MONITORING THE FLOODGATE: THE SEARCH FOR STANDING

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There’s this school of thought that class action lawsuits always cure the floodgate problem. This view could be more accurate.

Floodgates may come in at least two forms. The first is a situation where the claim which gives rise to the floodgate involves a single event (or a series of closely-related events). An example is where a pharmaceutical company releases a dangerous drug into the system. In this situation, the claim relates to a single event – the release of a particular dangerous drug into the system. In this case, all persons who used the drug may come together and file a single suit (rather than a myriad of individual suits). This solves the floodgate problem in the sense that the courts do not have to hear the same case over and over again.

There’s however another type of floodgate. This type of floodgate doesn’t relate to any particular event. It has no time limit either. A common example is where the decision of a body is allowed to be challenged by an indeterminate number of persons who may be affected by the decision. Clearly, this situation allows an indeterminate number of putative claimants to bring an indeterminate number of claims for an indeterminate number of times (so long as the board continues to make decisions). This too is a floodgate. It is, however, very difficult to see how class actions could practicably close or limit this type of floodgate. A more accurate statement would therefore be that: class action cures a type of floodgate problems.

The matter doesn’t end there. Based on this apparently inaccurate assumption that a floodgate problem is always cured by class action, the suggestion is made that a claimant who is denied standing on the basis of the floodgate problem may go round the problem by bringing a class action suit. Inasmuch as this proposition sounds plausible in our first type of floodgate problem, it so turns out that the proposition puts the horse behind the cart when it comes to our second type of floodgate. And when you do that, you do not only frustrate motion, you also make it possible for the horse to chew whatever edibles you have in the cart. Well, not really. On a more serious note, I explain how problematic the proposition is.

Locus standi, simply known as standing, is the right to bring an action in court. It may be expressly conferred on a person by law. Where it is not conferred by law (and its presence is questioned), the claimant may claim it by basically showing that she has sufficient connection with the subject matter of her claim. How to show sufficient connection is a more complicated matter explanation of which cannot be contained in this space. Suffice it to say that in the second floodgate situations, the law seems to say that having been (or the possibility of being) affected generally by the decision or action of a body does not amount to sufficient connection. Therefore, one needs to show more than membership of the general indeterminate class of affected persons in order to claim the requisite standing. This is however the general rule; it has exceptions.

Does that mean that such bodies are not accountable? In other words, is it possible for the decisions or actions of such bodies to be questioned ever? More often, the law reserves standing for a class of persons. Generally, these are the only class of persons who may bring an action questioning the decisions or actions of a body. As I indicated above, there are exception to this general rule. One of the exceptions is where the claimant demonstrates that those clothed with standing have put themselves in a position which makes them unable or unwilling to bring an action. I think this principle cuts across various areas of law. Take customary law for example; it is only the head of family (or maybe the principal elders) who has standing to bring an action to protect family property. Thus, a member of the family, no matter how genuine or enthusiastic, cannot go round the family head to bring an action to protect the family’s property. However, a family member may bring himself under the exception and claim standing by showing that the family head himself is the person wasting the family property for which reason he is unwilling or unable to bring the action. So, there is no real deadlock as to whether or not the decisions or actions of such board could be questioned.

Now, let’s go back to the proposition that a class action could cure our second type of floodgate. What really is this class action thing? A class action is simply an action brought by a large number of claimants, each already having standing in her own right, seeking the same remedies against the same defendant or a group of defendants. Thus, even in a class action each of the claimants must, as a matter of law, have standing. In other words, a person who lacks standing is not clothed with it only because he has added a multitude of his “locusless” folks to the claimant part of the writ.

So, maybe we could conclude that it is not accurate to say that class action lawsuits always cure the floodgate problem. Maybe we could also say that a person who does not already have standing in a matter does not acquire it simply by aggregating a multitude of other persons who do not already have standing.

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