Anthony Sos v. State Farm Mutual Automobile

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11769
____________________
ANTHONY SOS,
Plaintiff-Appellee,
versus
STATE FARM MUTUAL AUTOMOBILE INSURANCE COM-
PANY,
a foreign insurance company,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cv-00890-PGB-LRH
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2 Opinion of the Court 21-11769
____________________
Before L UCK , BRASHER , and H ULL , Circuit Judges.
BRASHER , Circuit Judge:
We have twice held that a defendant cannot moot a class
action lawsuit by buying off the individual claims of the named
plaintiff. See Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th
Cir. 1981); Stein v. Buccaneers Ltd., 772 F.3d 698 (11th Cir. 2014). The
Supreme Court, too, has reasoned that allowing a class’s claims to
“be ‘picked off’ by a defendant’s tender of judgment before an af-
firmative ruling on class certification could be obtained, obviously
would frustrate the objectives of class actions.” Deposit Guar. Nat’l
Bank v. Roper, 445 U.S. 326, 339 (1980). We have explained that a
contrary rule would give defendants “the option to preclude a via-
ble class action from ever reaching the certification stage,” which
is “precisely what the [Supreme Court] condemns.” Zeidman, 651
F.2d at 1050.
In this class action lawsuit, Anthony Sos, the named plaintiff,
timely filed a motion to certify a class of State Farm policy holders
who had been shortchanged when State Farm failed to pay sales
taxes and title transfer fees under a standard automobile insurance
contract. While that class certification motion was pending, State
Farm tried many times to moot Sos’s claims so that a class could
not be certified. Just hours after Sos filed his class certification mo-
tion, State Farm sent Sos’s attorneys a check to resolve his individ-
ual claims, which his attorneys rejected. Later, State Farm offered
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21-11769 Opinion of the Court 3
to pay Sos double its earlier offer if Sos would dismiss his putative
class suit. After settlement talks failed, State Farm began to send
voluntary payments to other members of the putative class, whom
State Farm had identified through internal documents, in an ex-
press attempt to moot the class claims. Lastly, in one final effort,
State Farm sent Sos another check. Sos had filed a motion for sum-
mary judgment on behalf of the putative class on the deadline set
by the district court. The district court granted Sos’s motion for
summary judgment on only his individual claims for damages and
prejudgment interest, without addressing his claim for statutory at-
torney’s fees under Florida law and without ruling on class certifi-
cation. The day before a hearing on Sos’s long-pending class certi-
fication motion, State Farm paid Sos for his individual damages and
prejudgment interest as reflected in the district court’s summary
judgment.
The district court rejected State Farm’s repeated argument
that its payments to Sos and other members of the class mooted
the case. Shortly after the class certification hearing, the district
court certified a class of Florida insureds and granted summary
judgment in its favor, entitling the class to damages, prejudgment
interest, and statutory attorney’s fees.
State Farm’s appeal requires us to resolve five questions.
First, under established precedent and the unique circumstances
here, we conclude that State Farm did not moot this case by mak-
ing unsupervised partial payments to the putative class members
or by paying some of Sos’s individual claims. Second, we conclude
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4 Opinion of the Court 21-11769
that the district court did not abuse its discretion in certifying the
class action under Rule 23 of the Federal Rules of Civil Procedure.
Third, we conclude that State Farm’s failure to pay the class mem-
bers the complete costs of their sales taxes and title transfer fees
was a breach of contract under Florida law. Fourth, we conclude
that the district court did not abuse its discretion in awarding the
plaintiffs prejudgment interest. Fifth, we conclude that the district
court’s attorney’s fee award was an abuse of its discretion because
the court used the wrong standard to calculate the applicable
hourly rate and added a too-generous 2.5 multiplier. Accordingly,
we affirm in part, reverse in part, and remand this case for the dis-
trict court to recalculate attorney’s fees in light of this opinion.
I.
“This case has a lengthy, and heavily litigated, history.” Sos
v. State Farm Mut. Auto. Ins. Co., No. 617CV890ORL40LRH, 2021
WL 1185685, at *1 (M.D. Fla. Jan. 26, 2021), report and recommenda-
tion adopted in part, rejected in part, No. 6:17-CV-890-PGB-LRH,
2021 WL 1186811 (M.D. Fla. Mar. 19, 2021). Because this factual
history is critical to our decision, we describe it in some detail.
Anthony Sos and unnamed class members each leased a ve-
hicle covered by a State Farm form insurance policy with identical
essential terms. The policy provides that, in the event of a “total
loss,” State Farm will pay the insured the “actual cash value” of his
vehicle. But the policy does not define “actual cash value” or ex-
plain whether it includes the cost of sales tax or title transfer fees.
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21-11769 Opinion of the Court 5
State Farm engages in a multi-step procedure for handling
total loss claims. After determining that a State Farm insured vehi-
cle is a total loss, a claims specialist calculates the vehicle’s actual
cash value by entering agreed-upon values into State Farm’s Total
Loss Settlement Tool (“TLST”), a graphical user interface. State
Farm then sends the insured a settlement check equal to the actual
cash value calculated by the TLST. From 2012 to 2017, State Farm
employed a “business rule” in the State of Florida that set the tax
field in the TLST to zero dollars if the total loss claim was for a
leased vehicle, rather than an owned one.
In 2016, Sos was in a car accident involving his leased, Flor-
ida-registered Lexus, which State Farm declared a total loss. State
Farm issued a settlement payment to Sos that, consistent with its
business rule, did not include sales tax and included less than the
full amount for title transfer fees—$58.75 instead of $75.25.
Sos filed a class action lawsuit on behalf of himself and all
others similarly situated, claiming State Farm’s failure to pay ap-
propriate sales tax and title fees on leased vehicle total loss claims
in Florida breached its auto insurance policy. According to Sos, the
policy required State Farm to pay all total loss claimants Florida’s
six percent state sales tax, applicable local sales tax, and $75.25 in
title transfer fees. Sos also alleged that the putative class action sat-
isfied all applicable class certification requirements under Rule 23.
The operative class complaint sought compensatory damages, pre-
judgment interest, attorney’s fees, and costs for both Sos and the
putative class members.
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6 Opinion of the Court 21-11769
Sos filed a motion for class certification concurrently with
his second amended class complaint. Although the parties had not
yet conducted any discovery on the class-wide issues at this early
stage, Sos’s certification motion stated that Sos “is aware of cases .
. . where defendants have attempted to have named Plaintiffs[’]
claims ‘picked off’ by offering individual relief in order to render
proposed class actions moot and deny relief to the class.” Sos be-
lieved “the proper way to ensure that a proposed class action is not
mooted from the outset is to file a motion for class certification
concurrently with the complaint and ask the court to stay ruling on
the motion until some discovery is allowed to take place.”
Just hours after Sos filed his class certification motion, State
Farm sent Sos’s attorneys a check for $12,151 purporting to cover
“the full value” of Sos’s individual claim for taxes, title fees, pre-
judgment interest, and attorney’s fees. The breakdown of the
$12,151 check was $2,500 in taxes, $400 in fees, $251 in prejudg-
ment interest, and $9,000 in attorney’s fees. In an accompanying
letter, State Farm stated that it “expect[ed]” Sos to “accept” this set-
tlement “as full payment of his claim and dismiss his suit.” Sos
quickly rejected the settlement offer. Not only was it “insufficient
to fully compensate [him] for the full extent of his damages,” but
Sos viewed the offer as an improper “attempt to pick off [his] claims
. . . and deny justice to the thousands of State Farm insureds in the
putative class.” Sos added, however, that he was “more than will-
ing to discuss amicable settlement on a class-wide basis.” State
Farm did not respond to this proposal.
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21-11769 Opinion of the Court 7
Having failed to reach a settlement, the parties fashioned a
joint case management report “to re-set class certification deadlines
to provide time for the parties to engage in discovery and fully brief
class certification.” The joint report asked the district court to set
an October 1, 2018 deadline for briefing on Sos’s renewed motion
for class certification; a March 1, 2019 discovery deadline; an April
1, 2019 filing deadline for dispositive motions; and a trial start date
of September 1, 2019. The district court entered a scheduling order
that tracked the sequence set forth in the parties’ joint report: the
court set a May 1, 2018 deadline for class certification briefing; an
August 1, 2018 discovery deadline; a September 4, 2018 deadline
for dispositive motions; and a trial start date of January 2, 2019. The
district court explained that “[t]his order controls the subsequent
course of proceedings,” that “[c]ounsel and all parties . . . shall com-
ply with this order,” and that “[t]he Court may impose sanctions
on any party or attorney . . . who . . . fails to comply with this or-
der.” The scheduling order also informed the parties that
“[m]otions to extend the dispositive motions deadline . . . are gen-
erally denied,” and that “at least 4 months are required before trial”
for the court to resolve a motion for summary judgment. And the
order explained that the court will consider a summary judgment
motion “no earlier than thirty (30) days from the date it is” filed.
The district court referred this case to mediation, but the
parties failed to reach an agreement. Outside the mediation pro-
cess, State Farm made Sos a second settlement offer with the ex-
plicit goal of “resolv[ing] this case on a non-class basis,” while still
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8 Opinion of the Court 21-11769
compensating other underpaid insureds. The settlement offer pro-
posed that, if Sos agreed to voluntarily dismiss his lawsuit, see Fed.
R. Civ. P. 41(a)(1)(A)(i), State Farm would (1) send a check for taxes
and title fees to the “approximately 2,600” underpaid Florida in-
sureds who State Farm said it had identified by “review[ing] its
files”; (2) “pay Mr. Sos an additional $1,500.00 in addition to the
amounts being paid under his insurance claim”; and (3) pay Sos
$75,000 in attorney’s fees. Sos responded to State Farm’s settlement
offer by (1) requesting “confirmatory discovery” to verify that the
number of underpaid insureds identified by State Farm and
amounts owed are accurate; (2) asking to either negotiate attor-
ney’s fees after agreeing upon substantive settlement terms or to
submit the question of fees to a mediator; and (3) suggesting that
attorney’s fees in a “common fund-type case[]” like this one must
be calculated using a “percentage of recovery, rather than any lode-
star method.” After the parties held a telephone conference to con-
tinue negotiating potential settlement terms, State Farm offered to
“double” its prior offer and pay Sos $150,000.00 in attorney’s fees.
Sos did not respond.
Around one month later, State Farm began engaging in uni-
lateral “remediations,” through which it sought to identify putative
class members and send them checks for underpaid taxes and title
transfer fees. Around two weeks after it began sending its first
round of payments, State Farm wrote Sos to notify him of this pro-
cess. State Farm told Sos that his “unreasonable demands for attor-
ney’s fees” caused a “break down” in settlement negotiations, so
“State Farm was going to remediate these claims with or without
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21-11769 Opinion of the Court 9
[his] cooperation.” Accordingly, State Farm completed a round of
unsupervised remediation payments in 2017, sending a total of
$3,411,110.70 to 2,555 insureds. These payments did not include
amounts for attorney’s fees or prejudgment interest.
