Disarming the Private Attorney General

Apparently other states are considering legislation akin to California's beloved Proposition 64, which limits the private enforcement of unfair competition laws by placing various factual and administrative hurdles in the way of class action suits. The main drag is the requirement that the private litigaent suffer an actual injury in reliance on the alleged unfair business practice (usually a misrepresentation), prohibiting private attorneys from suing on behalf of the general public.

Okay, the whole point of class action litigation is that no individual has suffered enough of an injury to merit an individual lawsuit, so this focus on injury is absurd. Proposition 64 was sold to California voters as a way to prevent mom and pop restaurant owners (who are just trying to feed their families, just like you and me) from being nailed by meritless shake-down lawsuits. An admirable goal, to be sure. But there are ways to do that without preventing corporate abuses by large companies to go unpunished by a disinterested state attorney general. Class action plaintiffs' lawyers generally aren't the best that the Bar has to offer. They're often not the consumer crusaders thay make themselves out to be. Of course they're in it for the contingency fees. But empowering private lawyers to sue on behalf of the general public is a perfectly legitimate way to enforce consumer protection laws, particularly where the state government can't be counted on to do it its damn self.

Unfortunately when you put the howling masses in charge of legislation you get black-and-white, overbroad policies like this. Hopefully if other states do take on tort reform the legislatures will be able to come up with more nuanced provisions.