procedure: A.B. 773 (2018)

Wisconsin|2018

Provides that any party has a nondiscretionary right to interlocutory

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Provides that any party has a nondiscretionary right to interlocutory appeal of class certification.  Specifies that, absent a showing by the moving party of substantial need and good cause (subject to an assessment of whether the burden of the proposed discovery outweighs its likely benefit), a party is not required to provide discovery of four categories of electronically stored information (ESI) as outlined in the legislation.  Provides that, upon a motion of a party, a court shall limit the frequency or extent of discovery if it determines that one of the following applies: the discovery sought is cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; the burden or expense of the proposed discovery outweighs its likely benefit or is not proportional to the claims or defenses at issue considering the needs of the case, the amount in controversy, the parties’ resources, the complexity and   importance of the issues at stake in the action, and the importance of discovery in resolving the issues.  Provides that a court, when ruling on a motion for a protective order, may order that discovery may be had only on specified terms and conditions, including the allocation of expenses.  Adds new language to the general scope of discovery by specifically providing that parties may obtain discovery regarding any nonprivileged matter that is relevant to the party’s  claim or defense and is proportional to the needs of the case, considering: importance of the        issues at stake in the action; amount in controversy; parties’ relative access to relevant   information; parties’ resources; importance of the discovery in resolving the issues; and whether the burden or expense of the proposed discovery outweighs its likely benefit.  Provides for automatic stay of discovery upon the filing of a motion to dismiss.  Provides for limitations on discovery methods unless otherwise stipulated by the court.  Reduces the statute of limitations for a number of causes of action including fraud, action for injury to character or other rights, and limitation when no other limitation is provided.  Changes the statute of repose for actions that result from deficiency or defect in an improvement to real property.  Lowers the interest rate on untimely payment of insurance claims from 12 percent to 7 percent.  Provides for mandatory disclosure of third party litigation financing.  Makes certain changes as it relates to third party audits of unclaimed property.


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Unchallenged

Class Action Reform: S.B. 704 (2011)

Oklahoma|2011

Adopts Iqbal/Twombly language and adds a new requirement for class

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Adopts Iqbal/Twombly language and adds a new requirement for class action lawsuits.  Provides that an action may be maintained as a class action if the petition contains factual allegations sufficient to demonstrate a plausible claim for relief.


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Unchallenged

Class Action Reform: H.B. 472 (2013)

Louisiana|2013

Provides that a class action cannot be maintained if the

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Provides that a class action cannot be maintained if the court would be required to look at the merits of any individual class member’s claim to determine whether or not the individual would fall within the defined class.  Furthermore, at the hearing on the motion to certify a class action, the plaintiff bears the burden of proof.


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Unchallenged

Class Action Reform: HB 4 (2003).

Texas|2003

Provides for the interlocutory appeal of class action certification.  Reforms

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Provides for the interlocutory appeal of class action certification.  Reforms attorney fees whereby fees are based on time and cost expended rather than a percentage of recovery.  Provides for stay on all proceedings during appeal of class certification.  Provides for administrative relief which requires a court to consider administrative relief from state agencies before certifying a class.


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Unchallenged

Class Action Reform: HB 2008 / SB 1522 (2011); Tenn. Code Ann. § 29.

Tennessee|2011

Provides for interlocutory appeal of class certifications.

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Provides for interlocutory appeal of class certifications.


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Unchallenged

Class Action Reform: H.B. 1013 (2013)

Oklahoma|2013

Adopted the expanded federal rule as a foundation for class

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Adopted the expanded federal rule as a foundation for class actions.  Includes specific procedures and guides the court must follow in appointing an attorney to represent the class.  Requires specific findings that must be included in an order certifying a class.  Requires more specific information be included in the notice provided to potential class members if a class is certified.  Calls for more specific court oversight of the case, particularly regarding dismissals and settlements.  Limits non-resident membership in state class actions and allows the court to stay, transfer or dismiss a case if it should be heard in another court


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Unchallenged

Class Action Reform: S.B. 16 (2013)

Oklahoma|2013

Defines who can be a member of a class and set

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Defines who can be a member of a class and set a procedure for the court to determine class attorneys and fees to be paid.  Allows the court to appoint an independent attorney to represent the class in any dispute over attorneys’ fees.  Provides that in coupon settlements, the attorney shall receive fee in coupons.


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Unchallenged

Class Action Reform- S.B. 704 (2011)

Oklahoma|2011

Adopts Iqbal/Twombly language and adds a new requirement for class

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Adopts Iqbal/Twombly language and adds a new requirement for class action lawsuits.  Provides that an action may be maintained as a class action if the petition contains factual allegations sufficient to demonstrate a plausible claim for relief.


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Unchallenged

Class Action Reform: HB 1603 (2009).

