A Look Back at Significant Developments in Class Action Law in 2017From the standpoint of class action practice, 2017 was as important for what did not happen as for what did.  Here are some of the highlights and lowlights of the 2017 class action scorecard, with a look forward to how the impact of some of those developments may be felt in 2018.

A brave new world for personal jurisdiction

If you got out of law school more than a decade or so ago, most of what you learned about personal jurisdiction is now obsolete.  The once determinative “minimum contacts” analysis has now all but gone the way of the human tail. Whatever remains of it is fairly insignificant at this point.  What matters now is the “general” versus “specific” jurisdiction dichotomy. In simplified terms, to the extent the defendant is being sued specifically for sales or other conduct in the forum state, specific jurisdiction perhaps attaches. Otherwise, the defendant is likely subject to suit only where it is incorporated or has its principal place of business.  This lesson was driven home in Bristol-Myers Squibb v. Superior Court of California, San Francisco County, 582 U.S. ___ (2017), where a large number of nonresident plaintiffs joined a large number of resident plaintiffs in a mass action alleging tort claims associated with the drug Plavix.  In an 8-1 decision, the Supreme Court ruled as a matter of substantive due process that there was personal jurisdiction over BSM only as to the claims of the resident plaintiffs.  The prevailing wisdom, and the view of a majority of courts to address the issue since this decision came down, is that the same analysis applies to class actions (e.g., LDGP, LLC v. Cynosure, Inc., Case No. 15 C 50148 (N.D. Ill. Jan. 16, 2018); McDonnell v. Nature’s Way Prods., LLC, No. 16-cv-5011 (N.D. Ill. Oct. 26, 2017); Spratley v. FCA US LLC, No. 3:17-cv-62 (N.D.N.Y. Sept. 12, 2017); In re Dental Supplies Antitrust Litig., No. 16-cv-696 (E.D.N.Y. Sept. 20, 2017); Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., No. 16-cv-665 (E.D. Pa. July 24, 2017); Jordan v. Bayer Corp., No. 4:17-cv-865 (E.D. Mo. July 14, 2017)).  The effective result would seem to be that a corporation can now be subjected to nationwide class certification only in its home states.  Smart corporations now domiciled in class-friendly jurisdictions will now therefore evaluate whether there is reason to relocate their domicile and principal place of business to more defendant-friendly jurisdictions.

Spokeo produces mixed results for subject matter jurisdiction in statutory damages class actions

It has been more than a year and a half since the Supreme Court handed down its landmark Spokeo, Inc. v. Robins, 578 U.S. ___ (2016) decision, which made clear that Article III requires all plaintiffs to have suffered a “concrete” injury to bring suit in federal court.  Unfortunately, in that time, Spokeo has not become the statutory class action panacea that the defense bar hoped for—and, as we documented in a previous blog post, lower courts attempting to apply Spokeo have done so in often confusing and inconsistent ways.  Spokeo’s application to claims brought under some of the most frequently sued-under federal consumer protection statutes provide a good illustration of this.  For example, courts have reached mixed results when it comes to applying Spokeo to alleged FDCPA violations.  Mere technical timing FDCPA violations, such as a slight delay in sending a required notice that does not result in any prejudice, are almost certainly insufficient to confer Article III standing.  But the outright denial of information may be sufficient, even where there are no allegations that the denial caused any real harm.  Or maybe not.

Alleged FACTA violations have also generated mixed results, including divergent views on whether printing a credit card expiration date is alone sufficient to confer Article III standing (compare Meyers v. Nicolet Rest. Of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016) with Deschaaf v. Am. Valet & Limousine Inc., 234 F. Supp. 3d 964 (D. Ariz. 2017)).  And perhaps most confused is how courts have applied Spokeo to FCRA claims.  For example, in Dreher v. Experian Information Solutions, Inc., the Fourth Circuit held that the failure to provide the sources of credit information on the plaintiff’s credit report was not, by itself, a sufficiently concrete harm to confer Article III standing; a plaintiff must show that the denial of information has caused him “‘real’ harm with an adverse effect.”  In sharp contrast, in In re Horizon Healthcare Services Inc. Data Breach Litigation, the Third Circuit refused to require any showing of harm or a material risk of harm from an alleged FCRA violation, holding instead that in creating a private right of action to enforce the FCRA, Congress demonstrated its judgment that any “violation of FCRA causes a concrete harm to consumers.”  The only relative consistency:  TCPA violations—which generally result in the plaintiff’s phone line being tied up and ink and paper being used—are almost always sufficient to confer Article III standing.

