From tobacco to health care and beyond--a critique of lawsuits targeting unpopular industries.

The 1998 settlement between state Medicaid agencies and the five major tobacco companies heralded a new form of litigation in which individual or government plaintiffs allied with private class action attorneys use economic, political and moral leverage to extract huge settlements from entire industries. Beginning with several class action suits filed in late 1999 against managed care companies by aggrieved HMO enrollees, and continuing with government suits against the paint and handgun industries, this new form of litigation has become a powerful vehicle for plaintiffs to punish unpopular--but entirely legal--industries. In this Note, the author demonstrates that the popular appeal of these suits conceals legal theories of recovery that probably could not survive courtroom scrutiny. The author argues that the thin legal merits of these class action claims are often tolerated by courts, who urge settlement in order to clear their dockets, and by the industries, who regard settlement merely as a cost of doing business. The author concludes that the tobacco litigation and its progeny encourage citizens and the executive branches of government to seek restitution and fundamental social change in the courts after losing in the legislative arena, thus forcing the judiciary branches into the unwise and improper role of policymaker.