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Class Action and Limits on Federal Judicial Power: Demonstrating Insufficient Case or Controversy, Mootness, and Remedy

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, July 21, 2022

Recorded event now available

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This CLE course will guide class action counsel in battles over whether the court has jurisdiction to hear the case in the first place, whether post-pleadings, pre-class certification actions can strip the court of authority to decide the case, and whether courts may approve cy-pres-only settlements in a class action. The panel will discuss Article III standing, the effect of uninjured class members on standing and class certification, if, and how, defendants may use Rule 68 offers of judgment to moot claims of class representatives before class certification, and courts’ authority and willingness to approve settlements under which plaintiffs receive no direct compensation or other remedy.


To proceed in federal court, a class action plaintiff must demonstrate, among other things, that he or she has suffered a concrete injury-in-fact. What suffices as concrete, however, is highly debatable and often contested, especially in cases seeking statutory damages. Relatedly, the issues of whether classes may include uninjured members and, if so, how many are permissible, implicate Article III standing and class certification issues, such as predominance, superiority, and ascertainability.

Defendants may attempt to defeat class certification by rendering the case moot with a pre-class certification Rule 68 offer of judgment. If the class representative accepts, his or her claims are moot and the representative cannot qualify as adequate under Rule 23(a)(4). But many open questions still exist about when and how satisfaction of a claim occurs. Defendants, therefore, must carefully consider the consequences of tendering an offer to pay a class representative’s claims, both if the class representative accepts or rejects that offer.

Cy pres provisions are often included in class action settlement agreements as a means to address unclaimed settlement funds. These provisions continue to raise questions about whether such payments to third parties constitute actual remedies to the class representatives and the class members. Indeed, in common fund classes seeking statutory damages, significant justiciability issues arise under both Article III and Rule 23 where the entire common fund (less attorney's fees) is never distributed to the class members.

Listen as the experienced panel of class action attorneys discuss standing-based challenges to the court's jurisdiction to hear the case, the impact of uninjured class members on class certification, the court’s continuing authority to render a judgment if the case becomes moot or the court’s ability to approve a settlement that does not provide an actual remedy.



  1. Article III standing and concrete injury-in-fact
  2. Uninjured class members, class certification, and standing
  3. Mootness and absence of controversy
  4. Cy pres settlements and remedy-less cases


The panel will review these and other current issues:

  • What constitutes a sufficiently concrete injury-in-fact to satisfy Article III standing requirements?
  • How does the existence of uninjured class members impact Article III standing and Rule 23 class certification?
  • What happens in a case where the plaintiff seeks liquidated damages, and the defendant makes a Rule 68 offer of the entire amount the plaintiff could recover, including costs, fees, and interest?
  • Does an unaccepted Rule 68 offer of full compensation render a class representative's claim moot?
  • What happens if a class representative accepts a pre-class certification Rule 68 offer of judgment?
  • Under what circumstances will courts approve or reject cy-pres-only settlements or provisions calling for cy pres payments of unclaimed funds in a class action settlement?


Benenson, Steven
Steven P. Benenson

Porzio Bromberg & Newman

For over 35 years, Mr. Benenson has defended public and private companies in high stakes class actions, business,...  |  Read More

Mueller, Michael
Michael J. Mueller

Hunton Andrews Kurth

Mr. Mueller has more than 33 years of experience with class actions and other complex cases, including wage-hour class...  |  Read More

Sparkes, Robert
Robert W. Sparkes, III

K&L Gates

Mr. Sparkes has extensive experience in complex civil and commercial litigation and regularly represents banking,...  |  Read More

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