A Rise in Consumer Class Actions

A story from law.com (found at http://www.law.com/jsp/article.jsp?id=1184058395924) says that plaintiffs lawyers are filing more consumer class action lawsuits and less personal injury class actions. In many personal injury class action suits, the judges are refusing to certifying the class because the circumstances of each plaintiff's injury are too dissimilar to warrant treatment as a class. In most of these consumer cases, the members of the class are people who claim they would not have purchased the product if they knew of the potential harm. Thus, the suits are ultimately about economic, rather than personal, injury.

An attorney who represents GlaxoSmithKline (the maker of Paxil and a target of many consumer class action suits) said, "[p]laintiffs lawyers are crafty enough to realize that very few people are actually injured by any of these products . . . . Instead, what they look for are people who purchased the products." There are currently suits against the makers of pharmaceuticals, contact lens solution, soft drinks, Teflon cookware, and iPods.

There are a lot of things that trouble me about these suits. First, this is essentially an attempt by plaintiffs lawyers to get around the pesky "injury" requirement in a personal injury suit. Second, if there truly is an injury, then a class action is probably not the best means for an injured party to seek retribution. Lawyers prefer class action suits because the lawyers make a lot more money and do a lot less work than if they brought individual personal injury suits. And ultimately, the plaintiffs themselves recover a lot less. (Note that the ethics rules require lawyers to serve their clients' interests and not their own.)

Of course, if a consumer hasn't been injured by a product but regrets the purchase for a legitimate reason, then they should have no problem getting a refund. There's also the Better Business Bureau, or even conciliation court for a particularly stubborn company. But companies don't want the negative PR, so they will generally bend over backwards to satisfy the consumer (the airlines are a notable exception). If nothing seems to work, then enter the consumer protection laws.

But here's where it gets funny. Because of the allegations in the consumer class action suits, the attorneys can really only sue for a refund of the purchase price. (So, if there really was something wrong with your contact lens solution, then you'd only be getting a refund, minus the 33%-or-so for attorneys fees.) So what could be the possible advantage to consumers? All they have to do is hop on board and claim that they probably wouldn't have bought their iPod if they knew it could affect their hearing, and they get a portion of a refund, and they get to keep their iPod that will eventually damage their hearing.

So, basically, the plaintiffs lawyers are making a lawsuit out of the possibility of a physical risk, without any evidence that the risk will ever actually be realized. Isn't this the very definition of "frivolous lawsuits"?