Monday, November 23, 2009
Gilles on Judicial Hostility to Small-Claims Consumer Class Actions
Myriam E. Gilles (Cardozo Law School) has posted Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions to SSRN.
Abstract:
I start from the view that small-value consumer claims are a primary
reason that class actions exist, and that without class actions many -
if not most - of the wrongs perpetrated upon small-claims consumers
would not be capable of redress. It would then seem to follow that the
class action device should be readily available in small-claims
consumer cases. And yet, over the past decade, federal district courts
have repeatedly declined to certify class actions on grounds that are
specific to small-claims consumer cases. Foremost among those grounds
is the notion that the federal class action rule carries within it an
implicit requirement of “ascertainability.” More specifically, courts
have held that in order to certify a class, the identity of class
members must be sufficiently ascertainable to ensure the efficacy of a
subsequent distribution of damages. In practice, what this shadow
standard of ascertainability has come to mean is that no matter how
clear the evidence of wrongdoing, plaintiffs have no redress in the
typical consumer case involving small retail transactions. This article
examines the ascertainability doctrine as it is developing in the
courts, and shows that the traditional goals of class actions -
deterrence and compensation - cannot plausibly be said to animate this
new certification requirement. Indeed, the ascertainability requirement
readily sacrifices both deterrence and compensation in favor of an
alternative value, namely, ensuring that compensation does not flow to
uninjured parties. I end with a first-round effort to understand what
really may be animating the ascertainability doctrine, suggesting that
the explanation lies in a conception of class actions that is based on
a private law model - i.e., a conception that demands unity among the
injured parties, the prosecutors of civil actions, and the
beneficiaries of remedies. Future work will seek to tease out the
normative underpinnings of this private law model.
RJE
https://lawprofessors.typepad.com/civpro/2009/11/gilles-on-judicial-hostility-to-smallclaims-consumer-class-actions.html