Sos responded to this notification by filing an “attorneys’
charging lien for attorneys’ fees and costs” upon any recovery Sos
or the putative class members obtain in this case. Sos’s counsel then
wrote State Farm’s counsel, asserting that State Farm’s remedia-
tion payments were incomplete because they “disregard[ed] our
entitlement to attorney’s fees.” State Farm responded that (1) Sos’s
fee request and charging lien have no “legal basis” because “no class
has been certified,” and (2) “even if there were a basis for [Sos] to
claim fees at this time,” the amount requested was “unreasonable.”
On March 1, 2018—in compliance with the court’s schedul-
ing order—Sos filed his renewed motion for class certification, ask-
ing the district court to certify a class of leased vehicle insureds in
Florida “whose total loss claim payment did not include full state
and local sales tax and tag and title fees” within the past five years.
The motion described State Farm’s attempted remediation process
but argued that the payments were incomplete and omitted some
putative class members.
State Farm then identified an additional 704 underpaid in-
sureds it had left out of its first round of payments. Thus, before
responding to Sos’s class certification motion, State Farm quickly
conducted a second round of remediations to pay off these in-
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10 Opinion of the Court 21-11769
sureds, sending them payments totaling $906,727.71. These reme-
diation payments again did not include attorney’s fees or prejudg-
ment interest. Only after completing this second round of pay-
ments did State Farm respond to Sos’s motion for class certifica-
tion, arguing that the case was moot because its remediations “fully
compensated all putative class members.” Sos’s reply in support of
class certification argued that State Farm’s “repeated efforts to
moot Sos’s individual claim and the claims of the putative class
members” have been ineffective because State Farm’s remedia-
tions (1) “at a minimum, . . . did not include prejudgment interest”
and (2) still left out some putative class members altogether. Sos
filed supplemental authorities in support of his motion for class cer-
tification six days later.
Pursuant to the district court’s scheduling order, State Farm
filed a motion for summary judgment on September 4, 2018. A few
hours later, Sos filed a cross-motion for summary judgment. At this
time, the district court had not yet ruled on Sos’s March 1, 2018
renewed motion for class certification. Still, both parties treated
their summary judgment motions as though they were on behalf
of—or, in State Farm’s case, against—a class. State Farm, for its
part, argued not only that Sos’s individual claim became moot
when State Farm sent him a check, but also that the putative class
claims were moot “because State Farm has similarly compensated
everyone in the proposed class.” State Farm’s summary judgment
motion describes its attempted remediations to the putative class
members, explaining in detail its efforts to identify and pay each of
them. The motion also explores mootness law “in the class action
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21-11769 Opinion of the Court 11
context,” arguing that a named plaintiff who no longer has an indi-
vidual claim for damages also has no interest in pursuing class re-
lief. Sos’s summary judgment motion similarly purports to assert
liability on behalf of a class, specifically requesting “summary judg-
ment in favor of Mr. Sos” and “in favor of the putative class.” Sos
requested, for both himself and the class, damages equal to six per-
cent of the value of each class member’s leased vehicle plus any
applicable local surtax, $75.25 in title transfer fees (offset by any
amounts State Farm already paid), prejudgment interest, injunctive
relief, and—importantly here—attorney’s fees.
The parties submitted the remainder of their pretrial filings
in compliance with the district court’s scheduling order. Then, on
March 13, 2019, with Sos’s March 1, 2018 renewed motion for class
certification still pending, the district court granted in part and de-
nied in part both parties’ motions for summary judgment—but
only with respect to Sos individually. The court began by rejecting
State Farm’s argument that Sos’s claims were mooted by State
Farm tendering him a check. Sos never cashed the check, and “[a]n
unaccepted settlement offer . . . does not moot a plaintiff’s case.”
Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 165 (2016). Then, the
court granted summary judgment for Sos on his breach of contract
claim. The court ruled that “actual cash value” under State Farm’s
insurance policy means “replacement cost minus depreciation,”
which includes sales tax and title transfer fees equal to that of an
owned vehicle. But the court rejected Sos’s claims for injunctive
and declaratory relief as duplicable of his breach of contract claim.
Accordingly, it granted State Farm summary judgment on those
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12 Opinion of the Court 21-11769
claims. Finally, although it acknowledged that “[b]oth parties
move[d] for summary judgment as to the class,” the district court
expressly “disregarded” their class-wide arguments because the
court “ha[d] yet to rule on class certification.” The court also did
not address Sos’s claim for attorney’s fees in his complaint and sum-
mary judgment motion.
A day later, the district court entered judgment for Sos, en-
titling him “to damages in the amount of $2,239.12 in sales tax, . . .
plus applicable local tax; the amount of $75.25 in title tran[s]fer fees
(offset by $58.75 already paid by State Farm) . . . ; and prejudgment
interest.” The same day, the district court scheduled a status con-
ference on the motion for class certification to occur twelve days
later.
The day before the status conference on class certification
was scheduled to occur, State Farm sent a check to Sos’s counsel
for $2,706.65 and filed a “Notice of Satisfaction of Judgment” in-
forming the district court of the payment. Then, during the status
conference, State Farm argued that the court’s judgment for Sos
and State Farm’s payment the day prior mooted Sos’s claims and
the putative class claims. The district judge responded that he did
not “understand why entry of summary judgment” before certifi-
cation “is relevant” to either mootness or Rule 23. The judge noted
that “it’s not uncommon for summary judgment to precede certi-
fication,” in part because summary judgment “could be issue-de-
terminative, which helps the parties understand their risk in resolv-
ing the class.” The district judge also raised concerns about State
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21-11769 Opinion of the Court 13
Farm’s ability to “continuously . . . knock[] off” successive named
plaintiffs from the case by satisfying their individual claims before
class certification. The court scheduled a hearing on Sos’s renewed
class certification motion for the following month.
State Farm moved for leave to file supplemental briefing on
class certification in advance of the class certification hearing “to
address whether the Court’s [March 14, 2019] entry of judgment
and State Farm’s subsequent [March 15, 2019] satisfaction of that
judgment extinguish[ed] Plaintiff’s standing to act as a class repre-
sentative or otherwise make him an inadequate class representa-
tive.” The district court granted State Farm’s request, and both par-
ties filed supplemental briefs on class certification the day before
the court’s scheduled hearing on the issue. During the hearing, Sos
criticized State Farm’s efforts to “pick off” the claims of Sos and the
putative class members and “bypass the certification process.” The
district judge agreed that ratifying State Farm’s efforts to make “the
lawsuit go away” would be “[in]consistent with the principles be-
hind class action[s].”
On May 2, 2019—around six weeks after granting summary
judgment for Sos—the district court granted in part Sos’s renewed
motion for class certification. The court certified a Rule 23(b)(3)
class of all Florida persons who insured a leased vehicle with State
Farm and, within the prior five years, sustained a total loss to the
vehicle but did not receive payment for the full amount of sales tax
or title transfer fees on their claims.
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14 Opinion of the Court 21-11769
The district court began its analysis by rejecting State Farm’s
argument that its remediation process fully compensated the puta-
tive class members. The court could not “confirm[]” that State
Farm had paid all potential class members because “[t]here was no
judicial oversight over the remediation process.” But “even assum-
ing State Farm paid the appropriate amount of sales tax and fees to
all putative class members, the members are still not made whole
because State Farm did not pay them prejudgment interest or attorneys’
fees in accordance with the [applicable] fee-shifting statute.” (Em-
phasis added). The court was critical of this “unusual [remediation]
practice,” which it viewed as an attempt “to circumvent the normal
class action mechanisms.” The court also rejected State Farm’s ar-
gument that the entry of judgment in Sos’s favor destroyed his
standing and mooted the remaining class claims.
Next, the court held that the class satisfied all applicable Rule
23 requirements. The numerosity requirement was satisfied be-
cause (1) the 3,269 “remediated” insureds were still owed prejudg-
ment interest, and (2) the remediations omitted insureds who re-
ceived greater than zero but less than the full six percent of sales
tax. The commonality requirement was satisfied because “[t]he
question of whether State Farm breached its contractual obliga-
tions to insureds by not paying full sales tax and fees is common to
all putative class members.” The typicality requirement was satis-
fied because “[t]he putative class members’ claims and named
Plaintiff’s claim involve the alleged breach of identical contractual
provisions pursuant to State Farm’s standard practice,” so “proving
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21-11769 Opinion of the Court 15
the named Plaintiff’s claim would necessarily prove claims class-
wide.” The adequacy of representation requirement was satisfied
by both Sos and his counsel. Sos “diligently pursued” the class
claims, including by “participat[ing] in depositions and attend[ing]
mediations.” And his attorneys’ charging lien did not create “a con-
flict of interest between counsel and the class.” The sole function
of the lien was to notify State Farm that if it paid off the putative
class members outside of court, “it would nonetheless be bound to
make payment to the attorneys.” The court also noted that “coun-
sel is experienced in litigating class actions and has recently enjoyed
success in class actions nearly identical to this case.” Finally, the
court held State Farm waived its “one-way intervention” argument
by moving for summary judgment before the court ruled on class
certification.
Following class certification, the parties engaged in a court-
ordered notice process that identified four additional Florida in-
sureds State Farm underpaid as part of their leased vehicle total loss
claims. State Farm moved to decertify the class based in part on the
inclusion of these insureds. State Farm reiterated its earlier moot-
ness and Rule 23 arguments and added that these four additional
insureds destroyed Rule 23 commonality. Unlike the other class
members, who were paid no taxes as part of their total loss settle-
ment, these four class members were paid some taxes, just not the
full six percent required by Florida law. Sos responded in opposi-
tion to State Farm’s decertification motion and moved for sum-
mary judgment on the class claims.
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16 Opinion of the Court 21-11769
The district court denied State Farm’s motion to decertify
the class. The court again rejected State Farm’s mootness argu-
ments, reasoning that the remediations had not fully compensated
the class members because (1) they were not paid prejudgment in-
terest and (2) Florida law is clear that prejudgment interest is a nec-
essary element of compensatory damages. And commonality was
satisfied because all class members—including those paid between
zero and six percent in taxes—“suffered the same injury (i.e., un-
derpayment) and a violation of the same provision of law (i.e.,
breach of contract).”
And the court granted Sos’s motion for summary judgment
on the class claims. The court rejected, for the third time, State
Farm’s mootness arguments. Then, the district court held that
State Farm breached its contract with the class members. State
Farm thus owed each class member damages for six percent of the
value of his or her total loss vehicle, applicable local tax, $75.25 in
title transfer fees, and prejudgment interest—offset by any
amounts already paid. The court also held that Sos and the class
were entitled to attorney’s fees under Fla. Stat. § 627.428(1). The
court referred the calculation of attorney’s fees to a magistrate
judge.
