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Civil Litigation

Mar. 1, 2018

Class Action Roundtable

Experts discuss the latest developments in ascertainability, Article III standing, and proposed amendments to Rule 23.

Daniel L. Warshaw

Partner, Pearson, Simon & Warshaw LLP

15165 Ventura Boulevard
Sherman Oaks , CA 91403

Phone: (818) 788-8300

Fax: (818) 788-8104


DANIEL L. WARSHAW, a partner at Pearson, Simon & Warshaw LLP, has held a lead role in numerous state and federal class actions. He has obtained significant recoveries for class members in antitrust, defective product, consumer protection, and employment cases, among others. Mr. Warshaw has been recognized as a Super Lawyer every year since 2005. In addition, he is the Chair of the Class Action Roundtable - an annual meeting of the country's top plaintiffs class action attorneys.

Stanley Mosk Courthouse

Steven A. Ellis


Steve is a partner in Goodwin Procter's Financial Industry and Consumer Financial Services Litigation practices in Los Angeles and has 25 years of experience in defending class action lawsuits and other complex litigation matters in both federal and state courts across the country. Before entering into private practice, Steve served as an associate counsel in the Office of the Iran-Contra Independent Counsel from 1992-93 and as a law clerk for the Honorable Douglas H. Ginsburg at the U.S. Court of Appeals for the District of Columbia Circuit from 1991- 92. Steve earned his law degree from the University of California, Berkeley School of Law and his undergraduate degree from Harvard University.

Brad W. Seiling

Partner, Manatt, Phelps & Phillips LLP

11355 W Olympic Blvd
Los Angeles , CA 90064


BRAD W. SEILING is the cochair of Manatt, Phelps & Phillip's class action defense practice group. His practice focuses on complex commercial litigation in state and federal courts at the trial and appellate level, and he specializes in defending consumer class action lawsuits. His national class action experience ranges from challenges to the pleadings through trial and appeal. Mr. Seiling has extensive experience litigating certification issues, settling class actions, and defending settlements against objections.

Erik C. Swanholt

Partner, Foley & Lardner LLP

Phone: 213-972-4614


ERIK K. SWANHOLT is a business and tort litigation partner with Foley & Lardner LLP. Mr. Swanholt defends companies in a broad range of litigation and regulatory matters, with an emphasis on consumer class action, product liability, pharmaceutical defects and toxic torts, as well as cybersecurity, privacy, and data protection. He has defended individual and class action product liability and toxic tort claims in a variety of industries, including consumer products, fashion, pharmaceuticals, off-road vehicles, industrial safety equipment, asbestos, lead paint, and silica.

Joseph R. Saveri

Joseph Saveri Law Firm Inc.

555 Montgomery St
San Francisco , CA 94111


JOSEPH R. SAVERI, one of the nation's premier plaintiffs antitrust lawyers, represents business owners, entrepreneurs, executives, public officials, and consumers in antitrust, class action, and other complex litigation. Joe has more than 25 years' experience handling such matters, including cases involving financial services, computers, consumer electronics, labor, manufacturing, agricultural products, industrial inputs, and pharmaceuticals. He founded the Joseph Saveri Law Firm in 2012.


As the Spokeo standing saga endures, class action practitioners continue to grapple with the requirements for standing to assert statutory claims. Less puzzling is how courts are interpreting Campbell-Ewald v. Gomez as they largely prohibit defendants from "picking off" class representatives under Rule 68. Meanwhile, the Ninth Circuit's ruling in Briseno v. Conagra Foods sparked a lively discussion on the deepening circuit split over ascertainability as a requirement for class certification. Our panel explored these issues as well as the recently proposed amendments to Rule 23.

California Lawyer met for an update with Steven A. Ellis of Goodwin Procter; Joseph R. Saveri of Joseph Saveri Law Firm; Brad W. Seiling of Manatt, Phelps & Phillips; Erik K. Swanholt of Foley & Lardner; and Daniel L. Warshaw of Pearson, Simon & Warshaw.

MODERATOR: What will be the impact of the Ninth Circuit's ruling in Briseno v. Conagra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), cert. denied, __ U.S. __ (Oct. 10, 2017), rejecting ascertainability as required for Rule 23 analysis?

