The class action is one of the most controversial procedural devices in the American legal system. In the years since an expanded class action rule was adopted in 1966, class actions have grown in scope and number, and suits by consumers have accounted for an increasing share of class actions suits. By allowing individuals to sue not only for themselves, but also on behalf of others similarly situated, the class action “empowers plaintiffs to bring cases that otherwise either would not be possible or would only be possible in a very different form.” Business critics see this as enabling “lawyers [to] seek out opportunities to bring these large-scale suits in the expectation that they will receive large fees, whether or not the suit has underlying merit and whether or not the individuals on whose behalf the suit is brought benefit significantly from its resolution.” Consumer advocates, on the other hand, see it as providing “a means of bringing a legal action on behalf of a large number of consumers who may be harmed when corporations engage in wrongful behavior” that can “succeed in eliminating inappropriate business practices that would otherwise impose unwarranted costs on individuals.” The class action serves the interests of economy by not having to try the same issues again and again in separate cases. It also serves the interests of consistency and finality by avoiding inconsistent outcomes in separate trials of similar cases and resolving all claims in a single case. In the consumer context, it provides access to the courts for persons who cannot themselves afford to sue. On the other hand, if there is insufficient commonality of interest among the class members, class treatment can deprive them and the defendant of an individualized determination of their disputes. Since the plaintiff is usually self-appointed, any person (or perhaps more properly any lawyer willing to finance a class action) can subject a defendant to the risks of a suit on behalf of a large group of persons. A class action affects the bargaining power of the parties, enabling plaintiffs to command more litigation resources by combining their cases and giving them greater leverage by compounding the defendant's risk of loss.
Edward F. Sherman,
Consumer Class Actions: Who are the Real Winners?,
Me. L. Rev.
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