Q & A with Consumer Class Action Expert Stuart Rossman, Access to Justice Fellow at the WilmerHale Legal Services Center of HLS
By: Elaine McArdle
Predatory lending, unfair trade practices, scams against military veterans—for 25 years, as the first Director of Litigation at the National Consumer Law Center (NCLC), Stuart T. Rossman ’78 fought for the rights of low–income consumers against efforts to economically exploit them. This fall, after retiring from NCLC, Rossman joined the WilmerHale Legal Services Center (LSC) as an Access to Justice Fellow, which places senior lawyers in nonprofit and public service organizations around the Commonwealth. Rossman will work with students in the Consumer Protection Clinic and other clinics on complex litigation including class actions.
“We are thrilled Stuart has joined the LSC community as our latest Access to Justice Fellow,” says Daniel Nagin, faculty director of LSC. “Stuart’s unparalleled expertise in consumer rights law and impact litigation will add tremendously to our program.”
“Over the last 20-plus years, Stuart has become, in my mind, the preeminent attorney on consumer class actions,” says Roger Bertling, senior clinical instructor at LSC’s Consumer Protection Clinic, who partnered with Rossman on three consumer class actions while he was at NCLC. “Stuart is a person of national stature in terms of what he does. We are very excited about this.”
Before joining NCLC in 1999, Stuart was in private practice and then Chief of the Trial Division and Chief of the Business and Labor Protection Bureau at the Massachusetts Attorney General’s Office. As founding Chair of the Boston Bar Association Young Lawyers Section, he co-authored and edited a handbook on the rights of the homeless in Massachusetts, which was honored by the American Bar Association. Stuart also is a former Chair of the Volunteer Lawyers Project, where he served on the board for 40 years, and is the former Co-Chair of the National Association of Consumer Advocates. He has also taught law students for over 30 years.
Here, Rossman reflects on his work on behalf of consumers:
How did consumer class actions become the focus of your career?
When I was in private practice I was engaged in class actions and complex litigation on the defense side. When I subsequently left the AG’s office, Will Ogburn [then NCLC’s Executive Director], whom I knew through my pro bono public interest work at the Volunteers Lawyers Project, hired me as the first Litigation Director at NCLC after the organization went private and no longer was restricted in pursuing such affirmative work as an Legal Services Corporation grantee. I started NCLC’s consumer class action work from scratch. During my 25 years there we ultimately participated in over 150 consumer class actions.
What were some of your major cases at NCLC?
My particular area of expertise dealt mainly with credit discrimination actions under the Fair Housing Act and the Equal Credit Opportunity Act (ECOA).
The biggest set of cases was against 11 of the nation’s largest auto finance lenders, where we alleged under the ECOA that the defendants were responsible for lending practices that resulted in car loan rate discrimination against African American and Hispanic consumers. Ten cases settled before trial, resulting in a significant alteration in the policies that caused the discriminatory impact. We won the eleventh case at trial, and on appeal we settled it as well. These were, as far as I know, the first purely civil disparate impact class actions brought under the ECOA, and they changed, at least temporarily, the way auto finance was being handled in the US. I’m very proud of those efforts.
But I also had a series of cases against companies that were basically predatory lenders trying to prey on military veterans’ pensions. The problem is that the fraudsters usually were undercapitalized, fly-by-night operations. Every time we would nail one, they would disappear. We won a $3.5 million verdict against one of the companies in California, and the next day they filed for bankruptcy. As the son and son-in-law of World War II veterans, I feel that there’s a special circle in Dante’s Inferno for these people. But at least we put them out of business, saved the victims from further harm, and got Congress to look into the problem.
Why are consumer class action cases important?
By being able to bring affirmative cases, we are giving voice to consumers who would not be otherwise heard and would not have their consumer rights adjudicated and affirmed. The interesting thing about consumer cases is that the amount at stake for each individual often is relatively small, at least compared to antitrust, securities, or mass tort cases, but the size of the class can be enormous, with hundreds or thousands of people who were cheated or taken advantage of. For the low-income clients I was representing at NCLC, even small amounts of damages could be a significant loss for them. But because of the limited size of their claims, there was no way to get a private attorney to represent them individually. My ability to aggregate their claims as class actions under these statutes leveled the playing field so that they could fight back against clear violations of the law and effectively enforce their rights.