Sos moved for attorney’s fees, requesting $4,415,351.00 in
fees on behalf of himself and the class under section 627.428. After
holding a hearing and receiving briefing on the issue, the magis-
trate judge issued a scrupulous Report and Recommendation on
Sos’s fee request. The R&R advised the district court to grant Sos’s
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21-11769 Opinion of the Court 17
motion in part, but to reduce his requested hourly rates, resulting
in fees totaling $2,983,500.00. The district court adopted the R&R
in part but rejected the extent of the magistrate judge’s rate reduc-
tion and applied a “national market” standard. The district court
awarded Sos and the class $4,198,566.50 in attorney’s fees,
$11,235.43 in taxable costs, and prejudgment interest.
The court entered final judgment for Sos and the class. State
Farm appealed.
II.
Five standards govern our review. First, we review a district
court’s Article III mootness conclusions de novo. United States v.
Askins & Miller Orthopaedics, P.A., 924 F.3d 1348, 1355 (11th Cir.
2019). Second, we review a district court’s Rule 23 class certifica-
tion rulings for abuse of discretion. In re Equifax Inc. Customer Data
Sec. Breach Litig., 999 F.3d 1247, 1275 (11th Cir. 2021). Third, we
review de novo a district court’s interpretation of an insurance con-
tract under state law. See Caradigm USA LLC v. PruittHealth, Inc., 964
F.3d 1259, 1267 n.4 (11th Cir. 2020). Fourth, we review a district
court’s award of prejudgment interest for abuse of discretion. Cox
Enters., Inc. v. News-J. Corp., 510 F.3d 1350, 1360 (11th Cir. 2007).
Fifth, we review a district court’s award of attorney’s fees for abuse
of discretion. Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1251 n.2
(11th Cir. 2020). But “that standard of review allows us to closely
scrutinize questions of law decided by the district court in reaching
the fee award.” Id. (quoting Camden I Condo. Ass’n, Inc. v. Dunkle,
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18 Opinion of the Court 21-11769
946 F.2d 768, 770 (11th Cir. 1991)). “A district court abuses its dis-
cretion if it applies an incorrect legal standard, follows improper
procedures in reaching its decision, or makes findings of fact that
are clearly erroneous.” Id. (cleaned up).
III.
We begin our analysis, as we must, with our jurisdiction. Vi-
tal Pharms., Inc. v. Alfieri, 23 F.4th 1282, 1288 (11th Cir. 2022). Article
III of the United States Constitution limits the jurisdiction of the
federal courts to “Cases” and “Controversies.” “If an intervening
circumstance deprives the plaintiff of a ‘personal stake in the out-
come of the lawsuit,’ at any point during litigation,” a case or con-
troversy ceases to exist, and “the action . . . must be dismissed as
moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013)
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–78 (1990)). But
“[a] case becomes moot,” the Supreme Court has made clear, “only
when it is impossible for a court to grant any effectual relief what-
ever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Loc.
1000, 567 U.S. 298, 307 (2012) (cleaned up); see Keister v. Bell, 29 F.4th
1239, 1250 (11th Cir. 2022) (“A case . . . become[s] moot . . . if an
event occurs that . . . makes redressability by the court an impossi-
bility.”), cert. denied, 143 S. Ct. 1020 (2023). The court retains juris-
diction “[a]s long as the parties have a concrete interest, however
small, in the outcome of the litigation.” Knox, 567 U.S. at 307–08
(quoting Ellis v. Ry. Clerks, 466 U.S. 435, 442 (1984)). “The party
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seeking dismissal bears the heavy burden of establishing moot-
ness.” Norwegian Cruise Line Holdings Ltd v. State Surgeon Gen., 55
F.4th 1312, 1315 (11th Cir. 2022) (cleaned up).
On appeal, State Farm advances two independent argu-
ments that this suit became moot before class certification. First,
State Farm argues that its pre-certification remediation payments
to the putative class members provided them complete relief,
mooting the class claims. Second, it argues that the district court’s
pre-certification judgment for Sos, and State Farm’s pre-certifica-
tion satisfaction of that judgment, mooted Sos’s claims and thereby
mooted the class claims as well. We address these arguments in
turn.
A.
We can easily dispose of State Farm’s first mootness argu-
ment. State Farm gives two reasons why its remediation payments
mooted the class claims despite omitting prejudgment interest and
attorney’s fees. First, State Farm contends the class members are
not entitled to prejudgment interest under Florida law. Second, it
asserts that an interest in attorney’s fees does not suffice to keep an
otherwise moot claim live.
We agree with State Farm’s second contention, as far as it
goes. A mere interest in attorney’s fees cannot save an otherwise
moot case. See, e.g., Lewis, 494 U.S. at 480. But this rule does noth-
ing to advance State Farm’s position. Even if State Farm’s remedi-
ation payments otherwise fully compensated the putative class
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20 Opinion of the Court 21-11769
members, their claim for attorney’s fees would remain live. See in-
fra Part III.B.1.
In any event, the remediation payments did not otherwise
fully compensate the class members. For one, State Farm did not
pay all class members during its remediations. There remain four
class members who received less than the full six percent of sales
tax as part of their settlement payment. Further, State Farm has
paid none of the unnamed class members their claimed prejudg-
ment interest and has thus accorded none of them the complete
relief necessary to moot the class claims. See Argonaut Ins. Co. v. May
Plumbing Co., 474 So. 2d 212, 214–15 (Fla. 1985) (prejudgment inter-
est is a mandatory component of a plaintiff’s compensatory dam-
ages under Florida law).
And State Farm’s first argument is irrelevant to the moot-
ness analysis. Even if we agreed that Florida law does not entitle
the unnamed class members to prejudgment interest (we don’t, see
infra Part VI), that argument goes to the merits, not our jurisdic-
tion. See Chafin v. Chafin, 568 U.S. 165, 174 (2013) (to find lack of
jurisdiction based on “the legal availability of a certain kind of re-
lief” is to “confuse[] mootness with the merits”). The Article III in-
quiry assumes that plaintiffs are entitled to all the relief they seek
and merely asks whether that relief, if granted, would redress the
plaintiffs’ injury. “A defendant cannot simply assume that its legal
position is sound and have the case dismissed because it has ten-
dered everything it admits is due.” Gates v. Towery, 430 F.3d 429, 432
(7th Cir. 2005). That’s what State Farm asks us to do here.
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State Farm’s payments of some costs claimed by some puta-
tive class members did not moot the class claims.
B.
State Farm’s second argument is that the district court’s pre-
certification entry of summary judgment for Sos, the sole named
plaintiff, and State Farm’s subsequent payment of that judgment,
mooted Sos’s individual claims and the putative class claims. On
this point, the sequence of proceedings below is critical. To refresh,
Sos filed his class complaint and moved for class certification
shortly after. Pursuant to the district court’s scheduling order, and
before the court ruled on Sos’s pending certification motion, both
parties moved for summary judgment. While Sos’s certification
motion was still pending, the district court granted summary judg-
ment for Sos on his individual claims but not his class claims. The
court entered judgment for Sos, entitling him to payment of title
fees, state and local taxes, and prejudgment interest. It did not at
that time, however, address Sos’s claim for attorney’s fees made in
his complaint and summary judgment motion. State Farm paid
these claims in full. About six weeks later, the court granted Sos’s
motion for class certification.
1.
To start, we are skeptical of State Farm’s assertion that ei-
ther the district court’s entry of summary judgment in Sos’s favor
on his individual merits claims, or State Farm’s payment of those
claims, mooted Sos’s individual action, much less the class claims.
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Summary judgment usually doesn’t moot a lawsuit in the
Article III sense, and State Farm has cited no authority for that
proposition. If judgment for the plaintiff mooted the case, we
wouldn’t allow the defendant to appeal the adverse judgment. This
does not mean that plaintiffs may press resolved questions before
the court in perpetuity. Doctrines like preclusion prevent parties,
in the interest of fairness, from relitigating claims or issues they’ve
already litigated to judgment. See In re Piper Aircraft Corp., 244 F.3d
1289, 1296 (11th Cir. 2001). But an attempt to continue litigating an
already-decided claim is not a mootness problem. See O’Brien v. Ed
Donnelly Enters., Inc., 575 F.3d 567, 582 (6th Cir. 2009) (“[L]osing a
claim on summary judgment in a previous suit does not moot such
a claim in a subsequent lawsuit. Rather, the subsequent claim is
barred under the doctrine of claim preclusion.”), abrogated on other
grounds by Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016).
We are similarly skeptical that State Farm’s post-judgment
payment of Sos’s individual merits claims mooted those claims.
We’ve held that the defendant’s satisfaction of a final judgment for
the plaintiff moots a case only if “the parties’ actions objectively
manifest an intent to abandon the issues” resolved in the judgment.
Alliant Tax Credit 31, Inc. v. Murphy, 924 F.3d 1134, 1140 (11th Cir.
2019) (quoting RES-GA Cobblestone, LLC v. Blake Constr. & Dev., LLC,
718 F.3d 1308, 1315 (11th Cir. 2013)); see also United States ex rel.
Morgan & Son Earth Moving, Inc. v. Timberland Paving & Constr. Co.,
745 F.2d 595, 598 (9th Cir. 1984) (“The usual rule in federal courts
is that satisfaction of judgment does not foreclose appeal.”). Under
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this standard, “payment moots an appeal ‘only if the parties mutu-
ally intended a final settlement of all the claims in dispute and a
termination of the litigation.’” Murphy, 924 F.3d at 1140 (quoting
McGowan v. King, Inc., 616 F.2d 745, 747 (5th Cir. 1980)). If, on the
other hand, the “parties continue[] to litigate the case . . . as though
nothing had changed,” satisfaction of the underlying judgment
won’t moot the appeal. Alvarez Perez v. Sanford-Orlando Kennel Club,
Inc., 518 F.3d 1302, 1305–08 (11th Cir. 2008). Here, of course, State
Farm continued to “vigorously defend[] the legality of” its conduct
before the district court, and, indeed, continues to defend it here.
See West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587, 2607 (2022)
(quoting Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 719 (2007)).
Finally, we note that State Farm never paid Sos’s claim for
attorney’s fees because the district court did not address that claim
in its summary judgment order. We decide whether a case is moot
“separately for each form of relief sought.” See DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 352 (2006) (quoting Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000)). Thus, in-
terim developments that moot a claim for damages do not neces-
sarily moot a claim for attorney’s fees. Instead, “[w]here one of the
several issues presented becomes moot, the remaining live issues
supply the constitutional requirement of a case or controversy.”
Ga. Ass’n of Latino Elected Offs., 36 F.4th at 1117 (quoting Powell v.
