Preventing Defendants from Mooting Class Actions by Picking off Named Plaintiffs
Koysza, David Hill, Duke Law Journal
These rules ... shall be construed and administered to secure the just, speedy, and inexpensive determination of every action. (1)
Federal rules are adopted for specific purposes. Rule 23 of the Federal Rules of Civil Procedure, the class action rule, was adopted to enable courts to resolve the similar claims of numerous plaintiffs in a single action. (2) This Note spotlights and criticizes a threat to the function of the class action device. The threat takes the shape of a full offer of judgment, conveyed by class action defendants to named plaintiffs before class certification, intended to force mootness upon plaintiffs and prevent them from employing the class action device. The practice has been labeled by many courts, including the United States Supreme Court, as the "picking off" of named plaintiffs. (3) An already significant and growing number of federal district courts have held that such offers of judgment, if conveyed before the class is certified, and if consisting of the full amount of damages that each named plaintiff could possibly recover in the action, render the named plaintiffs' claims moot, requiring dismissal of the entire class action. (4) Because these decisions have not required that named plaintiffs actually accept the full offer of judgment--according to many courts, the mere fact that a full offer was made available is sufficient to moot the action--defendants are thereby granted the ability to force dismissal of the putative class action, stripping otherwise qualified plaintiffs of the ability to fully employ the class action device. This Note argues that bestowing such a "secret weapon" (5) upon defendants both thwarts the function of the class action device and vitiates the policies behind it.
This argument rests on a fundamental assumption--that class actions are a good thing, useful enough to be worth preserving. To be sure, the class action device has not gone uncriticized. Commentators and courts have bemoaned the disconnect that often arises between class action lawyers and the class members whom they purport to represent. (6) The pages of reputable journals and reporters are filled with descriptions of "litigation-mad, bottom-feeding, money-hungry, professional plaintiffs' lawyers." (7) Jurists so eminent as Henry Friendly and Richard Posner warn that unscrupulous plaintiffs can leverage the class action device to extract "blackmail settlements" from defendants. (8) Newspapers ridicule the frivolous claims (9) and exorbitant attorneys' fees (10) so often associated with class actions.
Yet even the harshest class action critics cannot completely dismiss the social policies facilitated by the class action device. (11) By allowing numerous plaintiffs who meet Rule 23's prerequisites to pool their resources into a single litigation, thereby spreading the costs of litigation among many participants, (12) properly certified class actions "overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights." (13) The class action device has been described as "a complex machinery capable of rectifying huge wrongs spread amongst millions of people who, standing alone, would lack both the incentive and the ability to act with such curative effect." (14) Rather than relying on the government as the sole protector of individual rights, citizens who meet the prerequisites of Rule 23 can themselves use class actions to act as "private attorneys general," (15) preventing discrimination and effecting broad social change. As a result, properly certified class actions have become a significant means by which to implement some of the nation's most important civil rights legislation. (16) Simply put by Justice William O. Douglas, the class action is "one of the few legal remedies the small claimant has against those who command the status quo." (17)
This Note does not join the debate over the merits of the class action device. …