Dan Lewis

That Time I Accidentally Created a Legal Argument that Went All the Way to the Supreme Court

I was a know-nothing first-year lawyer in the fall of 2005 and ended up as an employment lawyer defending corporations against pissed-off employees. I hadn’t even gotten my bar scores back, so I wasn’t allowed to practice without supervision. I had never taken a trial law course or an employment law course. I had no idea what I was doing.

I’m assigned to this case — a bank teller is suing a bank for unpaid overtime. Without getting to lost in the weeds, the important part about the case was that it was brought in Federal court but applied New York State law. NYS law, in the employment law setting, doesn’t have a “class action” option. Instead, there’s something called a “collective action.” I’ll explain the difference as we move along, but at this point in the story, I hadn’t even heard about collective actions before either, so don’t feel bad.

Anyway, there were three lawyers on the case: two partners (both pretty senior) and me. There wasn’t a lot for me to do because I didn’t know anything, but the more junior of the partners gave me an assignment: read all the cases in our area dealing with this part of NYS law over the last few years and read all the cases that the judge we’ve been assigned to has worked on over the last six months. It was busy work — no one expected me to learn anything of value to the case, myself included. But whatever, I was getting paid to learn something which could have value to my professional development.

So I’m reading and I find out about this class action/collective action thing. The difference is pretty easy. In a class action, everyone else who is in the same situation as the plaintiff is considered to be already involved in the case (but has the right to opt-out if he or she so chooses). If you’ve ever gotten one of those legal notices about your rights in a class action in the mail, without any prior warning, that’s why. In a collective action, though, all of the other people who could potentially be involved have to opt-in. NYS employment law uses collective actions, not class actions, which kind of makes sense — you don’t want your pissed off former co-worker suing your boss if it means that you automatically end up joining that lawsuit.

OK, so I add that distinction to my toolbox and move on. I then learn about, in an unrelated case, Rule 68. It’s a federal rule of civil procedure called an “offer of judgment.” The details aren’t important for this story; click the link if you want to read more about it — but the idea is pretty simple. If you’re sued, you can make a formal settlement offer to the plaintiff for whatever amount you want. If the defendant rejects the offer and ends up with a judgment that’s worth less than that, he or she is on the hook for all sorts of bad things.

Now, here’s the neat part. You need to know about two other things lawyers know about: (1) that it’s pretty often the case that the maximum damages one can recover is not at all controversial and (2) the doctrine of mootness. The first one is straightforward. In the case of my bank teller, she was only owed unpaid overtime plus some statutorily-set penalty. Let’s call it a total of $200. (If that seems low, it isn’t; if memory serves, it was only like $50.) The second idea, mootness, is a little harder, but the basic idea is that if you don’t have a claim any more, your lawsuit goes away. (Basically, you can’t just sue because you’re mad.) There are lots of exceptions here, of course, but let’s apply it to my case, as I did, as a know-nothing baby of a lawyer:

I have a plaintiff who, again, can at most get $200. Right now, she’s the only plaintiff, because NYS law makes this a collective action (and others need to opt-in), not a class action (where they don’t). If we make a Rule 68 offer of, say, $250, we’ve offered the plaintiff more than she could possibly get even if she won her case. That’s where the mootness doctrine comes in — once we offer that amount of money, she no longer has a case against our client, and she’s out of the case. And because this is a collective action, again, there are no other plaintiffs. No plaintiffs means no lawsuit. The whole case goes away. That’s a huge win for the client because the bank doesn’t have to go looking through its records for other potential plaintiffs, for the low-low price of $250.

If you’ve read that far, you’re probably thinking that the previous paragraph is clownshoes insane. It is. It’s abusive and absolutely cannot be right. But I didn’t have that instinct because I was square in the “a little knowledge is a dangerous thing” part of my legal career. So, I took it to the partner who assigned me the question.

And she read me the riot act.

I must have missed something or I don’t know how to research or how come this hasn’t been done before or this is why we shouldn’t hire new lawyers or whatever. Total dressing down freakout on her part. She went to the other senior lawyer on the case and, from what I understand, started complaining about how this baby lawyer was wasting her time and the client’s money and I needed to be taken off the case. (I wasn’t in the room, but I heard about it later.)

The other partner was more amused than angry — he was more tolerant of baby lawyers and our missteps — and looked through my notes. (If memory serves — and it doesn’t — there was one court that had, in a footnote, talked about how Rule 68 could be abused in a matter similar to this, but the court couldn’t find any precedent addressing that abuse.) While he agreed that my idea was, again, crazy, he also couldn’t find a reason it didn’t work. He assigned a mid-level associate to check my work and to look for decisions that contradicted my conclusion.

That associate found nothing.

The next day, the two partners (with that associate in the room) grilled me for about an hour about my research. And then they told me that I was almost certainly wrong but they were going to try it, because no one can find a case that says I’m wrong.

The other side didn’t find any reason I was wrong, either, and argued that adopting my theory would make for an awful public policy, which it absolutely would. The judge considered that argument, stating that the public policy concerns “do give this Court some pause,” but ultimately agreed with my research and theory, and we won the case.

The partners on the case thanked me and I heard a rumor that I was given credit internally,  which I guess was nice. I effectively left the practice of law shortly thereafter. Coincidentally, I promise.

In any event, for the next decade, this trick became a staple in the class action defense world. But in January — as in, two months ago — the Supreme Court, by a 6-3 vote, decided I was wrong.