- - Tuesday, January 14, 2014


Class-action lawsuits are the caviar and lobster for tort lawyers. Without class-action litigation, a lot of lawyers would have to find other work, law schools would close and judges could hang up their robes and leave the courthouse early for the golf course.

These are the lawyers who pursue clients — unkind laymen might call them the ambulance-chasers of the breed — and assemble the similarly damaged to combine complaints in a single lawsuit. If 300 customers buy a product that is defective in identical ways, bundling their cases to treat them as one is an efficient way to pursue justice.

But hundreds and even thousands of plaintiffs with little in common can be put together simply for convenience, and the defendants, such as manufacturers, are sometimes forced to pay out big money to consumers with nothing more in common with their fellow plaintiffs than having been swept into a “class” by a trial lawyer on the scout for a big payday. Often the lawyers get the cash, and the plaintiffs get coupons.

The Supreme Court has never been eager to monitor tort lawyers, and last week the high court sidestepped two cases that seemed to offer the justices an opportunity to discipline their trade. On Friday shortly before the justices were scheduled to decide whether to hear them, the court took the cases off their agenda. Court watchers could only speculate why; such decisions are always shrouded in mystery.

The cases — Sears v. Butler and Whirlpool v. Glazer — are widely regarded as the biggest “business” cases to come before the high court in years, and could determine the future of class-action litigation. Anyone who watches late-night television has seen the commercials trolling for clients, with trial (or tort) lawyers prospecting for someone with a beef, legitimate or otherwise, and ready to sue.

Often such a class consists of men and women who have suffered real and identical harm, but sometimes such clients added their names to the list only to get in on a sweet deal. Sometimes the number of those actually harmed, rather than merely annoyed, is quite small in comparison to the number of those who actually bought the product. In recent years, the Supreme Court has begun to insist that lower courts look more closely before “certifying” that a class is entitled to its day in court.

In two of those earlier decisions, involving Wal-Mart and Comcast, the high court required a “rigorous examination” of the facts before certifying groups of customers as legitimate classes, to make certain that the facts pointed to real damage rather than accusations, and that the causes were in fact identical. This seems merely common sense, but two lower appeals courts lowered the standards.

The appliances in the Sears and Whirlpool cases are technologically advanced, to save energy and water in response to government regulations demanding more efficient appliances. Early customers — 2 percent to 3 percent of those buying — complained that the washers and dryers gave off a “musty” smell. Trial lawyers bundled the unhappy 2 percent to 3 percent with the 97 percent to 98 percent who were satisfied with their machines.

If manufacturers are deprived of justice — they’re entitled, too — they will be reluctant to risk introducing new products, which often are improved in succeeding generations. These will give the tort lawyers the opportunity to seek riches at the expense of the rest of us. The rest of us need relief, too.

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