Life After Amchem: The Class Struggle Continues, page 12

Life After Amchem (continued)

Page 12

Most states have incorporated Rule 23, often verbatim, into their codes or rules of civil procedure. Moreover, many states predated the federal system in their invocation of equity jurisprudence to certify class actions. State court experience with class actions can be traced, as in the federal courts, to the development of American equity doctrines in the nineteenth century, and state courts are often at the forefront of adapting these principles to modern needs. Indeed, it could be fairly said that the state courts have remembered, with greater fidelity, the equitable precepts of efficiency, access, empowerment, and economy recently invoked by Amchem, which some federal courts have readily forgotten.

The codification of the equity class action occurred in many states before Federal Rule 23, or its precursor, Equity Rule 38, was in existence. These equity statutes typically borrowed from equity jurisprudence and codified the fundamental principles to apply the class action to suits in both law and equity.⁴⁴ The state courts were again in the forefront in matters of consumer justice. The rights of consumers to compensation for unfair business practices, false advertising, and dangerous, misrepresented, or overpriced products was accompanied by the recognition of products liability law⁴⁵ and by a growing judicial recognition that such rights were meaningless if economic barriers prevented litigants from pursuing their claims. The class action mechanism was invoked to prevent mass producers and mass advertisers from cheating the many, a little at a time. The California Supreme Court landmark decision in Vasquez v. Superior Court⁴⁶ is illustrative of this movement.

Protection of unwary consumers from being duped by unscrupulous sellers is an exigency of the utmost priority in contemporary society . . . . The alternatives of multiple litigation (joinder, intervention, consolidation, the test case) do not sufficiently protect the consumer's rights because these devices "presuppose ‘a group of economically powerful parties who are obviously able and willing to take care of their own interests individually through individual suits or individual decisions about joinder or intervention.'"

Frequently numerous consumers are exposed to the same dubious practice by the same seller so that proof of the prevalence of the practice as to one consumer would provide proof for all. Individual actions by each of the defrauded consumers is often impracticable because the amount of individual recovery would be insufficient to justify bringing a separate action; thus an unscrupulous seller retains the benefit of its wrongful conduct. A class action by consumers produces several salutary byproducts, including a therapeutic effect upon those sellers who indulge in fraudulent practices, aid to legitimate business enterprises by curtailing illegitimate competition, and avoidance to the judicial process of the burden of multiple litigation involving identical claims. The benefit to the parties and the courts would, in many circumstances, be substantial.⁴⁷

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NOTES

⁴⁴ In England, the class action doctrine, a seventeenth century invention, was restated and shaped in a series of equity decisions, notably those of Lord Eldon in the early nineteenth century. See Stephen C. Yeazell, From Group Litigation to Class Action, Part 1: The Industrialization of Group Litigation, 27 UCLA L. REV. 514, 548-52 (1980); see also INDIVIDUAL JUSTICE, supra note 29, at 548. In the United States, Justice Story formulated the American equitable doctrine of the representative suit based upon the English case law. See Scott D. Miller, Note, Certification of Defendant Classes Under Rule 23(b)(2), 84 COLUM. L. REV. 1371, 1381 (1984). The class suit was adopted by many of the states in their Field Codes and related codification movements of the late nineteenth century. These state code provisions simply restated the formulations of English case law to provide that "when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." CAL. CIV. PROC. CODE § 382 (West 1973). Federal Equity Rule 38 later used virtually identical language: "[W]hen the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole."

⁴⁵ "[T]he classic [state] cases of products liability law that propelled the law toward tort and away from contract . . . were grounded, in part, on the courts' keen awareness of advertising's growing power over consumer decisionmaking." Note, Harnessing Madison Avenue: Advertising and Products Liability Theory, 107 HARV. L. REV. 895, 895 (1994). These cases, including Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963), Escola v. Coca-Cola Bottling Co., 24 Cal. 2d 453, 150 P.2d 436 (1944), and Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960), observed that consumers of mass-produced and mass-marketed goods and services must rely on the representations made and impressions created by modern advertising. Consumers have been "lulled" by manufacturer-provided advertising and marketing devices and "[u]nder modern conditions the ordinary layman, on responding to the importuning of colorful advertising, has neither the opportunity nor the capacity to inspect or to determine the fitness of [a product] for use." Henningsen, 161 A.2d at 83.

⁴⁶ 4 Cal. 3d 800, 484 P.2d 964, 94 Cal. Rptr. 796 (1971).

⁴⁷ Id. at 808, 484 P.2d at 968-69, 94 Cal. Rptr. at 800-01 (citation omitted).