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Mootness, as stated by the Tenth Circuit, “describes a situation where events in the world have so overtaken a lawsuit that deciding it involves more energy than effect, a waste of effort on questions now more pendantic than practical.”  Winzler v. Toyota Motor Sales, U.S.A., Inc, 681 F.3d 1208 (10th Cir. 2012).  The pace of litigation, and the intervening acts of the government, can result in a case becoming moot for all but the attorneys involved.  Of course, attorneys exist to support litigation, not the other way around.

The plaintiff in Winzler purchased a 2006 Toyota vehicle which, she claimed, had a defective “Engine Control Module.”  She alleged that this defect existed in all 2006 Toyota Corolla and Corolla Matrix vehicles and she filed suit seeking to represent all owners and lessees of these vehicles.  As relief, the plaintiff sought an order requiring Toyota to notify all owners of the defect and to establish an equitable fund to pay for repairs.  The district court dismissed her complaint for failure to state a claim.  As the plaintiff commenced her appeal Toyota announced a nationwide recall of all 2005-2008 Toyota Corolla and Corolla Matrix cars under the National Traffic and Motor Vehicles Saftey Act.

On appeal of the dismissal of the complaint, Toyota asked the Tenth Circuit to take notice of the recall and the federal regulations governing that action.  By voluntarily initiating a recall of the vehicles, Toyota was required by statute to “remedy the defect or noncompliance without charge when the vehicle or equipment [was] presented for remedy.”  49 U.S.C. §§ 30120(a).  And, Toyota subjected itself to the continuing oversight of the National Highway Transportation Authority, and to penalties imposed by that agency if Toyota did not comply with its obligations under the recall.

The Tenth Circuit noted that a case can still present a “case or controversy” sufficient to establish jurisdiction under Article III of the U.S. Constitution and, yet, still be moot.  “Prudential mootness” arises when a case has reached a point “where prolonging the litigation any longer would itself be inequitable.”  Where another branch of government has interceded and already provided an adequate remedy (even if not identical to that sought in the litigation) to the plaintiff, continuing litigation would accomplish little other than to further exhaust public resources.

Courts have similarly found class litigation inappropriate where state government action, coupled with an individual right to litigation, makes individual litigation superior to a class action.  E.g., Thornton v. State Farm Mutual Auto Ins. Co., 2006 U.S. Dist. LEXIS 83972 (N.D. Ohio 2006) (class action not superior where the defendant had entered into an “Assurance of Voluntary Compliance” with 49 state attorneys-general to provide an administrative remedy to purchasers of totaled vehicles whose titles had not been branded as “salvage”); Brown v. Blue Cross &amp; Blue Shield of Mich., Inc., 167 F.R.D. 40 (E.D. Mich.. 1996) (denying motion for class certification where “[t]he agreement entered inot by the State and defendant covers all members of the proposed class . . . and provides full co-pay relief on all but de minimis claims”).  One commentator has noted that potential class members often will recover more through government action than through class litigation once costs and attorneys’ fees are factored in.  D. Bruce Hoffman, To Certify or Not: A Modest Proposal for Evaluating the ‘Superiority’ of a Class Action in the Presence of Government Enforcement, 18 Geo. J. Legal Ethics 1383, 1387 (2005).

Whether through mootness caused by federal action, or the lack of superiority caused by state action, defendants should remember that plaintiffs are ordinarily entitled to but one remedy.  If a defendant has already paid once through government action, that payment may be sufficient to dismiss a claim altogether or, at least, strike class allegations directed at the same conduct.

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Tenth Circuit Affirms Dismissal of Class Action as Moot