Article Examines Class-Action Exceptions to Article III "Case or Controversy" Requirement

The Review of Litigation has published an article in its Winter 2007 issue by Daniel Zariski, Leonard Feldman, Malaika Eaton, and Darin Sands. "Mootness in the Class Action Context: Court-Created Exceptions to the 'Case or Controversy" Requirement of Article III" is available on Westlaw at 26 REVLITIG 77. Here is an excerpt from the Introduction:

[W]hat . . . happens when a named plaintiff's claim becomes moot depends on two factors, one substantive and one procedural. The first factor is timing--specifically, whether a motion for class certification was filed or decided before the named plaintiff's claims became moot. The second factor is the jurisdiction in which the named plaintiff brought suit because federal courts are split on a variety of the issues relating to the mootness doctrine in the class action context. However, the question remains: What should happen to a class action lawsuit when, for any of the reasons set out above, the named plaintiff's individual claims become moot?

As described in Part II below, the Supreme Court has provided some guidance on the intricacies of how courts should apply the mootness doctrine in the class action context. The Court has clarified that the mooting of a named plaintiff's claim after a district court has ruled on a class certification motion generally will not moot the class allegations. Beyond this outer bound, however, the Court has not yet spoken.

The issue of what happens when a named plaintiff's claims become moot before a district court's decision on a class certification motion has fractured the lower courts, as described in Part III below. Four broad approaches have developed. Some courts, following a strict approach to mootness in the class action context, have held that the settlement of a representative plaintiff's claim before a class certification decision renders the entire action moot. Other courts, concerned about the practical effect of the strict approach, have searched for a narrow yet defined exception and have held that the claim can continue so long as a class certification motion was filed prior to the mooting of the named plaintiff's claim. More recently, in an approach that departs from constitutional limitations, a number of courts have even held that a class action can proceed despite the mooting of the named plaintiff's claim if the claim was rendered moot by the actions of the defendant before the named plaintiff had a reasonable opportunity to file a motion for class certification. Others still, particularly in those jurisdictions where the circuit court has not yet adopted any of the previous three approaches, have adopted an ad hoc approach in which various exceptions and considerations are analyzed and then applied specifically to the facts of the case at hand.

Part IV analyzes and critiques each approach discussed in Part III and then recommends an alternative that (a) avoids trampling the constitutional limitations imposed on the federal courts by requiring the controversy between the parties to be live at the time of the district court's certification decision, and (b) limits the potential for abuse of the mootness doctrine by defendants in order to avoid the class certification vehicle. As discussed in Part IV, each of the approaches discussed in Part III raises troubling constitutional and practical concerns. Although no approach is (or can be) perfect, the approach recommended by this article best effectuates both the rules of civil procedure and Article III's "case or controversy" requirement. If and when a better solution is identified, it will most likely require Congressional or Supreme Court action.