The New Jersey Supreme Court just rejected a nationwide class action against Merck over its drug Vioxx, recognizing that it would be inappropriate to apply New Jersey’s consumer protection law to claims all across the country.
That was correct. State consumer-protection laws vary widely from state to state, meaning that a nationwide consumer class action cannot apply a uniform law. State consumer-protection laws vary widely in their language, and even similarly phrased consumer-protection laws have been interpreted very differently from state to state by different state judiciaries.
New Jersey’s courts bend over backwards to be pro-plaintiff in employment law and family law, as well as in consumer-protection law. In Taylor v. Metzger (1999), the court allowed a plaintiff to sue for employment discrimination and intentional infliction of emotional distress just because her supervisor jokingly used the word “jungle bunny” before apologizing, contrary to federal court cases such as Bolden v. PRC (1995) holding that even the worst racial slur is not enough to support a lawsuit if it only occurs once.
Similarly, lower courts in New Jersey have allowed spouses to sue each other for purely verbal abuse under the misnamed tort of “battered woman syndrome.” And in State in the Interest of M.T.S. (1992), the New Jersey Supreme Court held that “consent is not a defense” to a sexual assault claim, which can only be defeated by evidence of “affirmative permission.”
So if such class actions can’t survive in New Jersey, they probably can’t survive elsewhere, either.