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5 and
even The World Health Organization,
6 it seems that no one is beyond of
the reach of the class action, especially in the wake of the
coronavirus pandemic. But have the plaintiffs in these cases
suffered a bona fide injury caused by the defendants
conduct?
Many contemporary class actions exhibit features of what one
legal scholar of past mass tort waves dubbed the entrepreneurial model
7 of lawyer-driven litigation. This
article examines those features and the problems they present, and
discusses how they can be leveraged in the defense of class
actions-from standing to certification to merits.
Background: The Entrepreneurial Model of Mass
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The United States Supreme Court has repeatedly declined to
resolve a question that has sharply divided the Circuits: whether a
class may be certified even though it contains uninjured members.
See e.g.,
Tyson Foods, Inc. v. Bouaphakeo
et.al
., 136 S. Ct. 1036, 1050 (2016). On March 30, 2021,
the Supreme Court heard argument on related issues in
TransUnion LLC v. Ramirez, No. 20-297, a case with
potentially significant implications for parties embroiled in class
action lawsuits.
The question certified by the Supreme Court was: Whether
either Article III or Federal Rule of Civil Procedure 23 permits a
“
-William Shakespeare, The Tempest, Act 2, Scene 1.
The meteoric rise in class actions over the past decade has been well-documented. Nowadays even mac & cheese is under attack, with two proposed nationwide class actions filed this month alone claiming labels such as “The Taste You Love”[1] and “Made with Goodness!”[2] are false and misleading.
Hair care products are also in the crosshairs. This month a plaintiff and her lawyers filed their second class action in a year alleging beauty companies falsely advertised their shampoo as “natural.”[3]
From consumer product companies to banks,[4] universities[5] and even The World Health Organization,[6] it seems that no one is beyond of the reach of the class action, especially in the wake of the coronavirus pandemic. But have the plaintiffs in these cases suffered a bona fide injury caused by the defendants’ conduct?
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