John J. McGonagle, Jr., is a member of the New Jersey, New York and District of Columbia bars and is associated with the law firm of Casey, Lane & Mittendorf. He is also a member of the Community Dispute Settlement Panel of the National Center for Dispute Settlement. This article is a revision of an LLM thesis submitted to the National Law Center of the George Washington University.
Traditionally the consumer who has been wronged or believes himself wronged sought relief through the use of lawyers; either to represent him in litigation or to prosecute law-breakers on his behalf. Today there is mounting dissatisfaction with this approach to the resolution of consumer disputes, as the judicial (and particularly the criminal) process can be tedious, and time-consuming for lawyer and client.
The aim of a prosecution is two-fold: to punish past transgressions and to prevent future transgressions by deterring potential offenders. There is at least one fundamental flaw in the prosecutorial approach to consumer disputes—a conviction does not get the consumer what he really desires, his money back.
A second common line of attack on consumer problems is by agency action, a variant of the litigation strategy. Analogous to the prosecution of a criminal case, the Federal Trade Commission (FTC), for example, would pursue an alleged violator of the Federal Trade Commission Act.