On May 19, Virginia Governor Abigail Spanberger (D) indicated that she intends to veto SB 229, a pending bill which would have created a Virginia state court class action mechanism and would have modified the Virginia Consumer Protection Act (VCPA) in critical ways. Governor Spanberger initially noted that she “approve[d] the general purpose of this bill,” but returned it to the legislature with proposed amendments.
In her statement released that same day, Governor Spanberger stated: “I support the General Assembly’s goal of providing a class action mechanism that can be used by plaintiffs in Virginia courts. I offered amendments to ensure that when Virginia adopts its first-ever class action procedure, we do so in a tailored and judicious way — building on longstanding, federal precedent while providing regional circuit courts an opportunity to develop expertise. The General Assembly did not accept these amendments.”
Even with the Governor’s proposed amendments, the bill’s measures to create a state court class action mechanism promised to make Virginia a significantly more attractive forum for consumer class action litigation.
An Overview of SB 229 with Governor Spanberger’s Proposed Amendments
The proposed Virginia state court class action law was modeled on Federal Rule of Civil Procedure 23, but was notably more plaintiff‑ (or plaintiff’s counsel-) friendly in a few critical ways. The differences that would have remained even with Governor Spanberger’s proposed amendments are described below.
One notable difference was how the statute lowered the bar on what was required for class notice. Where Rule 23 mandates “the best notice that is practicable under the circumstances,” SB 229 required only “reasonable notice.” The softer standard could have effectively reduced the scope, quality, and cost of class notice programs. The statute also excluded express consideration of the method and timing of payment in class settlements from a state court’s review.
SB 229 further constrained trial‑court flexibility in ways that diverged from federal practice. It provided that procedural orders in class cases could be altered or amended only “under limited circumstances,” without defining those limits. Rule 23, by contrast, assumes broad ongoing authority for district courts to manage and revise class‑related orders as a case evolves. SB 229 also changed the way dismissals of certified classes would be handled by requiring notice of a proposed dismissal of any case previously certified as a class action. This would have been an additional roadblock to early resolution of claims, and potentially increased judge reticence to early dismissal.
SB 229 also would have altered the appellate landscape relative to Rule 23. While Rule 23(f) permits discretionary interlocutory appeal only from orders granting or denying class certification, SB 229 adopted a broader interlocutory appeal standard modeled on 28 U.S.C. § 1292(b): any order could be appealed mid‑case if the trial court certified that it presented a controlling question of law, there was substantial ground for difference of opinion, and an immediate appeal could materially advance the termination of the litigation.
The law would have also created a panel‑based transfer mechanism for multiple related class actions, and imposed a venue requirement that a class action could proceed in one of only four circuit courts (City of Richmond, City of Roanoke, Fairfax County, or City of Norfolk), based upon whichever court was geographically closest to any named class representative.
Notably, unlike Rule 23, the proposed Virginia bill allowed attorneys’ fees and costs to be requested at any time. The bill also modified the VCPA’s damages provision to expressly state that it applies in a class action under the new law, but Governor Spanberger’s proposed amendment limited the recovery in class actions to actual damages (as opposed to the VCPA’s usual allowance for recovery of the greater of actual damages or $500 by a consumer who suffers a violation of the VCPA, or up to $1,000 for a willful violation).
The bill with the Governor’s proposed amendments would have required that the Supreme Court of Virginia amend its Rules to adopt Federal Rule of Civil Procedure 56 as the governing procedural rules for summary judgment in class actions under this new law, and to further state that Virginia’s statutory bar against the use of deposition testimony in support of summary judgment would not apply in class actions.
The bill provided that its provisions would have become effective on January 1, 2027.
The Original Bill Prior to Governor Spanberger’s Proposed Amendments
The version of the law that passed the Virginia Assembly prior to Governor Spanberger’s proposed amendments contained several additional differences from Rule 23 that would have created an even more plaintiff-friendly litigation environment.
Most fundamentally, while the bill retained a traditional predominance requirement, it expressly instructed courts to consider “the practical ability of individual class members to pursue their claims without certification.” Such language could be used to argue for a policy preference for class treatment where claims are small or impractical to bring individually — something not found in Rule 23. Governor Spanberger struck this language in her proposed amendments.
The original bill also did not include a venue requirement. It instead would have allowed plaintiffs to select local forums under general venue principles, including seeking courts perceived as more sympathetic, and would foreseeably have caused defendants to face overlapping cases in inconvenient or hostile venues without the centralization structures of the federal multi-district litigation mechanism.
The original bill also would have significantly strengthened the VCPA by expressly eliminating the actual loss damages requirement, allowing recovery of statutory damages ($500/$1,000) on a class basis, and changing the available statutory damages to a “per violation” model rather than per consumer. Governor Spanberger’s proposed amendments eliminated these changes.
Lastly, the original bill did not include any of the changes discussed above to Virginia’s procedures governing summary judgment.
Continuing with Virginia’s No-Class-Action Regime
While the amendments proposed by Governor Spanberger would have tempered some of SB 229’s more significant plaintiff-friendly attributes, it was still clear that the new Virginia state court class action mechanism and changes to the VCPA would have had a significant impact on consumer-facing businesses operating in Virginia, increasing both the likelihood of consumer litigation in Virginia state court as well as potential exposure and costs of defense in such litigation. With the veto of SB 229, that impact has been eliminated in several critical ways, including the following:
- The veto of SB 229 maintains the status quo for defendants in Virginia’s state court system, which is a particularly important consideration for defendants already faced with broad nonsuit rights that allow for tolling and refiling of claims, the tendency of state-court judges to take summary judgment motions “under advisement” and instead require full trials, a lack of robust Daubert gatekeeping, uneven experience across local courts, a lack of clearly imputed, judicially imposed constraints existing in federal court (e.g., regarding ascertainability), and appellate structures that do not guarantee correction of adverse outcomes.
- Plaintiffs’ attorneys will continue to craft putative class actions to satisfy the jurisdictional and procedural thresholds of the Class Action Fairness Act (CAFA) in order to secure a federal forum, often tailoring allegations about class size, amount in controversy, and minimal diversity primarily to gain access to a forum rather than advocating proof of genuine disputes.
- Plaintiffs bringing putative class actions must also satisfy the stricter Article III standing requirements of federal court, rather than rely on the more permissive defaults that often govern in state court, ensuring that each named plaintiff can demonstrate a concrete, particularized injury fairly traceable to the challenged conduct and harm.
Overall, the current framework fosters a more stable business and litigation environment, with clearer exposure, more manageable discovery, and a greater focus on truly injured parties and concrete disputes over state class actions.