Imagine that a black man is stopped and frisked by New York Police Department officers. When he asks why he’s being stopped, one officer answers, “for being a fucking mutt.” Having no reason to arrest him, they let him go. Now suppose encounters like this happen not only to one man but to New Yorkers of color by the thousands.
Class action lawsuits provide a vehicle for bringing coordinated legal claims when large groups face such widespread wrongs. It was a class action, Floyd, et al. v. City of New York, that brought an end to the NYPD’s discriminatory and unconstitutional use of stop and frisk in 2013. I was a lead attorney on the Floyd trial, and our victory led to much-needed reform within the nation’s largest police department. Floyd’s existence and success hinged, though, on procedures that enable that kind of case, procedures that might soon disappear when lawmakers vote on a bill that would gut class actions.
Last month, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) introduced the “Fairness in Class Action Litigation Act of 2017” (H.R. 985), a pro-business bill that would impose significant new restrictions on class action lawsuits. Goodlatte proposed a similar bill by the same name last year, but it died in the Senate. The House is expected to vote on H.R. 985 this week, however, and insiders close to the bill believe it—or some version of it—could become law given the limited bandwidth of Senate Democrats to fight it and increased support for tort reform from the nation’s biggest lobbying group, the U.S. Chamber of Commerce.
In a statement, Goodlatte positioned H.R. 985 as a commonsense measure to prevent greedy trial lawyers from “gaming” legal loopholes and siphoning millions from corporations, but the bill would also have the effect — unintended or intentional — of making civil rights class actions nearly impossible to bring and successfully litigate.
H.R. 985 creates a web of hurdles for civil rights class actions. First, the bill would make it financially difficult for civil rights attorneys at nonprofits to take on these cases, which are resource-intensive, by delaying and limiting how courts award fees when a case is won. In addition, it would give defendants — the alleged wrongdoers — the right to automatically appeal a judge’s decision that a case can proceed as a class action, something that would disrupt and prolong a case, sometimes from the very onset.
Then, H.R. 985 would allow defendants to file repeated, consecutive motions that would stop discovery and halt proceedings, ultimately making it harder for attorneys to amass evidence in the case. The bill would also require each member of a class to prove almost identical injuries — for example, that two people unconstitutionally stopped and frisked by police had been held for the same amount of time.
Moreover, the bill seeks to redefine conflicts of interest to include situations where the same attorney or organization represents a plaintiff more than once. Such a provision threatens the work of groups like the one I help to direct at The Bronx Defenders. As part of our work, our Impact Litigation Practice consults with other Bronx Defenders attorneys working in the courts to identify injustices experienced by our clients. In the event that we did find reason for a class action suit, H.R. 985 would prohibit our organization from representing those clients and prevent those with arguably the best knowledge of potential clients from bringing their cases. Put aside that this limitation likely violates the right to counsel, it would frustrate the kind of collaboration that is a bedrock of civil rights enforcement.
Attorneys have come out in opposition to H.R. 985. The Impact Fund submitted a letter opposing the bill on behalf of 121 civil rights organizations, including the ACLU and NAACP Legal Defense and Educational Fund. And it’s not just civil rights lawyers sounding the alarm. The American Bar Association submitted a letter arguing that the bill creates a “nearly insurmountable burden for people who have suffered a personal injury or economic loss at the hands of large institutions with vast resources, effectively barring them from bringing class actions.”
For an idea of what that might look like, look to the decade after Brown v. Board of Education. In response to Brown, Southern states did not simply fold up resistance to desegregation; they got creative. Legislatures passed laws that said nothing about race but were in effect just as racially divisive. When black people tried to challenge those laws, Southern courts prevented them from bringing class actions, saying that, because the laws did not mention race, collective action was impermissible.
That meant each black student seeking to integrate an all-white school had to bring an individual case. If he won, relief applied only to him and no other student. He could get transferred to the all-white school, but he’d transfer alone. It would have taken immense resources to bring all of the individual cases necessary to actually integrate schools. That changed in 1966 with amendments to class action procedures, which mandated — among other things — that relief applied to all similarly situated people.
Fast forward 50 years and the president of the United States is issuing executive orders that violate due process and equal protection rights. Additionally, under memoranda issued by Homeland Security, immigrants face aggressive policing tactics and abridged deportation proceedings, which could mean mass violations of the Fourth and Fifth Amendments. Jeff Sessions, no champion of civil rights, is the country’s chief law enforcement officer. Civil rights litigation seems as critical as ever.
With threats to the balance of power in this country on the rise, protecting the class action is urgent. Courts can serve as a check against civil rights violations, but only if lawyers are able to bring cases that challenge government abuse.
Jenn Rolnick Borchetta is deputy director of the Impact Litigation Practice at The Bronx Defenders. She serves as an attorney for the plaintiffs in Floyd v. City of New York, which proved the New York Police Department’s use of the stop and frisk tactic was unconstitutional and racially discriminatory.