Antitrust Groups Opposing Class Action Bill Focus on Senate

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By Liz Crampton

Antitrust groups fighting a bill that would reshape class lawsuits will turn their focus to the Senate after the measure passed the House March 9.

The measure is under review by the Senate Judiciary Committee. Chairman Chuck Grassley (R-Iowa) has sponsored legislation on class actions in the past and is interested in “further improvements” to the system, according to a spokeswoman. A companion bill has not yet been introduced. There are no committee events scheduled on the measure, but the Senate will be active until mid-April before it takes a two-week break.

Several groups that favor robust antitrust enforcement have publicly protested against the bill, H.R. 985, which would add preconditions to bringing class actions and complex litigation cases. It has raised alarm bells from plaintiffs lawyers, who say the bill’s rigid requirements for bringing class actions would deter consumers from holding companies liable for antitrust violations.

The House approved the bill on a 220-201 vote. All but 14 Republicans voted in favor of the measure, and no Democrats backed the bill.

The American Antitrust Institute, which opposes the bill, has been tracking it closely. In its monthly report to members, issued March 10, the group predicted that the bill would be blocked in the Senate. “Democrats have enough votes to filibuster any controversial legislation, assuming the filibuster is not repealed,” the group said. “It is unclear whether Senate Republicans will prioritize this bill and whether it will attract enough moderates.”

“We are hopeful senators will take a more thoughtful approach and reject this pro-corruption bill,” Eric Fastiff, president of the Committee to Support the Antitrust Laws, told Bloomberg BNA.

Asked about antitrust groups’ concerns ahead of the House vote, Rep. Bob Goodlatte (R-Va.), the bill’s sponsor, had little to say. “It doesn’t prevent anyone from bringing class actions,” he said. He didn’t address the specific concern of opponents that his bill would make it more difficult to bring class actions.

The U.S. Chamber of Commerce supports the bill. It said in a March 8 statement that the measure would “help correct many of the abuses that have turned class actions and mass tort [multi-district litigation] proceedings into cash machines for the plaintiffs’ trial bar.”

The House amended the bill to resolve one of the concerns of antitrust groups, although they still plan to fight it in the Senate. The amendment eliminated a prohibition in the original bill that would have kept counsel from bringing new class actions with former clients.

Some of the complaints about the measure are that it would require that all members of a class to suffer the same “type and scope” of injury to be certified as a class. Plaintiffs’ attorneys say that is an unreasonably high standard.

The Senate Judiciary Committee spokeswoman told Bloomberg BNA that the House-passed bill would likely be viewed in the Senate as an add-on to a 2005 law, P.L. 109-2, that was sponsored by Grassley. That law was designed to cut down on “frivolous” lawsuits by reducing forum shopping and requiring more scrutiny in the review of class action settlements.

“It’s important to consider whether those improvements have been effective in combating the abusive practices we were witnessing by unscrupulous trial lawyers who were reaping millions, while victims were receiving pennies on the dollar or nothing at all,” she said. “If further improvements are necessary to protect against abuses, it’s only appropriate that Congress considers them.”

To contact the reporter on this story: Liz Crampton in Washington at lcrampton@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com

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