March 22, 2017
The Honorable Mitch McConnell
317 Russell Senate Office Building
Washington, DC 20510
The Honorable Charles Schumer
322 Hart Senate Office Building
Washington, DC 20510
Dear Majority Leader McConnell and Minority Leader Schumer:
I write on behalf of the National Council on Disability (NCD), an independent, nonpartisan federal agency charged with advising the President and Congress on disability policy matters, to address H.R. 985, 115th Cong. (2017), a bill recently passed by the House that would fundamentally alter class action lawsuits, and to urge you to consider an amendment striking the bill’s “issues classes” provisions should the bill advance in the Senate.
H.R. 985’s class action provisions aimed at class counsel will have a particularly adverse impact on civil rights plaintiffs, including individuals with disabilities who seek to protect their rights under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the many other vital laws that protect the civil rights of the disability community. The bill’s “reasonable percentage of equitable relief,” including any injunctive relief, standard is capricious and impracticable. Within disability rights litigation equitable relief is often sought by plaintiffs in cases that involve issues that cannot be easily boiled down to cash value determinations, such as deinstitutionalization, and are by no means frivolous.
Many within the disability community, as I’m sure you are aware, are economically disadvantaged. Their rights are often times defended in court through the efforts of nonprofit organizations that simply cannot bear the risk of what are typically long and expensive cases if their fees will ultimately be calculated under the aforementioned “reasonable percentage of equitable relief” standard that H.R. 985 presents. Certainly, the bill creates an incentive for defendants to protract litigation through seemingly endless filings to make it economically impossible for plaintiffs’ attorneys to continue with the case. Additionally, the fact that the bill establishes that a federal court of appeals must always permit an appeal for an order granting or denying class-action certification, as opposed to leaving that decision to the discretion of the court per Rule 23(f) of the Federal Rules of Civil Procedure, is alone cause that a case might be protracted to the detriment of the less affluent party.
Further, while the alteration to Rule 23 may appear impartial as it allows for an appeal despite the ruling of the class certification order either way, that appearance is undermined by the bill’s heightened requirements for Federal Rule of Civil Procedure 23(c)(4) class-action certification with respect to particular issues. Those heightened requirements make class-action certification more challenging and thus less likely that a court of appeals would rule in favor of the requesting party even if that party could afford to litigate the issue throughout that review. Such an outcome does not represent American values of civil rights protections or fulfill the promise of the country’s necessary civil rights laws as passed. Instead, this bill will serve as a blow to not only judicial efficiency but the means in which necessary systemic advocacy is achieved as well, as previously noted.
Indeed, the history of civil rights achievements in the US is rife with examples of class-action cases that resulted in wholesale systems change, including for people with disabilities, such as Chambers et. al. v. City and County of San Francisco (N.D. Cal. 2006). Plaintiffs in that lawsuit claimed unnecessary institutionalization at Laguna Honda, a more than 1,000 bed nursing facility owned and operated by the City. Plaintiffs preferred and were determined to live in their own homes and in the community. San Francisco’s actions, Plaintiffs argued, violated the ADA, which requires that individuals with disabilities be provided with services in the “most integrated setting appropriate.” The Parties agreed to settle, resulting in the ability of Plaintiffs to live in and be part of the larger community. Individuals representing a national class of blind persons sued the Target Corporation in federal court (National Federation of the Blind et. al. v. Target Corporation, (N.D. Cal. 2006)) claiming that its website was not accessible as is required by the ADA. The resulting settlement was a crucial step in the direction of improved web accessibility for disabled consumers. Those are just two examples of class action suits having far-reaching implications for people with disabilities – being able to live in the community, and accessing the Internet.
While NCD is not an advocacy group, in our role as advisors to the President and Congress, we feel it’s important to point out the benefits that class-action cases achieve in fulfilling the intent of the ADA and other such laws. If not for the ability to bring such cases, people with disabilities may suffer increased institutionalization and be denied access to information and resources others take for granted. We bring these issues to your attention and urge you to consider them and the detrimental affects the bill’s “issues classes” provisions would have on Americans with disabilities.
Clyde E. Terry
 H.R. 985, 115th Cong. § 1718(b)(3) (2017).
 H.R. 985, 115th Cong. § 1723 (2017).
 See H.R. 985, 115th Cong. § 1720(a) (2017) which states that “a federal court shall not issue an order granting certification of a class action with respect to particular issues pursuant to Rule 23(c)(4) of the Federal Rules of Civil Procedure unless the entirety of the cause of action from which the particular issues arise satisfies all the class certification prerequisites of Rule 23(a) and Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3).” See also H.R. 985 at § 1720(b) which states “an order issued under Rule 23(c)(4) of the Federal Rules of Civil Procedure that certifies a class with respect to a particular issue shall include a determination, based on a rigorous analysis of the evidence presented, that the requirement in subsection (a) of this section is satisfied.”
 See again H.R. 985 at §§ 1720, 1723.
 See again H.R. 985 at § 1718(b)(3).