Spanberger veto puts brakes on state class actions in Virginia

Virginia will remain one of two states without a state class action process after Gov. Abigail Spanberger vetoed a pair of bills seeking to allow groups of Virginians with similar legal claims to pursue collective action in state courts.

The bills, Senate Bill 229 and House Bill 449, would have provided that a class can bring a civil action if a class is so numerous that “joinder of all members is impractical,” that the class members faced common questions of law or fact, that the claims of the representative parties are “typical of the claims” of the class and that the representative parties properly represent class interests.

The legislation passed mostly along party lines before heading to Spanberger, who returned the bill with a substitute.

The governor’s recommendations sought to narrow the bill, including limiting the venue for class actions to specific circuit courts and broadening the courts’ summary judgment authority.

The legislature did not adopt Spanberger’s amendments when it reconvened, leading to Spanberger’s May 19 veto.

“I support the General Assembly’s goal of providing a class action mechanism that can be used by plaintiffs in Virginia courts,” Spanberger said in her veto statement. “I offered amendments to ensure that when Virginia adopts its first-ever class action procedure, we do so in a tailored and judicious way — building on long-standing federal precedent while providing regional circuit courts an opportunity to develop expertise.”

Senate Majority Leader Scott Surovell, D-Fairfax, who is a practicing attorney, patroned SB 229. He told Virginia Lawyers Weekly the veto “was a surprise, and it’s very disappointing.”

“The governor proposed some amendments which would make a class action remedy completely unworkable,” Surovell said. “You had proposals that nobody had suggested to me in the six years I’ve been carrying this legislation.”

Del. Marcus Simon, D-Fairfax, patroned HB 449. His office did not respond to a request for comment by deadline.

Virginia Poverty Law Center Executive Director Jay Speer signed a letter to Spanberger along with other legal groups urging the governor to sign SB 229 and HB 449. VPLC is “deeply disappointed by this veto,” he told Virginia Lawyers Weekly.

“We have worked hard to support legislation that bans junk fees, stops companies from trapping people in unwanted subscriptions and protects Virginians from predatory loans,” Speer said. “But without the ability to bring class actions, enforcing those protections will be far more difficult.”

Groups opposed to the legislation include the American Tort Reform Association, which issued a statement supporting Spanberger’s veto.

“We commend Gov. Spanberger for returning these bills to the General Assembly with proposed changes that made important improvements in the proposals,” ATRA President Tiger Joyce said. “Unfortunately, the legislature instead opted to persevere on a course that would dramatically expand litigation and liability exposure, ultimately negatively impacting working families and the commonwealth’s economic competitiveness.”

Support letter

Among the groups who signed on to the letter supporting SB 229 and HB 449 were the Legal Aid Society of Roanoke Valley, Legal Aid Works, the Metropolitan Washington Employment Lawyers Association, the Virginia Employment Lawyers Association and the Legal Aid Justice Center.

The groups collectively urged Spanberger to sign the bills, as the legislation represented “a high priority for all our organizations for several years because it is an important tool to gain meaningful access to our courts to seek justice.

“No matter what rights may be written into the Code of Virginia, if there is no means by which those rights can be enforced the law might as well not exist, for it can be violated with impunity,” the letter states.

The collective cited new legislation on “click to cancel” and bills regarding landlords and medical debt collection as bills that “will likely be ignored by bad actors unless” a state class action remedy exists.

“We have often seen bad actors — entities that exploit vulnerable Virginians struggling to survive in difficult economic times — evade any meaningful accountability,” the letter states.

The collective especially highlighted legal aid attorneys, who currently have to handle cases related to tenant fees on a one-by-one basis due to not having a state class action remedy.

“It is unlikely this practice will stop until our client communities can band together and tackle unlawful practices systematically on a class wide basis,” the letter states.

Following the veto, Speer emphasized the importance of a justice system that “must be accessible to people who are not wealthy.

“Claims that are too small to justify the cost of individual litigation will often never be brought,” Speer said. “Class actions help overcome that barrier by allowing many people with similar claims to join together in one case, making it possible to pursue accountability and enforce the law.”

Future of class actions

With Spanberger’s veto, Virginia and Mississippi remain the only states without a formal state class action process. Class action claims can be filed in Virginia’s federal courts if a class has a federal law issue.

Surovell said that the existing federal class action structure has led to “misapprehension about the actual breadth” of SB 229.

“I don’t think it’s as earth-shattering as many of the opponents make it out to be,” Surovell said. “It mainly applies to smaller class actions, which tend to be filed in state court over state-specific problems.”

However, while the federal action exists, Speer said he has concerns about access to justice and enforceability of statutes without a class action remedy at the state level.

“If we want a justice system that truly delivers justice, it must be accessible to people who are not wealthy,” Speer said.

Surovell told Virginia Lawyers Weekly he intends to continue to pursue the issue in a future legislative session, adding that he’s “embarrassed” that Virginia has not yet created a formal state class action process.

“I prefer to see our legal system leading the country instead of trying to keep up with it,” Surovell said.

The Senate majority leader also pointed to court backlogs as a benefit to a state right of class action, as he believes it would decrease litigants filing functionally identical cases.

“If an organization is stealing $5 or $10 from 50,000 Virginians, then there ought to be a means to provide for a legal remedy for those people, instead of each person having to file a separate lawsuit.”

— Sen. Scott Surovell, D-Fairfax