Civil Procedure – Mootness; class actions

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Civil Procedure – Mootness; class actions

A named representative a decertified class can appeal decertification even though he settled his individual claim with the defendant.

“A settling plaintiff would be an adequate class representative if there were no significant conflict of interest and the prospect of an incentive award were sufficient to motivate him to assume the modest risks of a class representative and discharge the modest duties of the position fully (more on those risks and duties below). An important motivating factor is that if the class action suit fails, no incentive award will be made, while if the suit succeeds, in part at least as a result of the representative’s strenuous efforts, the award may be larger the larger the settlement (or judgment) is, as in Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001), and Roberts v. Texaco, Inc., 979 F. Supp. 185, 200-02 (S.D.N.Y. 1997). And since, if the settling plaintiff can’t appeal, an unnamed class member can pick up the fallen spear and bring his own class action suit, as in Smentek v. Dart, 683 F.3d 373 (7th Cir. 2012), judicial economy will rarely be served by preventing the settling plaintiff from appealing. Rather the contrary: allowing him to appeal will enable the viability of the class action suit to be authoritatively determined at the earliest opportunity.

Moreover, if the class is certified as a result of the appeal but the plaintiff appellant is replaced as class representative, still the efforts that he had previously expended, albeit unsuccessfully, on behalf of the class might entitle him to a modest incentive award.”

Motion Denied.

12-1943 Espenscheid v. Directsat USA, LLC

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Posner, J.

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