DANIEL L. WARSHAW: It's no surprise from the plaintiff's perspective, that the Ninth Circuit got it right. Ascertainability does not exist in Rule 23. It never has and it never will unless the rule changes. The catalyst for the ascertainability argument came from the Third Circuit's decision in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), which went completely over the top because it's really made it impossible to certify certain types of consumer class actions where the transaction didn't usually necessitate retaining a receipt. The Ninth Circuit came back with an approach that does not require ascertainability as a prerequisite under the rules; but under the manageability prong of Rule 23. You still must have a way to manage a class, and as part of that, sometimes ascertainability is a factor. The court conducted a reasoned analysis of how you can certify a class when the plaintiff does not have the identity of each putative class member at the moment the motion for class certification is filed. Briseno gives defendants the ability to challenge whether or not a class member has standing, or to challenge an affidavit that they purchased the product, just like in any other context outside of class actions.

STEVEN A. ELLIS: Not surprisingly, I disagree. To me, the Third Circuit saw ascertainability as an implied requirement of Rule 23. In California state court, where ascertainability is a requirement for class certification, some cases get certified and some don't, but the requirement is hardly a death knell for class actions. At the end of the day, whether you consider it an independent requirement of Rule 23, or you put it under manageability or predominance, the bottom line is that we need to know who's in the class and who's not.
You need to know who's in the class because if it's a (b)(3) class, you have to give notice; and even if it's not a (b)(3) class, you have to know who's in and who's out to determine who's bound by the judgment, whether it's the result of a settlement or an adjudication. Although we've all spilled a lot of ink on both sides of the issue about whether ascertainability is an independent requirement, and, if so, what it means, at the end of the day, I'm not sure it matters all that much. Certainly, if you have a poorly defined class, defendants are going to fight class certification, whether it's because the class is not ascertainable or because it doesn't meet some other requirement.

BRAD W. SEILING: I also don't think Briseno is going to matter that much. We fight a lot about these distinct little boxes in class certification: ascertainability, predominance, commonality, and so forth. The reality is they bleed together. It is a factual motion; it's an evidentiary motion. You can take certain facts and call them ascertainability facts, or manageability facts, but you still have to deal with the facts that are presented to the court. Briseno is not taking away arguments from defendants; they just need to focus their arguments a little differently. The Ninth Circuit recognized that when it said you still need to have a manageable class. If the plaintiffs can't give a good answer to the judge's simple question, "How do we try this case on a class wide basis?" then you're not going to get that class certified, regardless of whether you say the problem is commonality, predominance, or another requirement.

ERIK K. SWANHOLT: Ultimately, it's a balancing act. The class action vehicle is designed to be efficient: parties can bring claims that are otherwise too small or too expensive to bring, and defendants can defend groups of small claims collectively to save time and money. If you require a miniature trial for each individual claimant to figure out whether or not they belong in the class, then you lose the benefits of a class action. But you also can't let it swing so far the other way to the point where an affidavit by a claimant is enough to put them in the class. You need something in the middle.

JOSEPH R. SAVERI: I do think Rule 23 has certain requirements now. They've been in place since the 1966 amendments. They've served everybody well. There's now a careful balance between what the courts, legislature, and rules advisory committee have done. It makes sense to take the position that there is no separate ascertainability requirement. Certainly, it remains the case that the defendants are entitled to know who's in the class and who isn't. That has implications for what the scope of the judgment is, but it's always been the case that that really is a function of getting the class definition right by having objective criteria that everybody can look to, to make that determination.
The cases are pretty clear that whatever the bar is for defining the class is a relatively low one, and it's relatively easily satisfied. There is some general requirement to eliminate the outliers, but there is a requirement that you have a class definition, and there have to be objective criteria so you can determine who's in or who's out, so you know who's bound by the judgment. So, I think that requirement is there. But I think it's an easy one to satisfy.

These ascertainability cases are problematic if you're in the Third Circuit, but it's a clear minority now. It's an interesting question how the Third Circuit fixes it. Recent Third Circuit cases are bringing it back to the norm. Ultimately, I think this is going to be little more than a footnote unless there is an ascertainability requirement in the proposed class action legislation. Otherwise, this issue will go away relatively soon. People won't be too concerned with ascertainability as long as the classes are objectively identified.

