A Question of Balance

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A few weeks ago I read a blog post by a contributor to Forbes, expressing concern that the Supreme Court is “trying to impose substantial restrictions on class actions.”  The post gets off to a bad start by referencing the movie “A Civil Action,” and inaccurately characterizing the lawsuit at the heart of the film as “a class action case.”  As a young lawyer, I worked on one of the defense teams in that case, and I can state categorically that it was not a class action.  Rather, the members of eight families were joined individually as plaintiffs.  It was an exceptionally sad case, involving grave illnesses that afflicted a few of the plaintiffs (including minor children) and led to some of their deaths, but it was not brought, and could not have been certified, as a class action.  As all class action lawyers should know, toxic tort claims almost always involve highly individualized issues regarding medical causation (e.g., did the exposure cause the plaintiff's disease, or could the plaintiff's contraction of the disease be explained by other factors?) that generally cannot be addressed through representative litigation.

Unfortunately, the Forbes blog post extols the virtues of class actions without recognizing their vices.  Anticipating class action cases on the Court's docket this term, and invoking Chief Justice Roberts' “tack to the center” in upholding the Affordable Care Act, the author concludes that the Chief Justice “will be pivotal again in deciding whether consumers can effectively seek redress or whether the Supreme Court will operate as the judicial arm of the Chamber of Commerce.”

This characterization of what is at stake is unfortunate and, as is often the case among class action apologists, disregards the balance struck by Rule 23's framers.  While class actions in appropriate cases certainly can have a legitimate role in redressing common harms, when cases not suitable for collective treatment are allowed to proceed as class actions, they can trample on the rights of individual and corporate defendants to defend against the claims advanced. 

By definition, class actions assert the rights of numerous persons, often thousands of them, who are not in any real way before the court.  The rights of these absent class members are to be vindicated by one or more named plaintiffs, who are charged with the job of representing all of them. 

Very often, the absent class members are not all similarly situated.  Some may have acted in ways that give rise to fact-specific defenses against their claims, and some may not have been affected by the alleged conduct of the defendants at all or in the same way as others.  If such absent class members were asserting their claims individually, due process would dictate that the defendants be permitted an opportunity to present their defenses to the plaintiffs' claims.  But if a class is certified and the claims are pursued in the aggregate, it becomes impossible to present such individual defenses.  Similarly, if the named plaintiffs' circumstances are materially different from the circumstances of some of the absent class members, they may not have adequate incentive to pursue the absent class members' interests.

Because our legal system is premised on the fair opportunity for all sides in a dispute to have their claims and defenses presented in a court of law, the framers of Rule 23 sought to balance everyone's interests.  Thus, while the rule permits class actions, it does so only if the issues in the case are common to the class, the claims of the representative plaintiffs are typical of the claims of the class, the class representatives will adequately protect the interests of the class, and in cases seeking money damages, the common issues predominate over issues affecting individual class members.  The framers recognized, as the Supreme Court has long observed, that class actions are an exception to the usual rule of individual litigation, and so they adopted a set of requirements to balance the interests of all stakeholders to potential class litigation.  Due process for all demands no less.

Whether the Court's interpretations of Rule 23 and other laws (such as the Federal Arbitration Act) will achieve the balance the framers intended, and how the Court should rule in the pending cases on its docket, are properly the subject of legitimate debate.  But the all-too-frequent suggestion that the Court should tilt that balance in favor of consumers or other categories of class action plaintiffs misses the point of what class actions are and, more importantly, what they are not.