Legislature eyes allowing civil class actions in state courts

Virginia’s status as one of only two states that prohibit class actions in state courts could change under a pair of identical bills under consideration by the General
Assembly.

The bills, Senate Bill 229 and House Bill 449, would allow for civil class actions to be brought in state court, provided that specific statutory conditions be met, including that the class is large enough to warrant such action and that there is a common question of law or fact to the class.

Presently, class actions in Virginia are limited to Virginia’s federal courts.

“This bill will cause Virginia to leave an exclusive club of two,” Del. Marcus Simon, D-Fairfax, said before the House of Delegates in a Feb. 2 floor speech. “We’ll leave Mississippi as the only state that doesn’t have that as a procedure available for folks to combine their claims in state court.”

Simon is the chief patron for HB 449, which passed the House of Delegates Feb. 3 in a 64-34 vote, mostly along party lines. Sen. Scott Surovell, D-Fairfax, is chief patron for SB 229.

“Virginia and Mississippi are the only two states in America without state level class actions,” Surovell, the Senate majority leader, said in an email to Virginia Lawyers Weekly. “I want Virginia to join the rest of America, so that everyone can have access to the courthouse, especially when companies cause harms to large numbers of people in small amounts that are not economic to litigate.”

As of press time, SB 229 was awaiting review by the Senate Finance and Appropriations Committee after being reported from the Senate Courts of Justice Committee on Jan. 21.

Groups including the Virginia Trial Lawyers Association, Virginia Poverty Law Center and the Legal Aid Justice Center have voiced support for the legislation.

“This is something that’s needed to be done for a long time,” VPLC CEO Jay Speer told Virginia Lawyers Weekly. “Forty-eight other states already do this — the only two states that don’t are Mississippi and Virginia.
It just doesn’t make any sense.”

Legislative review

The legislation faced its most significant review at the Jan. 21 Senate Courts of Justice
Committee hearing, where Surovell pitched the bill by noting that similar versions of it had previously passed the Senate multiple times. Most recently, a 2024 bill on the topic of permitting class actions in state courts passed the General Assembly but was vetoed by then-Gov. Glenn Youngkin.

“We’ve done this before, and I hope we can pass it again,” Surovell told the committee.

The current version of the class actions bill provides that a class may bring a civil class action as long as the class is so numerous that “joinder of all members is impracticable”; that there are common questions of law or fact for the class; the claims of the representative parties are “typical of the claims” of the class; and that the representative parties fairly and adequately protect class interests.

The bill also has a delayed effective date of Jan. 1, 2027, but would allow class actions to be filed retroactively in cases that are still within the statute of limitations.

“This change is procedural; it’s not substantive,” Surovell said before the committee. “If somebody violated the law, they can be sued right now for violating the law, and simply allowing multiple people to put their cases together is not a substantive change; it’s a procedural change.”

A “definite change in the law” that Surovell highlighted in the bill is language noting that a litigant is not required to show reliance on a violation of the Virginia Consumer Protection Act in order to obtain statutory damages. That provision was made in response to a 2014 Supreme Court of Virginia decision in Owens v. DRS Automotive
Fantomworks Inc. The bill explicitly notes that the addition of that language is “intended to reverse the holding” in Owens, where the high court found that the phrase “as a result” in the statute meant “reliance.”

“I think we meant causation,” Surovell said. “The whole point of the VCPA was to reduce what you have to show in consumer fraud cases.”

Groups weigh in

The VTLA has voiced its support of the bill, with Richmond attorney Elliott Buckner, a past VTLA president, speaking on behalf of the association at the Jan. 21 hearing.

At the hearing, Sen. Ryan McDougle, R-Mechanicsville, asked about the possibility of including summary judgment in the bill like at the federal level, which Buckner said was “thankfully” absent from SB 229.

“Virginia is just not set up for summary judgment,” Buckner said at the hearing. “If this body wants to triple the number of judges we’ve got and give them three to four law clerks annually … then I’d certainly be open to a reasonable change to allow summary judgment, but that’s not the system we have.”

Buckner added that “this mechanism that’s being proposed can be incorporated into the current system without harming the system.”

Groups that spoke in opposition to the bill on Jan. 21 included business groups like the Virginia Chamber of Commerce. Lobbying on behalf of the chamber, Edward Mullen of Seven Hills Strategy Group told the committee that Virginia’s business community “has long viewed the absence of class action lawsuits as a badge of honor and a real positive for our legal climate. We’ve always felt that the relative advantage to individual class members versus the burden on the businesses doesn’t justify the policy shift.”

1. Brent Rawlings with the Virginia Hospital and Healthcare Association also spoke against the bill before the committee. “We serve as a reminder that this applies broadly to all defendants, including hospitals that expose themselves to significant risk to serve their communities,” Rawlings said. “This is not just a legal decision; this is a public policy decision.”

Victoria Horrock, senior supervising attorney at the Legal Aid Justice Center, told Virginia Lawyers Weekly that the group supports the legislation because it can benefit low-income tenants and consumers.

“A lot of people think of class action lawsuits as those little cards that come in the mail and that it doesn’t have as much impact as they would like,” Horrock said. “Virginians in general really have limited access to litigate a bunch of individual claims. They need a systemic way to fix unlawful practices that they’re subject to, and a state class action mechanism would help them.”

Speer also highlighted the efficiency piece as a reason the VPLC supports the bill. He cited an example of a case involving VPLC clients who lost their homes and subsequently filed suit after the Hampton Roads high-rise they lived in was condemned.

“There are about 90 clients, and they all have the same claims,” Speer said. “It doesn’t make sense to have to litigate each one by itself.”

Horrock noted that for attorneys in Virginia, if passed, SB 229 also could bring issues that previously haven’t been raised before the judiciary.

She cited an example she sees often as a housing attorney: A landlord charges an unlawful fee, and an individual gets a favorable ruling, but the landlord continues to charge the illegal fees in other jurisdictions.

“One of the reasons is there’s just not really liability for only a lawyer to change everybody’s rental calculations based on one individual case, especially when those cases are being brought in general district court, which are courts not of record,” Horrock said. “There’s a lot of legal issues that aren’t rising to the surface that could now be litigated in a class action forum … where we might have more written decisions and a greater spotlight.”

Speer anticipates the bill will reach Gov. Abigail Spanberger’s desk and become law.

“There’s very little opposition,” Speer said. “I expect the bill to pass the House and the Senate, and I expect the governor to sign it, and I really don’t see any good reason not to.”