McCormack, 395 U.S. 486, 497 (1969)); see Yunker v. Allianceone Re-
ceivables Mgmt., Inc., 701 F.3d 369, 372–73 (11th Cir. 2012) (“A case
does not become moot . . . where one issue has become moot, ‘but
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24 Opinion of the Court 21-11769
the case as a whole remains alive because other issues have not be-
come moot.’” (quoting U.S. Fire Ins. Co. v. Caulkins Indiantown Cit-
rus Co., 931 F.2d 744, 748 (11th Cir. 1991))). At the time of the dis-
trict court’s class certification decision, Sos’s outstanding claim for
attorney’s fees “present[ed] ‘a live controversy with respect to
which the court c[ould] give meaningful relief,’ and [was] therefore
not moot.” Ga. Ass’n of Latino Elected Offs., 36 F.4th at 1117–18
(quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001));
see also Powell, 395 U.S. at 499 (“reject[ing] respondents’ theory that
the mootness of a ‘primary’ claim requires a conclusion that all ‘sec-
ondary’ claims are moot”).
It is well established, to be sure, that an outstanding claim
for attorney’s fees cannot revive otherwise moot claims on the
merits. E.g., Banks v. Sec’y, Dep’t of Health & Hum. Servs., 38 F.4th
86, 93 n.3 (11th Cir. 2022). But the inverse is also true: the mootness
of a plaintiff’s merits claims does not moot his unresolved claim for
attorney’s fees. “[A] controversy over attorneys’ fees remains via-
ble on its own”—it just cannot “give life to any other mooted dis-
pute.” Schell v. OXY USA Inc., 814 F.3d 1107, 1124 n.11 (10th Cir.
2016); see Goldin v. Bartholow, 166 F.3d 710, 721 n.13 (5th Cir. 1999)
(“[M]ootness of the underlying action does not moot a controversy
over attorney’s fees already incurred. In such cases, both parties re-
tain an interest in recovering or retaining the fees even after losing
such interest in the underlying action.” (citation omitted)); accord
Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 805
(9th Cir. 2009); Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188,
1196 (6th Cir. 1974); Dahlem v. Bd. of Educ., 901 F.2d 1508, 1511 (10th
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21-11769 Opinion of the Court 25
Cir. 1990); Diffenderfer v. Gomez-Colon, 587 F.3d 445, 452 (1st Cir.
2009).
2.
In any event, we need not decide whether State Farm suc-
cessfully mooted Sos’s individual claims because, even if those
claims were moot, we believe Sos retained standing to pursue the
class claims under the “relation back doctrine.” See Zeidman, 651
F.2d at 1045–51; Stein, 772 F.3d at 704–09.
a.
We begin with an overview of the law in this area. In gen-
eral, a putative class action becomes moot if no named plaintiff
with a live claim remains at the time of the district court’s class
certification decision. E.g., Murray v. Auslander, 244 F.3d 807, 810
(11th Cir. 2001). Because it is only upon certification that the un-
named class members formally become plaintiffs in the action—
and thereby “acquire[] a legal status separate from the interest as-
serted” by the named plaintiff, Sosna v. Iowa, 419 U.S. 393, 399
(1975)—if the named plaintiff’s claims are moot before a class is for-
mally certified, “no justiciable claims are at that point before the
court and the case must as a general rule be dismissed for moot-
ness,” Zeidman, 651 F.2d at 1045.
To adapt the mootness doctrine to the class action mecha-
nism, however, the Supreme Court has crafted several exceptions
to the general rule that pre-certification mootness of the named
plaintiff’s claims divests the federal courts of jurisdiction over the
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26 Opinion of the Court 21-11769
entire action. See Murray, 244 F.3d at 811. If one of these exceptions
applies, class certification “relates back” to the filing of the com-
plaint, giving the named plaintiff standing to pursue certification
despite the intervening mootness of his individual claim. See, e.g.,
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980); Gerstein v.
Pugh, 420 U.S. 103, 110 n.11 (1975); Swisher v. Brady, 438 U.S. 204
(1977); Sosna, 419 U.S. at 403 n.11; Symczyk, 569 U.S. at 71 & n.2;
Zeidman, 651 F.2d at 1050; Stein, 772 F.3d at 707.
First, the Supreme Court has held that the district court may
certify a class action despite the mootness of the named plaintiff’s
claim when that claim is “so inherently transitory that the trial
court will not have even enough time to rule on a motion for class
certification before the proposed representative’s individual inter-
est expires.” Geraghty, 445 U.S. at 398–400. This “exception applies
when the pace of litigation and the inherently transitory nature of
the claims at issue conspire to make” the general mootness rule
“difficult to fulfill.” United States v. Sanchez-Gomez, 138 S. Ct. 1532,
1539 (2018). This “inherently transitory” exception to class action
mootness derives from the traditional mootness exception for con-
troversies that are “capable of repetition, yet evading review.” See
Sosna, 491 U.S. at 400. When the named plaintiff’s claims are capa-
ble of repetition, yet evading review—i.e., are inherently transi-
tory—the relation back doctrine applies to preserve the merits of
the case for judicial review. “Application of the relation back doc-
trine in this context thus avoids the spectre of plaintiffs filing law-
suit after lawsuit, only to see their claims mooted before they can
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21-11769 Opinion of the Court 27
be resolved.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th
Cir. 2011).
The second exception to the general class action mootness
rule is the so-called “picking off” exception. This exception cures
mootness when a defendant resolves the named plaintiff’s claims
before class certification—by, for instance, paying the named plain-
tiff’s individual claim or ceasing illegal conduct as to the named
plaintiff. The picking off exception originates from the more gen-
eral exception that a defendant’s “voluntary cessation” of its illegal
conduct “‘does not moot a case’ unless it is ‘absolutely clear that
the allegedly wrongful behavior could not reasonably be expected
to recur.’” West Virginia, 142 S. Ct. at 2607 (quoting Parents Involved,
551 U.S. at 719). And the Supreme Court justifies the picking off
exception on the ground that allowing defendants to “buy off”
named plaintiffs’ individual claims before class certification would
undermine the purposes and utility of the class action mechanism,
which exists to (1) permit the aggregation of small claims that
might otherwise never reach a court; (2) protect defendants from
inconsistent obligations; (3) provide a convenient and economical
means for disposing of similar lawsuits; and (4) reduce litigation
costs by dispersing fees throughout a class. See Roper, 445 U.S. at
338–40; Geraghty, 445 U.S. at 402–03.
These exceptions—which allow class certification to pro-
ceed “despite the loss of a ‘personal stake’ in the merits of the liti-
gation by the proposed class representative”—“demonstrate the
flexible character of the Art. III mootness doctrine” in this context.
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28 Opinion of the Court 21-11769
Geraghty, 445 U.S. at 400. Consistent with this flexibility, we and
other courts have found it appropriate to blend the “picking off”
and “inherently transitory” exceptions, holding that if a defendant
could pick off the named plaintiff’s claims before the district court
rules on class certification, those claims are transitory, and the pu-
tative class action remains live. See, e.g., Zeidman, 651 F.2d at 1050;
Stein, 772 F.3d at 706; Pitts, 653 F.3d at 1091; Weiss v. Regal Collec-
tions, 385 F.3d 337, 347 (3d Cir. 2004), abrogated on other grounds by
Gomez, 577 U.S. at 162; Susman v. Lincoln Am. Corp., 587 F.2d 866,
869–71 (7th Cir. 1978).
We have twice applied the relation back doctrine this way.
In Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981),
our predecessor court applied the transitory-because-picked-off ex-
ception in a case involving a sequence of events closely analogous
to those here. After the named plaintiffs moved for class certifica-
tion, but before the district court ruled on certification, the Zeidman
defendants paid the named plaintiffs the full amount of their per-
sonal claims. See id. at 1032. The district court then dismissed the
entire case as moot under the general rule that a putative class ac-
tion becomes moot upon the pre-certification mootness of the class
plaintiffs’ claims. Id.
The former Fifth Circuit reversed: the class action was not
mooted by the defendants’ satisfaction of the named plaintiffs’
claims. The court asked: “should a purported but uncertified class
action be dismissed for mootness upon tender to the named plain-
tiffs of their personal claims, despite the existence of a timely filed
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21-11769 Opinion of the Court 29
and diligently pursued pending motion for class certification?” Id.
The court answered that it should not; the class claims remained
live despite the mootness of the named plaintiffs’ individual claims.
The appellate court reaffirmed the “general rule” that a pu-
tative class must be dismissed for mootness when the personal
claims of all named plaintiffs become moot before class certifica-
tion. Id. at 1045. But the court held that “this general rule must
yield” in a case like this one. See id. “[A] suit brought as a class action
should not be dismissed for mootness upon tender to the named
plaintiffs of their personal claims,” Zeidman held, “at least when, as
here, there is pending before the district court a timely filed and
diligently pursued motion for class certification.” Id. at 1051.
The court acknowledged that it was not there faced with
claims that are “inherently transitory” in the traditional sense. Un-
like “the claims asserted [by the named plaintiffs] in Gerstein and
Swisher,” the Zeidman representatives’ damages claims “did not ex-
pire with the passage of time.” Id. at 1049. Instead, they were “ren-
dered moot by purposive action of the defendants in particular, by
the defendants’ full tender of the plaintiff’s individual claims.” Id.
But the court found this distinction immaterial to Article III. Where
“the defendants can in each successive case moot the named plain-
tiffs’ claims before a decision on certification is reached, . . . a deci-
sion on class certification could”—“as a practical matter”—“be
made just as difficult to procure” as in cases involving naturally ex-
piring claims. Id. at 1050. Even though picking off named plaintiffs
won’t be “financially feasible” “for all defendants in all suits
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30 Opinion of the Court 21-11769
brought as class actions,” the court held that “the difficulty inherent
in any use of this tactic does not make it acceptable.” Id. What “the
relation back doctrine of Sosna, Gerstein[,] and Swisher condemns”
is dismissing for mootness cases in which “the defendants would
have the option to preclude a viable class action from ever reaching
the certification stage.” Id.
As support for its holding, the Zeidman court relied on re-
lated “decisions of several other circuits.” Id. at 1050–51 (collecting
cases). Among these was Frost v. Winberger, a Second Circuit deci-
sion materially indistinguishable from the case at hand. 515 F.2d 57,
63–64 (2d Cir. 1975) (mootness exception applied when district
court granted summary judgment in named plaintiffs’ favor before
certifying class). Zeidman also suggested that the result would be no
different in a case in which the named plaintiffs’ claims are mooted
not by the defendant’s purposive acts, but by the district court’s
delay in deciding class certification. The Fifth Circuit noted that,
even “where the [district] court itself unreasonably delays a ruling
on class certification,” prior precedent established that “unreason-
able delay could not be used to justify dismissal for mootness of ‘an
action that was initially filed as a class action, that has been treated
as such by all concerned, and that has been diligently litigated for
more than ten years.’” Zeidman, 651 F.2d at 1047 n.13 (quoting Cruz
v. Hauk, 627 F.2d 710, 717 (5th Cir. 1980)).
