Another day, another class action lawsuit – or so it seems. Litigation continues to spike as plaintiffs' lawyers look for their next big payout at the expense of consumers.
In fact, food marketing class actions increased from less than 20 in 2008 to nearly 100 in federal courts in 2015. The most recent example is a lawsuit slapped on Pret A Manger for "slack-filling" their sandwiches. The reason most of these slack-fill cases are dismissed early on is that they are full of baloney.
The suit, which was filed in the U.S. District Court for the Southern District Court of New York, accuses Pret A Manger of deceiving customers by using packaging that makes its sandwiches appear bigger than they are. They allege that the company tricks customers into "paying for air," which causes financial harm.
Unfortunately, the lawsuit against Pret A Manger is just one of many such suits filed recently. Whoppers, Reese's Pieces, Mike and Ike, Swedish Fish, and Raisinets are a few of the brands to be hit with a slack-fill lawsuit this year – and that's only in the confectionery industry. Slack-fill claims now account for about 11 percent of overall food and beverage class actions in 2017 alone.
All of these lawsuits have a common attribute: When plaintiffs' lawyers are not required to demonstrate that an individual or group suffered actual injury as a result of allegedly deceptive marketing, the lawsuit primarily serves the interest of the lawyer bringing the case, not the public.
Sadly, real-life consumers ultimately absorb the costs of these verdicts and settlements. When it comes to settlements, consumers often earn no more than a few dollars, while the lawyers who invent such cases get millions in fees. This consequently results in higher prices and less consumer choice, placing an excessive burden on the economy.
As a result, all across the country, state policymakers are rethinking and reforming their respective Consumer Protection Acts — the key legal basis for the Pret A Manger lawsuit — to ensure that they protect the broader interests of consumers. These states are working to address the abuses in these laws and to ensure they fulfill their original purpose without providing unjustified windfalls for personal injury lawyers.
One key reform is to make sure plaintiffs must show they suffered an actual injury. This will dissuade trial lawyers from abusing consumer protection acts by inventing a "theory of misrepresentation" and then searching for clients.
Consumer protection act claims should also be required to demonstrate "reasonableness" as a factor. Obligating consumers to demonstrate that they acted reasonably in relying on a marketing claim is good policy and will cut down on abusive litigation.
Another: Allow attorneys' fees to be awarded only when state laws have been knowingly violated. This will help to ensure that lawyers only pursue cases involving defendants who are consciously trying to deceive consumers.
And finally, lawmakers should limit the awarding of class-action remedies, such as statutory damages and attorneys' fees. Limiting statutory damages will discourage many of the unnecessary and socially harmful consumer protection act claims. Additionally, capping attorneys' fees will prevent lawyers from walking away with enormous amounts of money, while class members only receive a small amount of the overall settlement, which has frequently been the case in the past.
Tiger Joyce is president of the American Tort Reform Association, based in Washington, D.C.
If you would like to write an op-ed for the Washington Examiner, please read our guidelines on submissions.