The Class Actions are Coming! The Class Actions are Coming!
The Class Actions are Coming! The Class Actions are Coming!
A sea change appears to be coming to Virginia civil procedure in the near future after years of unsuccessful attempts to provide a means for Virginians to bring class actions in Virginia state courts. The ostensible purpose of this effort is to allow relief in those situations where someone has a claim similar to the claims of many other individuals but the individual claims are too small to make a lawsuit worthwhile. Under a class action, claimants could combine their many claims -- so that there is a significant total amount at stake – in order to make litigation economically feasible. The legislation being pursued in the legislature also broadens statutory damages under the Virginia Consumer Protection Act (VCPA), which had been limited by recent court decisions. Currently, Virginia residents are able to file class actions in federal court that meet the standards in the Class Action Fairness Act – the amount in controversy is at least $5 million and jurisdiction exists either because a federal claim is involved or there is diversity jurisdiction – but are precluded from filing actions in state court.
Virginia is only one of two states in which there is no state class action procedure (the other being Mississippi). The Virginia legislature has attempted several times to pass a class action bill, with the most recent attempt, in 2024, being vetoed, after passage by both houses of the legislature, by then-Governor Glenn Youngkin. This year, the legislation has passed both houses of the legislature (as of 2/11) and will have to be “passed over” and reviewed for any reconciliation.
The legislation that has passed is based in part on the federal class action provision, Federal Rule of Civil Procedure 23, with some important revisions. Specifically, the Virginia bill has provisions that provide for a panel of judges appointed by the Supreme Court of Virginia to address any venue or transfer issues when two or more actions are filed involving the same claims, considering factors identified in the bill. In addition, the bill provides Virginia courts with more flexibility than the federal rule in considering the factors to apply for class certification of (B)(3) classes – those in which common questions of law or fact common to class members predominate over questions involving only individual members. Like the federal rule, the Virginia bill has a provision allowing a discretionary appeal from an order granting or denying class-action certification.
If the bill fully passes the legislature, it is likely that it will be signed by current Governor Abigail Spanberger. If so, the bill calls for the effective date of the act to be January 1, 2027, but would permit claims that accrued before then to be brought as class actions so long as “such conduct is otherwise actionable pursuant to relevant law,” meaning that the statute of limitations has not yet run on the claim by that date.
Willcox Savage PC is particularly well positioned to defend against class actions. Thomas F. Urban, a member in WS’s Commercial Litigation Group with his office in Tysons Corner, has 28 years of experience in defending and litigating class action claims and will lead the firm’s class action group. He has handled claims in a wide variety of substantive legal areas from consumer protection laws and business torts to environmental toxic torts. He formerly represented USAA Insurance Company in nationwide class action litigation, obtaining dismissals of class action claims against USAA from Washington State to Florida and even in the judicial hellhole of East St. Louis.