More recently, in Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698
(11th Cir. 2014), we expanded Zeidman’s mootness exception to in-
clude cases in which the named plaintiff is picked off before he’s
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21-11769 Opinion of the Court 31
even moved for class certification. We believed “[t]he relation-back
doctrine allows a named plaintiff whose individual claims are moot
to represent class members” in any case where “the named plaintiff
will adequately present the class claims and unless the named plain-
tiff is allowed to do so the class claims will be capable of repetition,
yet evading review.” Id. at 707. We again recognized that Stein did
not involve claims like those “in Sosna, Gerstein, Swisher, and
McLaughlin,” which “were capable of repetition, yet evading re-
view, because the passage of time inevitably mooted claims of that
kind.” Id. at 706. But “Zeidman squarely holds . . . that this does not
matter.” Id. “What matters” is whether “the named plaintiff act[ed]
diligently to pursue the class claims.” Id. at 707. If he did, Zeidman
applies, even if the named plaintiff has not moved for class certifi-
cation. Id. “[T]o act diligently, . . . it is enough that the named
plaintiff diligently takes any necessary discovery, complies with any
applicable local rules and scheduling orders, and acts without un-
due delay.” Id.
b.
In view of this legal backdrop, we conclude that, even if
judgment or satisfaction of the named plaintiff Sos’s merits claims
mooted his individual claims, the circumstances of this case place
it comfortably within Zeidman’s exception to the general class ac-
tion mootness rule. Thus, the district court’s class certification de-
cision relates back to the filing of the class complaint, giving Sos
standing to continue pursuing the class claims.
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32 Opinion of the Court 21-11769
To escape the general rule that pre-certification mootness of
the named plaintiff’s claims moots the entire putative class suit,
Zeidman and Stein require the presence of two circumstances: First,
that the defendant be capable of “picking off” the named plaintiff’s
claims, and second, that the named plaintiff be “diligent” in pursu-
ing the class claims. Both circumstances exist here.
First, the facts here establish that State Farm has tried to
“pick off” Sos’s case and evade class certification from the very out-
set of this litigation. State Farm tried to buy off Sos’s individual
claims just hours after he moved for class certification. When Sos
sought instead to negotiate a class-wide settlement, State Farm
didn’t respond. Instead, State Farm made Sos a second settlement
offer “to resolve this case on a non-class basis.” When Sos declined,
State Farm offered to pay Sos double its earlier offer if Sos would
agree to voluntarily dismiss this case. When Sos didn’t reply, State
Farm began surreptitiously sending checks to the unnamed puta-
tive class members, seeking to pay off the class claims outside the
supervision of Sos or the court. Once Sos’s renewed class certifica-
tion motion alerted State Farm that it had omitted some putative
class members from its remediations, State Farm quickly tried to
pay off those insureds before urging the court that class certifica-
tion was improper because its remediations had fully compensated
the putative class. Indeed, State Farm’s summary judgment motion
practically admits that it was attempting to pick off Sos, arguing
that the claims of Sos and the other putative class members became
moot when State Farm sent them “unconditional payment” for the
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21-11769 Opinion of the Court 33
damages they asked for in the case. “With payment in hand,” State
Farm argued, “there is no basis for this case to continue.”
Finally, after the district court entered summary judgment
in favor of Sos, State Farm quickly seized on its long-awaited op-
portunity to “pick off” Sos by sending him a check paying the dis-
trict court’s judgment the day before the status conference on class
certification. Then, during the status conference, State Farm in-
sisted that its satisfaction of Sos’s claims the day prior mooted this
case. State Farm has since used every opportunity—in supple-
mental briefing, during the class certification hearing, in its decer-
tification motion, and in its briefing on Sos’s class-wide summary
judgment motion—to make that argument.
State Farm’s gamesmanship was obvious to Sos and the dis-
trict judge, both of whom repeatedly criticized State Farm’s “pick
off” attempts throughout this litigation. The district court in par-
ticular—tracking our predecessor court’s analysis in Zeidman—ex-
pressed concerns during the status conference about State Farm’s
ability to “continuously . . . knock[] off” named plaintiffs by satisfy-
ing their individual claims before class certification. See Zeidman,
651 F.2d at 1050. And the judge similarly mirrored the Supreme
Court’s reasoning in Roper and Geraghty during the hearing on Sos’s
renewed class certification motion, expressing that State Farm’s
pick-off strategy “doesn’t seem to be consistent with the principles
behind class action[s].” See Roper, 445 U.S. at 338–40; Geraghty, 445
U.S. at 402–03.
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34 Opinion of the Court 21-11769
Second, Sos has diligently pursued the class claims for nearly
six years. State Farm does not suggest otherwise. Sos personally
participated in discovery and mediations in support of the class
claims, and he complied with all the district court’s filing deadlines.
See Stein, 772 F.3d at 707. Accordingly, if State Farm’s payment to
Sos mooted Sos’s individual claims, this case is on all fours with
Zeidman. Courts may not, Zeidman holds, dismiss a putative class
action as moot “upon tender to the named plaintiff of their per-
sonal claims . . . when, as here, there is pending before the district
court a timely filed and diligently pursued motion for class certifi-
cation.” Zeidman, 651 F.2d at 1051. That’s precisely what State
Farm asks us to do here.
We also cannot ignore that the district court decided—con-
trary to the expectations of the parties—to rule on summary judg-
ment before class certification. Zeidman instructs “that the court’s
unreasonable delay [may] not be used to justify dismissal for moot-
ness” if the case (1) “was initially filed as a class action,” (2) “has
been treated as a class action by all concerned,” and (3) “has been
diligently litigated” for many years. See id. at 1047 n.13 (quoting
Cruz, 627 F.2d at 716–17). That standard is also satisfied here. Sos’s
initial and amended complaints were on behalf of a putative class.
And Sos and State Farm prepared a joint case management report
with the specific purpose of scheduling briefing and discovery on
class certification. That joint report’s proposed briefing deadline for
class certification was six months before its proposed dispositive
motions deadline. The district court approved that requested se-
quence, setting the deadline for dispositive motions four months
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after the deadline for briefing on class certification. And the court’s
scheduling order explained that it would not consider motions for
summary judgment for at least thirty days after receiving them.
Moreover, both parties treated their summary judgment
motions as being against, or on behalf of, a certified class. By the
time the parties filed their cross-motions for summary judgment,
Sos’s renewed motion for class certification had been pending for
over six months, and it had been over a year since he’d filed his
initial motion for class certification. To accept State Farm’s moot-
ness arguments under these particular circumstances would effec-
tively fault the district court’s discretionary docket-management
decisions and grant State Farm an unwarranted timing windfall.
This is also not a case like Murray v. Fid. Nat’l Fin., Inc., where
the named plaintiff “had a readily available means of preventing the
defendants from mooting their suit.” 594 F.3d 419, 422 (5th Cir.
2010). Article III did not require Sos to ask the district court either
to delay ruling on summary judgment until after class certification
or to extend the parties’ deadlines for briefing dispositive mo-
tions—actions Sos had no reason to believe were necessary and no
reason to believe the district court would accept. Quite the con-
trary. The district court’s scheduling order demanded that the par-
ties “shall comply” with its filing deadlines, warned that parties
who failed to do so risked sanctions, stated that “[m]otions to ex-
tend the dispositive motions deadline . . . are generally denied,”
and explained that the district court needed at least four months
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36 Opinion of the Court 21-11769
before trial—which was set for January 2, 2019—to resolve sum-
mary judgment motions. Given these instructions, asking the dis-
trict court to extend the parties’ September 4, 2018 filing deadline
for dispositive motions—which already gave the district court
fewer than four months before trial to rule on summary judg-
ment—or to delay ruling on those motions, were not “readily avail-
able means of preventing the defendants from mooting their suit.”
Id.
Contrary to the assertion of our dissenting colleague, Sos
never moved for summary judgment on his individual claims
alone. See Dissenting Opn. at 11, 15. As we’ve already explained,
Sos’s motion for summary judgment—like all his dispositive mo-
tions in this case—explicitly sought relief on behalf of a putative
class. See Doc. 111 at 3 (“Plaintiff respectfully submits . . . that the
Court grant summary judgment in his and the class members’ fa-
vor.”); at 20 (“State Farm Owes Sales Tax Payment to Over 1400
Claimants”) at 21 (“Sos and the Class Are Owed the Benefit of
Their Bargain”); at 22 (asking the court to enter judgment in favor
of Sos and “[e]nter summary judgment in favor of the putative
class, and award the class damages in the amount of 6% of the
agreed value of their total loss vehicle (plus applicable local surtax)
and $79.25 in title transfer fee (offset by any amounts already paid),
prejudgment interest, attorney’s fees, injunctive relief and all other
relief this court deems just and proper”). So Sos indeed “resisted
filing an individual motion for summary judgment,” just as the dis-
sent would require. See id. at 15. Sos consistently sought class relief
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and followed the procedures that the district court established. He
did nothing to moot his claim.
Finally, holding that a pre-certification judgment for a
named plaintiff moots a putative class action would spur the very
problems the class action mootness exceptions exist to prevent. Un-
der such a rule, district courts could avoid ever certifying class ac-
tions when the putative class members’ claims are meritorious
simply by entering judgment for successive named plaintiffs before
addressing class certification. Although district courts might prefer
this choice—as it would allow them to avoid confronting Rule 23’s
numerous and complicated procedures—it would go against the
Supreme Court’s instruction that “a would-be class representative
. . . must be accorded a fair opportunity to show that certification
is warranted.” Gomez, 577 U.S. at 165. We are also no more inclined
to permit the district court to undermine the purposes of the class
action device than we are to permit the defendant to do so. See
Roper, 445 U.S. at 338–40; Geraghty, 445 U.S. at 402–03.
For these reasons, we believe this case falls within the moot-
ness exception set out in Zeidman and expanded in Stein. Although
the facts of those cases might not be perfectly analogous to those
here, the “flexible character of Article III mootness doctrine” in this
area dissuades us from attaching constitutional significance to the
minor factual differences. Geraghty, 445 U.S. at 400. The Supreme
Court has repeatedly informed that mootness in this context “is
‘not a legal concept with a fixed content or susceptible of scientific
verification’” but rather “one of uncertain and shifting contours.”
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38 Opinion of the Court 21-11769
Id. at 401 (alterations accepted) (first quoting Poe v. Ullman, 367 U.S.
