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Hastings Law Journal

Abstract

California statutes provide elaborate protections for consumers from abuse by deceptive, unlawful, and unfair business practices. However, in practice, consumers do not receive optimal protection. Law enforcement agencies often have inadequate resources, and the private bar is hampered by the futility of small individual claims and the complexity and expense of class actions. This Article details early use of the class action procedure in consumer protection litigation and outlines problems with the procedure, such as the expense and impracticality of notice provisions and distributing judgments.

The authors explore the California courts' recent development of procedures for class actions and representative actions that should encourage the private bar to pursue consumer protection litigation. These procedures include fluid recovery, consumer trust funds, and representative actions. Fluid recovery and consumer trust funds are mechanisms for distributing judgments to large numbers of consumers when all injured parties are difficult to identify or contact. Representative actions permit representation of consumers injured by sharp business practices without having to obtain the "consent" of consumers and without having to show that each consumer was aware of the practice. The authors conclude that these emerging procedures, underutilized currently by the private bar, should encourage practitioners to bring consumer protection litigation and ultimately enhance protection for California consumers.

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