The limits of efficiency

Generally, efficiency is a good thing. We don’t see a lot of it in government, so we usually applaud when government officials deliberately choose to act efficiently rather than in the plodding, duplicative way we’ve come to expect. But can efficiency override constitutional protection of individual rights? The Seventh Circuit Court of Appeals said yes, in a class action case pitting washing machine owners against Sears, Roebuck & Co. In that case, consumers in six states who purchased front-loading washing machines combined in a class action to sue Sears for musty odors allegedly resulting from biofilm buildup in the machines. Although the class encompassed all purchasers, even the plaintiffs acknowledge that, at most, only one-third of the class experienced the odors and therefore could claim an actual injury. The Seventh Circuit nonetheless held that it would be more “efficient” to certify the class and let Sears raise its defenses – including the lack of injury – on the merits. Sears filed a petition asking the Supreme Court to review the case.

PLF today filed an amicus brief supporting that petition. We argue that the Due Process protection of individual rights was violated by the Seventh Circuit’s narrow focus on efficiency. Of course class actions are efficient, but both plaintiffs and defendants are constitutionally entitled to fair process and if the aggregation of claims defeats that entitlement, then certification is improper. As the Supreme Court has said,

“[T]he Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.” Stanley v. Ill., 405 U.S. 645, 656 (1972).

By the way, if the subject matter of this case sounds familiar, it is because the Supreme Court is currently considering whether to grant certiorari in a very similar case out of the Sixth Circuit, Whirlpool Corp. v. Glazer, which PLF also supported with an amicus brief. I blogged about it here. The Supreme Court distributed the petition in that case to the Justices early in January, but has not decided whether or not to grant it.

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