Has it come to this?

As a former lawyer, I think I am entitled to ask the question: has it come to this?

According to a notice published in the paper on August 9, the “Crayola 2011 Washable Coloured Bubbles Class Action Settlement” has been reached. A court hearing will shortly be held to approve it. This follows an earlier and similar settlement in the United States.

The class action lawsuit, long a feature of American litigation, has only in the last decade or two become well-established in Canada (the rules differ from province to province). The class action offers litigation plaintiffs a chance to join forces and prove their claims through a representative plaintiff, rather than one by one. A judge has to rule at an early stage in the proceedings that the damages allegedly suffered by each plaintiff are sufficiently similar that the case can proceed with one representing the interests of many.

And so, on with the saga. Anyone who bought or who was given Crayola 2011 Washable Bubbles through to the date of the court hearing will be compensated. Without proof of purchase, you can get up to $12 in Crayola vouchers. With proof of purchase, you can get your money back plus $5 in Crayola vouchers. You can also be rembursed for “properly substantiated out of pocket costs for cleaning supplies or services to remediate stains caused by Crayola Washable Bubbles.” Same with damage to any “real or personal property.”

Crayola also agrees to pay the plaintiffs’ legal costs, and discontinue the original product, revise its promotional material, relabel its packaging and “correct its stainremoval guide.” Needless to say, Crayola has an improved product for sale now, called Outdoor Coloured Bubbles, which are safe and make everyone happy. As the Crayola spokesperson put it, “we always listen and ensure that consumers … are satisfied with how we handle their concerns.”

Now hold on a minute. Aren’t the users of Crayola Washable Bubbles likely to be, well, children? And how often do children read the legal notices in the business section? How many children are going to be lulled to sleep by parents reading out the terms of the class action settlement notice as if it was some fairy story with a happy ending? “Did you get that, Noah: damages to property are expressly reimbursable under section 3(b)(vii). Isn’t that wonderful? Doesn’t it just restore your faith in humanity”!

I am the first to admit that if we can avoid raising a generation of cynics, that would be a good thing. After all, if kids cannot believe in the goodwill of the Crayola company, why should they put their teeth under the pillow at night and have confidence that the tooth fairy will deposit some heavy coinage in exchange. And why, for that matter, should any child believe the representations of her parents that staying inside to practise the piano or tackle that homework will yield dividends later in life. “Yeah, that’s what you say; but the Crayola company also said that its (2011) Magic Bubbles wouldn’t stain my clothing. And they got away with it scot free.” Kids, as I seem to recall, have amazingly long memories when the occasion demands it.

But can’t the Crayola company come up with an outcome that is just plain more fun? An international colouring bee, for example, with a theme “I’m forever blowing bubbles”? A penance whereby Crayola product designers spend a day being videotaped making creations with (2011) Magic Bubbles, and then pay for their own drycleaning? A big international “We screwed up, free ice cream for everyone” day? Oh, I know, the risk management people probably just wanted to swallow this one and move on as quickly as possible. But an opportunity has surely been missed.

And how much do we want to expose our children to the world of class action lawsuits? While I would never for a minute suggest that lawsuit trollers such as those that populate John Grisham novels actually exist, don’t you sort of worry that people in sharp suits and fancy pinky rings will begin to start hanging around playgrounds saying things like “Hey kid, did you ever get sick eating Play-Doh”? Or that daytime TV commercials will now be aimed at children encouraging them to call 1-800-NOTFAIR if they’ve ever been forced to watch cartoon reruns while being promised new episodes. “Call the number on your screen right now and don’t bother to tell Mommy and Daddy, ‘cos its a free call. But wait, there’s more. Call within the next 10 minutes and we’ll send you your own Lance or Laura Litigator Action Figure with real briefcase. Get a friend to call and we’ll include genuine 100 miniature business cards for you to distribute.”

Sorry. Got to end it right here. I just heard an ambulance go by.

dsimmonds@wellingtontimes.ca