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'No-Injury' Consumer Class Actions: A Growing Practice By Plaintiffs and a Potential Response By Defendants

By Kurt Hamrock

Class actions are expensive to defend and uncertain in result. They create a risky situation for defendants and one in which even blameless companies are tempted to pay out large settlements not because liability exists, but simply to avoid the unknown risks involved in a jury trial once a class is certified. Fortunately for defendants, courts are increasingly unwilling to certify classes in product liability actions because of inherent problems in establishing the commonality and typicality needed to consider the plaintiffs' claims as a class.

In an effort to avoid these difficulties and increase the chance of obtaining class certification, plaintiffs' counsel recently have been changing their tactics in product liability class action litigation. In place of filing traditional injury class actions, they instead have been filing more and more economic 'no-injury' class actions, in which the proposed class members seek to recover not for personal injury, but for their alleged economic losses in purchasing a product that is worth 'less' than they paid for it because of some alleged defect.

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