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The Jerusalem Times published an interesting op-ed article today praising a Tel Aviv court’s decision in a consumer class action.  The case arose out of allegations that the defendant had knowingly used a carcinogenic silicon compound to line its milk cartons. 

The class action was brought not on behalf of a class of persons alleged to have been physically harmed by the milk consumption, but rather on behalf of a class of consumers who would not have purchased the defendants’ product had they known about the potential dangers.   The article describes this consumer fraud theory as a “legal innovation” that was pivotal to the outcome in the face of the defendant’s argument that it should not be held liable because the plaintiff could not prove physical harm resulting from exposure to the silicon.  The article goes on to express the hope that the case will be a “watershed which will encourage further class action suits,” arguing that while there is a perceived abuse of class actions in the U.S., Israel suffers “from the opposite problem: not enough class action suits.”

Of course, the “legal innovation” described by the article is nothing new in the U.S.  Faced with the problem of being unable to prove injury or damages for a products liability claim on a class-wide basis, class action lawyers have often turned to consumer fraud theories, especially in recent cases brought against the tobacco and pharmaceutical industries.  My criticism of this tactic is that it is not well-suited to provide redress for those who truly suffered harm.  It seeks to compel the defendant to pay for its infraction, not for the benefit of those harmed by the dangerous product, but for an entirely different class of individuals who can claim at best that they were exposed to the danger (a fact which they would have remained blissfully ignorant but for the lawsuit).

In the Israeli case, the judge apparently found that consumers would not have purchased the defendants’ milk had they been apprised of all the facts.  If there truly were facts to support the conclusion that no reasonable consumer would have bought the product if the true facts had been disclosed, then maybe this is the right outcome.  But there are very few situations where this absolute conclusion is warranted.  Consumers buy products for any number of reasons, even products known to be dangerous or that have known negative health effects.  Tobacco is a clear example.  

Certainly, there is no justification for the kind of conduct as described in the article, and one could argue that the end justifies the means, but relying on a “the public wouldn’t have bought it if they had known it was dangerous” argument in what really should be products liability cases has always struck me as intellectually dishonest.  In these cases, the consumer fraud claim is little more than a pretext for imposing punishment for a bad act that lacks a clear harm or that has only individualized harms that don’t really meet the standards for class action treatment.  If a company is selling a dangerous product that causes physical harm, then tort law provides a civil remedy.  The fact that there may not be a collective remedy for those physical harms does not justify reliance on a legal fiction to create a means for collective redress on behalf of an over-inclusive class of people who weren’t truly harmed by defendant’s bad acts.  Perhaps better government enforcement, not more class action suits, is the answer.

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