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Attorney says Public Citizen report criticizing his Congressional testimony misses the point

By Anna Aguillard | Nov 4, 2015

Attorney John Beisner

WASHINGTON (Legal Newsline) – Attorney John Beisner, the leader of Skadden Arp's mass torts group, said that a recent report issued by Public Citizen criticizing his use of the term “no-injury” when describing class-action litigation misses the point of the legislation he testified to promote.

The report issued by Public Citizen on Oct. 27 specifically analyzes the testimony made by Beisner on behalf of the U.S. Chamber of Commerce before a U.S. House committee regarding the Fairness in Class-Action Litigation Act of 2015, which is currently pending before the House.

While advocating for legislation to prevent overbroad class actions, Beisner referenced a number of cases that he argued involved “no injury” to members of the class.

The report analyzed cases referenced in Beisner’s testimony. According to Public Citizen, the research indicates that the plaintiff of each referenced case did experience real injuries.

“These injuries included the need to repair or replace products to avoid serious injury, the economic injury of paying for a defective product that is not worth the premium price charged for it, the harm of receiving a worthless product that is not what it was held out to be, and the harm of paying extra for qualities a product is said to have, but does not in fact have,” the report’s authors wrote.

However, Beisner said that the report is misguided in its attack on his testimony and the legislation itself. His use of the term "no injury" refers to members of a class who did not experience the same problem that the class representative did.

“The report was written regarding a piece of legislation that really doesn’t do what the report assumes it does. This whole thing is very much a red herring,” Beisner said.

According to Beisner, the aim of this legislation is not to limit who can file class-action suits, as the report indicates.

“My testimony was about class actions in which the named plaintiff – that is, the class representative – alleges that he or she has a problem with a product or a service… and they sue on behalf of everybody who bought the product or service,” Beisner said.

“The problem is that in many of these cases, the majority of the people in the class haven’t had that problem.”

The report maintains that the concept of a “no-injury” lawsuit is “a myth.”

“All of these injuries are real, and they are exactly the same kinds of injuries that the law has traditionally allowed people to go to court to redress, not only in consumer cases, but also in other areas of the law,” the authors claim.

“The invention of the ‘no injury’ moniker doesn’t make the real economic damages inflicted on consumers disappear,” Public Citizen President Robert Weissman said in a release.

But Beisner asserts that the report addresses an argument that he never made.

“We are talking about the people who were not injured,” he said. “If you walked into court and said, ‘I bought this widget,’ and you hadn’t had a problem with it, then… you would be laughed out of court.”

Additionally, Public Citizen states that the “no-injury” theory could potentially impair the effectiveness of the class-action lawsuit in general.

However, again Beisner said the report is misunderstanding what the legislation is attempting to prohibit.

“This bill doesn’t prevent anybody from filing any class action. It just says that the court shouldn’t certify a case that includes people who haven’t had the same sort of injury that the class representative has had. That’s all it says,” Beisner said.

“Where all of this stuff about ‘no-injury’ class actions came from, I don’t know. If you want to file on behalf of someone who didn’t have a problem, and get them to file on behalf of everyone who didn’t have a problem, you could do that.”

Public Citizen represents consumer interests in litigation, advocacy, research, and provides consumer education on issues ranging from product safety to climate change.

The Fairness in Class-Action Litigation Act of 2015 has yet to be passed in the House or Senate. The U.S. Chamber Institute for Legal Reform owns Legal Newsline.

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