From tobacco to health care and beyond - A critique of lawsuits targeting unpopular industries

The 1998 settlement between state Medicaid agencies and the five major toba cco companies heralded a new form of litigation in which individual or gove rnment plaintiffs allied with private class action attorneys use economic, political, and moral leverage to extract huge settlements from entire indus tries. Beginning with several class action suits filed in late 1999 against managed care companies by aggrieved HMO enrollees, and continuing with gov ernment suits against the paint and handgun industries, this new form of li tigation has become a powerful vehicle for plaintiffs to punish unpopular-b ut entirely legal-industries. In this Note, the author demonstrates that the papular appeal of these suit s conceals legal theories of recovery that probably could not survive court room scrutiny. The author argues that the thin legal merits of these class action claims are often tolerated by courts, who urge settlement in order t o clear their dockets, and by the industries, who regard settlement merely as a cost of doing business. The author concludes that the tobacco litigati on and its progeny encourage citizens and the executive branches of governm ent to seek restitution and fundamental social change in the courts after l osing in the legislative arena, thus forcing the judiciary branches into th e unwise and improper role of policymaker.