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Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions

Myriam E. Gilles

Benjamin N. Cardozo School of Law

DePaul Law Review, Vol. 59, No. 2, 2009
Cardozo Legal Studies Research Paper No. 278

I start from the view that small-value consumer claims are a primary reason that class actions exist, and that without class actions many - if not most - of the wrongs perpetrated upon small-claims consumers would not be capable of redress. It would then seem to follow that the class action device should be readily available in small-claims consumer cases. And yet, over the past decade, federal district courts have repeatedly declined to certify class actions on grounds that are specific to small-claims consumer cases. Foremost among those grounds is the notion that the federal class action rule carries within it an implicit requirement of “ascertainability.” More specifically, courts have held that in order to certify a class, the identity of class members must be sufficiently ascertainable to ensure the efficacy of a subsequent distribution of damages. In practice, what this shadow standard of ascertainability has come to mean is that no matter how clear the evidence of wrongdoing, plaintiffs have no redress in the typical consumer case involving small retail transactions. This article examines the ascertainability doctrine as it is developing in the courts, and shows that the traditional goals of class actions - deterrence and compensation - cannot plausibly be said to animate this new certification requirement. Indeed, the ascertainability requirement readily sacrifices both deterrence and compensation in favor of an alternative value, namely, ensuring that compensation does not flow to uninjured parties. I end with a first-round effort to understand what really may be animating the ascertainability doctrine, suggesting that the explanation lies in a conception of class actions that is based on a private law model - i.e., a conception that demands unity among the injured parties, the prosecutors of civil actions, and the beneficiaries of remedies. Future work will seek to tease out the normative underpinnings of this private law model.

Number of Pages in PDF File: 33

Keywords: Rule 23, ascertainability, Del Monte, Illinois Brick, cy pres, punitive damages, private enforcement

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Date posted: November 4, 2009  

Suggested Citation

Gilles, Myriam E., Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions. DePaul Law Review, Vol. 59, No. 2, 2009; Cardozo Legal Studies Research Paper No. 278. Available at SSRN: https://ssrn.com/abstract=1499402

Contact Information

Myriam Gilles (Contact Author)
Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States
212-790-0344 (Phone)
212-790-0205 (Fax)

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