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Va. Senate paves way for class actions in state courts

Jason Boleman//February 8, 2021

Va. Senate paves way for class actions in state courts

Jason Boleman//February 8, 2021//

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Virginians would be able to try class action lawsuits at the state level under a bill passed by the Virginia Senate this month.

Senate Bill 1180, introduced by Sen. Scott Surovell, D-Fairfax County, would amend Virginia Code § 8.01-267.1 to permit class actions in state courts. Presently, class actions are allowed only in Virginia’s federal courts. Virginia and Mississippi are the only two states that do not allow class actions at the state level.

As approved by the Senate, the bill has a delayed enactment clause. If signed into law, the measure would not go into effect until July 1, 2022. The bill gives the Supreme Court of Virginia until Nov. 1 to create rules.

The bill was reported out of the Senate Judiciary Committee Jan. 27 by a 9-4 vote. The vote was split down party lines, with nine Democrats voting for the bill and four Republicans against. 

In brief remarks to the judiciary committee, Surovell emphasized two promised benefits: improved judicial efficiency and increased ability of Virginians to correct wrongs inflicted upon them.

“A lack of a class action remedy leaves a lot of Virginians vulnerable to fraud,” Surovell said.  

Groups speaking in favor of the bill included the Virginia Trial Lawyers Association and the Legal Aid Justice Center.

“This bill is critical to allow tenants, consumers, prisoners and others to band together to fight collectively for their rights,” the Legal Aid Justice Center tweeted shortly after the judiciary committee vote. 

The Virginia Poverty Law Center also has been a vocal proponent of the bill, bringing multiple speakers to the Jan. 27 committee session. The VPLC lists the bill as a legislative priority on the organization’s website.

“Class actions level the playing field for lower-income individuals who seek access to justice,” states a fact sheet on the VPLC’s website. The VPLC believes the bill would make litigation more feasible economically and incentivize companies to “comply with the law and take the appropriate degree of care.”

After Surovell introduced the bill, he closed by saying that “it is time that we got our legal system up to par with the rest of the country.” However, much of the opposition to the bill’s passage focused on the timing of the bill, which Republican senators said would place an additional burden on businesses and the court system.

“If you enact a provision right now to allow class action suits against Virginia businesses, it very well and probably will be the straw that broke the camel’s back,” Sen. Richard Stuart, R-Montross, said. “So if you like the idea, that’s fine, but I don’t think now is the right timing.”

Sen. Mark Obenshain, R-Harrisonburg, and Sen. Mark Peake, R-Lynchburg, echoed similar sentiments. Both senators expressed concerns that the bill would join many others that will impact the court system. Obenshain remarked that passing bills creating an automatic right of appeal to the court of appeals and raising the limits of general district court, in tandem with this bill, would present a significant challenge for the courts. 

“When you look at the burden that we are adding onto the Virginia courts, this is not an insubstantial additional burden,” Obenshain said. Peake added that the changes facing the courts are “dramatic” and urged the senate to consider the fiscal impact on the court system.

The Virginia Chamber of Commerce sought to include a reenactment clause, to no avail.  That provision would have forced the bill to go through the full legislative process in 2022. Lobbyist Jeff Palmore said the chamber had two concerns: the issue of small “junk” settlements and the ability to bring class actions on behalf of unknown parties.

“What we’ve seen at the federal level is that class action lawsuits brought on behalf of unknown parties really do a horrible job of being able to find the injured parties and deliver relief to them,” Palmore said. Palmore said the chamber opposed the bill as written but would be open to working with Surovell on amendments to the bill. 

Class action supporters resisted a reenactment clause. “We don’t know who will be back here next year,” Sen. Chap Petersen, D-Fairfax, said. “We’re here right now. And this is a great bill. And you know what? In this moment in time, we’re going to pass this bill with this Assembly.”

Petersen proved prophetic, as the bill passed the Senate on Feb. 2 by a 21-18 margin. The vote again was split down party lines. The bill goes to the House of Delegates for review later this month. 

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