Unfortunately, it doesn’t look like the Supreme Court will provide additional guidance any time soon about how to determine whether an alleged statutory violation has resulted in a sufficiently “concrete” injury for Article III standing purposes.  Earlier this week, the Court denied the Spokeo defendants’ cert petition, which had sought review of the Ninth Circuit’s decision on remand that the plaintiff’s alleged injury in that case—dissemination of false credit information that may have actually improved the plaintiff’s credit score—was sufficient to confer standing under Article III.

The Circuit split over ascertainability gets even deeper

2017 saw the Ninth Circuit join the Sixth, Seventh, and Eighth Circuits in rejecting the (until recently) long-settled notion that Rule 23’s “numerosity” requirement implicitly contains a requirement that the class be ascertainable in an administratively feasible way before a class can be certified.  To varying degrees, these courts endorse concepts like “fluid recovery” and self-identification through affidavits in addition to finding that Rule 23 does not require that the actual class member be known before proceeding past certification to the merits.  This of course presents all sorts of due process concerns for class defendants, who protest the unfair settlement pressure, one-way res judicata effect, and due process problems associated with kicking the class member identification problem to the very end of the class litigation timeline.  The Second, Third, and Eleventh Circuits all still require some meaningful degree of ascertainability.  This is an issue class defendants will want to be sure to preserve if they find themselves in a jurisdiction hostile to the ascertainability requirement.  Class defendants in jurisdictions hostile to an ascertainability requirement will also want to recast any ascertainability problem as one of commonality, predominance, and/or superiority.

American Pipe re-fitting

In a pair of cases, the Supreme Court used 2017 to answer some long unsettled questions relating to class action tolling under American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983).  The American Pipe rule generally holds that the statute of limitations is tolled for the claims of class members during the pendency of a class action until certification is denied or abandoned.  In California Public Employees’ Retirement System v. ANZ Securities, Inc., et al., 137 S. Ct. 2042 (2017), the Supreme Court held that there is no such tolling with regard to rules of repose, and in China Agritech, Inc. v. Resh, Dkt. No. 17-432, it granted cert to resolve a circuit split over whether such tolling applies only to subsequent individual claims by class members or also to successive class actions by class members.

The Congressional Review Act trumps the CFPB’s effort to prevent financial institutions from utilizing class waivers

In 2017, the CFPB finally made good on its threat to ban financial entities from utilizing arbitration clauses with class waivers to avoid or limit class actions. A few weeks later, both houses of Congress invoked the Congressional Review Act to nullify this CFPB rule.  President Trump then signed the nullification resolution, which under the CRA has the effect of prohibiting the CFPB from attempting any similar rule again.  Bradley’s Class Action team chair Mike Pennington was a principal author of DRI’s written comments opposing the CFPB rule.

New amendments to Rule 23 proposed to become effective in December 2018

In 2017, a set of settlement-related amendments to Rule 23 were formally set in motion, on a track likely to make them effective this December. The amendments front-load the evidentiary proof and modernize the notice and objection procedures necessary to achieve so-called “preliminary approval” and “final approval” of a class settlement. On behalf of DRI, Bradley’s Class Action team members Mike Pennington (whose hearing transcript is available here), Scott Smith, and John Parker Sweeney all submitted written comments and testified in public hearings before the Advisory Committee on Civil Rules and its Rule 23 Subcommittee regarding these and other proposed amendments to Rule 23.

SCOTUS holds that voluntary dismissal cannot be used as a tool to seek mandatory appellate review of class certification denials

In Microsoft v. Baker, a unanimous Supreme Court closed a loophole recognized in some circuits that permitted class action plaintiffs to seek immediate appellate review of an adverse class certification decision by voluntarily dismissing their claims with prejudice.  The practical effect of the Court’s ruling is that class action plaintiffs no longer have a mechanism for seeking immediate mandatory appellate review of class certification denials.  Instead, to obtain interlocutory review, plaintiffs must rely on either Rule 23(f), 28 U.S.C. § 1292(b), or a writ of mandamus, all of which give circuit courts discretion on whether to hear an appeal.

Judge Posner retires after nearly 40 influential years on the bench

Arguably the country’s most influential non-Supreme Court jurist ever, Judge Richard Posner retired abruptly from the Seventh Circuit in September 2017.  During his nearly 40 years on the bench, he had tremendous impact in shaping legal views and discourse on a host of issues.  Rule 23 was no exception, as Judge Posner’s views on the appropriateness of class certification have become deeply ingrained in the collective legal consciousness.  For example, relatively early in his career as a jurist, Judge Posner authored several opinions that reigned in class certification excesses, recognizing that plaintiffs often use class certification of dubious claims as a tool to extract “blackmail settlements.”  Notably, in In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995), Posner is credited with sounding the death knell for the class treatment of personal injury class actions.

More recently, Judge Posner authored opinions permitting class certification where the class action device was seen by him as the most efficient (and, as a practical matter, only) tool for resolving the class members’ disputes.  As Posner stated in Carnegie v. Household International, Inc., 376 F.3d 656 (7th Cir. 2004), which affirmed certification of a settlement-turned-litigation class, if the individual claims in a putative class are of sufficiently low value, then the “realistic alternative to a class action” may not be “17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”  Most recently, Judge Posner overturned a series of class action settlements that offered little benefit to the class but huge fees to class counsel (see, e.g., In re Walgreen Co. Stockholder Litig., 832 F.3d 718 (7th Cir. 2016); Redman v. Radioshack Corp., 768 F.3d 622 (7th Cir. 2014); Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014)).  Judge Posner’s immense impact on class action litigation will not be soon forgotten.

SCOTUS to clarify SLUSA’s application to class claims brought under the Securities Act of 1933

Currently pending before the Supreme Court is Cyan, Inc. v. Beaver County Employees Retirement Fund, No. 15-1439 (filed May 24, 2016), which concerns the preemptive scope of the Securities Litigation Uniform Standards Act of 1998 (SLUSA).  By way of refresher, SLUSA preempts all state law causes of action for fraud in connection with the purchase or sale of securities—any such fraud claim must be based on federal law, i.e., the Securities Act of 1933 or the Securities Exchange Act of 1934.  At issue in Cyan is whether SLUSA also divests state courts of jurisdiction to hear class action claims brought under the Securities Act of 1933 (e.g., claims based on fraudulent misrepresentations or omissions in a registration statement).  Federal courts already have exclusive jurisdiction over claims brought under the Securities Exchange Act of 1934 (e.g., 10b-5 securities fraud claims).

Oral argument in Cyan occurred on November 28, 2017, although it only revealed the Court’s complete confusion about how to interpret SLUSA, which was (aptly) described as “obtuse,” “odd,” and, by Justice Alito, “gibberish.”  The Justices’ confusion has been mirrored in the state and lower federal courts, which have reached wildly inconsistent and chaotic results on the issue.  If the Court rules in Cyan’s favor, then all class claims under the Securities Act will have to be brought in federal court, subject to the procedural strictures of the PSLRA.  But if the Court rules in the plaintiffs’ favor, then investors will be able to avoid the PSLRA by filing their Securities Act claims in more favorable state court jurisdictions.  The Solicitor General has also entered the fray, advocating for a hybrid position: that SLUSA permits plaintiffs to bring Securities Act claims in state court, but also permits defendants to then remove those claims to federal court, should they so choose.  We anticipate a decision in the first half of 2018.

A welcome narrowing of the scope of the TCPA

As everyone reading this blog well knows, the TCPA has become a boon for the consumer protection plaintiffs’ bar.  This shouldn’t be surprising, given the TCPA’s (mostly) strict liability, statutory damages of at least $500 per violation (and up to $1500 for “willful” violations), and no damages cap.  Fortunately, however, a pair of D.C. Circuit cases may be beginning to reverse the tide.  First, was the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017), which struck down an FCC rule that had required senders of faxes to include opt-out notices on all messages, even though the statute itself only required such notices on non-solicited messages.  Now, pending before the D.C. Circuit is ACA International v. FCC, Case No. 15-1211 (D.C. Cir., filed Nov. 25, 2015), which challenges the validity of the FCC’s broad and oft-criticized interpretation of what constitutes an Automatic Telephone Dialing System, as well as FCC rules concerning the identity of the “called party” in the reassigned number context and the means by which a called party may revoke consent.  How the D.C. Circuit resolves ACA International could potentially have a huge impact on stemming the tide of rampant TCPA class actions.