SWANHOLT: But there is more of a circuit split on ascertainability than we've discussed. From what I see, the Third, Second, Fourth, and Eleventh circuits all have used terms like "ascertainability" and "administratively feasible" before certifying classes. They've rejected class certification on those grounds. The Ninth, Sixth, Seventh, and Eighth circuits have their own consistent rulings on no need for administrative feasibility. So, the Supreme Court ought to engage at some point. It might not have engaged on Briseno because it was relatively narrow in terms of some of the semantics that it focused on, and the Court might be looking for something a little broader down the road that might allow it to address all of the circuits that are at issue.

WARSHAW: I think the Second Circuit is starting to follow the Ninth Circuit now, though. There seems to be a trend of courts following a more rational approach than what happened in Carrera v. Bayer.

SEILING: The split in California state court on ascertainability is also interesting. There's been a recognized requirement of ascertainability in California state courts for as long as I've been practicing. But there's a split among the appellate courts about what that means.
Some cases hold that you must be able to say who's in the class. Literally, "Give me a list." And then, cases swung back saying ascertainability really just means you need to have an objectively definable class. Noel v. Thrifty Payless, Inc. is a recent case where the court swung back and held that the plaintiff must provide a way to identify class members. The court acknowledged that there are cases on both sides of the issue, but came down on the side of requiring the plaintiff to show how it could actually identify class members.
Ultimately, it's highly dependent on the facts. Noel was a retail case involving a blowup kiddie pool. The claim was that the picture on the box misrepresented how big the pool was because it showed two adults and three kids having a great time in the pool--but in reality, it could only fit one adult and four kids. Candidly, I think many of these issues with class certification follow the old Potter Stewart definition of pornography: judges know it when they see it. They look at that claim and say, "Do we really want this claim to go through?" In Noel, the trial judge seized on the problem with the class as a way to get rid of what the trial judge probably thought was a silly case, and the court of appeal affirmed. I think that case would have come out differently if it involved a claim that a dietary supplement promised certain health benefits that people didn't receive.
But that's where we are now. You've got two lines of cases that you can argue. Depending on who your trial judge is, and depending, ultimately, on your facts, ascertainability can be a stumbling block in California.

MODERATOR: What are your thoughts on the proposed amendments to Rule 23?

ELLIS: I was certainly pleased to see that the amendments specifically provide for notice by e mail, which has been the practice for, I don't know, a decade or more, but there was always at least a potential argument based on some of the older case law that notice "by the best means practicable" meant direct mail notice. I'm glad to see that the rules committee has decided that we are, in fact, in the 21st century, perhaps a little belatedly.

It's also a positive development to see the increased emphasis on real scrutiny of class action settlements at the preliminary approval stage. Many judges had been moving there anyways. There's nothing worse than having a judge sign off at preliminary approval, you spend a lot of money on notice, and then, at the final approval stage, you find out the judge has some objections that frankly could have been addressed upfront, and then, you have to renotice the class. It's better to hear about the judge's concerns right up front.

Finally, it's rare that I would say that reading the committee notes to a Federal Rule of Civil Procedure would get me shocked and excited, but that actually happened here. The new committee notes specially say, "the standards for certification differ for settlement and litigation purposes." I was pretty surprised to see that because the Amchem decision twenty years ago emphatically said the standards are the same, though they might be applied differently in the context of a settlement versus trial. Are they really saying there's a different standard or just that the same standards should be applied differently? I'm not sure exactly what this means.

SAVERI: I'm happy the rules committee is doing this rather than the U.S. House of Representatives because the proposal that came out of their hands had even less consideration than the tax bill. It was a complete grab bag of Chamber of Commerce dirty tricks and wishes to abolish the class action device.
One of the challenges under the federal rule is keeping up with the way the world changes. The technology and the practices have evolved, and the rules should be changed to reflect that. The rules are finally starting to deal with the fact of electronically stored information, so that's good.

One thing that is going to be unclear is whether the standards differ for preliminary approval and final approval, and what the court's discretion is. It's rare, but I have had cases where settlement has been submitted to a judge, and the judge has denied preliminary approval. Can you take that up to the court of appeal, and if so, under what standard? It's hard for me to imagine that the court has a full blown Rule 23 settlement analysis at preliminary approval and, then, redoes it at final approval. So, those are my questions. I don't see anything in this that's a real game changer.

