Gilles on Consumer Class Actions

We all know judges are hostile to mass tort class actions, but Myriam Gilles (Cardozo) argues that consumer class actions are also suffering the brunt of judicial hostility in an article with the excellent title “Class Dismissed: Contemporary Judicial Hostility to Small Claims Consumer Class Actions” now available on SSRN.  Here is the abstract:

Istart from the view that small-value consumer claims are a primaryreason that class actions exist, and that without class actions many -if not most – of the wrongs perpetrated upon small-claims consumerswould not be capable of redress. It would then seem to follow that theclass action device should be readily available in small-claimsconsumer cases. And yet, over the past decade, federal district courtshave repeatedly declined to certify class actions on grounds that arespecific to small-claims consumer cases. Foremost among those groundsis the notion that the federal class action rule carries within it animplicit requirement of “ascertainability.” More specifically, courtshave held that in order to certify a class, the identity of classmembers must be sufficiently ascertainable to ensure the efficacy of asubsequent distribution of damages. In practice, what this shadowstandard of ascertainability has come to mean is that no matter howclear the evidence of wrongdoing, plaintiffs have no redress in thetypical consumer case involving small retail transactions. This articleexamines the ascertainability doctrine as it is developing in thecourts, and shows that the traditional goals of class actions -deterrence and compensation – cannot plausibly be said to animate thisnew certification requirement. Indeed, the ascertainability requirementreadily sacrifices both deterrence and compensation in favor of analternative value, namely, ensuring that compensation does not flow touninjured parties. I end with a first-round effort to understand whatreally may be animating the ascertainability doctrine, suggesting thatthe explanation lies in a conception of class actions that is based ona private law model – i.e., a conception that demands unity among theinjured parties, the prosecutors of civil actions, and thebeneficiaries of remedies. Future work will seek to tease out thenormative underpinnings of this private law model.

ADL