I am often contacted by potential clients and fellow attorneys about pursuing possible class actions in Virginia. Most are unaware of a unique hurdle for potential Virginia class action plaintiffs: Virginia’s prohibition on class actions in state court. Class actions are, however, permitted in Virginia’s federal courts.
My name and my firm come up near the top of the list on Internet searches for Virginia class action attorneys. Presumably, that is because, although I am licensed to practice in both Virginia and Washington, D.C., and have appeared in class actions in courts throughout the United States, my office is physically located in Arlington, Virginia (just across the Potomac from Washington).
An important fact that many individuals interested in class actions—even many Virginia lawyers—do not realize is that that Virginia law prohibits class actions in state courts. To the best of my knowledge, Virginia and Mississippi are the only states in the country that have no state-level class action procedure.
This does not mean that a class action cannot be filed in Virginia. Virginia federal courts can hear class actions under Rule 23 of the Federal Rules of Civil Procedure, even if the claim is entirely based on alleged violations of Virginia law, assuming that there is a basis for federal court jurisdiction. And, if a significant amount of money is involved, the Class Action Fairness Act of 2005 is likely to give jurisdiction to federal courts, even if the traditional grounds of federal jurisdiction are absent.
The confusion—even among lawyers—as to the rules about class actions in Virginia is not surprising. Class actions are a vital aspect of our legal system. Among other things, they allow wrongdoers to be held accountable in cases in which a large group of persons or businesses have suffered damages that add up to a significant amount of money in the aggregate, but that are so small as to each individual or business that a traditional individual lawsuit would be uneconomical. Unfortunately, there is much hostility toward class actions based on exaggerated fears that they can be abused to extort unfair settlements from businesses. Consequently courts, Congress and state legislatures have scattered numerous hidden and not-so-hidden roadblocks in the paths of potential class action plaintiffs. This is one reason that class action cases should only be brought by attorneys with considerable experience in this complex corner of the law.