The Fairness in Class Action Litigation Act stalls in the Senate

Finally, the House passed H.R. 985, also known as the “Fairness in Class Action Litigation” Act, in March 2017 by a largely party-line vote.  We have already discussed in detail how the current version of the bill could potentially change class action litigation—and made proposals to improve the bill.  Thus far, the Senate has taken no action on the bill, just as the Senate took no action on an earlier and more modest version of the Fairness in Class Action Act previously passed by the House.  It remains to be seen whether the bill will be revisited this year, although currently there does not appear to be any political momentum to do so.  If the bill does not become law by the end of 2018, then the legislative process will go back to square one.

Will the Future Bring a Surge of Class Actions against Banks and Credit Card Companies?On July 10, 2017, the Consumer Financial Protection Bureau formally issued its long-anticipated final rule banning class waivers in future arbitration agreements for banks, lenders, debt counselors, credit card issuers, certain types of automobile leasing businesses, and many other financial institutions. The CFPB’s rule will take effect March 18, 2018, unless nullified by Congress in the next few weeks, or enjoined by a court in the next few months. The ban on class waivers would apply generally to pre-dispute arbitration agreements entered into after that date by many categories of financial service providers, such as banks, lenders, debt collectors and credit card companies.

The proposed rule would essentially forbid a covered financial product or service provider sued in a class action lawsuit from relying “in any way” on a pre-dispute arbitration agreement that does not explicitly allow the consumer to choose between class arbitration and class litigation, unless and until the presiding court has ruled that the case may not proceed as a class action and any interlocutory appeals of that ruling have been exhausted. The ban on reliance applies to “any aspect” of the class litigation related to a covered product or service.

The proposed rule would also require every pre-dispute arbitration agreement entered into after the effective date of the rule to include specific language acknowledging the consumer’s right to sue using the class action device and to participate in any class action filed by someone else despite the arbitration agreement. And both for individual arbitrations and for arbitrations commenced by any party to a class action after the denial of class certification, the CFPB will require companies with covered agreements to publicly file with the CFPB  various documents and data related to the arbitration proceeding, including, among other things, the claim documents and the arbitral award.

Congress has a filibuster-proof way to nullify the rule under the Congressional Review Act, 5 U.S.C. §801, et seq. While the House has already voted to nullify, it is unclear whether 51 Republican votes for nullification can be mustered in the Senate. Financial service providers who prefer individual arbitration to class litigation should be voicing that opinion to the Senate loudly and soon, because the Congressional Review Act allows only 60 legislative days for nullification, and that clock runs out in early November.

If that nullification effort fails, then efforts to nullify the rule will likely turn to the courts. Efforts to declare the CFPB unconstitutional are already pending (see, e.g., PHH Corporation v. Consumer Financial Protection Bureau839 F.3d 1, 2016 WL 5898801 (D.C. Cir. 2016); opinion vacated, rehearing en banc granted Feb. 16, 2017). And just days ago, the U.S. Chamber of Commerce, the American Bankers Association, and others filed suit in Texas federal court seeking to block the rule on the theory that the CFPB’s pre-rule arbitration study mandated by the Dodd-Frank Act was statutorily insufficient and does not support the rule actually promulgated, violating both Dodd-Frank’s limits on CFPB rulemaking regarding arbitration and the Administrative Procedures Act.

