If a company offers relief to the potential lead plaintiff in a class action, does that moot the case? Suppose a plaintiff (let's call her Josephine) sues a company (let's call it CE Inc.) under a statute that sets out the maximum remedy that Josephine could be awarded for CE Inc's violation of that statute. Josephine intends to be the lead plaintiff in a class action representing many similarly situated individuals. Prior to the class being certified, CE Inc. offers Josephine the maximum amount she could be awarded under the statute. Does this moot Josephine's case for lack of Article III standing? (Since, ostensibly, Josephine would be getting all that she is due.) Does Josephine's desire to represent the class make a difference? Does it make a difference whether the class has been certified or not? Does it matter whether Josephine accepts the offer?
What you are referring to is a Rule 68 (FED. R. Civ. P. 68) offer of judgment (OOJ). Thus far, nearly every jurisdiction's court of appeals has refused to construe these as being binding on the Plaintiff if the offer is denied, even if it offers complete remuneration, especially in a putative class action. The underlying reasons when applied to a certified class differ fairly substantially from an individual plaintiff or a non-certified class. However, there are some kinds of cases where a Rule 68 offer could never fully compensate (as with cases where subjective or non-substantive forms of damage have been requested). A Rule 68 offer is a cost-flipping mechanism, often used by defense attorneys when they are making what they believe is a fair offer (very rarely is the offer one that is equal to the Plaintiff's demand, which is why this issue rarely arises). If a defense attorney makes an offer of judgment, and then the Plaintiff doesn't accept the offer, they need to get a jury verdict in an amount greater than the offer, or the costs are flipped. So, typically, if there is no OOJ and the Plaintiff wins even a nominal judgment (it can be a dollar) the Defendant always has to pay their costs, which can be substantial. When a Rule 68 offer is made, it's a carefully calculated amount that the defendant thinks the plaintiff can't get in a jury verdict, even if they win, but it's typically less than the demand. The reason a Rule 68 offer is almost never "full compensation" is that a Plaintiff's demand for settlement will typically be somewhere in the area of 3x the amount the Plaintiff's attorney estimates the case to be worth. The Plaintiff is informed of this by their lawyer, so they don't have unreasonable expectations. If you think about it, this makes sense from an ability to negotiate perspective, with the logic being that the Plaintiff wants to get as close to full value as they can, and the defense needs their client to think they've saved them from some huge judgement. If a plaintiff demanded only what the case was worth, it would have no chance of settling for true value, or if the case were to settle, the Defense lawyer wouldn't be able to move the Plaintiff down off their number in any substantial way. This way, the lawyers can play their game negotiating the case down to a fair value. Plaintiff gets what their case is worth and Defendant feels like their lawyer saved them from catastrophe. It's all illusion. The First Circuit recently joined the Second, Fifth, Seventh, Ninth, and Eleventh Circuits in holding that a Rule 68 offer made prior to class certification and rejected by Plaintiff does not moot the Plaintiff’s claim. The Plaintiff, a private high school, brought the action against the corporate developer of a college-entrance exam, alleging violations of the Telephone Consumer Protection Act and an analogous state statute related to unsolicited faxes it received. Prior to Plaintiff’s deadline to move for class certification, the Defendant made an Offer Of Judgment, offering Plaintiff the amount it could receive under the two statutes for each fax. Plaintiff did not respond within 14 days, rendering the offer withdrawn under Rule 68, and instead moved for class certification. Defendant then moved to dismiss, arguing that the withdrawn offer rendered Plaintiff’s claims moot and divested the court of subject matter jurisdiction. The district court denied the motion, holding that Plaintiff’s claim was not moot, but certified the question of whether an unaccepted Rule 68 offer, made before certification, moots the entire action and deprives the court of jurisdiction. Generally speaking, aside from very specific types of cases involving contracts, or specific types of statutory relief, a Plaintiff typically includes counts for things like NIED (negligent infliction of emotional distress), pain and suffering, loss of consortium, loss of future earning capacity &ndash; these are a few of the types of counts whereby there is no specific value a defendant could ever point to being "fully satisfied" &ndash; the reason being, a jury needs to determine the legitimate value of these claims unless the Plaintiff accepts a settlement award whereby he/she/it feels as if it's fully satisfied.
