July 23, 2019 Articles

If It Walks Like a Duck: State Consumer Protection Act Litigation Following Product Liability Cases

Various state attorneys general have filed what are essentially mass tort personal injury claims on behalf of an entire state under the guise of “consumer protection.”

By Kasey M. Adams

My grandmother used to own a large farm in Franklinton, Louisiana. One of my favorite things about visiting the farm as a child was getting to see Doc—the chicken who thought he was a dog. Doc roamed the farm with his three mutt friends, ate dog food, played fetch, and even chased after other chickens. I truly believe he would have barked if his vocal cords allowed. Until the day he died, Doc believed he was, in fact, a dog.

You may be asking yourself what Doc has to do with consumer protection act claims. But as we consider the history of these claims, including recent trends toward modeling consumer protection cases as failure-to-warn product liability claims, an old adage comes to mind: If it looks like a duck, swims like a duck, and quacks like a duck, then maybe it is a duck. In Doc’s case, regardless of attributes on paper that made him seem like a dog, at the end of the day, he looked like a chicken, sounded like a chicken, and was a chicken. Likewise, despite the comparisons between product liability claims and consumer protection act claims, at the end of the day, mass torts litigation often involves consumer protection act claims pretending to be product liability claims. 

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