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July 01, 2011

Bill Would Make Unnecessary Class Action Changes

Measure threatens protection of legal rights for those with disabilities

The ABA expressed opposition last month to H.R. 2032, a bill pending in the House Judiciary Committee that the association maintains is unnecessary and would limit the ability of those representing individuals with disabilities from obtaining protection for their legal rights in court.

The bill, sponsored by Rep. Barney Frank (D-Mass.), would prohibit entities that receive federal funds from using those funds to file a class action lawsuit on behalf of residents of intermediate care facilities for the mentally retarded (ICF/MRs) unless the residents have the opportunity, after receiving notice, to opt out of the class.

The provisions of the bill would apply only to class actions filed by Protection and Advocacy Agencies (P&As), which exist in all states and territories as part of a system of legally based advocacy services for individuals with disabilities. P&As are authorized to undertake class actions under the Developmental Disabilities Assistance and Bill of Rights Act of 1975.

In a June 15 letter to House Judiciary Committee Chairman Lamar Smith (R-Texas) and Ranking Member John Conyers Jr. (D-Mich.), ABA Governmental Affairs Director Thomas M. Susman wrote that “class actions have long been recognized as providing an efficient and effective form of legal action designed to fairly and adequately protect the interests of a group of individuals with common questions of law and fact pursuant to the Federal Rules of Civil Procedure.”

While the Federal Rules allow class members to opt out of actions involving damages, class members are not permitted to opt out of actions pursuing injunctive relief. If H.R. 2032 were enacted, according to Susman, residents of ICF/MRs would be the only individuals in federal court with the right to opt out of a class action for injunctive relief, which may include actions to address abuse and neglect, unhealthy living conditions, or insufficient staffing at a facility.

He emphasized that H.R. 2032 is unnecessary because the Federal Rules already provide class members with a number of protections to ensure that their voices are heard, including appropriate notice to class members, the ability of class members to intervene as parties in the class to ensure they are adequately represented, and a required fairness hearing before any settlement, dismissal or compromise of the class action is allowed.      

“Having a full range of appropriate remedies, including the use of  class actions, has been a keystone to protecting the civil and legal rights of individuals with disabilities in all facets of their lives,” Susman concluded.

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