Academic journal article Defense Counsel Journal

Judges as Regulators: Using Injunctive Relief to Recall Products

Academic journal article Defense Counsel Journal

Judges as Regulators: Using Injunctive Relief to Recall Products

Article excerpt

Motor vehicle recall order of a California trial judge highlights many reasons recall should be left exclusively to federal administrative agencies

OVER the last century, an important feature of the American economy has been the proliferation of nationally distributed consumer products, many of which incorporate sophisticated technology. In turn, there has been a burgeoning wave of litigation involving alleged product defects. In these cases, trial judges traditionally have addressed claims for damages in the context of a dispute between a manufacturer or other seller and a consumer who alleges an injury caused by a product defect. In class actions and individual actions alike, the focus of product defect litigation has been on claims for monetary relief. Courts in private actions have not undertaken to order a manufacturer to recall and repair an entire population of products based on claims of future risk.

In a California case, however, a state court trial judge has stated his intention to issue a mandatory injunction requiring Ford Motor Co. to recall more than a million vehicles and repair an ignition system component that the judge found to be defective. This decision raises serious questions of judicial authority and competence. Yet it has been widely hailed by "consumer advocates" and may give rise to demands for product recalls by plaintiffs in other contexts.


Product recalls have long been thought to be the province of administrative agencies--in the United States, for example, the Consumer Products Safety Commission, the Food and Drug Administration, the Environmental Protection Agency, and the National Highway Traffic Safety Administration. These agencies have the authority and the resources to make a nationwide evaluation of claimed threats to safety or to other legislatively protected interests.(1) The exclusive role of administrative agencies in ordering and overseeing product recalls has been uniformly respected. Courts addressing the question of whether the judiciary may order product recalls have answered that question in the negative.(2)

These consistent holdings are reflected in Section 11, comment a, of the Restatement (Third) of Torts: Products Liability, which concludes that manufacturers and sellers have no common law duty to conduct a product recall:

   a. Rationale. Duties to recall products impose significant burdens on
   manufacturers. Many product lines are periodically redesigned so that they
   become safer over time. If every improvement in product safety were to
   trigger a common-law duty to recall, manufacturers would face incalculable
   costs every time they sought to make their product lines better and safer.
   Moreover, even when a product is defective within the meaning of [sections]
   2, [sections] 3, or [sections] 4, an involuntary duty to recall should be
   imposed on the seller only by a governmental directive issued pursuant to
   statute or regulation. Issues relating to product recalls are best
   evaluated by governmental agencies capable of gathering adequate data
   regarding the ramifications of such undertakings....

Notwithstanding this unbroken line of authority, last October, Alameda County (California) Superior Court Judge Michael E. Ballachey decided to order the recall and repair of a large number of motor vehicles in a consumer class action based on state law.(3) This unprecedented decision has been seen by some as a "historic ruling" that will encourage plaintiffs' attorneys in the future "to bypass the federal regulatory system and head straight to court."(4) For example, a story in the Los Angeles Times stated: "While such a move may be without precedent, a former California Supreme Court justice said the judge may have the authority to order a recall. `I don't know why it can't be done,' Joseph Grodin, now a professor at Hastings. College of Law in San Francisco, said in an interview with Associated Press. …

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