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Friday, November 03, 2006


Brian Wolfman

Thanks for your terrific post. I'm curious: What circumstances, if any, do you think there should be recovery without injury? A recent 3rd circuit case, synopsized below courtesy of Findlaw, raises the prospect of massive liability with injury. What's your view on that case?

Huber v. Taylor (10/31/06 - No. 05-1757)
In a case involving class action plaintiffs' attorneys who were being sued for breach of fiduciary duty and related counts by a putative class that the attorneys themselves formed for asbestos personal injury litigation, summary judgment for defendants-attorneys and denial of class certification are reversed and vacated, respectively, where the district court erred in its choice of law analysis, which led it to require that plaintiffs demonstrate actual harm in a claim of breach of fiduciary duty when the remedy sought is disgorgement.

Public Citizen Litigation Group

One premise of Dr. Greve's argument is the assertion that "'consumer law' . . . does not cover a single transaction that is not also covered by traditional common-law doctrines." I question whether that's really true.

To take just one example, can one really say that the common law covered the same range of harassment by debt collectors as statutory consumer law? Sure, the common law recognized a tort for intentional or negligent infliction of emotional distress, but depending on the jurisdiction one had to show not just fault but that the plaintiff suffered some kind of physical impact or injury, or was particularly vulnerable, or had some kind of special contractual or fiduciary relationship with the defendant (a simple debtor-credit relationship wasn't enough).

Compare that with the Fair Debt Collection Practices Act, which erects a "least sophisticated consumer" standard and creates strict liability for "any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt," and, without limiting the application of that language, also specifically prohibits using threats of violence, or obscene or profane language, or publishing a list of "deadbeats," or using a telephone to annoy or harass someone.

Even leaving aside the different fault standards, can one really say that the common law covered the same range of transactions? Is this example an anomaly or part of a larger pattern?

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