Can a defendant in a class action moot the whole proceeding by offering the named plaintiff the full value of his claim, thus “picking him off”? No, or at least not in the case at hand in Campbell-Ewald v. Gomez, the Supreme Court ruled on Wednesday by a 6-3 margin. I discuss the case in a new post at Cato. More, Alison Frankel/Reuters, Howard Wasserman/Prawfs; earlier here and here]
6 Comments
There was a good deal of artificiality in the majority opinion. So the offer expires—does anyone think that a real-world impediment? The class-action device is important, but in the hierarchy of importance, the case and controversy requirement is more important–at least from a constitutional standpoint. A tender of complete relief should obviate court involvement.
Likely the majority was thinking along the lines that once a class is certified for class action, a tender of complete relief should have to cover the entire class. I don’t know if I agree with that, but then my opinion is that in total class actions create more problems than they solve.
Perhaps. But the problem is, of course, that the class device isn’t a constitutional imperative and the case and controversy requirement is. Constitutional commands aren’t supposed to be easily evaded, but here we have the judiciary doing just that with the “well, the offer exploded” fiction.
If you going to allow class actions, as long as the entire class hasn’t been made whole, surely there is still a valid case or controversy. I hate class actions, I think 90% or more of them are frivolous.
However, it seems ridiculous to claim making one plaintiff whole, even if it is the named plaintiff, makes the whole case and controversy go away.
Even if the named plaintiff had taken the offer, you still have a valid case or controversy in respect to the rest of the class.
Left to wonder how a named class representative is likely to maintain control of the Action on behalf of the class after (s)he’s received a full relief tender? Given how often the fiction that the named member really does represent the class has been exposed as merely a front for a few very powerful class action firms, I am left to wonder. Seems more likely they will be more, rather than less, inclined to let their attorneys settle for a big payout in fees and limited relief to the rest of the Class.
As a pragmatist, that troubles me. On the other hand, having courts in the 9th speculate as to the existence of the class [based on a representative’s say-so (even when the ostensible representative isn’t in the same factual position as the class (s)he purports to represent)], then letting his/her attorneys go on a fishing expedition thru records defendant is forced to turn over while plaintiffs look for a new representative isn’t a very productive situation either.
I don’t have a proposed solution, except perhaps to disassemble the Frankenstein’s monster Class Actions have become and start over.
“As a pragmatist, that troubles me. On the other hand, having courts in the 9th speculate as to the existence of the class [based on a representative’s say-so (even when the ostensible representative isn’t in the same factual position as the class (s)he purports to represent)], ”
I agree, but that should be dealt with by the court when certifying the class for class action in the first place.
Unless the court screws up step 1, which admittedly the frequently do, replacing the named plaintiff should not be difficult.
“I don’t have a proposed solution, except perhaps to disassemble the Frankenstein’s monster Class Actions have become and start over.”
That sounds like a pretty good idea, but I have a better one. Disassemble the Frankenstein’s monster Class Actions have become and forget about starting over.