Make Him an Offer He Can’t Refuse: The Concerning Practice That Effectively Ends Collective Litigation and How to Fix It (Without the Supreme Court)

Abstract

In certain American jurisdictions, collective action lawsuits are severely limited through rules that enable a defendant to make a settlement offer worth the entirety of the plaintiff’s damages and thus moot his or her claim, regardless of whether the offer is accepted. In collective litigation, if the settlement offer is made prior to a motion for class certification, the defendant may end the litigation with minimal costs for the defendant, but with minimal justice for the represented class. This practice of mooting collective actions prior to a motion for class certification leaves the class without a representative, case, or settlement money, effectively ending collective litigation as an avenue of justice. Eliminating collective litigation takes an essential tool out of the hands of individuals seeking to enforce their rights against powerful and unified defendants in areas such as civil rights, environmental justice, and employment law. This Note advocates for either the U.S. Supreme Court to remedy this issue through its jurisprudence or for an amendment to the Federal Rules of Civil Procedure to prevent courts from mooting collective cases with unaccepted settlement offers prior to class certification, either through the traditional rulemaking process or through legislative action.