Redefining Prey and Predator in Class Actions

Abstract

Aggregate litigation’s potential as a tool for the disempowered is not being realized. Class actions have come under serious attack in the last decade as critics have successfully worked to change traditional notions of victimhood. The leading narrative identifies big businesses as the vulnerable prey needing protection from large class claims and the greedy class actions attorneys who bring them. Relying on this narrative, courts and Congress have made class actions harder to pursue, from filing and class certification to settlement approval.

Vulnerability theory offers an alternative framework to rehabilitate class actions. From this perspective, the legal system currently disadvantages consumers. Without more balanced class action procedures, these vulnerable subjects have little realistic economic means to judicial access. This, in turn, further empowers corporate defendants by under-enforcement of the substantive legal theories most-often pursued as class claims, impacting overall social and economic well-being.

The ambitious goal of this Article is to describe vulnerability theory and its intersection with class actions. Part I provides a foundational understanding of vulnerability theory. Part II maps out a narrative shift in the legal literature that downplays class actions as a way to empower the unempowered and instead emphasizes the need to protect potential defendants. Part III highlights how battles over narratives have consequences. In class actions, the narrative shift means courts are ignoring the disadvantages consumers face in bringing claims, including financial, informational, and judicial favoritism challenges. Part IV, using vulnerability theory, explain how class actions offer consumers resiliency tools. Enhancing these resiliency tools provides a new direction for class action reform that redefines prey and predator.