In a Class All its Own: The Advent of the Modern Class Action and its Changing Legal and Social Mission

• Author: Shaun Finn
• Pages: 333-373

333

IN A CLASS ALL ITS OWN: THETHE

ADVENT OF THE MODERN CLASS

ACTION AND ITS CHANGING LEGAL

AND SOCIAL MISSION

Shaun Finn1

The law, like the traveler, must be ready for the morrow. It must have

the principle of growth.

Justice Benjamin Cardozo2

A. INTRODUCTION

It is perhaps the most generous comment an author has ever made about

his greatest literary rival. In a line that has itself achieved an enviable

immortality, the Renaissance poet and playwright Ben Jonson wrote that

Shakespeare was “not of an age, but for all time.”3 This opinion of the

Bard is not unique. In fact, it has filtered into academic4 and popular

thinking. To the pragmatist, the genius of Shakespearean drama is dem-

onstrated by its sheer longevity. Since the seventeenth century, his plays

have engaged, amused, and moved audiences from a variety of differ-

1 Shaun Finn, of the Quebec bar, is a judicial clerk at the Quebec Court ofShaun Finn, of the Quebec bar, is a judicial clerk at the Quebec Court of

Appeal. This paper was prepared in the context of ongoing graduate research

involving Canadian class action regimes. The author wishes to thank Professor

Denis Ferland of the Law Faculty of Université Laval for his invaluable assis-

tance. Special thanks, as well, to Madam Justice Louise Mailhot and Maître

Teresa Carluccio, of the QCA, and Maîtres Donald Bisson and Gregory Moore

of McCarthy Tétrault LLP.

2 Benjamin N. Cardozo,Benjamin N. Cardozo, The Growth of the Law (New Haven: Yale University

Press, 1924) at 19–20.

3 Ben Jonson, “To The Memory Of My Beloved, The Author, Mr William

Shakespeare, And What He Hath Left Us,” The Norton Anthology of Poetry, 3d

ed. (New York: W.W. Norton & Co., 1995) at 123. The reader has not stumbled

upon an English paper: the class action discussion will begin in earnest follow-

ing this introduction.

4 See, for example, Harold Bloom, The Western Canon (New York: Riverhead

Books, 1994) and, by the same author, Shakespeare: The Invention of the Human

(New York: Riverhead Books, 1998).

334 THE CANADIAN CLASS ACTION REVIEW

ent backgrounds and historical circumstances. Today, as much as ever,

Shakespeare is a name that attracts attention.

Nowhere is the current obsession with Shakespeare more obvious

than in the cinema. No longer restricted to the theatre, his works have

made their way onto the silver screen. Equally interesting, however, is

how directors have attempted to adapt Shakespeare’s plays to fit modern

realities. In the 2000 film version of Hamlet,5 for instance, the young

protagonist is the son of a powerful CEO. Instead of a kingdom, the

events centre around the fate of the Denmark Corporation, a large North

American business firm. Castles, thrones, and the bleak Scandinavian

countryside give way to office towers, limousines, and the constant

pulse of a sleepless metropolis. The play, of course, remains the same

in the sense that the words are Shakespeare’s and the central events are

preserved intact. In another sense, however, it is a different play — a

new play. In the process of adaptation, certain fundamental elements are

lost. The theological doubts that plague Hamlet the scholar do not come

across. The disturbing connotations associated with regicide, the mur-

der of God’s chosen representative and earthly vassal, are conspicuously

absent. Indeed, the whole cosmology of Shakespeare’s Hamlet, with its

underlying conception of the universe and the relations between things

within that universe, has vanished altogether. New preoccupations, refer-

ences, and assumptions — an entirely different cosmology — have filled

in the void.

Enter the class action. In many respects, it seems like the most inno-

vative of legal procedures. It enjoys a notoriety that has only increased

over the course of the last decade. On any given day, a Canadian can open

a newspaper and read about a class action taking place somewhere in the

world, involving everything from pharmaceutical products,6 to corporate

practices,7 to institutionalized forms of discrimination.8 Often, there is

also a sensational component. Perhaps the amount claimed is in the bil-

5 Directed by Michael Almereyda and starring Ethan Hawke.

6 See the Vioxx cases, below note 9.

7 See Giaccone v. Canadian Superior Energy Inc., et al., (cause number not yet

assigned) now pending in the United States District Court for the Southern

District of New York.

8 Anti-discrimination suits also exist within the corporate context. See Dukes v.

Wal-Mart Stores, 2004 WL 1385490 (N.D.Cal.).

VOL UME 2, No 2, december 2005 335

lions of dollars9 or perhaps the defendant is particularly unsympathetic.10

Sometimes the plaintiffs seem unreasonably demanding, and we hear

about the dangers posed by an increasingly malcontent, litigious soci-

ety.11 Whether good or bad, efficient or burdensome, class actions appear

quintessentially modern. And yet, strangely, this is not the case.

Class actions are very old. They began their development hundreds

of years ago, were re-engineered by the English Court of Equity, and

imported into the United States where they took on some of their more

familiar characteristics. They are now a part of Quebec law and have been

adopted by other Canadian jurisdictions. Like Hamlet, the class action is

the product of another time and place. To some extent, it retains the basic

elements that have enabled it to safeguard its identity. Nevertheless, the

class action has been adapted to a changing world and, like Shakespeare’s

masterpiece, has come to represent something truly novel. Its ability to

evolve, to grow, distinguishes it from other archaic procedures that have

lost all relevance and become extinct. In short, it seems that it too is not

merely “of an age.” In this paper, we shall trace the history of the class

action, paying particular attention to the way in which it was introduced

into the United States and Quebec. More than a contextual treatment,

however, the objective will be to better understand what the procedure

means to us today. To answer the institutional, conceptual, and cost-

based arguments that different commentators have raised, it is first nec-

essary to determine the role that class actions have been called upon to

9 On 11 December 2004, a class action against Merck & Co. Inc. was filed in

Arizona Superior Court. The prospective defendant is accused of putting Vioxx,

a painkiller used to treat arthritis, on the market despite potentially life-threat-

ening side effects. Separate class action suits have been instituted in other

American states, as well as in different countries around the world, including

Canada. In conjunction with these claims, Merck stockholders have also filed

a class action against the drug manufacturer in the United States District Court

for the District of New Jersey, alleging violations of various sections of the

Securities and Exchange Act of 1934. The quantum of alleged damages is easily

within the billions of dollars. See, as well, Susan Miles et al. v. Philip Morris Inc.,

cause No. 00-L-112 (3rd Jud. Cir. Ill. 2003) [Philip Morris].

10 Philip Morris, ibid.; Québec (Curateur public) c. Syndicat national des employés

de l’Hôpital St-Ferdinand(CSN), [1994] R.J.Q. 2761 (Que. C.A.) [[Syndicat

national].

11 A recent response to the threat of frivolous class action litigation was the

Senate Bill put forward by Mr. Grassley, matter-of-factly entitled the Class

Action Fairness Act of 2005, 109th Congress. The Bill was passed by the Senate,

adopted by the House of Representatives, and signed into law by President

Bush in February of 2005 (Public Law No. 109-2).