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1.7.7.6 Consider Claims for Equitable Relief

When one of the plaintiff’s objectives is to force the defendant to change its practices, or when damages are minimal or may annihilate the defendant, the plaintiff should consider adding an equitable claim that may provide for rescission, cancellation of the transaction at issue, or injunctive or declaratory relief. A class action seeking only equitable relief can be certified under Rule 23(b)(2), which has less strict standards as to certification and notice than a class seeking damages that must be certified under Rule 23(b)(3). A comparison of 23(b)(2) and 23(b)(3) certification requirements is found in Chapter 10, infra.

Equitable relief in some cases can even prove more helpful to injured consumers than a damage award. If only minimal statutory damages are available, the declaratory or injunctive relief requested may eliminate a more substantial aspect of the injury suffered by the class and also prevent future injury.

Moreover, if the relief requested will prevent the defendant from continuing its violations in the future, the court may view the case as more significant than if the plaintiff were solely requesting minimal damages for each class member, because the potential result could be a more constructive approach to the violations. The court may view equitable relief as a good alternative to damages that could put the defendant out of business.

A request for injunctive or declaratory relief may sometimes require a certain amount of creativity so as to benefit the class while maintaining the financial integrity of the defendant. Equitable relief may also require monitoring to ensure the defendant’s compliance. The court may be expected to inquire, as to any equitable relief granted, what the mechanism will be to assure compliance, who will be responsible for assuring compliance, what remedies will exist for failure to comply, and the time period compliance will be reviewed.