Those in the business of lending, storing, collecting or moving money should also be preparing for the effective date of the rule, just in case. First, they would need to consider whether, after the effective date, new arbitration agreements are desirable at all following the effective date of the rule. By definition, this rule would mean that such arbitration clauses will have no application to the largest and most costly cases—those brought as class actions. Worse yet, it would create implicit incentives for plaintiffs to bring as purported class actions claims that would otherwise have been brought individually, simply to avoid arbitration while utilizing the specter of class discovery as leverage for settlement. Indeed, the mandated language that now must be included in a post-effective date arbitration agreement all but invites class allegations as a means of avoiding arbitration. In the smaller individual cases in which arbitration clauses would still have potential effect, efficiencies once available through arbitration will now be undermined by a new layer of regulatory reporting and compliance costs, the requirement that litigation proceed through denial of class certification and exhaustion of interlocutory appeal, and the elimination of the confidentiality that businesses are accustomed to enjoying from arbitration.

Businesses that decide to continue using arbitration clauses anyway would need to start planning for the new regime sooner rather than later. This will involve not only drafting new pre-dispute arbitration agreements that comply with the new rule and contain the required language, but also hiring or training personnel to fulfill the new reporting obligations created by the rule and determining which product and service offerings are and are not subject to the new rule.

Most importantly, covered providers would need to prepare for an increase in class action litigation if the rule goes into effect. There is no other way to spin it—if this rule goes into effect, class action filings against covered companies will go up. This will affect litigation legal budgets, in-house legal and compliance staffing needs, and the bottom line of covered companies’ financial statements.

The Fairness in Class Action Litigation Act of 2017: Will It Pass and Can It Be Improved?The Fairness in Class Action Litigation Act, also known as H.R. 985, passed the House earlier this year by a largely party line vote. If passed, this bill would represent the most significant class action reform legislation since the Class Action Fairness Act (CAFA) steered most class actions to federal court starting in 2005.

The Class Action Reforms Contained in the Bill

The bill includes the following class action reforms long advocated by business interests:

  • Limiting certification in cases claiming personal injury or economic loss to classes in which all members suffered the same “type and scope of injury.”
  • Requiring that classes be defined with reference to objective criteria and that there be a reliable and administratively feasible mechanism to identify class members.
  • Prohibiting certification of a class unless there is “objective” evidence that the relief can actually be distributed to a “substantial majority” of class members by “administratively feasible” means.
  • Confining attorneys’ fees for class counsel to a “reasonable percentage” of the value of the monetary or equitable relief actually received by actual class members.
  • Prohibiting certification of “issue classes” unless the entirety of the cause of action is properly certifiable under Rules 23(a) and (b).
  • Requiring in any class action that all discovery be stayed during the pendency of any motion to transfer, dismiss or strike class allegations.
  • Permitting appeals as of right (as opposed to the current permissive appeal process) from orders granting or denying class certification.

Room for Improvement?

There is little doubt that there is room for improvement in some of the act’s provisions. Take the bill’s current language to address “no injury” class actions:

A Federal court shall not issue an order granting certification of a class action seeking monetary relief for personal injury or economic loss unless the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.

This language clearly requires all class members in personal injury and economic loss class actions to have the same “type” of injury, but precisely what does it mean to require the same “scope” of injury? And does this language even clearly require any present actual injury at all? Does it indeed allow for class certification if class members all claim only an abstract injury, but the same abstract injury? For example, if all class members claim that the technical requirements of a statute were not met, even though the alleged violation admittedly caused them no resulting harm, would H.R. 985’s common injury requirement be met? What if all class members contend that they paid too much for a washing machine because it is allegedly prone to developing problems that no member of the class has yet experienced? Consider whether this alternative language would better accomplish the objectives:

A Federal court shall not issue an order granting certification of a class action seeking monetary relief for personal injury, economic loss, product defect, or any statutory violation unless the party seeking to maintain such a class action affirmatively demonstrates by a preponderance of admissible evidence that (1) the named plaintiff(s) and each proposed class member suffered the same type of actual injury, and (2) that the existence and extent of each class member’s injury, as well as the amount of monetary relief due each class member, can be accurately determined on the basis of class wide proof, without depriving any defendant of the ability to prove any fact or defense that the defendant would be entitled to prove as to any class member if that class member’s claims were adjudicated in an individual trial. Actual injury for purposes of this provision shall not include a claimed propensity to develop a defect in the future, nor an alleged diminution in value resulting therefrom, and shall not include a statutory violation without resulting harm. Nothing in this provision shall be considered in determining the amount in controversy for purposes of removal of any class action filed in state court.

