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Monday, May 18, 2015

SCOTUS Will Decide Whether Class-Action Defendants May "Pick Off" Putative Class Representatives

The Supreme Court today agreed to decide a question that has long plagued lawyers on both sides of the class-action bar:  whether a defendant may render a claim moot, for purposes of Article III, by tendering complete relief to a putative class representative.  

There are three questions presented in Campbell-Ewald Co. v. Gomez (No. 14-857).  The first is a threshold question: whether tendering complete relief moots a claim even outside the class-action context.  But the Court, in articulating the second question, anticipated the possibility that the answer might be "different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified." (The third issue in the case relates to immunity for government contractors, which the Court could theoretically decide and not reach the other two.). 

If the Court holds that an offer can moot a claim, it may also have to decide whether the timing of the offer makes a difference.  Does it matter whether the plaintiff has already filed suit?  Presumably not, because most class-action plaintiffs (at least in actions seeking monetary damages) do not reveal themselves before filing.  Does it matter whether the plaintiff has moved for class certification at the time of the offer (as some courts have suggested)?  Does it matter how far the class-certification proceedings have gone?  All this remains to be seen.  All we know at this point (based on the phrasing of the question) is that the Court will not likely permit an offer after certification to render the claim moot (which makes sense, because at that point the unnamed class members have been joined in the lawsuit, albeit in absentia).

The outcome of this case is as likely to be guided by policy as by constitutional doctrine, especially if the Court finds that an early settlement offer does not moot the action.  Courts that have rejected mootness in this context have expressed concern over the practice of "picking off" putative class representatives one by one, leaving the plaintiff bar with no economic incentive to vindicate the interests of the class as a whole.  

How do you see this case coming out?

Posted by Andrew S. Pollis on May 18, 2015 at 10:54 PM in Civil Procedure, Constitutional thoughts | Permalink

Comments

@Jr.: Fair point. But it's the Supreme Court. They can do anything they want--including decide the case on the basis of the third issue. The mootness doctrine affects the lower courts' jurisdiction, but it does not technically affect the Supreme Court's--which could have theoretically accepted only the third issue for review.

Posted by: Andrew S. Pollis | May 22, 2015 4:21:19 PM

"The third issue in the case relates to immunity for government contractors, which the Court could theoretically decide and not reach the other two."

Surely the preceding two issues are jurisdictional and must be reached first according to current doctrine?

Posted by: Jr | May 22, 2015 3:53:10 PM

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