Two couples, the Varsamises and the Giannopolouses, sued Iberia Air Lines for not properly compensating them after their international flights were delayed. Their counsel soon ran into plaintiff-related difficulties: the Giannopolouses were not typical of the class (and wound up accepting Iberia’s Rule 68 offer of judgment); the Varsamises’ claims were dismissed at the summary judgment stage. The class action was over; all that was necessary was for someone to call time of death. And Iberia filed a motion for final judgment to do just that.
At that point, plaintiffs’ counsel filed a motion of their own, “to reopen discovery for the purpose of identifying substitute class representatives and for an order authorizing plaintiffs’ counsel to engage in pre-certification communications with putative class members.”
In essence, counsel wanted the opportunity to identify other potential class members, so that they could solicit them to carry on with the lawsuit. To continue belaboring the medical drama analogy, counsel looking for any extraordinary measures it could take to bring this case back. Iberia, for what should be obvious reasons, opposed the motion.
Class counsel relied on a pair of opinions by Judge Posner that suggested that, under certain circumstances, an uncertified class action has a life beyond that of the named plaintiff who filed the complaint.
The trial court, in Giannopolous v. Iberia Lineas Aeras de Espana SA, No. 11 C 775, 2014 U.S. Dist. LEXIS 73003 (N.D. Ill. May 29, 2014), disagreed, observing that counsel’s
arguments miss the point. The question is not whether the Court retains jurisdiction, nor whether contact information for potential class members is relevant and discoverable. Rather, the salient question is whether the Court can permit Plaintiffs’ counsel to issue discovery requests when there is no named plaintiff (or certified class) with a “live claim” who can “carry on” the litigation–including issuing discovery requests. The Court retains jurisdiction to entertain motions to intervene while the former named plaintiff whose claim is dismissed or moot keeps the case warm so that someone with a live claim can intervene. However, “carrying on” the litigation–i.e., issuing discovery requests or filing an appeal–cannot occur without a new named plaintiff with a legally protected interest who is willing to step forward to pick up the spear dropped by the named plaintiffs. The former named plaintiff cannot propose to be the representative itself, even though its claim has been resolved. Here, Plaintiffs’ counsel is lacking a client with a live claim, and so Plaintiffs’ counsel may not seek discovery to find one.”
(Emphases added, internal quotations & citations omitted.) Class actions involve high stakes (and therefore lucrative fees), so it’s not surprising that class counsel will do everything in their power to keep a case going even after it appears to have died a natural death. The Giannopolous opinion is an excellent reminder that there are limits to the extraordinary measures plaintiffs’ counsel can take to keep a dying case alive.