Defendants trying to avoid class actions have seized on the tactic of offering judgment to the named plaintiff and then claiming that the entire class action is moot, whether or not the offer is accepted. Scores of cases testing whether this ploy can succeed are working their way through district courts and courts of appeals in every circuit. Every class action practitioner needs to know how to effectively oppose these efforts before they have a chance to begin.
What You Will Learn
- What is a “complete” offer of judgment?
- When does a purported offer conceal unresolved merits issues?
- Can an offer that doesn’t specify fees moot a case?
- Does the timing of a certification motion matter, as the Seventh Circuit has held?
- How can practitioners outside the Seventh Circuit protect themselves against early offers?
- What is the state of the law in your circuit?
- And the million-dollar question: Can an unaccepted offer ever really moot a case?
Chandler Visher received a B.A. from Brown University in 1967 and graduated first in his class at the University of Denver School of law in 1970. After stints in private practice and as a staff attorney for the Sierra Club and four years as an Assistant District Attorney with the Consumer Fraud/White Collar Crime Unit of the San Francisco District Attorney's office, Chandler started his own practice in 1980. Chandler's practice concentrates on consumer class actions. Chandler represented the plaintiff in Russell v. United States, 661 F.3d 1371 (Fed. Cir. 2011), an individual mootness decision that was so bad that the United States, which won on the individual mootness point, repudiated the holding in its amicus brief in Symczyk v. Genesis Healthcare.
Scott L. Nelson is an attorney at the Public Citizen Litigation Group in Washington, DC, where he has a pro bono, public interest practice including consumer law, campaign finance regulation, class actions, arbitration, administrative law, regulation of hazardous products and substances, access to government records, energy regulation, environmental law, and Supreme Court and appellate practice. Before joining Public Citizen in 2001, Mr. Nelson was a partner at Washington’s Miller, Cassidy, Larroca & Lewin, a litigation boutique where his clients included former President Richard Nixon. Mr. Nelson is a 1984 graduate of Harvard Law School, where he was President of the Harvard Law Review, and he was a law clerk to Supreme Court Justice Byron R. White from 1984 to 1986. Mr. Nelson’s diverse practice has involved him in arbitrations, administrative trial-type hearings, trials in federal court, and appeals in both federal and state court systems. He has argued four cases before the United States Supreme Court.