Associate Attorney General Rachel Brand said Thursday the U.S. Justice Department is looking to get involved in more class actions.
Speaking to members of the Federalist Society at a luncheon in downtown Washington, Brand said the attorney general plans to review more class action settlements, and may file statements of interest in cases where the department finds a settlement unfair or unreasonable.
The 2005 Class Action Fairness Act requires that certain officials, in some cases the U.S. attorney general, be notified of and allowed to review class action settlements at least 90 days before they are entered by a court. Brand said that although DOJ receives about 700 of these notices a year, the department has only gotten involved in two cases, both of which were more than a decade ago.
The DOJ under Jeff Sessions has taken positions against class actions in closely watched cases. In the U.S. Supreme Court this term, the U.S. solicitor general’s office, switching from the Obama-era position, said companies can lawfully ban class actions in employment agreements.
Brand, who is leaving DOJ next week for a top legal post at Walmart, worked as chief counsel for regulatory litigation at the U.S. Chamber of Commerce until her confirmation last year. The Chamber is a major critic of class actions and the plaintiffs bar.
Brand blamed “an almost comical story of government bureaucracy” for the lack of government participation in the review process. She said CAFA notices get delayed by the DOJ mailroom process, meaning DOJ lawyers often don’t review them until after a fairness hearing in court or even after a settlement has been finalized.
Brand said the Justice Department is fixing the process, but she did not elaborate. She said DOJ is “already in a better position to review settlements.”
“Be on the lookout in the coming days for the first example,” Brand said.
Brand Questions Lawfulness of Nationwide Injunctions
Brand also criticized federal courts’ use of nationwide injunctions, just hours after a second federal appeals court upheld a ruling against President Donald Trump’s third travel ban.
Brand said “one of the biggest challenges” facing DOJ is the defense of multiple lawsuits in many courts over a single governmental action. Thursday morning, the U.S. Court of Appeals for the Fourth Circuit ruled en banc against the Trump administration. The Ninth Circuit’s ruling against the travel ban is now on review at the U.S. Supreme Court.
The use of nationwide injunctions by federal courts may not be constitutional, Brand said in her speech.
“There are real questions about whether nationwide injunctions are consistent with Article III of the Constitution, since they grant relief to parties not before the court,” Brand said. “In fact, rather than calling them nationwide injunctions, the term ‘non-party injunctions’ might be more apt. Whatever you call them, we are challenging their legality in several cases now.”
Sessions has also been critical of nationwide injunctions, which have slowed or stopped several other policies, including the Trump administration’s rescission of the Deferred Action for Childhood Arrivals policy and the ban on transgender people serving in the military.
As a senator, Sessions praised a Texas district judge’s injunction against President Barack Obama’s Deferred Action for Parents of Americans program in 2015. When Brand worked at the Chamber in 2016, the group celebrated a preliminary injunction that blocked the Obama administration’s overtime rule from taking effect.
Mum on Move to Walmart
Brand was relatively silent Thursday on last week’s news that she will leave DOJ, saying only that it was bittersweet to leave the department, and that she would have been “very happy to stay much longer.”
“Sometimes … something comes up unexpectedly and you just can’t pass it up,” Brand said. “That’s all there is to it.”
Brand’s full prepared remarks are posted below: