Noted plaintiffs’ lawyer Elizabeth Cabreser has an article in a recent issue of the Denver University Law Review, Apportioning Due Process: Preserving the Right to Affordable Justice. The article is notable for several reasons, but mostly because Cabreser uses it to tell a story that supports the rhetoric plaintiffs’ lawyers invoke when moving to certify a class. To wit:

  • Due process is expensive.
  • Primarily because corporate defendants use procedure as an attrition weapon. (Also, hourly billing encourages defendants to work a "thousand plodding hours" instead of "one brilliant one.")
  • The Class Action Fairness Act (CAFA) just makes the problem worse. The passage of CAFA has sent class actions to a bottlenecked federal judiciary, further delaying relief to people who desperately need it.

It’s a well-written article that strives to accomplish two goals at once. First, Cabreser tells a story about due process, and one likely to have intuitive appeal to judges.

At the same time, she’s building a case for the superiority of class actions over other ways of resolving disputes. If litigation is so expensive, and the claims are so small, then the only solution must be a class action. Right?

Maybe not. In her discussion of how to make justice more affordable for individuals, Cabreser ignores a number of other methods individuals have of challenging large corporations over smaller claims. Those include:

  • Small claims court.
  • Arbitration. Corporations often have arbitration clauses in their contracts with individuals. And, often, those clauses state that the corporation will cover the costs of the arbitration. Sometimes, they even provide a premium for the consumer if the corporation fights the arbitration and loses. It’s small wonder that class-action plaintiffs’ firms don’t like arbitration, because it often precludes large-fee class actions.  But the fact that arbitration won’t pay a Lieff Cabreser’s fees hardly makes it an unattractive option for most consumers.
  • Statues that authorize attorneys’ fees.

What can we take away from this? First, this is an excellent example of plaintiffs’ rhetoric supporting class actions. Second, when plaintiffs start talking about how a class action is the only possible alternative, it’s time for defendants to get suspicious. Class actions may sometimes be the best solution to a widespread problem, but they are rarely the only one.

(One final note: careful readers will observe that the entries this week are a little briefer than usual. That’s because I’m on vacation. Expect more “classic cases” and quick summaries of interesting articles throughout August.)