February 29, 2016 Articles

Why the Rules Subcommittee Should Steer Clear of "No Injury" Class "Reform"

The real motive: to slice and dice class lawsuits and do away with consumer class actions entirely.

By James J. Bilsborrow

In 2011, the Federal Rules of Civil Procedure Advisory Committee appointed a subcommittee to consider potential amendments to Rule 23. Class action litigators and interest groups were quick to chime in on this effort. At its meeting in November 2015, the subcommittee appeared to pare its list of potential rule amendments to six, focusing on areas such as notice, class action objectors, settlement class criteria, and Rule 23(f) appeals of “preliminary approval” orders.

The defense bar lobbied—unsuccessfully for now, it appears—for rule changes that would prohibit or severely curtail so-called “no injury” classes. The subcommittee’s refusal to consider these proposed amendments is a positive development because any such rule change would constitute a step backward for consumers and those whose damages would not ordinarily justify a stand-alone action.

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