Brian Thompson (Of Counsel-San Francisco, CA) authored "Total Recall: A Tool to Eclipse Class Action Litigation," published in the July 2021 issue of DRI's For the Defense. When a manufacturer recalls a product to rectify a defect, class action lawsuits often follow. Brian discusses how "mootness" challenges can operate as a powerful and creative tool for manufacturers against class action litigation – even when litigation seeks relief beyond the scope of the remedy offered by the recall. The article presents an analysis of recent automotive liability cases to discuss damages theories commonly asserted by plaintiffs in class actions, such as "overpayment" and "lost benefit of the bargain." Brian argues that a product recall that fixes a defect also restores the product's diminished value, leaving a court without a live controversy to adjudicate. Brian suggests that manufacturers that have established a recall purporting to fix a defect should challenge related litigation as moot, and invites defense counsel to use his article's analysis as a starting point for their arguments.
Read the For the Defense Article.
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