California taxpayers are unwittingly paying more than $1,900 annually in “tort taxes,” a measure of the society-wide cost of lawsuit abuse on unrealized economic activity. Working families should be outraged. Instead of funding better schools or stronger public safety, the Golden State’s economy is forfeiting tens of millions each year to finance luxury boats and third homes for rapacious trial attorneys.
Lawsuit abuse—like the attorney-manufactured fiction that mom and pop restaurants defrauded patrons with the sale of boneless chicken wings—is an insidious form of social inflation in which costs for virtually every consumer good and service are raised, from food and health care to auto insurance and the gig economy. I spent decades in the United States House of Representatives fighting the most obvious forms of abuse, but the case of California’s out-of-control tort landscape proves that much work remains.
Consumer class actions, which allow a group of similarly situated plaintiffs who have been harmed in the same manner by the same entity to seek relief from the courts, have become one of the most abused torts today. In theory, a class action is a powerful tool to level the playing field for the little guy. Instead, it’s become a proving ground for attorneys to test increasingly outlandish theories.
According to the Institute for Legal Reform, roughly one-quarter of all consumer class actions targeting the food and beverage sector in the United States are filed in California, like the Southern California man who sued McDonald’s for $1.5 million for emotional distress after being provided only one napkin. The bravery it must have taken to carry on without a replacement napkin is hard to imagine for us reasonable people.
In January, a group of over-caffeinated lactose intolerants argued that Dunkin Donuts violated the Americans with Disabilities Act (ADA) by charging customers upwards of $2.15 more for dairy alternative milk than those who opted to dilute their coffee with cow’s milk. Their attorneys are seeking $5 million in damages from a California court. Coffee shop prices for dairy alternatives aren’t discriminatory but are an obvious function of economics: plant-based milk costs 87 percent more than conventional milk. If cutting your coffee with cow’s milk leaves you a little gassy, any reasonable person understands the options are to forgo the java (there’s no inalienable right to caffeine, after all), drink it plain, or pay market-dictated prices for an alternative. But attorneys trying to finance a new boat or a third home aren’t reasonable actors.
These cases are famous for eye-popping settlements or court-awarded damages, but only pennies on the dollar go to individual plaintiffs. That dynamic compelled one plaintiff in a travel insurance class to petition a California judge this month to reject a proposed $24 million settlement because, they said, “counsel are more interested in maximizing their attorney’s fee award than they are in obtaining the best outcome for the class.” Rather than serving the public good by attempting to stop a clear and present danger to the public, too many class action attorneys act as client aggregators in the hopes of driving up a potential payday. Represent a class of thousands or even hundreds of thousands and attorney’s fees skyrocket while individual plaintiffs only walk away with enough money to buy a soda.
Judges’ inclination to certify classes that haven’t suffered actual harm or that argue ridiculous theories of liability are crushing Main Street. Even when judges dismiss frivolous claims, like one last year against Etsy in California, or when companies win jury trials, defendants must spend exorbitant sums clearing their names. A 2023 study by the American Tort Reform Foundation ranked California as the third-worst judicial system in the country for just that reason.
Despite its intentions, class actions have become a tool of the wealthy to become wealthier at the expense of working Californians. But every voting-age citizen can take action to curtail abuse when they step into the jury box by recognizing the obvious economic consequences of attorney-driven litigation when they see it.
The Golden State’s unchecked class action lawsuit industry is destroying jobs and erasing government revenue that would otherwise fund education and public safety—and ordinary families are unfairly shouldering that burden. California must take back its courts and its future, which starts by putting desperate trial attorneys on notice.
Bob Goodlatte served in the United States House of Representatives from Virginia from 1993-2019, including two terms as Chair of the Agriculture Committee and three terms as Chair of the Judiciary Committee.
