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With a class action lawsuit, there are two distinct groups of plaintiffs. There is the class representative, who as the name implies, represents the class of similarly situated plaintiffs and may attend the hearings and trial, working with the lead counsel for the class, and then there are the remaining class members, who typically never appear in court and deal with matters via the mail.

In a case that will now go to the U.S. Supreme Court, the justices will have to decide if the loss of a class representative will require the case to be dismissed or if the presence of a class representative is less important than resolving the legal issues for the entire class.

The Ninth Circuit has ruled that even when the named plaintiff has been offered full restitution for his or her damages, the case can proceed. Corporations, who are almost always the defendants in these class-action lawsuits, would like the court to rule in favor of dismissing the lawsuits.

This would enable them to derail many class action suits by using this strategy to “buy off” the named plaintiff in a settlement, which would far cheaper than either implementing a class wide settlement or litigating the matter.

Given the make-up of the court, and its general antipathy towards class actions it seems possible that they could rule in favor of the loss of class representative making the case moot. However, the previous cases failed to directly address the issue, and Justice Kagan, in a dissent, is the only member of the court to bring up the issue.

Kagan found that an unaccepted offer does not moot the case, because it is unaccepted, and the same as no offer at all.

Arguments in the Court have yet to be scheduled, but it is unlikely the case will be heard before the Courts fall term begins in October.

Source:, “Supreme Court To Decide If Defendants Can ‘Pick Off’ Class-Action Plaintiffs With Cash,” Daniel Fisher, May 18, 2015