IS ACCESS TO JUSTICE FOR EVERYONE OR ONLY THE WEALTHY?
By Melanie Hirsch, Public Justice Brayton-Thornton Attorney
When you get your cellphone bill every month, you probably don’t go through it line-by-line to see if the company has added any extra charges. As a result, chances are that you wouldn’t notice if the company added one or two dollars in improper fees. And even if you did notice, you—along with the company’s thousands or millions of other customers—probably would decide that it’s not worth the trouble to take some kind of legal action over sums of that size. Meanwhile, the company has made a substantial profit at your collective expense.
This fact pattern is what happened in McKee v. AT&T Corp., a case that Public Justice won in the Washington Supreme Court in 2008. AT&T had tried to bar consumers from using class actions by inserting a class action ban into its arbitration clause, but the court held that, because each consumer had suffered such a small individual harm, the class action mechanism was necessary for consumers to vindicate their rights. Without the ability to come together to hold a company accountable, the company would evade liability for its misdeeds and the public interest as a whole would suffer.
Now, in Florida, defendants are attempting to construct another barrier to plaintiffs’ ability to obtain justice using class actions. In Roberts v. Angelfish Swim School, Inc., the defendant, Florida’s interim secretary of state, is arguing that individual class representatives are inadequate to represent the class—and, accordingly, that a class action cannot proceed—unless they demonstrate that they can personally finance the entire cost of the litigation for all of the class members. These costs include the cost of notifying class members, which can easily amount to tens of thousands of dollars. But in this case (like most class actions), class plaintiffs’ individual damages are so small as to not justify pursuing a case on their own behalf, let alone on behalf of all the other members of the class as well.
Under the financial resources test that the Angelfish defendant is proposing—and that other defendants have advanced from time to time—the courthouse doors would be barred to all but the wealthiest individuals. Others will be unable to shoulder the burden of paying for the entire litigation themselves.
This rule, which amounts to discrimination against the non-wealthy, contradicts the core purpose of the class action mechanism. As stated by the U.S. Court of Appeals for the Seventh Circuit, the “very feature that makes class treatment appropriate—small individual stakes and large aggregate ones—ensures that the representative would be unwilling to vouch for the entire costs. Only a lunatic would do so. A madman is not a good representative of the class.”
Not only is the proposed Angelfish rule inconsistent with the very purpose of class actions, but it is not even consonant with the rules governing class certification. Under Florida law, a named plaintiff can represent the class if “the representative party can fairly and adequately protect the interests of each member of the class,” and it is clear from caselaw that this inquiry entails only considering (1) whether class counsel are qualified, and (2) whether class representatives’ interests align with those of the class. Furthermore, representative plaintiffs can adequately represent the class when it is their attorneys, not the named plaintiffs themselves, who will fund the action. The source of the funding is not relevant as long as adequate funding is available.
Because the plaintiffs in Angelfish are small Florida corporations, not consumers, employees, or disadvantaged persons, Public Justice filed an amicus brief to explain to the court how the defendant’s proposed rule would affect cases involving such individuals. The answer is simple: the defendant’s proposal would strip innumerable individuals with important and valid civil rights and consumer protection claims of their rights. (The named plaintiffs, Angelfish Swim School and Steak on the Run, alleged that late fines levied by the Florida Secretary of State were excessive under the Florida Constitution.) As Public Justice explained in its brief, numerous important class actions in Florida and nationwide could never have been brought if the named plaintiffs had been required to fund the litigation themselves. The Public Justice brief was authored by Brian Warwick and Janet Varnell of Varnell & Warwick, P.A., in The Villages, Florida, and joined by the National Association of Consumer Advocates, Jacksonville Area Legal Aid, Inc., the Public Interest Law Section of The Florida Bar, and Florida’s Children’s First, Inc.
Florida’s Third District Court of Appeal heard arguments in Angelfish on February 28, 2011. While there are other issues in this case that may complicate the outcome, we are hopeful that the court will recognize the dangerous precedent that it would create by adopting the defendant’s proposed financial resources test. As the U.S. Supreme Court has recognized, a class action enables plaintiffs “to bring cases that for economic reasons might not be brought otherwise” and therefore “vindicate[s] the rights of individuals who otherwise might not consider it worth the candle to embark on litigation in which the optimum result might be more than consumed by the cost.” The right to bring a class action should therefore not be limited to those who have the least need of it.
About the Author
Melanie Hirsch is the Brayton-Thornton Attorney at Public Justice, where her practice focuses on civil rights and consumer law, including fighting mandatory arbitration and federal preemption. As part of this work, she has written numerous articles about arbitration and is a co-author of the National Consumer Law Center’s manual on consumer arbitration.