A settlement is fundamentally a contract where parties A and B promise to do certain things (one of them being "stop litigating"). A court order is an enforceable order to do something. A contract cannot be directly enforced (where force is used to make a person comply), it requires a court order for actual enforcement. The conditions of a contract might be enforceable, but you can't get the sheriff to come out based just on a contract. It appears that you got to the "facilitation" phase where the parties talk about the issue and the CRT case manager talks to the parties in neutral terms, aiming for an agreement. If you don't reach an agreement, the Tribunal Decision Process escalates the matter. Under the decision process, the CRT member makes a decision, and it can be enforced in court. They state that "For a $25 fee, the CRT can turn your agreement into an order, if both parties agree that an order should be issued. This is called a “consent resolution order”." I suppose that you did not go through that step, and you only have an agreement. So you would need a separate court process to get a court order. Because everything that you did in this negotiation phase is confidential, if you want CRT to give you something that is enforceable, you have to present the case from the beginning, since they don't have access to what has happened before. The problem in your account is that a settlement has to be reached by yourselves – possibly with the assistance of the CRT case manager. I assume you did actually get a settlement (agreement) with the landlord, but have not filed for a consent resolution order. It may be that the case is too old for you to just pay the $25, and it does require agreement by the other party. Read their FAQ about how cases end.
There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice.
The language that you're referring to, where it states that if they do not provide responses to legitimately served discovery requests in a timely manner, that they would be responsible for attorney fees, this does not refer to your attorneys fees that you incurred in defending the suit. It refers to attorneys fees that would (actually could) arise out of a hearing on a motion to compel, in the event they never answered. If that occurred, the law allows you to ask the court to award you reasonable attorney's fees as well as sanctions, but only those having to do with getting the court to make them answer. Importantly, despite the rule that states this is a potential repercussion for continually failing to answer, they rarely get awarded. This usually only occurs when the court has already warned them, after you (i.e., your attorney) has willingly given them extensions, the court has given them further extensions, and they still failed to produce/respond. Typically an attorney will allow the other side substantial extensions of time, and this is something you may not even know about. When you say they completely ignored the deadline, I'm assuming you mean the deadline on the discovery notice that gets served with the papers. Interrogatories and Requests for production of documents rarely get done anywhere near the deadline in the rules, which is a mere 3 weeks. Many times, it takes much more than this to track down everything that was requested. This is why extensions happen all the time and unless you're asking, this isn't something your lawyer will even discuss with you. When you say they "didn't offer a remotely reasonable settlement until after the deadline and didn't finally dismiss the case until months after the deadline," I'm assuming you mean they didn't make a reasonable demand (it sounds like you were the defendant). This is actually very common, and in fact, it is very early on to make (or reduce the original) demand low enough that the Defendant will accept it prior to the discovery deadline and all the depositions have passed. (When I say deadline, I don't mean the one you're talking about, I mean the actual discovery deadline, which is set forth in the scheduling order; this can easily be 9 months from the time an Answer to the Complaint is filed.) If you're referring to the token deadline put in the first set of interrogatories served, this not a "real" deadline anyone of the attorneys expects to be adhered to. Further, this a very quick settlement and you should be happy your attorney disposed of your case so quickly. As you pointed out, you are paying a lot of money every day the case lives on. In fact, the money you saved by settling early is substantial. If your attorney had gotten the documents and responses and had to wade through all of them, organize them, send follow up requests, take depositions, etc., you would be out easily another $10,000. Your lawyer did you a favor, because a less honest attorney would tell you to wait, to see if there is a defense, just so they could pad their bill. Many times when it is clear that the case is going to settle, the lawyers will serve pro forma discovery, and will say to each other not to bother answering while they attempt to settle. They are timely served if you cannot settle, but it's clear that settlement is the