On January 8, the U.S. House of Representatives passed the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016 (H.R. 1927, attached here), which seeks to address the presence of the uninjured in putative classes and the lack of transparency in asbestos trusts.
Although asbestos class actions have engendered much of class action law as we know it today, as shown by the Amchem and Ortiz decisions, for example, the portion of the Act concerning asbestos litigation is specific to that sort of litigation and does not appear to affect class action law generally.
The more important issue for everyday class action practitioners concerns the issue of including the uninjured in classes. This issue is currently front and center before the U.S. Supreme Court in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, dealing with, among other things, the inclusion of uninjured class members in a class action under Rule 23 or a collective action under the Fair Labor Standards Act.
Under the Act, money damages class actions (i.e., 23(b)(3) classes), could not be certified “unless the party seeking to maintain such a class affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.” Not only would it be plaintiff’s burden to demonstrate that the proposed class does not include uninjured class members, but the court would be required to conduct a “rigorous analysis” to ensure that this criterion is met.
While these issues may be addressed in the Tyson Foods case, it is important to recognize that many courts already deem classes including uninjured class members as overly broad, and the U.S. Supreme Court, in Wal-Mart and other cases, has repeatedly demanded that courts conduct a “rigorous analysis” in determining whether plaintiffs have met their burden of showing that the class action criteria are met.
Although the Act has little chance of passing at this point, the broad class action question it addresses of the inclusion of the uninjured as part of a class is an important one that should be answered either through the U.S. Supreme Court or Congress in the coming years.