The end of American Class-Action Lawsuits?

[skadistic]

Ok so the ideal solution to companies screwing you in their contracts is to deprive yourself of the service they provide?



Ok. What if companies providing you with electricity all have abusive clauses? The ideal solution would be to not get electricity?

Can you still sue as an individual?

What if you stay on topic. We aren't talking about electric companies. You can always go solar any way or wind on a personal level. There are alternatives.

 

[I'm Cleo!]

There are lots of things you can't contract away -- your constitutional rights, for example (e.g., you can't sell yourself into slavery). As LucyDuke pointed out, there's a doctrine called "unconscionability," whereby you're not bound by terms in a contract where it would be "unconscionable" for a court to enforce them. Circular definition, I know, but it covers things where there would be a fundamental injustice, including something called "contracts of adhesion," where one party really didn't have a chance to consent meaningfully to the terms. Your cellphone contract is a contract of adhesion, and unconscionable terms can easily be written out by a court. People generally don't know this, but I'd say that most mass-produced, fine-print-containing contracts that you sign include unconscionable terms that a court would not hesitate to write out if you challenged it in court. Insurance contracts, for example, have all sorts of rules regarding their interpretation, and they're always interpreted in favor of the insured, because courts know that they're contracts of adhesion drafted by experts in a complicated field. Of course, you have to hire an attorney and pay all the costs, which brings me to . . .

The whole point of class actions. Here, you have a giant company with deep pockets (and spectacularly well-compensated trial lawyers) that can act unlawfully as long as the cost it imposes on a particular wronged consumer is less than the cost of an individual lawsuit against the company. Because without class actions companies could screw every one of their customers out of a sum of money X, as long as X is less than the cost of filing a complaint in court. (Or X, discounted by the percentage of erstwhile plaintiffs who would still file just for the principle of the matter.)

Of course there are unscrupulous class action attorneys who pocket enormous settlements while their clients get something like a coupon for 50% off four new tires, but that doesn't mean that class actions do not serve an essential purpose in our legal system. (Oh, and groups like Public Justice or the Foundation for Taxpayer and Consumer Rights are not the unscrupulous, millionaire attorneys.)

Cleo

 

[I'm Cleo!]

skadistic,

Would you support the higher taxes to pay for all the judges, clerks, and staff to handle all the individually-filed consumer protection suits your approach would require? (Oh, and believe me, it would be a lot more judges, clerks, and staff.)

Cleo

 

[skadistic]

Great Skad. Now show us where anyone signing up to that contract actually did agree to be screwed by the company changing the contract...?

When they signed their name. I know you wont understand that. I'm pretty sure somewhere in there a line about how the contract and its terms can be changed at any time with out prior notice. And when you sign that name on the line you agree to that. Its really simple.

 

[skadistic]

skadistic,

Would you support the higher taxes to pay for all the judges, clerks, and staff to handle all the individually-filed consumer protection suits your approach would require? (Oh, and believe me, it would be a lot more judges, clerks, and staff.)

Cleo

No. Its not a criminal court so there is no right to a speedy trial. It takes as long as it takes. Most of these suits would be settled out of court anyway.

 

[brennan]

When they signed their name. I know you wont understand that. I'm pretty sure somewhere in there a line about how the contract and its terms can be changed at any time with out prior notice. And when you sign that name on the line you agree to that. Its really simple.

Great. You sign this innocuous looking contract and i'll change it so that it actually gives me all your worldly posessions and income in perpetuity. Hey no wait, that actually totally violates the principles of a contract and i'm in breach, maybe I can't actually legally do that...?

Any change a company makes has to be agreed by the other party or it ain't valid.

 

[skadistic]

Great. You sign this innocuous looking contract and i'll change it so that it actually gives me all your worldly posessions and income in perpetuity. Hey no wait, that actually totally violates the principles of a contract and i'm in breach, maybe I can't actually legally do that...?

Any change a company makes has to be agreed by the other party or it ain't valid.

It is agreed to by the other party when you sign the contract. If you read the contract before you sign it you would know that. And if you sign it you agree. Not that hard. I don't see why you have such a hard time understanding something so simple.

 

[sonorakitch]

My problem with the typical class-action is that the regular joe gets a few dollars, and the attorneys get millions. Then, the company has to come up with the money to dole out to the attorneys and raise their prices. So my prices go up so some idiot can get a few dollars and some attorney can buy an island in the Bahamas.