SWANHOLT: A proposed amendment that struck me is the one with articulated factors for the court in determining whether a settlement is fair, reasonable, and adequate. The court has always, at least impliedly, considered these factors. But one enumerated factor that I'm curious about how it will be applied is that class members are treated equitably, relative to one another. I'm not sure entirely what that means. Particularly, in the context of the no injury class members that we often fight over, and the relativity of harm. For example, in the front loading washing machine cases that dominated the news for the last couple years, the variety of class members was as broad as it gets. Some folks love their washing machines, never got mold, never got odor; some folks hated them, had mold and odor from day one, and everywhere in between. So, if you're applying this rule in a settlement context, if someone got a little mold once or twice, do they get as much as someone who got mold every day? I don't know how the courts are going to apply that, and I don't know how the party is going to argue, but I know how the defense will probably argue: less means less. But I don't know how you quantify certain types of harm in this context. So, I'm curious to see how that's going to be applied.

SEILING: Like Steve [Ellis], I am interested in courts getting more involved at the preliminary approval stage, and not just rubber stamping proposed settlements. It helps a lot with objector issues if the court rolls up its sleeves, and examines a settlement. Courts now make the parties come back two or three times, and in the process get a real understanding of the settlement. If someone objects at final approval, they will have a much higher bar to pass because it's not just the court having rubber stamped something. The court is more invested in the settlement because the court might have thought about a point the objector is raising and say, "No, I approved it on those grounds, and I don't find that objection valid." So, I think that's going to help.

MODERATOR: On the objector issue, what do you think about the proposed rule changes to address serial objectors? Are they sufficient to root out meritless objections?

WARSHAW: I think they are going to fall short. The only way, in my opinion, for these rules to be effective is if the trial judge gives the objector an earful that when the case comes back to the trial court, for the objector's motion for fees, that it's going to be denied, or that the objector's going to get a pittance because he or she did not enhance the settlement to the class. We need a judge to say, "Your objection is without merit. This is just a hold up and I don't think you're due anything. So, have at it; hold up the process, spend two years doing this, but you're not going to get any money." Even if that works, it's going to take time to resolve.

SEILING: The California Supreme Court recently held in Hernandez v. Restoration Hardware, ___ Cal.5th ___ (Jan. 29, 2018), that a class member objector has to formally intervene in the lawsuit. It makes you wonder about its practical impact because how could a class member not meet the criteria for intervention? It's interesting. It creates a hurdle. The question is how high the hurdle will be. Maybe judges, in considering those intervention motions, will do what Dan [Warshaw] has suggested and say, "I'm going to grant you an intervention right, but I'm not going to listen to this kind of argument," and maybe the objector will say, "Not with this judge."

WARSHAW: Right. It circles back to the argument about doing a deep dive at preliminary approval. Objections come after preliminary approval, and if your judge has really invested in the settlement process, when that objector wants to intervene, the judge will be well prepared to shut them down and say, "Wait a minute, this is just a boilerplate objection that you filed across the country in other cases, and you changed the names of the parties." That's what we need to have happen, otherwise this practice will continue because objectors continue to get paid.

ELLIS: I think the proposed rule could have gone further and written, "No payment will be made in connection with a meritless objection," into the rule itself. To be clear, we are talking about meritless objections, not ones brought in good faith, which should be heard and resolved. Serial objectors are the problem, the people who file the same objection in multiple cases and change only the party names--and sometimes they even forget to do that. They're really just a drag on the system and they do not contribute anything.

SAVERI: The problem is the risks and the economic interests are asymmetric. The objectors invest no money, they just want to hold up the process. The downside risk for them is virtually zero. At the same time, they have an enormous amount of leverage. There are a few things to do, like have some control over what the objectors get paid and require things like bonds for taking appeals. And those bonds have to be in an amount that reflects the true economic cost of what the appeal is, which, in a lot of these cases, to be candid, could be hundreds of thousands or millions of dollars. And I think that's fair.
If the court finds that these objections are meritless, I don't think it's simply enough to say, "You lose, and you don't get paid." There should be a sanction. Trial judges should be willing to step up and apply Rule 11 to address meritless objections.

Until the courts or the rules address those issues, we will continue to have this problem. The rule amendments are a step in the right direction because it indicates we're starting to grapple with this problem in a systematic way, but we have a long, long way to go. It's a scourge on the civil justice system, and I don't think the rules committee can do anything to deal with this intractable problem right away.

