Two of my partners here at SHB, Victor Schwartz (of the famed “Schwartz on Torts” casebook) and Cary Silverman, just published a new article, “The Rise of “Empty Suit” Litigation®. Where Should Tort Draw the Line?”, 80 Brook. L. Rev. 599 (2015) .
The article focuses on litigation where an individual or class action plaintiff has suffered no real harm, physical, emotional or economic. These include:
· claims for recovery of speculative emotional harm;
· liability for the estimated cost of medical monitoring following exposure to a potentially harmful substance absent a physical injury;
· class action litigation claiming that a product’s actual value was lower than the purchase price or that the resale value of a product diminished because of an alleged latent defect, even when the product functioned properly for most or all consumers; and
· class actions challenging product labeling or advertising on behalf of all consumers where few, if any, of them were actually misled.
“Empty Suit Litigation®” addresses both individual claims where there has been no real injury or economic loss, and class actions that rely on speculative or expert-driven theories of harm or class-wide damages.
Definitely worth checking out.