Here’s the first bill of 2016 for Rep. Kristi Noem, Senator John Thune, and Senator Mike Rounds to oppose: H.R. 1927, the Fairness in Class Action Litigation Act, FCALA, which is short for F-C- ALl-yA who bought those rigged Volkswagens.
Volkswagen faces a number of class action lawsuits from diesel VW owners and dealers. FCALA would kill many of those class action lawsuits by narrowing the definition of “class” to near impossibility and forcing litigants to prove their case before going to trial:
…the bill [states] that courts may not certify class-action suits unless the plaintiff “affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.”
“This is devastating because it sets up all class-actions to fail,” says attorney Lori Andrus, who represents several Volkswagen plaintiffs. If every class member must have the same type and scope of injury, it forces extensive proofs for class certification — essentially a full-blown trial up front, where plaintiffs will have to prove that their injuries match with their fellow representatives.
…In the Volkswagen case, for example, “it could mean the same model car, the same defeat device, the same emissions system, the same consumer harm,” [VW class action plaintiffs’ attorney Andre] Mura says. “When really Volkswagen engaged in the same course of conduct on all their vehicles.” Defense attorneys could claim that a class representative who released fewer emissions because they drove fewer miles than their colleagues, or drove in harsher weather, or with lower tire pressure, should be excluded from the case. That could either whittle down classes to limit damages or disqualify them from certification [David Dayen, “A Bailout for Volkswagen? Congress Wants to Do Something Absolutely Crazy,” The Fiscal Times, 2016.01.04].
FCALA set off alarms even before the Volkswagen scandal, with numerous consumer advocates and public interest groups recognizing that the bill is a Chamber of Commerce-backed ploy to insulate corporations from wronged customers who may suffer varying types and scopes of injury that are too small to litigate individually but, multiplied 600,000, demand justice from the guilty corporation.
The Justice Department filed a civil suit on behalf of the Environmental Protection Agency to take up to $22.5 billion out of Volkswagen’s hide. At least the Executive Branch has a sense of justice. Let’s see if the Legislative Branch can follow suit and protect citizens’ right to band together in class-action lawsuits to fight powerful and abusive corporations.
The House can vote on FCALA this week. They didn’t yesterday, when the House convened for under four minutes to note that they couldn’t do any business. But that’s o.k., since VW owners and dealers and other individuals who might be harmed by corporate lies now have time to send Rep. Noem (and if she won’t listen, Senators Thune and Rounds) a message: don’t vote for this latest squirt of corporate welfare. Vote down H.R. 1927 so citizens can hold corporate miscreants accountable.
p.s.: I drive a 2002 gasoline powered VW Beetle, purchased used in 2011. It passed 200,000 miles this fall and runs like a son of a gun. I have no financial interest in any pending or potential lawsuit over the current Volkswagen diesel emissions rigging scandal.
pp.s.: Watch out: even if our Congressional delegation kills this bad bill, pro-corporate front group ALEC is pumping the states with model legislation that would gut consumers’ ability to hold lying, cheating corporations’ feet to the fire of consumer protection laws.