497, 508 (1961) (plurality opinion); and then quoting Flast v. Cohen,
392 U.S. 83, 97 (1969)). So it is here. The sum of unique circum-
stances here convinces us that, even if Sos’s individual claims were
moot before class certification, the class claims remained live, and
Sos retained standing to pursue them.
IV.
Before turning to the merits of this dispute, we must decide
another threshold question: Did the district court abuse its discre-
tion in certifying this class action under Federal Rule of Civil Pro-
cedure 23? We hold that it did not.
Rule 23 imposes a multitude of requirements for certifying
a federal class action. State Farm challenges the satisfaction of sev-
eral of them here. First is Rule 23(c)(1)(A)’s requirement that the
district court decide whether to certify a putative class action “[a]t
an early practicable time after a person sues or is sued as a class
representative.” Fed. R. Civ. P. 23(c)(1)(A). Second are the four
class certification “prerequisites” laid out in Rule 23(a). Calderone v.
Scott, 838 F.3d 1101, 1104 (11th Cir. 2016). These requirements are
(1) numerosity—which exists if “the class is so numerous that join-
der of all members is impracticable”; (2) commonality—which ex-
ists if “there are questions of law or fact common to the class”;
(3) typicality—which exists if “the claims or defenses of the repre-
sentative parties are typical of the claims or defenses of the class”;
and (4) adequacy of representation—which exists if “the repre-
sentative parties will fairly and adequately protect the interests of
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21-11769 Opinion of the Court 39
the class.” See Fed. R. Civ. P. 23(a); Calderone, 838 F.3d at 1104. We
address these requirements in turn, reviewing each under a defer-
ential abuse-of-discretion standard. See Rensel v. Centra Tech, Inc., 2
F.4th 1359, 1364 (11th Cir. 2021) (“By now, it is abundantly clear
that the district courts enjoy wide latitude in deciding whether or
not to certify a class, and our abuse-of-discretion review of class
certification orders is accordingly deferential.”).
A.
First, State Farm argues that the district court’s certification
order should be reversed because the court violated the rule against
“one-way intervention” by granting summary judgment to Sos be-
fore granting his motion to certify the class. We disagree.
We have never adopted a prohibition against one-way inter-
vention, though we’ve described it once in dictum: “‘One-way in-
tervention’ occurs when the potential members of a class action are
allowed to ‘await . . . final judgment on the merits in order to de-
termine whether participation [in the class] would be favorable to
their interests.’” London v. Wal-Mart Stores, Inc., 340 F.3d 1246,
1252–53 (11th Cir. 2003) (quoting Am. Pipe & Constr. Co. v. Utah,
414 U.S. 538, 547 (1974)) (declining to “address th[e] issue” of one-
way intervention “[b]ecause we reverse[d] the district court’s grant
of class certification on other grounds”). The prohibition might de-
rive some support from Rule 23(c)’s requirement that the district
court rule on class certification “[a]t an early practicable time after
a person sues or is sued as a class representative.” Fed. R. Civ. P.
23(c)(1)(A); see In re Citizens Bank, N.A., 15 F.4th 607, 617 (3d Cir.
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40 Opinion of the Court 21-11769
2021) (explaining that Rule 23(c)(1) was enacted “[t]o end the un-
fairness of what came to be known as ‘one-way intervention’”).
The Advisory Committee on Civil Rules, however,
amended the language of this timing rule in 2003 from “as soon as
practicable” to the current language, “[a]t an early practicable
time.” Explaining this change, the Advisory Committee noted:
“The party opposing the class may prefer to win dismissal or sum-
mary judgment as to the individual plaintiffs without certification and
without binding the class that might have been certified.” Fed. R.
Civ. P. 23(c) advisory committee’s note to 2003 amendment (em-
phasis added); see, e.g., Horenkamp v. Van Winkle & Co., 402 F.3d
1129, 1132 (11th Cir. 2005) (“[T]he interpretations in the Advisory
Committee Notes are . . . accorded great weight in interpreting fed-
eral rules.” (quotations omitted)). A rule preventing the district
court from granting summary judgment to the named plaintiff be-
fore addressing class certification would contradict the Advisory
Committee’s guidance.
More importantly, such a rule would conflict with our hold-
ing in Telfair v. First Union Mortg. Corp. that “[i]t [i]s within the
court’s discretion to consider the merits of the claims before their
amenability to class certification.” 216 F.3d 1333, 1343 (11th Cir.
2000); see also Thornton v. Mercantile Stores Co., 13 F. Supp. 2d 1282,
1289 (M.D. Ala. 1998) (“[T]he vast majority of courts have held that
dispositive motions may be considered prior to ruling on a motion
for class certification.”); 3 William Rubenstein et al., Newberg and
Rubenstein on Class Actions § 7:10 (6th ed. 2022) (collecting cases).
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Our holding in Telfair aligns with the district court’s vast discretion
over its own docket management. In re Wild, 994 F.3d 1244, 1262
(11th Cir. 2021) (en banc) (“[A] district court . . . has near-plenary
control over its own docket . . . .”), cert. denied, Wild v. U.S. Dist.
Ct., 142 S. Ct. 1188 (2022); United States v. Ware, 69 F.4th 830, 846
(11th Cir. 2023) (referring to the “general policy” of “allowing dis-
trict courts, which are much more intimately familiar with the in-
dividual facts and needs of a particular case, to manage their dock-
ets and counsels’ time to provide the most efficient and just resolu-
tion of issues”); see also Smith v. Psychiatric Sols., Inc., 750 F.3d 1253,
1262 (11th Cir. 2014) (describing district courts’ “broad discretion
in deciding how best to manage the cases before them” by
“set[ting] a filing deadline” (quotations omitted)).
To be sure, the district court should rule on certification be-
fore summary judgment whenever it’s “practicable” to do so. See
Fed. R. Civ. P. 23(c)(1)(A). But the district court’s decision that this
sequence was impracticable here was not outside its vast authority
to control its docket. The timing of the court’s summary judgment
order—occurring less than 6 months after receiving briefing on
summary judgment but over 10 months after receiving briefing on
class certification—suggests that the court considered liability a
simpler question than the propriety of class certification here. And,
as the district court pointed out during its status conference, had it
dismissed Sos’s merits claims on summary judgment, it could have
avoided expending resources on the class certification question al-
together.
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42 Opinion of the Court 21-11769
Finally, even if we were inclined to adopt a rule against one-
way intervention, State Farm waived its application by moving for
summary judgment before the court addressed class certification.
The courts that have adopted the one-way intervention rule gen-
erally hold that a defendant waives the right to invoke it when he
himself moves for summary judgment before the district court’s
class certification ruling. See, e.g., Postow v. OBA Fed. Sav. & Loan
Ass’n, 627 F.2d 1370, 1382 (D.C. Cir. 1980) (rationale for one-way
intervention disappears if “the defendant himself moves for sum-
mary judgment before a decision on class certification”).
B.
Turning now to the four Rule 23(a) class certification pre-
requisites, we hold that the district court did not abuse its discre-
tion in concluding that Sos satisfied each of those requirements
here. We address them in turn.
1.
Starting with numerosity, we conclude that the putative
class was more than numerous enough to satisfy Rule 23(a)(1). Alt-
hough the number of class members needed to satisfy this rule “is
no[t] fixed[,] . . . generally . . . more than forty [is] adequate.” Cox
v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (quo-
tations omitted). Through its remediation process, State Farm is-
sued payments for omitted sales tax and title fees—but not for pre-
judgment interest or attorney’s fees—to 3,259 insureds. In addi-
tion, there are four underpaid insureds for whom State Farm has
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21-11769 Opinion of the Court 43
yet to pay any omitted costs. There are thus 3,263 insureds who fall
within the class definition—unquestionably “numerous” enough
to render “joinder of all members . . . impracticable.” Fed. R. Civ.
P. 23(a)(1).
2.
Nor did the district court abuse its discretion in finding com-
monality satisfied. See Fed. R. Civ. P. 23(a)(2). We have described
the plaintiff’s burden to satisfy this requirement as a “low hurdle.”
Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1356 (11th Cir. 2009).
Absolute commonality is not necessary—“even a single common
question will do.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359
(2011) (cleaned up). But the plaintiff nonetheless must demonstrate
that the class members suffered “the same injury,” not merely “a
violation of the same provision of law.” Id. at 350. Sos made this
showing here.
State Farm argues that including in the class the four in-
sureds who were paid between $0.00 and six percent sales tax de-
stroys commonality because those insureds did not suffer “the
same injury from the same source” as those who were paid $0.00
in sales tax. But the district court correctly held that there remains
a central common question of law applicable to all class mem-
bers—“whether State Farm breached its contractual obligations to
insureds by not paying full sales tax and fees.” (Emphasis added).
And “individualized damages calculations are insufficient to fore-
close the possibility of class certification, especially when, as here,
the central liability question is so clearly common to each class
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44 Opinion of the Court 21-11769
member.” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 988 (11th Cir.
2016). Here, not only did all class members suffer a violation of the
same law (breach of contract), but they also suffered the same in-
jury (underpayment of sales tax and title fees). Commonality is
thus satisfied.
3.
The district court also acted within its discretion in holding
that Sos satisfied the typicality requirement. See Fed. R. Civ. P.
23(a)(3). Typicality is satisfied where the named plaintiff “pos-
sess[es] the same interest and suffer[ed] the same injury as the [un-
named] class members.” Busby v. JRHBW Realty, Inc., 513 F.3d 1314,
1322 (11th Cir. 2008) (quoting Cooper v. S. Co., 390 F.3d 695, 713
(11th Cir. 2004)). This alignment of interests and injuries exists “if
the claims or defenses of the class and the class representative arise
from the same event or pattern or practice and are based on the
same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d
1332, 1337 (11th Cir. 1984). “Typicality, however, does not require
identical claims or defenses.” Id. And “[d]ifferences in the amount
of damages” will not defeat typicality, nor will “[a] factual varia-
tion[,] . . . unless the factual position of the representative markedly
differs from that of other members of the class.” Id.
State Farm argues that the pre-certification mootness of
Sos’s individual claim makes him “unlike any other putative class
member” and thus destroys typicality. We disagree. First, as we’ve
explained, we do not believe that Sos’s individual claims were
mooted by the district court’s judgment or State Farm’s satisfaction
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21-11769 Opinion of the Court 45
of that judgment. Second, even if Sos’s claims were mooted before
class certification, State Farm’s position is impossible to square
with binding precedent permitting class certification after moot-
ness of the named plaintiff’s individual claims in certain circum-
stances. See, e.g., Gerstein, 420 U.S. at 111 n.11. Third, there is no
dispute that, at the time of class certification, Sos had an unresolved
claim for attorney’s fees in his complaint and summary judgment
motion—a claim that he shares with all class members.
State Farm also argues that Sos’s factual position is atypical
of the four unnamed class members who received more than $0.00
but less than the full amount of tax payments as part of their total
loss claims. According to State Farm, those four underpayments
were likely the result of an entry error, while the others were
caused by State Farm’s Florida “business rule.”
