The New Qui Tam: A Model for the Enforcement of Group Rights in a Hostile Era

44 Pages Posted: 31 Mar 2019

See all articles by Myriam E. Gilles

Myriam E. Gilles

Benjamin N. Cardozo School of Law

Gary B. Friedman

Friedman Law Group

Date Written: January 10, 2019

Abstract

The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions – particularly class-banning arbitration clauses. As these critical enforcement methods recede, will alternative methods of prosecuting claims arise? How might they work? Are they politically and fiscally sustainable? We focus here on a promising approach just now coming into view: qui tam legislation authorizing private citizens to bring representative claims on behalf of consumers, workers, and others. Progressive advocates have recently begun working with legislators in a handful of states to provide a qui tam mechanism for enforcing state statutory rights. The form these new laws might take remains uncertain and their enforceability is sure to be hotly contested by corporate interests and others. This article examines the legal and policy challenges that will face “new qui tam” legislation, and considers arguments for and against enlarging the role of citizens in prosecuting claims – an inquiry that requires us to determine the legitimacy and limits of the private attorney general model in its starkest form.

Keywords: class actions, labor, consumer rights, arbitration, private attorney general

Suggested Citation

Gilles, Myriam and Friedman, Gary B., The New Qui Tam: A Model for the Enforcement of Group Rights in a Hostile Era (January 10, 2019). Available at SSRN: https://ssrn.com/abstract=3348122 or http://dx.doi.org/10.2139/ssrn.3348122

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)

Gary B. Friedman

Friedman Law Group ( email )

270 Lafayette Street
Suite 1410
New York, NY
United States
212-680-5150 (Phone)

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