What is the highlight of your work?
My relationship with my clients is the best part of the job. When you bring a class action, you have to have a class representative who steps into the shoes of all of the absent class members to protect their interests. There are a lot of responsibilities and duties they have to fulfill, and it is difficult to find individuals willing and able to take on the role. My class representatives were low-income people, many of whom had limited educational opportunities available to them. It could be very scary and intimidating for them to participate in complex, high–stakes litigation. Nonetheless, I never cease to be amazed by the passionate courage of these individuals, their loyal dedication to the class, and their staunch willingness to hang in there when the going gets challenging. We can’t bring these cases without them, and they are the true heroes in our efforts.
What are the biggest challenges in litigating these cases?
Our class actions often are cases of David versus Goliath. We are suing banks and insurance companies, finance companies and mortgage companies, which have many more resources at their disposal than we do representing low–income consumers. Given what is at stake in a consumer class action, they’ll throw the kitchen sink at us to avoid liability, and they often succeed. On the other hand, there are some very powerful tools that Congress and state legislatures have given to consumers in order to incentivize and support efforts to enforce their own rights. Every major consumer protection statute allows for class actions and has a fee-shifting provision so that if you win, your attorneys’ fees are paid by the other side. Many also have minimum statutory damage recoveries and injunctive remedies for the violation. Even when we are not fully successful in our efforts, we can achieve partial victories in our cases by bringing the practices to light, encouraging further government action, and helping to clarify and reform the law to help our clients one step at a time.
Is the current state of the law supportive of consumer rights?
The financial industry has pushed back vigorously—not by trying to change consumer protection statutes to eliminate rights, that would look too bad—but instead by chipping away at our ability to enforce those rights. The primary, and most powerful, weapons they use are mandatory pre-dispute arbitration clauses and class action waivers, which have been included in virtually every consumer contract since the late 1990s. They require consumers to go into arbitration instead of court and prohibit the aggregation of claims through class actions. The US Supreme Court has held that these contracts of adhesion, which often include the relevant provisions in small type hidden in the body of the document or as click wrap automatic acceptances online, are protected by the Federal Arbitration Act and preempt many federal and state laws, with some limited exceptions. NCLC is part of an ongoing effort to change the law and was part of a successful coalition that got Congress to a least protect active-duty servicemen and servicewomen from these onerous clauses.
Unfortunately, there are other barriers truncating our ability to enforce statutes and the rights they’ve created for consumers. The Supreme Court has made it more challenging for us by raising the standards for establishing federal standing and achieving class certification. But I’d like to believe that the consumer advocacy bar is imaginative and not defeatist. We’ve found ingenious workarounds, so that while it’s harder it’s not impossible to continue to enforce consumer rights.
The Access to Justice Fellowship program of the Massachusetts Access to Justice Commission and the Lawyers Clearinghouse brings senior lawyers and retired judges to partner with public service entities. Why are you doing your fellowship at LSC?
I started at HLS in 1975, a year or so after Gary Bellow was just getting the clinical program up and running. It was always Gary’s dream to locate the program in the community being served. The good news is that he succeeded with the Legal Services Center in Jamaica Plain. The bad news, at least for me, is that it opened in 1979, a year after I graduated. I’d always hoped to end my career where I wasn’t able to start it—at the Center. And I know [LSC clinical instructors] Roger [Bertling] and [clinical instructor] Alexa [Rosenbloom] because NCLC works with LSC, particularly in the Consumer Clinic. I’ve taught at their seminars and will again, on consumer class action practice. I’ve also met with the heads of the other clinics at LSC and indicated if they are interested in doing complex litigation and class actions and declaratory judgment actions, I’m happy to work with them.
Do you enjoy teaching?
For ten years, I taught a course at the University of Michigan Law School on complex consumer litigation. I’ve taught Trial Practice at Northeastern University School of Law for 31 years and will be teaching again this spring. I love working with students who are enthusiastic and full of optimism about what they can achieve as lawyers. They truly keep me on my toes and confident about the future of our profession and community.