Searching for Salvageable Ideas in FICALA

Abstract

The proposed Fairness in Class Action Litigation Act of 2017 (FICALA) represents the most aggressive attempt in recent memory to dismantle the apparatus of mass litigation through procedural reform. When viewed as a whole, it is difficult to see the package as anything other than a defendant-driven effort to reduce liability by making it difficult for plaintiffs to aggregate claims, difficult for plaintiffs’ lawyers to make money, and expensive for plaintiffs to pursue claims to adjudication. Hidden among FICALA’s bad ideas, however, are a few good ones, and they represent promising opportunities for improving the litigation process. This article, part of a symposium on Civil Litigation Reform in the Trump Era, breaks down the bill’s proposals and considers each idea on its own terms. The bill contains several pieces that, if tweaked, could offer attractive starting points for procedural reform: provisions that align class counsel fees with value for class members, provisions that improve data collection concerning class action settlements, and a provision to work around the complete diversity requirement for federal jurisdiction in mass disputes.