Two years ago, Jenna Marie Duncan walked into a Cold Stone Creamery in Levittown, N.Y., and bought some pistachio ice cream. Some time thereafter — it’s not clear when — she decided to make a stink about the fact that the pistachio ice cream sold by Cold Stone Creamery doesn’t contain actual pistachios. By “make a stink,” I don’t mean that she yelled at the store manager or demanded a refund. I mean that she engaged a law firm that specializes (according to the firm’s website) in “class action and false advertising litigation” and sicced its litigators on the ice cream company.
Last August, the lawyers filed a lawsuit on behalf of Duncan and “all residents of New York” who purchased Cold Stone Creamery’s pistachio ice cream in recent years. How many consumers is that? “At a minimum, there are likely tens of thousands of class members,” the complaint asserts. And how many of those ice cream buyers were upset because their ice cream didn’t include real pistachios? There is no way to know for sure, but my guess, in round numbers, would be zero.
I base that guess on my own experience with class action suits, which perhaps mirrors yours. From time to time, an invitation arrives by mail to notify me that I am eligible to be added as a plaintiff in a suit that has been filed on behalf of everyone who bought product X or used service Y within a certain time period. I may have been perfectly satisfied with product X or service Y — I may not even remember the transaction — but that makes no difference. All I have to do to join the class and get a share of any eventual payment is sign my name.
Typically in such cases, a class member can expect to receive a nominal sum if the suit leads to a settlement. The Institute for Legal Reform, citing a study by the federal Consumer Financial Protection Bureau, noted last fall that the average award to a consumer in such cases is about $32. It’s a very different story, though, for the plaintiffs’ lawyers. For them, the average payout is nearly $1 million.
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In 2023, for example, Keurig agreed to pay $10 million to settle a class action lawsuit in which it was accused of wrongly describing its coffee pods as recyclable. Class members were eligible to receive a maximum of $36 per household. The attorneys, on the other hand, received $3 million in legal fees, plus an extra half million in costs.
Of course there are cases of significant wrongdoing that class action lawsuits are ideally suited to redress, from civil rights abuses to stock-market collusion to violations of privacy. But too many class action cases are little more than legalized extortion for “offenses” that are trivial at worst. Who exactly was harmed because they tossed their used Keurig pods into the recycle bin instead of the trash bin? Or because the “footlong” sub they bought at Subway sometimes measured slightly less than 12 inches? Or because the pistachio ice cream they bought one summer’s day was made with artificial pistachio flavoring instead of actual pistachios?
In the American legal system, nothing prevents cranks and screwballs from filing absurd lawsuits. In one notorious instance, a plaintiff in Washington, D.C., sued his neighborhood dry cleaner for $67 million because it misplaced the pants he had brought in for alterations. He later reduced his claim to $54 million, and the case went to trial in the D.C. Superior Court. When he lost at trial, he appealed. Then he appealed and lost again. Only then was he sanctioned for engaging in frivolous litigation — the plaintiff, who happened to be a lawyer, was suspended from practicing law for 90 days.
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Granted, that case was unusually egregious. But outrageous or malicious lawsuits are filed all the time in this country, and they cost Americans vast sums in money and time. A pervasive fear of being sued makes life more expensive, more frustrating, less productive, and less free for all of us.
Chief Justice Warren Burger warned 45 years ago that America was turning into “a society overrun by hordes of lawyers, hungry as locusts.” At the time, the United States had around 450,000 attorneys. Today the number of lawyers in the United States has soared to more than 1.3 million. With so many locusts — I mean lawyers — at large in the country, who can be surprised that litigation, regulation, and disputation have metastasized beyond reason?
The Federal Rules of Civil Procedure authorize district court judges to sanction lawyers who file frivolous lawsuits. Rarely do they do so. In this case, Judge Gary R. Brown not only ruled that the class action suit against the ice cream company may proceed, he contributed to the general absurdity of the case by issuing what ABC News called a “sometimes tongue-in-cheek court ruling” that was “sprinkled with song lyrics about ice cream — from Louis Prima’s ‘Banana Split for My Baby’ to Weird Al Yankovic’s ‘I Love Rocky Road.’ "
Brown described the lawsuit as a “delightful dispute” and declared that “it raises a deceptively complex question about the reasonable expectations of plaintiff and like-minded ice cream aficionados.” The judge didn’t explain what is so “delightful” about litigation that will waste copious amounts of time and money. Nor did he clarify how it is “reasonable” to make a federal case — literally — out of a minor grievance that could surely have been resolved amicably. Duncan could have asked for her money back. She could have resolved not to go back to Cold Stone Creamery. She could have suggested to the company that it add nuts to its pistachio ice cream. Any of those options would have been more prudent and restrained than going to court. But Duncan and her lawyers decided to spin the class action roulette wheel in hopes of a lucrative jackpot. Their lawsuit makes a mockery of the legal system, but what else is new?
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This is an excerpt fromArguable, a Globe Opinion newsletter by columnist Jeff Jacoby.Sign up to get Arguable in your inbox each week.