ultimate goal. This is very typical when the defendant almost certainly has exposure, but when the plaintiff's case also has some holes. Because of issues on both sides, they agree a modest settlement to dispose of the matter, quickly, is the best course. When you say the settlement explicitly involved each party paying their own attorney's fees, all settlements contain this clause. I have never seen a settlement agreement where a party agreed to pay the other's attorneys fees. It's just not done. In the rare case it is, it's part of the structure of the settlement and it flows to the Plaintiff, not the Defendant. This may occur in a civil rights case where there are no real damages, but the statute allows for attorneys fees to be awarded if even one-dollar is awarded. So, in a case like this, sometimes the plaintiff will accept their attorney's fees being satisfied as the settlement, (usually along with some sort of consent decree), so as to curtail the abhorrent behavior. If you want to discuss these issues with your attorney, they are not billable: they are administrative pertaining to your bill; hence, you can do so without fear of being charged. If you're nervous, tell him ahead of time you'd like to discuss your bill. He won't try to bill you for this, as he can't, and furthermore your case is settled so your file is closed. To answer your question explicitly: No - your fees are not recoverable. This is not only because you've already settled, but you were never entitled to them anyway. To answer your question about the point of sending discovery at all if you are not going to expect answers and the goal is to settle, (1) is to preserve the right during the discovery period, in the event settlement negotiations break down; (2) to give the other side a picture of how sharp your attorney is, and that he/she will be asking the right questions and they will be invasive; and (3) this is just how it is done. What you've described is how almost all low level cases proceed. Lastly, just to address what you said about it taking a few months from reaching a verbal or "handshake" agreement and having the settlement actually be recorded by the judge and a dismissal issuing, this is just something that takes a little while. Depending on the type of case it is, the court may need to approve the settlement. Even when it's not necessary for the court to approve the settlement, it takes a while to go back and forth on the language, draft the stipulations of dismissal and so on. A few months is right on target. It sounds to me like you had a pretty effective and honest lawyer who could've dragged this out for much longer. Advice for the future, in case you ever find yourself needing the services of an attorney again: If you have these types of questions, you should ask them as they come up. Again, it's not something that you can be billed for, and your lawyer should be happy to answer. Some lawyers are better than others in remembering to explain what the technical stuff means, and what the game plan is. However, the client has a responsibility too, which is to ask if you don't understand.
That's the entire point of a summary proceeding. You're allegedly found committing an offence, that isn't worth the court's time to hear but nevertheless requires some penalty. The only way to "unambiguously deny liability" is by requesting a hearing and denying liability in the notice of this. The court doesn't care what you say to everybody else, it cares what you say on its record. The reasoning is, if you're so sure you're not guilty of an offence, why haven't you sought to argue this in court? And if you weren't committing the offence, why did the informant serve the infringement notice in the first place? The act is not silent at all on this. If you don't request the hearing and serve such notice by the date required, you are liable to enforcement action - whether you deny liability out of court is irrelevant.
The lawyer referred to in that article is suing in his capacity as the recipient of spam emails under California's anti-spam law. Not every jurisdiction has a law like this. I'm from Australia. In Australia, when we make laws prohibiting something, the law usually appoints a government agency to administer the law and bring prosecutions under it, and fines are paid to the government. In contrast, America has a lot of these laws where affected individuals can sue and collect the fines personally. So under the Californian law, you can get $1,000 per email for particular kinds of spam even if you haven't actually suffered any real damage: California Business and Professions Code s 17529.5(b)(1)(B)(ii). How? You need to work out who sent the spam, get evidence to prove it, and file a claim in a Californian court. Apparently you can sue in small claims court, which saves you on filing fees. It helps if you have many email accounts, because then you will receive many emails and therefore can collect many fines. One of that lawyer's wins was in Balsam v Trancos (2012) in the Californian Court of Appeal. Another example of a judgment discussing the Californian anti-spam law is Bontrager v Showmark Media.