The district court did not abuse its discretion in holding that
this underlying factual variation did not destroy typicality. This as-
serted factual difference is irrelevant to the resolution of the class
members’ shared substantive claim that State Farm breached its in-
surance policy by failing to pay them the full amount of sales tax and
title fees as part of their total loss claims. Whether the cause of the
underpayment was a State Farm employee putting in place an un-
lawful “business rule” that omitted these costs or a State Farm em-
ployee entering an insufficient settlement amount into the claims
processing software, State Farm’s omission of the full amount of
these costs was a breach of contract—and this injury is shared by
every class member.
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46 Opinion of the Court 21-11769
4.
Finally, the district court did not abuse its discretion in con-
cluding that the adequacy of representation requirement was met
here. See Fed. R. Civ. P. 23(a)(4). That requirement “applies to both
the named plaintiff and counsel,” London, 340 F.3d at 1253, and it is
satisfied if the district court finds that both “will fairly and ade-
quately protect the interests of the class,” Fed. R. Civ. P. 23(a)(4).
Adequacy turns “on the forthrightness and vigor with which the
representative party can be expected to assert and defend the inter-
ests of the class and whether plaintiffs have interests antagonistic
to those of the rest of the class.” London, 340 F.3d at 1254 (cleaned
up).
The district court did not abuse its discretion in concluding
that Sos was an adequate class representative. State Farm asserts
that the pre-certification mootness of Sos’s individual claims ren-
dered him inadequate because, after receiving “all the relief he
could receive,” he “had no remaining incentive to advocate for the
class.” We disagree. First, as we’ve explained, Sos’s claims were not
moot before the district court certified the class, in part because Sos
had not received “all the relief” to which he was entitled because
he had an unresolved claim for attorney’s fees.
Second, our precedent holds that whether a named plaintiff
whose individual claims are moot is an adequate class representa-
tive “depends upon the facts of the case.” See Harris v. Peabody, 611
F.2d 543, 545 (5th Cir. 1980). And the facts here show that Sos vig-
orously defended the rights of the class from the start. In fact, none
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21-11769 Opinion of the Court 47
of Sos’s actions in this litigation carry the appearance of self-interest
at the expense of the unnamed class members. Sos’s initial com-
plaint, amended complaints, dispositive motions, and motions for
attorney’s fees, costs, and prejudgment interest were all on behalf
of a putative class. Sos also filed supplemental briefs and supple-
mental authorities to support class-wide relief. Notably, Sos moved
for class certification on the same day he filed his second amended
complaint, and he did so “to ensure that [the] proposed class action
is not mooted from the outset” by State Farm having Sos’s claims
“picked off.” Even more, Sos rejected several generous settlement
offers so that he could pursue “justice [for] the . . . State Farm in-
sureds in the putative class.” And after State Farm offered to pay
the substantive claims of both Sos and the putative class members,
Sos requested “confirmatory discovery” to ensure State Farm’s of-
fer included all putative class members. Sos also continuously crit-
icized State Farm’s attempts to pick off his claims, pay the putative
class insufficient remediation payments, and evade class certifica-
tion. These facts reflect Sos’s interest—years after his own substan-
tive claims had been paid—in obtaining relief for the class. So even
if his individual claims were moot before class certification, he re-
mained an adequate class representative.
The district court also acted within its discretion in conclud-
ing that Sos’s attorneys were adequate class representatives. State
Farm argues that counsel created a conflict of interest with the class
members by filing a charging lien on any attorney’s fees obtained
by Sos or the class. But this argument is based on State Farm’s mis-
understanding that “[b]y filing the charging lien, Plaintiff’s Counsel
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48 Opinion of the Court 21-11769
were seeking fees from the class, not for the class.” As Sos’s counsel
and the district court repeatedly explained to State Farm, however,
because State Farm unilaterally paid the putative class members
their taxes and title fees outside the formal litigation process, any
award of fees will not deduct from these already-distributed reme-
diation payments. Rather, the charging lien requires State Farm to
pay attorney’s fees to counsel directly, in addition to the payments
it made to its insureds outside the court’s supervision. The conflict
regarding fees thus exists exclusively between class counsel and
State Farm, not between counsel and the class.
We affirm the district court’s class certification decision.
V.
We now reach the primary merits issue on appeal: whether
State Farm breached its insurance policy with the class members
by failing to include payments for sales tax and title transfer fees as
part of its settlement of their leased vehicle total loss claims. The
answer turns on whether the phrase “actual cash value” in the pol-
icy includes these costs. We agree with the district court that it
does.
Because Florida law governs our interpretation of State
Farm’s policy, we must decide this question “the way it appears the
state’s highest court would.” Ernie Haire Ford, Inc. v. Ford Motor Co.,
260 F.3d 1285, 1290 (11th Cir. 2001). Under Florida law, “insurance
contracts must be construed in accordance with the plain language
of the policy.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d
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161, 165 (Fla. 2003). Sos argues, and the district court held, that ac-
tual cash value means “replacement cost, less depreciation,” which
Sos and the district court say includes taxes and fees because these
expenses are necessarily included in the costs of replacing a leased
vehicle. State Farm counters that actual cash value means “fair
market value,” which it maintains “is fundamentally different from
the replacement cost of the vehicle” and excludes taxes and title
fees. Sos has the better of the argument.
First, Florida caselaw makes clear that “fair market value” is
synonymous with “replacement cost minus depreciation” and in-
cludes ancillary costs necessary to replace insured property. See,
e.g., Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 438–39 (Fla.
2013) (defining “actual cash value” in a homeowner’s insurance
policy as “‘fair market value’ or ‘replacement cost minus normal
depreciation’” and holding that it includes “overhead and profit”).
An actual cash value or fair market value policy is distinct from a
“replacement cost policy,” which covers only replacement costs,
without deducting depreciation. See id. at 438. Thus, State Farm is
correct that “a replacement cost policy . . . provides greater cover-
age than an actual cash value policy.” Id. But the instant policy is
not a replacement cost policy, nor did the district court hold as
much, as State Farm seems to believe.
Second, several factors lead us to conclude that replacement
cost minus depreciation includes costs for taxes and title transfer
fees. First, we’ve previously held that a Florida actual cash value
policy included any charges the policyholder would be reasonably
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50 Opinion of the Court 21-11769
likely to incur in replacing the damaged property. See Mills v. Fore-
most Ins. Co., 511 F.3d 1300, 1305–06 (11th Cir. 2008). And under
Florida law, sales tax and title transfer fees are mandatory costs nec-
essarily incurred in the replacement of a total loss vehicle. See Fla.
Stat. § 212.05 (sales tax); Fla. Stat. § 319.34 (title transfer fee). Fi-
nally, Fla. Stat. § 626.9743 provides that the “actual cost” to replace
a total loss vehicle “include[s] sales tax.” Id. § 626.9743(5); see also
id. § 626.9743(9). And “[i]t is fundamental that the laws of Florida
are a part of every Florida contract.” Dep’t of Ins. v. Teachers Ins. Co.,
404 So. 2d 735, 741 (Fla. 1981).
Accordingly, the district court correctly held that the mean-
ing of “actual cash value” under State Farm’s form insurance policy
is “replacement cost minus depreciation,” which includes sales tax
and title transfer fees. By failing to include the full value of these
costs as part of the class members’ total loss settlements, State Farm
breached its policy with the class members. Because this conclu-
sion resolves Sos’s breach of contract claim in his favor, we need
not address his alternative argument that State Farm “confessed
judgment” by paying the class members after Sos sued.
VI.
The next issue we must address is whether the district court
abused its discretion in awarding the class prejudgment interest.
We hold that it did not.
Florida adheres to the “loss theory” of prejudgment interest.
Bosem v. Musa Holdings, Inc., 46 So. 3d 42, 45 (Fla. 2010) (per cu-
riam). Under this theory, prejudgment interest is a mandatory
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component of a plaintiff’s compensatory damages in any case in
which the plaintiff’s loss is pecuniary in nature, including those
grounded in contract. See Argonaut, 474 So. 2d at 214–15; Summerton
v. Mamele, 711 So. 2d 131, 133 (Fla. Dist. Ct. App. 1998) (“The trial
court has no discretion with regard to awarding prejudgment in-
terest and must do so applying the statutory rate of interest in effect
at the time the interest accrues.” (citing Argonaut, 474 So. 2d at
215)).
In a breach of contract action, prejudgment interest is
awarded “from the date of the loss or the accrual of the cause of
action.” Bosem, 46 So. 3d at 46 (quoting Amerace Corp. v. Stallings,
823 So. 2d 110, 116 (Fla. 2002) (Pariente, J., dissenting)). Generally,
this is the date on which payment was due under the contract. Co-
lumbia Cas. Co. v. S. Flapjacks, Inc., 868 F.2d 1217, 1219 (11th Cir.
1989). The policy here, however, set no payment deadline. Accord-
ingly, it is appropriate to calculate prejudgment interest from the
earlier of the date of any pre-suit demand or the date the complaint
was filed. See Berloni S.p.A. v. Della Casa, LLC, 972 So. 2d 1007, 1012
(Fla. Dist. Ct. App. 2008). Because the parties agree that Sos made
no pre-suit demand here, prejudgment interest for Sos and the class
runs from May 17, 2017—the date Sos filed his first class com-
plaint—at the applicable Florida statutory interest rates.
State Farm’s argues that, under this framework, prejudg-
ment interest does not begin to run on the unnamed class mem-
bers’ claims until the time the class was certified because the un-
named class members were not formally parties to the litigation
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52 Opinion of the Court 21-11769
and thus had not “filed suit.” And by that time, State Farm argues,
it had fully remediated the class members’ claims, meaning they
aren’t entitled to any prejudgment interest. Not so. “[T]he filing of
a timely class action complaint commences the action for all mem-
bers of the class as subsequently determined.” Am. Pipe, 414 U.S. at
550. Thus, the complaint was “filed” for all class members on May
17, 2017, entitling each of them to prejudgment interest from that
date.
VII.
Lastly, we must decide whether the district court abused its
discretion in calculating attorney’s fees. We hold that it did. Alt-
hough the district court correctly held that the class is entitled to
some attorney’s fees under Florida law, the court applied the wrong
legal standard to determine the appropriate hourly rate.
A.
The district court correctly held that Sos and the class had a
right to attorney’s fees. Under Florida law, an insured or benefi-
ciary who prevails in a lawsuit against his insurer is entitled to “rea-
sonable” attorney’s fees. Fla. Stat. § 627.428(1). Attorney’s fees are
“mandatory” for parties who fall within section 627.428(1). Citizens
Prop. Ins. Corp. v. Bascuas, 178 So. 3d 902, 904 (Fla. Dist. Ct. App.
