Virginia is on its way to leaving Mississippi as the sole state with no class-action lawsuit remedy at the state level.
The Senate voted 21-18 Tuesday to pass a bill directing the Virginia Supreme Court to authorize class-action lawsuits.
The bill, SB 1180, which would not go into effect until July 1, 2022, requires the Supreme Court of Virginia to set down guidelines for class-action lawsuits by Nov. 1. Class-action lawsuits seek to consolidate cases “upon finding that separate civil actions brought by a plaintiff on behalf of multiple similarly situated persons involve common questions of law or fact and arise out of the same transaction, occurrence, or series of transactions or occurrences,” according to the bill.
Sen. Scott A. Surovell, D-Eastern Fairfax, filed the bill on Jan. 8. His 2020 version of the bill passed the Senate but was defeated by the House Courts of Justice Committee.
“I know a lot of this is new to Virginia, and I know it’s something not a lot of folks that practice law in the state are comfortable with, but this is the way the rest of the country works and the way it’s worked in the federal system for decades,” Surovell said Tuesday in his closing remarks on the Senate floor. “It’s time that Virginia brought our system up to speed with everybody else.”
Virginia consumer lawyer Kristi Kelly supports the bill. She is a board member for the Virginia Poverty Law Center, the Legal Aid Justice Center, and the National Association of Consumer Advocate. She is also on the National Consumer Law Center’s Partner’s Council.
“It’s a real access to justice issue and not having class actions prevents less sophisticated or low income consumers from redressing their rights against bad actors who harm them,” Kelly said. “And in many cases, businesses that follow the law and that do the right thing would benefit from this [bill].”
She said she does not understand why upstanding businesses in Virginia would take issue with this bill.
“Certainly the class-action bill is not designed to make [Virginia] less business friendly,,” she said. “But if businesses aren’t violating the law, they don’t have anything to worry about. And presumably [the bill] would remove bad actors from the marketplace.”
Some of these bad actors, Kelly said, include some out of state lenders who prey on Virginia’s weak consumer protection laws and loopholes. Given the absence of a class action remedy, Virginia lawyers cannot unite all aggrieved parties in one suit.
Most of the arguments in opposition to the bill focused on the strain it could put on already struggling Virginia businesses and the Virginia court system.
“The fact that Virginia does it different is not necessarily such a bad thing,” Sen. Mark D. Obenshain, R-Rockingham, said in the session. “I think many people would argue that we’re doing it right and that everybody else is doing it wrong. We do a pretty doggone good job of getting cases through from beginning to end in a pretty efficient way. And this year we’re, frankly, doing a lot to turn upside down our criminal and civil justice system and putting a lot of burden on our courts.”
One of the changes Obenshain was presumably referencing is the elimination of jury sentencing in criminal trials, a measure that passed last year. There is also a bill in committee that would majorly reshape the Virginia Court of Appeals.
Sen. Richard H. Stuart, R-King George, agreed with Obenshain, particularly because of the strain the pandemic has been putting on Virginian businesses.
“I generally would not be opposed to this,” Stuart said, “but i’m opposed to it now, because the timing is really bad for what our businesses have gone through and what they may have to continue to go through for the rest of the year.”
Sen. Mark J. Peake, R-Lynchburg, added, “Make no mistake about it: In most of these class-action lawsuits … the lawyers make fortunes and the plaintiffs receive pennies.”
In response to the opposition, Surovell said he believed the bill would actually relieve strain on both the courts and Virginia businesses.
Without the option for class-action lawsuits, “zillions and zillions of cases [are] filed at once, clogging our courts,” Surovell said.
Sen. J. Chapman Petersen, D-Fairfax City, agreed.
“In reality, a class-action simplifies the system because you get all these different claims in front of one judge,” he said.
Similarly, Surovell said that, in his experience, “I’ve found many businesses actually prefer to solve matters on a class basis, because it allows them to adjust their risk evolving out of a situation on a collective basis and resolve everything at once instead of having to deal with everything on a piecemeal fashion.”
The bill will next be considered in the House, where a date for discussion has not yet been set.