One for All

Most U.S. citizens never get directly involved in a law suit other than an auto accident or divorce case. But without their knowledge, a great many Americans are now becoming silent plaintiffs in a powerful and increasingly common type of litigation, the "class action," in which one or more individuals speak for a large group that has suffered similar harm or faces a mutual threat.

The targets for class actions seem to be almost limitless. Current suits are challenging hamburger labeling practices, allegedly usurious credit-card finance charges and preferential air fares for youths. Last week seven Attica prisoners got a U.S. court of appeals to order an end to the maltreatment of all the prison's inmates by guards. Using unusually strong language, the court found that the cruelty described in prisoners' testimony "far exceeded what our society will tolerate on the part of officers of the law."

Almost every major hotel chain in the country is being sued for making small surcharges on room bills under cryptic designations such as 1NTMS (for Internal Message Service); this week Hilton Hotels is expected to settle its part of the suit for $4,000,000. Last week seven young men won a stay of induction for all potential draftees in seven California counties until a federal court decides whether a technicality in the Selective Service law bars all inductions before Dec. 28.

Rigged Meters. Efficiency is one theory behind such suits. A decision in each can, in effect, prevent dozens or even thousands of smaller cases from coming to court. In all such cases, however, courts must take particular care to ensure that a true class with similar grievances exists. Courts also make use of elaborate rules that seek to protect the absent parties.

This judicial scrutiny was once applied so stringently that class actions were frequently thrown out. Starting in the '50s, however, constitutional issues like desegregation and legislative reapportionment were successfully fought as class actions. Then, in 1967, the California Supreme Court swept away an important barrier to class actions on the part of consumers. A Los Angeles cab company was accused of rigging its meters to overcharge customers. In denying the charge, the company argued in part that the suit should be dismissed because it would be impossible to find and reimburse each passenger.

A similar defense had worked in other cases, but this time the court ruled for the plaintiffs. The company's meters were then adjusted below the proper level so that the cab riders as a group could recover what they had lost. Counterploys. With that decision, and a legislative loosening of other ground rules, California became the class-action capital of the states. At about the same time, Congress broadened the rules under which federal courts could treat class actions, opening the way for the consumer movement, environmentalist groups and public-interest law firms to spread the procedure nationwide. Worried defendants have already devised at least two counterploys. They seek to stall the suit, hoping that the class representatives will die, lose interest or move away. Or they meet the representatives' individual claims in the hope that no one else will press the suit. The latter stratagem was recently struck down by the California Supreme Court, which said that the original plaintiffs have a duty to the class to carry on if the judge is satisfied that they will still represent the class adequately.

Businessmen and some lawyers have also raised substantive complaints. They argue that class actions are often frivolous attacks on big corporations and sometimes amount to legal blackmail; to fight the case can be more expensive than to pay off. Another objection is that the lawyers for a class are sometimes the chief beneficiaries of a suit, taking a sizable percentage of the total judgment as a fee, while individual members of the class are entitled to only a few dollars each. A major worry, voiced by Solicitor General Erwin Griswold and by Chief Justice Warren Burger, is that the increasing number of class actions will compound the problems of already overburdened courts.

Jack Greenberg, director-counsel of the N.A.A.C.P. Legal Defense and Educational Fund, responds that in view of all the other kinds of suits that jam legal dockets, "why should human-rights cases be the ones accused of clogging the courts?" Other class-action supporters concede some of the problems but argue that the difficulties hardly justify freeing offenders from class-action attack. Undoubtedly, the rapid growth of the class action has caused excesses that need correction. But its continued vitality seems guaranteed by a central strength. Allowing one to speak for all and joining assorted small claims into one large action give an individual the financial and legal stature to stand on equal footing with business, government and other large institutions.

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