Oklahoma|2009

Defines who can be a member of a class and

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Defines who can be a member of a class and set a procedure for the court to determine class attorneys and fees to be paid.  Allows the court to appoint an independent attorney to represent the class in any dispute over attorneys fees.  Provides that in coupon settlements, the attorney shall receive fee in coupons.


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Challenged and Struck Down

Held unconstitutional by the Oklahoma Supreme Court in Douglas v. Cox Retirement Properties, June 2013.

Class Action Reform: HB 394 (1998); ORC Ann. 2505.02.

Ohio|1998

Provides for the interlocutory appeal of class action certification.

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Provides for the interlocutory appeal of class action certification.


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Unchallenged

Class Action Reform: H.B. 1211 (2004); § 512.020 R.S.Mo.

Missouri|2004

Provides for the interlocutory appeal of class action certifications.

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Provides for the interlocutory appeal of class action certifications.


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Unchallenged

Class Action Venue Reform: H.B. 464 (2012)

Louisiana|2012

Provides that when two or more actions requesting the same

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Provides that when two or more actions requesting the same certification of a class are filed in two or more Louisiana courts regarding the same transaction or occurrence at the same location, and such classes would encompass one or more of the same plaintiffs suing in the same capacities against the same defendants, the defendant may have all such actions transferred to the district court where the event occurred.  Provides that when two or more actions requesting certification of a class are filed in two or more Louisiana courts regarding multiple related transactions or occurrences in different locations, the defendant may have all such actions transferred to the district court where the first suit was brought.  Also, if within 30 days of certification of a class action, there are related putative class actions pending, they may be transferred to the court where the related action has been certified.  Defines domicile for venue purposes, with regards to a corporation or business, as either the state of formation or the state of its principal place of business, whichever is most pertinent to the particular issue.


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Unchallenged

Class Action Reform: HB 1984 (1997)

Louisiana|1997

Updates Louisiana class action laws by providing objective definitions of

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Updates Louisiana class action laws by providing objective definitions of class action terms, and detailed procedures for class action cases.


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Unchallenged

Class Action Reform: H.B. 2764 (2004) Amended K.S.A. § 60-223

Kansas|2004

Provides for the interlocutory appeal of class action certifications.

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Provides for the interlocutory appeal of class action certifications.


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Unchallenged

Class Action Reform: S.B. 19 (2005)

Georgia|2005

Specifies detailed procedures for the filing and certification of class

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Specifies detailed procedures for the filing and certification of class action lawsuits.  Provides for the interlocutory appeal of class action certifications.


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Unchallenged

Class Action Reform: HB 792 (2003)

Georgia|2003

Updates Georgia class action laws by providing for detailed procedures

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Updates Georgia class action laws by providing for detailed procedures for class action cases.  Specifies factors under which a court may decline to exercise jurisdiction in a cause of action of a nonresident occurring outside the state.


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Unchallenged

Class Action Reform: S.B. 2198 (2009)

Florida|2009

Provides that a stay of judgment is executed during interlocutory

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Provides that a stay of judgment is executed during interlocutory appeal.


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Unchallenged

Class Action Reform: H.B. 7529 (2006)

Florida|2006

Prohibits out-of-state residents from filing lawsuits in Florida courts unless

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Prohibits out-of-state residents from filing lawsuits in Florida courts unless the claim occurred or emanated from the state. Requires claimants to prove actual damages in order to maintain certain types of class actions. Would not preclude the Attorney General from bringing a class action to cover statutory penalties.


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Unchallenged

Class Action Reform: HB 1027 (2003)

Colorado|2003

Provides for the interlocutory appeal of class action certification.

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Provides for the interlocutory appeal of class action certification.


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Unchallenged

Class Action Reform: S.B. 1346 (2013)

Arizona|2013

Makes changes to how class action lawsuits are treated in

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Makes changes to how class action lawsuits are treated in Arizona. Most importantly, the bill allows for an interlocutory appeal of the class certification. If the court certifies the class, it is required to certify its action in writing, outlining why the action should be maintained as a class (including providing evidence in support of determination). If an appeal is filed, all discovery and other proceedings shall be stayed, except that if a party makes a motion, the court may permit discovery proceedings to continue during the pendency of the appeal. Finally, the bill provides for the trial court to make appropriate orders governing the management of the proceedings and provide for appropriate orders for the protection of class members during the trial proceedings.


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Unchallenged

Class Action Reform: SB 72 (1999)

Alabama|1999

Sets procedures to certify class actions.  Codifies Supreme Court rulings

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Sets procedures to certify class actions.  Codifies Supreme Court rulings to ensure that a defendant receives adequate notice prior to class certification.  Provides for an immediate appeal of any order certifying a class or refusing to certify a class, and for an automatic stay of matters in the trial court pending such appeal.


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Unchallenged