Richard Epstein: Class Action Madness: Jonathan Tasini v. Huffington Post

I have never written a blog for the Huffington Post.  Indeed I have to report that I have never been asked to do so.  But I am tempted to volunteer my services to that deservedly successful web site free of charge.  Why?  Because it is the best way to cure the acute case of indigestion that I suffered once I glanced at the first sections of Jonathan Tasini's novel—that is novel as in untenable—class action complaint.

In many cases the wrath that one has against class actions is based on an unenviable combination of unsound legal theory with a dubious procedural device.  That was my beef with the employment discrimination complaint brought against Wal-Mart.  

In this instance, there is nothing wrong with having all the unpaid bloggers at HuffPo lumped into a class.  They all have the right to opt out if they so choose. But it is the substantive approach that is so off base.  The key question involves the interaction between theories of restitution, or unjust enrichment, on the one side and theories of contract on the other.

Tasini reveals his strong authoritarian tendencies by insisting that he is only using the common law theory of restitution to get a return benefit for all the distinguished authors and bloggers that made the Huffington Post what it is.  And it is just there that he goes wrong.  The theory of unjust enrichment has been since the earliest of time a gap filler.  It covers those cases where there is no agreement, in which it is appropriate to require that the party who receives a benefit pay for it.  The usual kinds of situations are where someone pays the government a fee to make sure that it does not confiscate your goods.  A second class of cases is overpayments of bills, where it is unjust for the payee to keep money that he knows was not intended as a gift.

But what do we have here?  A group of highly intelligent bloggers all of whom have made the decision that they prefer the exposure that the HuffPo affords them to payment from some lesser outfit.  There is no way that a common law theory of restitution can override those voluntary choices.  The authors have decided that the nonpecuniary benefits outweigh any prospect of financial gain.  The tragedy is that busybodies like Tasini are so imperious that they cannot let sensible people make their own choices.  This suit should be tossed out on its ear.  And Tasini should be regarded as a fair target for legal sanctions for filing a frivolous complaint under the Federal Rules.  May the Southern District of New York protect the legal system and the Huffington Post from this officious intermeddler.