I have been suckered by a company like this before...I left and found another. I didn't join the frivolous class-action lawsuit some mouthpiece put together.

Perhaps there are times when a class action lawsuit is warranted, but I hate them so much I cannot vote any other way.

~Chris

 

[brennan]

It is agreed to by the other party when you sign the contract. If you read the contract before you sign it you would know that. And if you sign it you agree. Not that hard. I don't see why you have such a hard time understanding something so simple.

*yawn* if you expect me to submit to terms I haven't signed agreement to, you can dream on.

 

[skadistic]

*yawn* if you expect me to submit to terms I haven't signed agreement to, you can dream on.

I only expect you to understand what you sign and agreed to and live up to those agreements. Something you obviously aren't honest enough to do.

 

[Den Valdron]

Well, I can't pretend to be a high powered lawyer, as so many other people in here, like Skadistic, undoubtedly are. But I do admit to having brushed up against the law once in a while, and suppose a few grains of legal pollen might have stuck to me as I blundered off.

It strikes me that in contract law, one of the most fundamental terms is certainty. Don't matter if its read or not, but the key is that a person had they read it, would have clearly understood everything that was provided for in the obligations between the two parties. Contracts which do not provide the requisite degree of certainty, are void. If you don't know what you're contracting for, then you can't contract for it. N'est ca pas.

Now, if you've got a contract which provides one party the right to unilaterally change terms of service, even to change the identity of the contracting party... that's a pretty uncertain contract. It's not a contract. Void for uncertainty.

It also strikes me that when you breach a contract... well, that contract is broken. You've stepped outside the contract. That's where the courts come in. Now, there's room for reasonable disputes within a contract, that's where you get arbitration. But an actual breach? That's busting down the fence and going for a joyride. When you go outside the contract, you don't get to keep the protections of that contract.

When these corporate Yahoos decided to breach their own contracts by changing the parties and unilaterally imposing different options of screwjob... well, they busted down that fence and went for a joyride. They left the contract way behind. They aren't entitled to the protections of the contract while they're breaking it.

So that 'no class actions suit' clause is just not operative. Because, you know, dat dere contract, it is all busted up and we is standing on the outside of it. They can be sued.

In any event, I'm no American constitutional lawyer, but it seems to me that its probably unconstitutional, possibly illegal, and certainly against public policy to try and get someone to contract out of fundamental legal rights, and the right to redress in Court is a lot more fundamental than any amount of fagging around with the 2nd Amendment.

 

[Den Valdron]

My problem with the typical class-action is that the regular joe gets a few dollars, and the attorneys get millions. Then, the company has to come up with the money to dole out to the attorneys and raise their prices. So my prices go up so some idiot can get a few dollars and some attorney can buy an island in the Bahamas.

I have been suckered by a company like this before...I left and found another. I didn't join the frivolous class-action lawsuit some mouthpiece put together.

Perhaps there are times when a class action lawsuit is warranted, but I hate them so much I cannot vote any other way.

~Chris

I didn't realize that you were such an expert on class action lawsuits. Wherefrom does this expertise come from. Are you a lawyer who opposes class action lawsuits, a judge who has seen them from the bench, have you done statistical surveys of class action lawsuits, case studies, was your mother frightened by a class action lawsuit.

You say that you were suckered by a company and joined another. Do you feel that the money they suckered out of you was frivolous? If so, why did you bother joining another company. Why didn't you have a good laugh at the frivolity of it all.

I gotta say though, I think you're wrong about these big companies having to spend money on high priced lawyers. Reason is, they're already paying these high priced lawyers. Every big company has its own in-house legal department staffed with lawyers whose job is to write the contracts and sit around figuring out new ways to screw consumers. So actually, its good that they get tied up fighting class action suits. Otherwise, they'd just have too much time on their hands. Net effect is no extra cost to consumers for the products, because of the expense of class action suits. Lots of extra costs to consumers for products when these lawyers are given the luxury of thinking up new ways to bend us over a table.

 

[skadistic]

I'm not a high powered lawyer and never claimed to be but I do a thing or two about contracts. If a contract says that the terms can be changed at any time and you agree to that by signing your name. Guess what. You agree to that. Its not void. Its not a breach. It is part of the contract you agreed to. And there is no constitutional component at all to this.

