Academic journal article Albany Law Review

New York State Class Actions: Make It Work - Fulfill the Promise

Academic journal article Albany Law Review

New York State Class Actions: Make It Work - Fulfill the Promise

Article excerpt

The purpose of this article is to demonstrate that New York's class action statute, Article 9 of the Civil Practice Law and Rules ("CPLR"), is underutilized and has been during its entire thirty-five-year history. This article identifies what types of class actions are presently certifiable and what types of class actions are not, but should be, given the broad legislative history of CPLR Article 9, and the needs of New York State residents for a meaningful group remedy. In that regard, this article focuses on three types of class actions which can be, and should be, certifiable: mass torts involving physical injuries and/or property damage, class actions challenging governmental operations, and class actions otherwise prohibited by CPLR 901(b), such as antitrust actions alleging a violation of General Business Law ("GBL") section 340 ("Donnelly Act"), and the Federal Telephone Consumer Protection Act. And, lastly, the article encourages the New York State Court of Appeals to continue to take a more active role in choosing to hear appeals in class action cases involving a variety of issues, including the granting or denial of class certification (CPLR 901, 902).

I. PERSPECTIVE

I have been writing on the subject of New York State class actions for thirty-one years, including articles in various legal publications (1) and my annually-updated treatise on Article 9 of Weinstein, Korn & Miller's New York Civil Practice: CPLR. (2) I also write about class actions in other states as well. (3) And, on occasion, I have given lectures on class actions to law students and members of the bench and bar.

Before becoming a judge, I spent fifteen years (1978-1993) as a solo practitioner in Manhattan, prosecuting consumer class actions before various state and federal courts. In fact, my experience with CPLR Article 9 really began in 1975, just a few months after its enactment, when I was a young associate attorney with the law firm of Shea & Gould in Manhattan. I vividly recall my experience during a vacation to the infamous and wildly misrepresented Club Islandia in Jamaica, and the subsequent consumer class action litigation brought on behalf of 250 victimized travelers, which led to the first certified consumer fraud class action under CPLR Article 9. (4)

II. 1975--ENACTMENT OF CPLR ARTICLE 9: THE PROMISE

After prodding from the Court of Appeals in Moore v. Metropolitan Life Ins. Co. (5) and Ray v. Marine Midland Grace Trust, (6) from legal scholars, (7) and the New York State Judicial Conference, (8) CPLR Article 9 was enacted in 1975 to infuse New York's moribund class action remedy (CPLR 1005) (9) with modern procedures.

In recommending passage, then Assembly Majority Leader Stanley Fink stated that:

   In its present form the statute fails to accommodate pressing
   needs for an effective, flexible and balanced group remedy in
   vital areas of social concern, such as claims arising from
   exposure of numerous persons[] to environmental offenses,
   violation of consumer interests, invasion of civil rights,
   execution of adhesion contracts, and many other collective
   activities reaching virtually every phase of human life.
   While the substantive law applicable in these cases may be
   generally adequate, there exists no workable remedy when
   neither relief on an individual basis nor actual joinder of the
   class is economically or administratively feasible. (10)

And, in approving the proposed legislation, then Governor Hugh Carey noted that

   [i]n many instances, an individual's own damages resulting from a
   pattern of illegal behavior by another may not be sufficient to
   justify the costs of litigation although the aggregate damages of
   all others similarly injured by the illegal behavior certainly
   would. Under present law, unless the individual thus injured is
   willing and able to press his legal claim as a matter of principle
   despite the financial loss, there is no economic deterrent to poor
   workmanship, deceptive or unconscionable trade practices and
   illegal conduct. … 
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