When many people think of lawyers, ambulance-chasing plaintiffs attorneys’ often come to mind. But potential defendants have perhaps more to fear from attorneys who marshal millions of consumers into massive lawsuits where there are no ambulances—and no injuries.

Business entities have not always had to contend with such claims. Product liability and tort litigation have traditionally been based on one or a few consumers or bystanders suffering injury or damage.

Decades ago, however, the concept of mass tort litigation evolved. Mass actions usually involve many plaintiffs who were injured in the same event by the same product (e.g., an airplane crash).

Over the years, class actions were created to allow multiple plaintiffs who were not injured in the same event by the same product to nevertheless band together in a singular lawsuit to sue the manufacturer and other liable parties—essentially allowing one plaintiff to sue on behalf of everyone who was injured. To further cash in on this concept, creative plaintiffs’ attorneys began to file class actions where no one was actually injured or damaged. This has become the “no injury” class action phenomenon.

Plaintiffs who have filed no injury class actions have generally done so under one of the following theories: (1) the possibility that a hidden defect will eventually manifest itself lowers the current value of the product, causing economic injury; (2) the possibility that the product will injure the consumer makes the consumer worried, causing emotional distress; (3) the manufacturer breaches its warranties, or acts fraudulently or unfairly, by promising a nondefective product but delivering a defective one; or (4) exposure to a hazardous substance (e.g., asbestos) causes injury at the microscopic level, even when the plaintiff has not yet suffered any observable effects.

In other words, no injury plaintiffs generally allege that some type of financial, emotional or physical damage has or might occur, even if the product has not yet displayed any obvious defects, and even if the plaintiffs have not yet suffered any observable injuries or damages.

Many courts have rejected such arguments. For example, in Wallis v. Ford Motor Co., the plaintiffs alleged that their sport utility vehicles were diminished in value because they were prone to rolling over, but none of their vehicles had actually rolled over. The court dismissed the case. Similarly, in Tietsworth v. Harley-Davidson, Inc., the plaintiffs claimed that their motorcycles were diminished in value because the engines had the propensity for premature failure, but none of the engines had actually malfunctioned. The court dismissed the case.

On the other hand, some courts have allowed no injury class actions to proceed. In Sutton v. St. Jude Medical S.C., Inc., the plaintiffs claimed that a device connected to their hearts could fail. The court held that the increased risk from the device was an “injury in fact,” even if the device had not yet failed. And in DaimlerChrysler Corp. v. Inman, the court held that loss of value from purchasing a vehicle with defective seat belts constituted an actual injury, even though the seat belts had never caused any physical injury or property damage.

Because at least some plaintiffs have a chance of getting no injury class actions to a jury, and because such actions can be notoriously expensive to litigate and catastrophic for defendants to lose, some corporations have paid millions of dollars to settle lawsuits that they would probably win. In 1999, for example, Toshiba paid over $1 billion to settle a class action concerning an allegedly defective computer floppy drive that could, but had yet to, destroy data. These payouts are typically diluted among thousands or millions of class members, with each “injured” person receiving a small amount of money or noncash benefits such as repairs or discounts. Plaintiffs’ attorneys, in contrast, collect millions of dollars in fees. As a result, settling no injury class actions often gives plaintiffs’ attorneys, as opposed to class members, exactly what they want and encourages other attorneys to follow suit.

Defendants faced with no injury class actions can remove state lawsuits to federal courts in appropriate cases, oppose certification of the class, and move to dismiss. If the court certifies the class, the defendant may be able to appeal that decision before the case gets to trial. No injury class actions offer plaintiffs’ attorneys the opportunity for lucrative fees without the work of chasing an ambulance.

Kenneth Ross is of counsel and Patrick L. Arneson is an associate with Bowman and Brooke LLP in Minneapolis.