Waiver of Tort: A Potential Sea Change in Class Action Law

• Author: Kit Scotchmer
• Pages: 159-190

159

WAIVER OF TORT: A POTENTIAL

SEA CHA NGE IN CLASS ACTION

LAW

Kit Scotchmer

Abstract: There is much confusion surround ing the “waiver

of tort” doctrine, and whether it should be understood as a

separate cause of action. I arg ue that waiver of tort should be

recognized as a c ause of action, but only in the clas s action

context. While clas s actions are thought of as purely procedur-

al amalgamat ions of conventional actions, here is poss ibly the

f‌irst substantive adva nce in the law of class act ions. As there

are three sens es of term “waiver of tort”: as a claim for rest itu-

tionary da mages for wrongful conduct, as ext inctive ratif‌ica-

tion of an ex post facto agent’s unauthorized conduct, and a s an

unjust enrichment cla im brought in lieu of a tort claim, I wi ll

set out which sense of the term I a m using and what the cla ss

action context adds to the debate. I contend that t he policy

considerations underlying the Class Proceedings Act are cur-

rently being used to ef fect remedies very much like t he rem-

edies a waiver of tort cause of act ion would provide for. After

setting out the argument s for recognizing waiver of tort i n the

class action context, a nd responding to some of the practic al

and theoretical problems th at recognition of this inchoate doc-

trine rai ses, I conclude that the clas s action context provide s a

special ca se where forcing the tortfeasor to d isgorge the gains

from his wrongfu l conduct, regardless of whether the plaintiff s

can prove injury, is entirely appropriate.