This alternative language more clearly imposes a requirement of actual, present injury common to the entire class as a prerequisite to the purely procedural device of class certification.  It answers the complaint of the plaintiffs’ bar that the current legislation would arguably require the exact same dollar amount of injury for every class member. It is true to the basic principle that class actions should be the exception not the rule, allowed only when the case as a whole can be resolved in its entirety on common proof.

The bill’s effort to address ascertainability could also be improved. The need for legislation imposing an ascertainability requirement has become acute, given that three circuit courts have now essentially removed the long-accepted requirement of meaningful and administratively feasible ascertainability of class members from the list of prerequisites to class certification. See In the last of these, the Ninth Circuit even went so far as to endorse the concept of a “fluid recovery” based on total sales, meaning the defendant’s damage liability could be determined based on the fiction that every class member could be identified even if the reality was that they couldn’t. Such approaches to class certification improperly turn what is supposed to be a procedural mechanism for grouping the claims of otherwise individual actual litigants into an implicit “private attorney general” mechanism for policing perceived wrongdoing and extracting maximum punishment or damages. The Rules Enabling Act does not allow a mere rule of procedure to carry that kind of substantive weight. They improperly ignore the right of individual class members to choose not to sue and to be happy with the product or service they received. And when combined with self-identification of class members through affidavits late in the litigation, they improperly allow class members to wait and judge the outcome before deciding to self-identify, making a farce of what should be the defendant’s due process right to know who will and will not be bound by the litigation in advance. It turns what should be an “opt-out” class action into an “opt-in” class action that finds no sanction in any provision of Rule 23.

A meaningful ascertainability requirement is an important part of cabining the class action device to its proper procedural scope. The bill’s current provision on ascertainability reads as follows:

§1718. Distribution of benefits to class members.—A Federal court shall not issue an order granting certification of a class action seeking monetary relief unless the class is defined with reference to objective criteria and the party seeking to maintain such a class action affirmatively demonstrates that there is a reliable and administratively feasible mechanism (a) for the court to determine whether putative class members fall within the class definition and (b) for distributing directly to a substantial majority of class members any monetary relief secured for the class.

Again, this language could be improved. First, settlements are not the problem, and the bill need not impede them. Its main objective should be to make sure that class members are individually identifiable and locatable before a contested class is certified. Meanwhile, the imprecision of subsection (a) might still allow artful would-be class counsel to argue, for example, that all a court need do at the class certification stage is find that class members can “self-identify” through affidavits or “claim administration” hearings at some later stage, which class counsel would now simply argue — probably successfully before more liberal courts — is an “administratively feasible” process (see e.g., Briseno, supra). But in contested class litigation, cumbersome and massively expensive “claims administration” proceedings only compound the judicial blackmail effect that class actions already have, making settlement of even unmeritorious claims cheaper than litigating them (see e.g., In re Rhone Poulenc-Rorer, Inc., 51 F.3d 1293 (7th cr. 1995)). Most importantly, judicial sidesteps of the problem of class member identification also reflect the very phenomenon that the ascertainability requirement is meant to prevent. With that in mind, wouldn’t the legislation now on the table better accomplish the ascertainability objective if §1718 read as follows?

IDENTIFICATION OF CLASS MEMBERS — Except when certifying a class for settlement purposes only, a Federal court shall not issue an order granting certification of a class action seeking monetary relief unless it first finds that the individual members of the class can be specifically identified by reliable and feasible means, before any determination of liability or damages and before any class notice is sent, without relying upon individual testimony from putative class members and without substantial administrative burden.

How and When Could Changes to the Bill Be Made?

Any opportunities for changes to H.R. 985 and, indeed, the bill’s ultimate fate, currently rest with the Senate. The previous Senate Judiciary Committee showed little interest in this bill’s more modest predecessor, last year’s H.R. 1927, and so far that committee has not acted on this year’s version either. One thing seems clear: This a better opportunity for Congress to achieve meaningful class action reform than we have seen in many years. But the Senate has been sitting on this bill without acting for six months. In the current political climate, the Senate is not likely to seize that opportunity unless businesses favoring such reforms make sure Congress hears from them. Loudly, soon and often.