WARSHAW: There's no harm in the appeal bond. Unfortunately, the amounts are de minimis in my experience. The cost to draft it and have a hearing on it is more than the amount the objector has to pay, but it's one of the only devices we have currently to get skin in the game from the objector's counsel.

SAVERI: And they're even getting lower.

SWANHOLT: Some of these issues are addressed in the rule. Much of this comes down to the court believing that the lawyers have reached their settlement at arm's length, in good faith, without big attorney's fees done for the plaintiff's lawyers and without a get out of jail free card for the defense. I understand why the rule is there and why the court needs to look at it. When you look at some of the articulated factors for settlement for the preliminary review, one of the things they look at is in terms of timing of attorney fees. These are things that they can look at for the objectors as well.
Until the court really analyzes the basis of the objection, the new rules require that the objection state with specificity what it's based upon, if it applies only to the objector, him or herself, the whole class, a subclass. There are these more codified steps in terms of what the court should look at in determining the value or the basis of the objection, and that should put an additional emphasis on the court's analysis in determining whether or not the objection is well taken. We can almost always tell from the get go whether or not an objection is made in good faith. It does not take an appeal to the Ninth Circuit to figure that out. These rules move us in that direction but, as Joe [Saveri] said, they probably haven't gone far enough.

MODERATOR: Let's move on to a discussion of the Ninth Circuit's ruling in Davidson v. Kimberly-Clark Corp., et al., No. 15-16173, 2017 WL 4700093 (9th Cir. Oct. 20, 2017). What does it mean for Article III standing for injunctive relief in deceptive advertising cases?

WARSHAW: This is an interesting decision. I've had this issue come up at the trial court level several times: if you have class representatives who, after the purchase, knows they've been deceived, the argument is they have no standing because they already know the product is deceptive. In other words, there's no basis to bring injunctive relief because they can't be fooled twice with the same misleading representation.

The problem, as the court decided in Kimberly Clark, is this "perpetual loop" that could exist: plaintiff files the case in state court without Article III requirements; defendants remove it under CAFA to federal court, so Article III applies; the judge remands it back to state court, and you get stuck in a loop. So, the decision says that if there is an intent to purchase the product in the future, then there is a chance that the plaintiff would be deceived by the label because they wouldn't know whether or not the label had been corrected at the time of the second purchase.
This solidifies the law because the alternative--that you can't be deceived again--would make it impossible to bring an injunctive relief false advertising case in California unless you're constantly substituting plaintiffs, and the plaintiffs don't know why they're suing. It just doesn't work. Kimberly Clark resolves the issue in a fair way. As a pleading requirement, it's a very low standard to satisfy. Defendants can cross examine the class representative in deposition about their intent to purchase the product again, and we're off to the races.

SEILING: I don't have significant problems as a defense attorney with this decision. At the end of the day, in false advertising cases, the injunction is the tail on the dog, and, oftentimes, it's a very small tail on a potentially very big dog. You just don't see these cases being litigated as (b)(2) injunctive-only classes. If you try to certify a (b)(3) and a (b)(2) class, would the court say no to (b)(3), but let it go forward on (b)(2)? I just don't see a lot of those cases happening, frankly. It keeps a remedy in the case a little longer, but at the end of the day, I don't think it's going to matter that much, practically.

SAVERI: This only really matters in false advertising cases where the injunctive relief is the chief remedy that's being pursued. Otherwise, I tend to agree that in many cases, these injunctive relief claims are footnotes and not really what the case is about. There was an interesting issue here: I think we're all interested in whether flushable wipes are really flushable or not. This case was decided correctly, but it's probably not the most important issue.

MODERATOR: What are the latest developments concerning Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), and the relationship among statutory damages, Article III, and minimal or no current harm, and fear of future harm?

ELLIS: The Spokeo issue is not going away. The Supreme Court weighed in but did not provide much guidance. Courts are struggling on these minimal or no harm cases. What is enough to establish Article III standing or injury in fact? Is a fear of future injury enough? How imminent or substantial does it need to be? We have several federal statutes that were designed by Congress to provide for statutory damages to compensate for harms that are intangible, and, sometimes, amorphous. We see this in Spokeo under the FCRA, in credit card truncation cases under FACTA, and we see this come up under the TCPA, EFTA, and other statutes.
It's a big issue for data breach cases involving either credit card or health information. Let's say someone has compromised a defendant's system, they've gotten access to credit card information or health care medical information on a million people, but none of those million have yet had an identity theft that they can trace to the breach. Do they have standing? The Supreme Court's guidance in Spokeo was of limited use in helping courts resolve this question.

