Special Mootness Rules in the Class Action Litigation Context
Article III, Section 2, Clause 1:
The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The Supreme Court has also developed special mootness rules that apply in class action cases.1 In a class action, the plaintiff2 (known as the “class representative” or the “named plaintiff” ) represents not only his own interests, but also the interests of other injured persons (the “class members” ) who are similarly situated to the class representative but are not named as formal parties to the suit.3 Intervening events may sometimes render the controversy moot as to the named plaintiff but not as to the class members.4 For example, in the 1979 case of Bell v. Wolfish, several pretrial detainees initiated a class action lawsuit challenging the conditions of confinement at a custodial facility not only on their own behalf, but also on behalf of other detainees as well.5 However, the named plaintiffs were transferred or released from the facility while the case was pending, and therefore were no longer being subjected to the allegedly unlawful conditions of confinement by the time the Supreme Court took up the case.6 Although the named plaintiffs no longer had any personal stake in the outcome of the litigation, the class members who remain confined in that facility still potentially had live claims against the defendant.7 To address cases of this sort, the Court has ruled that a justiciable controversy may potentially exist “between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.” 8 Put another way, “the termination of a class representative's claim does not” necessarily “moot the claims of the unnamed members of the class.” 9 The Court, applying that principle, has occasionally resisted efforts by defendants to moot a class action case by offering to pay the class representative's entire individual claim over the class representative's objection.10 According to the Court, allowing a class action case to become moot “simply because the defendant has sought to 'buy off' the individual private claims of the named plaintiffs” would “frustrate the objectives of class actions” because it would “requir[e] multiple plaintiffs to bring separate actions, which effectively could be 'picked off' by a defendant's tender of judgment.” 11 The Court has explicitly declined to decide, however, whether other methods of mooting a class action could be permissible, such as by “deposit[ing] the full amount of the plaintiff's individual claim in an account payable to the plaintiff” and then successfully convincing the court to “enter judgment for the plaintiff in that amount.” 12 The lower courts have therefore “split on whether actual payment of full relief moots an individual's claim.” 13 “The Supreme Court has not yet resolved the split, and commentators disagree on how the Court will ultimately decide the unresolved . . . question.” 14
- See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161 (2016); Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991); U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 395–409 (1980); Deposit Guar. Nat'l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 339–40 (1980); Bell v. Wolfish, 441 U.S. 520, 526 n.5 (1979); Swisher v. Brady, 438 U.S. 204, 213 n.11 (1978); Kremens v. Bartley, 431 U.S. 119, 127–36 (1977); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976); Franks v. Bowman Transp. Co., 424 U.S. 747, 752–57 (1976); Bd. of Sch. Comm'rs of City of Indianapolis v. Jacobs, 420 U.S. 128, 128–30 (1975) (per curiam); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); Sosna v. Iowa, 419 U.S. 393, 397–403 (1975). The Court has emphasized, however, that the legal principles pertaining to mootness and class actions have little to no application outside the class action context. See United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1539 (2018) (explaining that the holdings in the cases listed above are “tied . . . to the class action setting from which [they] emerged” ); Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 73–74 (2013) (holding that, because class “actions are fundamentally different from collective actions under the” Fair Labor Standards Act (FLSA), “the mere presence of collective-action allegations in [an FLSA] complaint cannot save the suit from mootness once the individual claim is satisfied” ).
- While it is also possible to bring a class action in federal court against a class of defendants, class actions on behalf of classes of plaintiffs are more common. See Fed. R. Civ. P. 23(a) ( “One or more members of a class may sue or be sued.” ) (emphasis added).
- See, e.g., Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155–56 (1982) ( “The class-action device was designed as 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only' . . . We have repeatedly held that 'a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.'” ) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979); E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)). See generally Fed. R. Civ. P. 23.
- See, e.g., Sosna, 419 U.S. at 401 ( “Although the controversy is no longer alive as to appellant Sosna, it remains very much alive for the class of persons she has been certified to represent.” ).
- See Bell, 441 U.S. at 523.
- See id. at 526 n.5.
- See id.
- Sosna, 419 U.S. at 402. See also Nielsen v. Preap, 139 S. Ct. 954, 962–63 (2019) (opinion of Alito, J., for three Justices) (concluding that class action case was not moot where “there was at least one named plaintiff with a live claim when the class was certified” ).
- Bell, 441 U.S. at 526 n.5 (quoting Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)). See also, e.g., Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) (same); U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 404 (1980) (holding that an “appeal of the denial of [a] class certification motion” “does not become moot upon expiration of the named plaintiff's substantive claim” ). But see Azar v. Garza, 138 S. Ct. 1790, 1791–93 (2018) (per curiam) (dismissing a putative class action as moot without applying, analyzing, or mentioning this principle); Kremens v. Bartley, 431 U.S. 119, 132 (1977) (holding that a class action may be unable to proceed where an intervening event moots “not only the claims of the named plaintiffs but also the claims of a large number of unnamed plaintiffs” ).
- See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (holding that “an unaccepted offer to satisfy the named plaintiff's individual claim” does not “render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated” ); Deposit Guar. Nat'l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 339 (1980) ( “To deny the right to appeal simply because the defendant has sought to 'buy off' the individual private claims of the named plaintiffs would be contrary to sound judicial administration.” ).
- Roper, 445 U.S. at 339.
- Campbell-Ewald, 577 U.S. at 166 ( “That question is appropriately reserved for a case in which it is not hypothetical.” ).
- Kuntze v. Josh Enters., Inc., 365 F. Supp. 3d 630, 640 (E.D. Va. 2019) (citing numerous cases).
- Id. at 641 (citing scholarly articles and treatises).
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