A Note to Mass Tort Plaintiffs on HR 985

HR 985, the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, has now passed the House and is pending in the Senate's Committee on the Judiciary.  How might that bill affect plaintiffs involved in mass torts like mesh, Essure, Yaz, Mirena, NuvaRing, Ortho Evra, Power Morcellator, or the many hip implant suits?

Simply reading the bill, I'm afraid, won't help too much.  It's shrouded in legalese.  As such, I've marked up the bill to explain in non-legalese which provisions help and hurt mass-tort victims and consumers.

Many of the class action provisions in HR 985 don't affect mass-tort plaintiffs at all since those lawsuits rarely proceed as class actions (albeit, there are some notable exceptions, like the NFL concussion cases and the injuries incurred during the clean-up of the BP oil spill; both litigations were certified as settlement class actions).  

There is, however, a possibility for judges to use class actions as a means to step in and ensure that plaintiffs are being adequately represented (and that resulting settlements are fair, reasonable, and adequate).  How?  Through the issue class action.  Unfortunately, as HR 985 is currently written, it would completely eliminate that possibility.  

I've studied MDLs for many years now and have written articles that are critical of both repeat player plaintiffs' attorneys and the manner in which judges sometimes handle these cases. Over the past four years, I've collected data on and analyzed 73 multidistrict proceedings.  Although I'm still in the process of writing a book about my findings, one thing has become glaringly clear to me: the systematic lack of checks and balances in our courts seem to profit everyone but the plaintiffs.

Analyzing the deals repeat players make, the “common-benefit” attorneys’ fees that the lead plaintiffs’ attorneys receive to run the proceedings, and the judicial rulings in mass-tort cases consolidated over 22 years and settled over 12 years reveals a disturbing pattern: repeat plaintiff and defense attorneys persistently profit from the current system.

Corporate defendants end sprawling lawsuits and lead plaintiffs’ lawyers broker deals that reward them handsomely and sometimes pay litigants very little. For example, in litigation over the acid-reflux medicine, Propulsid, only 37 of 6,012 plaintiffs (0.6 percent) recovered anything through the strict settlement program. Their collective recoveries totaled no more than $6.5 million. Yet, the lead plaintiffs’ attorneys received over $27 million in common-benefit attorneys’ fees, vividly illustrating the worry that a corporate defendant might trade higher fees for less relief to plaintiffs.

So, is reform needed?  Absolutely.  Is HR 985 the right ticket?  No, not as it's currently written.

As such, I've marked up the bill in a way that begins to instill the necessary reforms and eliminates (or changes) provisions that set up further (and unnecessary) roadblocks for plaintiffs.  It also explains what the proposed provisions do in plain English:  Download HR985 Burch Mark-up

If you want some version of HR 985 to pass, please consider forwarding this revised version to your Senator and do not support the bill as it reads now.

For those who care more about the legalese, I was contacted by a House subcommittee to provide nonpartisan, academic commentary on the bill, which I did.  That write up is included here (note, however, that this is a commentary on the original House bill and some changes have been made to the current bill that address a few of the concerns I raised):  Download Burch Final Comments on Fairness in Class Action Litigation Act

There's no need to take just my word for it, though.  Every other academic that I know of opposes this bill, as has the Federal Rules Committee.  This committee, formally known as the Committee on Rules of Practice and Procedure, just happens to include Neil Gorsuch, now Justice Gorsuch (of the U.S. Supreme Court), whose views are reflected in the letter below as well.

Here's a link to that letter:  Download Federal Rules Committee Letter
As well as to the American Bar Association's letter opposing HR 985:  Download ABA's Letter on HR 985

And here are links to other academic commentary - 

Professor John C. Coffee, Jr. (Columbia Law School):  Download Coffee - How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog
Professor Howard Erichson (Fordham Law School):  Download Erichson-hr985-letter
Professor Myriam Gilles (Cardozo Law School):  Download Gilles Letter to James Park on HR 985