SEILING: I don't know how you ever get finality to the issue because, as Steve [Ellis] pointed out, there are just so many different statutes under which the issue can arise, and even under each of those statutes, you can have different scenarios that courts must address. The Supreme Court is not going to take every one of those cases and say, "Here is exactly what you need to prove in a TCPA case, or a FACTA case, or an EFTA case." So, it's going to remain an issue.

SAVERI: These cases are really hard to analyze in a consistent, systematic way where you can derive what the rules are. They are tremendously fact specific. It's really hard to tell from the statute how a court is going to decide whether there's sufficient injury or not. You cannot find an operative rule and predict results. It would be a tremendous challenge for defense attorneys to counsel based on the case law right now because the cases are all over the map. It's really hard.

SWANHOLT: I agree with what everyone said here. We've made a mess of it. If you step back and look at it from your ten year old mind, as a little boy or a little girl, you might ask, "Was someone hurt or not?" If they weren't hurt, then there's no case. That's ripeness; that's standing.

In many of these cases, there might be some harm down the road. When that happens, that's when you have standing; that's when your claim is ripe to bring. Until then, you're not hurt. I know we can look at what the statutes say in terms of a violation equaling a harm, but many of these cases are so commonsense to me. For example, in the FACTA case, Meyers v. Nicolet Restaurant of De Pere, the guy noticed that his credit card wasn't truncated on his receipt. But there's no way anyone could steal his information because he had the receipt in his hand. So, he couldn't possibly be harmed. Some of those factual stories don't lead to any harm and there shouldn't be standing.

ELLIS: In California state court, Article III does not apply. If the claims cannot be heard in federal court, they could still go forward in state court. So, has Congress created a private right of action that can only be enforced in state court, and even then, only in states that don't follow Article III, or don't have a parallel provision to Article III in their state constitution? It is constitutionally permissible, but it's a strange situation that you would have federal rights being vindicated only in state courts, and then only in some states.

SEILING: Some of the difficulty of creating a law that we can all understand is that many of these cases only come up on the pleading stage and on motions to dismiss. We defense lawyers--and I'm guilty of this--can be trigger happy sometimes. We see it, and we say, "Aha! We have Spokeo; we've got this case," when really, the issues are factual and probably are better made on summary judgment or raised in opposition to class certification.

WARSHAW: That's what I was going to say. It's really almost become a pleading standard now of what you allege in the complaint for these alphabet cases. How much meat is on the bone substantiating the allegation of injury? When you follow the Spokeo rationale, the more meat you can put on the bone at the pleading stage and conduct that fact specific type analysis, the better chances you have to get past a 12(b)(6) motion and proceed to summary judgment. But Erik [Swanholt] is absolutely right. It's a complete mess. I mean, think about Steven [Ellis's] example about bringing a federal claim in a state court that doesn't follow Article III being the only way to adjudicate your rights for a private right of action that Congress passed. How did we wind up here? I don't think it's going to be fixed any time soon.

MODERATOR: Finally, how are courts interpreting Campbell-Ewald v. Gomez, 577 US _ (2016)? Are there any circumstances under which a defendant can "pick off" a class representative?

ELLIS: The Supreme Court ended up with a reasonable result, but they created more uncertainty than they resolved in the way they wrote the decision. The lower courts generally have been prohibiting things that look like pick offs. That makes a lot of sense from the point of view of the class action system. There is certainly a significant Article III mootness issue that arises, and the Supreme Court really struggled with that issue, which deeply divided the Court. But so far, appellate courts have pretty much shut the door on pick-offs.

WARSHAW: Rightfully so.

ELLIS: Certainly, from the point of view of the system, not necessarily from that of my clients. In Chen v. Allstate Ins. Co., 819 F.3d 1136 (9th Cir. 2016), the Ninth Circuit suggested that even if the courts were to allow an individual plaintiff to get picked off, the courts may still give the class representative a chance to show that class certification is warranted and, presumably, substitute in a different named plaintiff, subsequently, to carry the torch going forward. From the point of view of my clients, we'd love to be able to get rid of these class actions by picking off class reps, but I'm not sure that's really the way Rule 23 was intended to be applied.

