BARELY HAD THE ink dried on Judge Thomas Penfield Jackson's findings of fact in the Microsoft antitrust trial when plaintiff's lawyers began filing class actions against the software giant. One could hardly ask for a better portrait of everything that is predatory about class-action plaintiff's lawyers. Cases such as these have next to nothing to do with the interests of consumers but are essentially commercial ventures within the judiciary. The purported clients are little more than fictions designed to legitimize the enrichment of their self-appointed representatives.
The Microsoft cases claim to be on behalf of untold numbers of Windows users, whom Judge Jackson determined had paid as much as $40 more for the product as a result of Microsoft's Windows monopoly than Microsoft needed to charge in order to be profitable. Most of these "clients" presumably don't feel victimized by the company and certainly have not sought to recover that money. Nor do the suits act--as class actions sometimes do--as a check on corporate behavior, since these cases bring nothing new to the table but merely seek to cash in on the findings from preexisting Justice Deparment litigation. If the company eventually settles such claims, the members of the class--many of whom will not even have known the litigation was taking place--are likely to get some token payment while their self-declared champions get millions of dollars. It is simple buzzardry.
Microsoft has not been the only recent target of abusive class actions. Last week five of the country's biggest HMOs were sued by lawyers claiming to represent 32 million of their customers. The suit alleges that the HMOs gave bonuses to doctors to restrict patient access to treatments. To the extent this is true and caused damage, it is certainly bad and should be stopped. But it's hard to see these lawyers as legitimate representatives of the downtrodden HMO member. Indeed, the lawyers have been recently peddling their suit around Wall Street in a deliberate attempt to depress the companies' stock value and thereby pressure them to settle. This isn't law. It's an extortion racket.
And it's particularly troubling in cases such as these, in which the plaintiff's lawyers, who are not elected officials after all, seek to take in their own hands significant public policy questions. The question of HMO behavior, after all, is a legislative issue that should be decided by Congress. And the dispute between the government and Microsoft is ultimately one about the overall shape of the high-tech marketplace, not a question of recovery by individual consumers.
Sometimes, of course, the courts necessarily become an arena of policymaking, and class actions do have a place in our legal system. But where the interests of the consumers are so obviously being subordinated to those of their self-declared lawyers, class actions affect policy with far less democratic legitimacy than even those cases brought by advocacy groups acting on behalf of the public interest as they see it. It is long past time to reform this system.