Virginia’s Class Action Push Is on Hold. What Companies Must Do.

Virginia’s outlier status as one of only two US states that don’t permit class action in state courts may be poised to change, but not for at least another year.

On May 19, after proposing changes to the bill that were rejected by the state legislature, Gov. Abigail Spanberger (D) vetoed legislation that would’ve created a class action mechanism for Virginia state courts, signaling support for allowing class actions in principle, while pushing for a more tailored framework.

Consumer and public interest groups have long lobbied Virginia to enact a class action statute, arguing that the omission limits individuals’ ability to vindicate their rights in the Commonwealth; similar legislation was vetoed in 2024 by then-Gov. Glenn Youngkin (R).

The current bill passed both chambers of the Virginia legislature in February. Gov. Spanberger returned the bill without signature in March, proposing several amendments. After the General Assembly rejected those changes in April, the governor ultimately vetoed the bill. While the legislature could override the veto, that appears highly unlikely given recent party-line votes.

The veto signals that the issue isn’t whether Virginia should allow class actions but how and when. Spanberger’s proposed amendments sought to more closely align the would-be Virginia procedures with Federal Rule of Civil Procedure 23 and to further modify the legislation by:

• Removing an additional access-to-justice factor in the superiority analysis for class certification, specifically “the practical ability of individual class members to pursue their claims without certification,” which would make certification easier in certain cases.
• Decreasing potential exposure under the Virginia Consumer Protection Act (VCPA) by removing the bill’s “per-violation” statutory damages and limiting recovery to actual damages.
• Restricting class action litigation to specific Virginia courts.

The amendments signal the contours of the class action system that Gov. Spanberger is willing to sign, and any successor bill proposed during her term likely will need to accommodate some or all of these preferences to avoid another veto.

Bill Actions

In its current form, the bill would’ve permitted class actions in Virginia state courts beginning Jan. 1, 2027. While the legislation largely followed FRCP 23, there were notable differences.

The Virginia bill added another factor for a court to consider when evaluating superiority: “the practical ability of individual class members to pursue their claims without certification.” This departs from FRCP 23(b)(3) by adding access-to-justice considerations, potentially making certification easier where individual lawsuits are impractical even if other superiority considerations are unmet.

For certain types of class actions, the bill would’ve required that the means for class notice be “reasonable under the circumstances”—a less demanding standard than FRCP 23(c)(2), which requires “the best notice that is practicable under the circumstances.”

The bill also imposed a tighter timeline for interlocutory appeal. While FRCP 23(f) typically sets a 14-day petition deadline, the bill would‘ve required an application within 10 days and that an appeal not stay proceedings except by court order.

Notably, the bill included venue and transfer provisions for overlapping class actions, including a transfer panel mechanism, addressing a perceived gap in FRCP 23 that courts typically handle through other mechanisms.

The bill also proposed two consequential changes to the VCPA. First, it removed the statute’s reliance requirement, expressly reversing the Supreme Court of Virginia in Owens v. DRS Auto. FantomWorks, Inc. Second, it allowed the VCPA’s current per-violation statutory damages to be aggregated across a certified class, an issue that Gov. Spanberger’s amendments sought to limit to actual damages.

Reading the Veto

Whether any of these provisions take effect (and in what form) now turns on the veto’s aftermath. An override is unlikely. Virginia requires a two-thirds majority in both chambers, and the recent party-line votes leave proponents well short of that threshold.

The likelier path is a revised bill in the next session, one that more closely aligns with FRCP 23 and reconsiders the VCPA and other changes proposed by Gov. Spanberger.

Consequences

If a revised bill is enacted, the law would still expand litigation risk for many companies operating in the Commonwealth, although the governor’s amendments, if incorporated into future legislation, would limit some of that exposure.

Statutory damages can transform a small claim into an enterprise-level risk, and eliminating the VCPA’s reliance requirement would invite more consumer class actions across state and federal courts—including the US District Court for the Eastern District of Virginia. Data breach, privacy, employment, financial services, and related tort and warranty class claims would become common.

Even with closer alignment to FRCP 23, the absence of a Virginia-specific precedent would prompt inconsistent class certification rulings. Interlocutory appeals would increase, as would fee-related disputes and appeals. This initial development of class action law would place additional pressure on Virginia courts at every level.

What’s Next

Companies should consider what steps they may need to take if and when Virginia adopts a class action mechanism.

First, companies should review all agreements, terms of service, and other contractual provisions for employees, consumers, and other potential class action plaintiffs. Express class action waivers, mandatory arbitration, and limitation of liability provisions may help manage some risks. The enforceability of these and other contractual provisions likely would be heavily litigated if a bill is enacted, potentially requiring further revisions to such provisions.

Second, given the proposed VCPA changes, companies should review advertising, product labeling, and disclosures (websites, renewals, pricing) and eliminate ambiguous claims and small print contradictions. On data governance and privacy, companies should audit data collection and sharing practices, align disclosures, and evaluate tracking, third-party monetization, and retention policies.

Third, develop a class action playbook. Engage counsel to provide preemptive advice and counseling and to monitor industry claims and trends.

Finally, companies should revisit their insurance policies and consider obtaining new or additional coverages.

The timeline for reform has shifted, but the direction has not. Companies doing business in the Commonwealth should treat the veto not as a reprieve, but as an opportunity to prepare for a likely change in Virginia’s legal landscape.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Jon Talotta is partner at Hogan Lovells and global co-leader of the firm’s corporate and securities litigation group.

Carrie DeLone is partner at Hogan Lovells and co-head of the firm’s global class and collective actions practice.

Trent Sterneck is senior associate at Hogan Lovells and member of the firm’s global class and collective actions practice.

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