A number of federal courts have been certifying overbroad, no-injury class actions, posing serious challenges to the fairness of our civil justice system. These class actions sometimes involve cases in which the named plaintiff sues over a product that allegedly has a potential to malfunction but has not actually malfunctioned or caused the consumer any problems. In other cases, the named plaintiff has experienced a problem, while some, most, or nearly all other owners of the same product have not encountered the same problem but are nevertheless included in the proposed class. Defendants have long argued that such class actions are illegitimate because the plaintiffs are essentially seeking a windfall—they want to recover damages for a risk that has not materialized and may never materialize over the life of a product. While some courts agreed that no-injury class actions are not viable, a significant number of other courts have reached the opposite conclusion. These disagreements are likely to persist in the near term, but there are a number of events on the horizon that could bear significantly on the issue.
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