 

[skadistic]

I didn't realize that you were such an expert on class action lawsuits. Wherefrom does this expertise come from. Are you a lawyer who opposes class action lawsuits, a judge who has seen them from the bench, have you done statistical surveys of class action lawsuits, case studies, was your mother frightened by a class action lawsuit.

You say that you were suckered by a company and joined another. Do you feel that the money they suckered out of you was frivolous? If so, why did you bother joining another company. Why didn't you have a good laugh at the frivolity of it all.

Gee I didn't know some had to be an expert on something to be opposed to it or understand how they worked.

Can you say for sure what his impression of class action is indeed incorrect. Since you are an expert. I mean you'd have to be to question his expertise right? Otherwise you just as wrong as he is.

 

[brennan]

I only expect you to understand what you sign and agreed to and live up to those agreements. Something you obviously aren't honest enough to do.

When part of the contract is 'we can make this contract say whatever we like after you've signed it' what the hell am I supposed to be understanding? You want to change terms, fine, but i've got a copy of what I actually agreed to, and if I don't like the new deal you can either let me out or honour what you signed.

The 'we can change it' part IMO is retaining the right to renogotiate. It in no way allows the other party to change the terms without my consent and claim them to still be binding.

 

[skadistic]

When part of the contract is 'we can make this contract say whatever we like after you've signed it' what the hell am I supposed to be understanding? You want to change terms, fine, but i've got a copy of what I actually agreed to, and if I don't like the new deal you can either let me out or honour what you signed.

And if it says in that contract that the terms can be changed at any time and you agree to it by signing your name then what? Would you be honest enough to honour that agreement on your part?

 

[brennan]

No, see my above edit.

 

[skadistic]

No, see my above edit.

So you aren't honest enough to live up to your end of the deal. That's good to know and I expect it from you.

 

[brennan]

I suggest you go look through any contracts you have that have such a clause and ask yourself why a month after you've signed you don't receive a letter informing you that the terms are now that you pay the company $1000 per month, but can opt out of the contract with a £2000 payment.

To include such a clause would be fundamentally dishonest were it actually legally binding in the <extremely intelligent> way you suggest, and so, no I would have no problems ignoring it. The idea that it is in fact so binding is, however, laughable for obvious reasons as pointed out above; and only a <poster of your distinction> would suggest it is.

 

[I'm Cleo!]

skadistic,

I don't think you know quite how the legal system works. Your cavalier approach to calendaring ("it takes as long as it takes") would cause some problems.

sonorakitch,

My problem with the typical class-action is that the regular joe gets a few dollars, and the attorneys get millions. Then, the company has to come up with the money to dole out to the attorneys and raise their prices. So my prices go up so some idiot can get a few dollars and some attorney can buy an island in the Bahamas.

Now, do you know that's the typical class action suit, or is that just the stereotypical class action suit? There are a lot of class action suits that really do help people, and aren't even about money. Civil rights litigation is often done through class actions, and a lot of other mass tort actions are done as a class because there are simply so many plaintiffs (e.g., asbestos).

But even if the "typical" class action you pointed out was the case, what if the plaintiffs actually were done only a few dollars worth of harm through a company's unlawful action? Say a couple companies consorted to fix prices in violation of the anti-trust laws which damaged each customer exactly $10.00, but there were a million customers? That's $30,000,000 in damages (anti-trust laws involve "treble damages"), but no individual would ever sue to recover. And any firm taking the plaintiffs' case would have to put a lot of work in, because the companies are going to pay their lawyers a ton to keep from having to pay. Do the companies just get away with scamming the public and violating federal law to the tune of $10,000,000? That's exactly the type of situation envisioned by the class action rules -- something where a defendant did something wrong, but there's no way that they'd ever be forced to compensate the plaintiff without the efficiencies granted by the rule.

I think the settlements are where the problem comes in, since the interests of the plaintiffs' and their attorneys aren't always aligned. In the above case, if the attorneys move to settle for 1/3 of the damages, they'd still get around $3,000,000, but the plaintiffs wouldn't get enough to compensate them, and the purpose of the anti-trust statutes wouldn't have been served. That is certainly a problem, but, accordingly, there are rules requiring court approval for any class action settlement to make sure that the plaintiffs' interests are actually being looked after.

There's a boogeyman idea of a "class action" that's out there that simply doesn't resemble what class actions are in practice.

Cleo