As I read the hypothetical facts in the linked question Bob has not filed a suit against Big Co, because no law firm is willing and able to handle such a suit (which I find unlikely). BigCo has not filed a suit against Bob, perhaps because it does not want to draw attention to Bob's claims. So there is no suit in progress. If this is true, no court has jurisdiction of the case, indeed there is no case in a legal sense. No US Court will reach out to take a case that no one has filed, and if one attempted to do so, I strongly suspect this would be a violation of the Due Process Clause of the Fifth or Fourteenth amendments, depending on whether it was a Federal or State court. If it were a Federal court, this would also violate the &quot;Case or controversy&quot; provision. I can't find any report of any US court that has tried to do anything of the sort, so there is no case law to cite about the outcome of such an attempt. If i have misunderstood the question, and either Bob or BigCo has in fact filed a suit, and some court has jurisdiction of it, then the situation is quite different. In that case a court can restrict publication of statements that might be likely to result in jury prejudice and deny one party's right to a fair trial. However such orders are strongly disfavored. A court must demonstrate by findings of fact in the gag order that impairment to a fair trial is likely, and that he proposed order is the narrowest possible means of ensuring a fair trial, and that less restrictive methods, such as change of venue, a sequestered jury, or careful examination of potential jurors, cannot achieve this goal. It must also show that the order is the least restrictive order that will achieve the goal. If such findings are not included with the order, they order may be overturned promptly by a higher court on motion of either party, or of any third party (such as a news organization) affected by it. The situation as described seems implausible.
In California, UPL has a flexible definition and is analyzed situationally, as is the formation of an attorney-client relationship. The shorthand definition for UPL is usually given as something like "doing what lawyers do." When your "help" goes beyond "studying law" and begins to deal with applying that law to a particular legal matter, you're definitely in the neighborhood. If you're encouraging people to compensate you monetarily, even on the sly (or perhaps especially on the sly) that's just going to make it shadier. There's no clear line that divides "assistance" from "advice" or "information" from "counsel." You're not going to find a statute or professional rule that helpfully explains just how close you can get to UPL through wink-wink-nudge-nudge "unofficial-but-maybe-you-should-still-pay-me" legal "information-but-not-advice" before liability attaches, which seems to be the drift of the question (although I understand it was edited). People v. Merchants Protective Corp., 209 P.363, 365 (1922) 'As the term is generally understood, the practice of the law is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.' Quoting In the case of Eley v.Miller, 7 Ind. App. 529, 34 N. E. 836. Baron v. Los Angeles, 2 C.3d 535, 86 C.R. 673, 469 P.2d 353 (1970). "(T)he Legislature adopted the state bar act in 1927 and used the term 'practice law' without defining it. [FN7] The conclusion is obvious and inescapable that in so doing it accepted both the definition already judicially supplied for the term and the declaration of the Supreme Court (in 'Merchants') that it had a sufficiently definite meaning to need no further definition. The definition above quoted from People v. Merchants' Protective Corp. has been approved and accepted in the subsequent California decisions (citations), and must be regarded as definitely establishing, for the jurisprudence of this state, the meaning of the term 'practice law." (People v. Ring (1937) supra. 26 Cal.App.2d Supp. 768, 772, 70 P.2d 281, 283.) For comparison, the Texas Bar's UPL Committee has a digest of the applicable statutes and rules here (they also provide a few appellate decisions that might interest you). In terms of legitimately paid non-attorney help with preparing documents and the like, here's a long discussion on avoiding UPL from a Legal Document Assistant trade association site. Realistically, UPL is investigated in retrospect, mostly in response to complaints. The proper context to analyze this hypothetical is to envision the non-client furious at the non-lawyer after the case has been lost. If everything goes well the non-lawyer probably gets his "gift" and the State Bar is none the wiser. (Although I suppose there's the further wrinkle that if the non-client wins and doesn't provide the "gift" then the non-lawyer likely has no good remedy).