SEILING: I agree with that from the system perspective: there's something that doesn't seem right about it, and that's coming from a defense lawyer. It makes it appear that the defendant is trying to make things right, but they're really not; they're just trying to avoid liability.
Knowing this now--that defendants are not going to be able to pick people off once litigation is filed--it might encourage parties to think more seriously about trying to correct problems pre litigation. That is something that I and my colleagues counsel our clients about. If you know there's an issue with a product or conduct and you haven't been sued or contacted by a plaintiff's firm, fix it. And if you are contacted by a plaintiff's firm in a pre litigation context, like a demand letter, think seriously about whether there is something you can do that fixes the issue and potentially avoids expensive litigation. Once you get into litigation, I actually think the door is pretty much closed on this issue. I just don't think it's going to work 95 percent of the time.

SWANHOLT: At the end of the day, when you file a lawsuit, you are asking for certain remedies. And if you receive those remedies, the lawsuit only proceeds to help the plaintiff's lawyers to get paid. There ought to be more avenues and off ramps in lawsuits than simply summary judgment or a trial or a settlement that you might not feel is justified. Early resolution by satisfying the claims by remedying the situation should be a viable vehicle to resolve some of these cases.

Now, I understand, and I agree that if it is nefarious and done in a way simply to pay the smallest amount possible to get rid of the class claims, then that's improper. But I don't think a defendant should be precluded from taking steps that the plaintiff, him or herself, has asked the defendant to take simply because the court's going to deem it ineffective in terms of deterring or eliminating the lawsuit.
Also, maybe the characterization of it as a "pick off" is what's hurting the practice. Maybe if we go with something else like, "satisfying the plaintiff" or "remedying the issue," maybe it would be treated differently.

SEILING: I'll channel a plaintiff's lawyer here and say "pick off" is the right term for what's happening here because when a plaintiff goes in and files a class action, they've committed to carrying the flag.

WARSHAW: You're stealing my thunder.

SEILING: I'm sorry.

WARSHAW: But it's true. The complaint is brought on behalf of the plaintiff and all that are similarly situated. I have a case right now over a defective product that costs $40. Do you think this woman is bringing the case because she wants $40? She's doing it for a completely different set of reasons. For the defendant and the court to make the decision that she is now whole because the defendant tendered a check for $40--for them to decide that her case is over, and she can no longer represent the class, and the class claims are now dead--is completely contradictory to the reason why we have class actions.

When defendants depose class representatives, counsel asks the reasons why the plaintiffs want to be class representatives, and whether they're adequate to serve as a fiduciary to the putative class. And now, defendants want to say, "Well, none of that really matters. We can give this woman $40 and her claims are now mooted." So, I think it is a "pick-off." It's a farce. The courts have done the right thing. I think the issue is dead and it's not coming back because the conduct does not further justice. Class counsel will just get another plaintiff to serve as a class representative, and we're right back where we started; all a pick-off does is create delays and inefficiencies.

ELLIS: Certainly what you said is powerful and clear, but before we get to Rule 23, we have to deal with Article III. If Article III says that a case cannot proceed, then Rule 23 cannot save it. At the time of filing, although the plaintiff is acting on behalf of a putative, uncertified class, if the class rep does not have Article III standing to continue the case, what is the court to do?

WARSHAW: I don't think we can look at Article III in a vacuum when we have a class action complaint because we also have to consider the prayer for relief. If we have an uncashed check or an unaccepted offer, the plaintiff should be the one in the position to make the decision of whether or not they want to accept that offer and resolve the case or put the case to a jury. We're taking that decision away from the plaintiff who brought this righteous case--pretend it is a righteous case, just for a second--that should be adjudicated in the public domain by a jury of their peers versus having the court and a defendant decide that a $40 check resolves the issue for someone who brought a putative class action with a host of items in their prayer for relief.

SAVERI: I think companies that are responsible and want to fix problems and take care of their customers should be encouraged to do that, but there's a big difference between stopping the unlawful business practice and making full redress to injured people on the one hand, and picking off a class member on the other. The difference between that broad relief and fixing the problem and taking responsibility for what happened and writing a $40 check is the difference between what would be permissible as a way of handling the problem and what's not.


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