2015) (quoting Ramirez v. United Auto. Ins. Co., 67 So. 3d 1174, 1175
(Fla. Dist. Ct. App. 2011)). Yet, because the purpose of this fee-shift-
ing provision “is to discourage insurance companies from contest-
ing valid claims, and to reimburse insureds for their attorney’s fees
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21-11769 Opinion of the Court 53
incurred when they must enforce in court their contract with the
insurance company,” Petty v. Fla. Ins. Guar. Ass’n., 80 So. 3d 313, 316
(Fla. 2012) (quotations omitted), if the plaintiff sues “without any
necessity to do so, attorney’s fees under section 627.428 will be de-
nied,” Travelers of Fla. v. Stormont, 43 So. 3d 941, 944 (Fla. Dist. Ct.
App. 2010). Thus, an insured cannot recover attorney’s fees under
this statute if his “insurer . . . has [already] offered [the insured] the
full amount for which it has liability on the date it offers to make
the payment,” provided the offer of judgment includes “all dam-
ages, attorney fees, taxable costs, and prejudgment interest which
would be included in a final judgment if the final judgment was
entered on the date of the offer of settlement.” Danis Indus. Corp. v.
Ground Improvement Techs., Inc., 645 So. 2d 420, 421–22 (Fla. 1994).
State Farm does not dispute that class members are prevail-
ing parties. Still, State Farm makes two arguments why the class
has no right to fees under section 627.428(1). First, State Farm ar-
gues that its remediation payments fully compensated the class,
making this lawsuit unnecessary. But, once more, State Farm’s pur-
ported remediations did not fully compensate any of the class mem-
bers. State Farm excluded four class members from this process,
and those it included received no prejudgment interest or attor-
ney’s fees. Here, then, this litigation went on for so long because
State Farm continues to contest the insureds’ “valid claims,” leav-
ing them no choice but to “enforce in court their contract” with
State Farm. Petty, 80 So. 3d at 316.
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54 Opinion of the Court 21-11769
Second, State Farm argues that when it made its remedia-
tion payments to the putative class members, no class had been
certified, so Sos’s counsel did not represent those insureds. As ex-
plained, however, “the filing of a timely class action complaint
commences the action for all members of the class as subsequently de-
termined.” Am. Pipe, 414 U.S. at 550 (emphasis added). Thus, once
the district court certified the class, the law considered Sos’s attor-
neys representatives of the class members from the moment Sos
filed the class complaint—which was before any of State Farm’s re-
mediations.
B.
We agree with State Farm, however, that the district court
abused its discretion in calculating the proper fee amount. Florida
follows the federal lodestar approach to calculate attorney’s fees.
Resol. Tr. Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1148 (11th
Cir. 1993) (first citing Standard Guar. Ins. Co. v. Quanstrom, 555 So.
2d 828 (Fla. 1990); and then citing Fla. Patient’s Comp. Fund v. Rowe,
472 So. 2d 1145 (Fla. 1985)). Courts applying the lodestar approach
calculate fees by “multiply[ing] the number of hours reasonably ex-
pended by a reasonable hourly rate.” Loranger v. Stierheim, 10 F.3d
776, 781 (11th Cir. 1994). In a contingency fee case like this one,
once the court determines the lodestar amount, it must consider
whether to apply a multiplier. Quanstrom, 555 So. 2d at 831.
Thus, to calculate fees here, the district court had to deter-
mine (1) the number of hours counsel reasonably expended on this
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21-11769 Opinion of the Court 55
litigation, (2) a reasonable hourly rate, and (3) the appropriate mul-
tiplier, if any. State Farm argues that the district court abused its
discretion making each of these determinations. We address them
in turn.
1.
The district court did not abuse its discretion in determining
the number of hours counsel reasonably expended in this case.
State Farm argues that, even if it owes some attorney’s fees, the dis-
trict court should have employed its discretion to cut off fees in-
curred after State Farm made its remediation payments because
“[i]t was not reasonable for Counsel to continue incurring nearly
75% of the fees now sought to recover prejudgment interest . . .
and their own attorney’s fees.”
We disagree. Once again, State Farm’s unsupervised reme-
diations did not fully compensate any of the class members, in part
because they excluded prejudgment interest. The thousands of
class members received a judgment entitling them to an average of
$228 each in prejudgment interest precisely because Sos continued
to litigate the class’s entitlement to those costs and succeeded in
this effort. We cannot say the district court abused its discretion in
choosing “to compensate attorneys for work reasonably done ac-
tually to secure for clients the benefits to which they are entitled”
under Florida law. Norman v. Hous. Auth., 836 F.2d 1292, 1305 (11th
Cir. 1988) (holding district court abused its discretion by deducting
hours spent on “post-consent decree administration” in class action
because, “[i]n many class actions, . . . the order of the court does
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56 Opinion of the Court 21-11769
not always secure the actual benefit and additional legal work may
be required”). “In the final analysis, exclusions for excessive or un-
necessary work on given tasks must be left to the discretion of the
district court.” Id. at 1301.
2.
We conclude that the district court did, however, abuse its
discretion in setting the hourly rate. Florida courts consider various
factors to determine a reasonable hourly rate. See Rowe, 472 So. 2d
at 1150. But “the most critical factor” is “the ‘going rate’ in the com-
munity.” Martin v. Univ. of S. Ala., 911 F.2d 604, 610 (11th Cir. 1990).
Put differently, the reasonable hourly rate is “the prevailing market
rate in the relevant legal community for similar services by lawyers
of reasonably comparable skills, experience, and reputation.” Nor-
man, 836 F.2d at 1299. And the “relevant market” the court must
reference in deriving this value is “the place where the case is filed.”
Am. C.L. Union of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999)
(quoting Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1494 (11th Cir.
1994)). Because Sos filed this action in the middle district of Florida,
the relevant market here is central Florida.
Despite acknowledging that “the going rate in the commu-
nity is the most critical factor in setting the fee rate,” that “the rel-
evant market is the place where the case is filed,” and that “the rel-
evant market” here is accordingly “the Central Florida area,” the
district court rejected the magistrate judge’s recommended hourly
rate reduction based in part on the conclusion that “[c]ommercial
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21-11769 Opinion of the Court 57
class action law is sufficiently specialized that it should be consid-
ered a national market.” (Cleaned up) (emphasis added). The district
court drew support for its “national market” approach from the
Seventh Circuit’s statement that the relevant community for set-
ting the hourly rate may not always be the “local market area,” but
may instead be “a community of practitioners; particularly when .
. . the subject matter of the litigation is one where the attorneys
practicing it are highly specialized and the market for legal services
in that area is a national market.” Jeffboat, LLC, v. Dir., Off. of Work-
ers’ Comp. Programs, 553 F.3d 487, 490 (7th Cir. 2009). But the rele-
vant community in this circuit, and in Florida, is not a community
of practitioners; it’s the community in “the place where the case is
filed.” Barnes, 168 F.3d at 437; accord Philip Morris USA Inc. v. Jordan,
333 So. 3d 300, 303 (Fla. Dist. Ct. App. 2022). Therefore, the district
court ignored controlling law by expanding the reference market
beyond Central Florida.
It’s unclear to what extent the district court relied on its na-
tional market approach to set the hourly rate, however, because
the court also considered “rates previously approved as reasonable
for these same attorneys doing the same type of litigation in the
State of Florida generally, and the Middle District specifically.” See,
e.g., Roth v. Geico Gen. Ins. Co., No. 16-62942-CIV, 2019 U.S. Dist.
LEXIS 197778, at *33–34 (S.D. Fla. Nov. 13, 2019). But even if the
district court’s hourly rate determination was based entirely on
these prior awards, that determination still warrants reversal.
Courts applying the lodestar approach are prohibited from giving
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58 Opinion of the Court 21-11769
“controlling weight to prior awards.” E.g., Dillard v. City of Greens-
boro, 213 F.3d 1347, 1355 (11th Cir. 2000). Were the rule otherwise,
“the hourly rates of attorneys could be predetermined by errone-
ous prior awards, or lose the capacity to respond to changing mar-
ket conditions.” E. Associated Coal Corp. v. Dir., Off. of Workers’
Comp. Programs, 724 F.3d 561, 573 (4th Cir. 2013); accord Farbotko v.
Clinton County, 433 F.3d 204, 209 (2d Cir. 2005).
Accordingly, we hold that the district court abused its dis-
cretion in setting the appropriate hourly rate and remand to the
district court to recalculate the attorney’s fees award in light of the
relevant market comparator, Central Florida.
3.
We also believe the district court’s application of the maxi-
mum multiplier was an abuse of its discretion. Florida courts con-
sider three factors to decide whether to apply a contingency fee
multiplier in an insurance contract dispute: (1) whether it is neces-
sary to obtain competent counsel; (2) whether the attorney could
mitigate the risk of nonpayment; and (3) whether any of the Rowe
factors apply, “especially, the amount involved, the results ob-
tained, and the type of fee arrangement between the attorney and
his client.” Joyce v. Federated Nat’l Ins. Co., 228 So. 3d 1122, 1124 (Fla.
2017). The decision to award a contingency fee multiplier is within
the trial court’s sound discretion, and a case need not involve “rare”
or “exceptional” circumstances to merit one. Id. at 1132–33. If the
court concludes a multiplier is warranted, Florida law proscribes a
formula for determining what that multiplier should be. “If the trial
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21-11769 Opinion of the Court 59
court determines that success was more likely than not at the out-
set,” a multiplier of 1 to 1.5 is appropriate; “if the trial court deter-
mines that the likelihood of success was approximately even at the
outset,” 1.5 to 2.0 is appropriate; “and if the trial court determines
that success was unlikely at the outset of the case, it may apply a
multiplier of 2.0 to 2.5.” Quanstrom, 555 So. 2d at 834.
The district court did not abuse its discretion in concluding
that a multiplier was necessary to obtain competent counsel in this
case. The court reasonably believed a multiplier was warranted by
“the novelty and complexity of the case,” the significant costs at-
torneys would likely incur during the litigation, the reality “that in
federal court attorneys are unlikely to recover costs expended on
expert testimony,” the high likelihood “of no recovery,” and “the
fact ‘that State Farm is known to be a voracious litigator with vir-
tually unlimited resources.’”
But we believe the district court abused its discretion in con-
cluding that the maximum allowable multiplier—2.5—was appro-
priate because the record does not support a finding that “success
was unlikely at the outset of the case.” Quanstrom, 555 So. 2d at 834.
This is a one-count breach of contract claim under a Florida insur-
ance policy. At the time this suit was filed, Sos’s position on the
meaning of actual cash value fully aligned with the Florida Su-
preme Court’s interpretation of that same phrase in another insur-
ance policy. See Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 438
(Fla. 2013) (“[A]ctual cash value is generally defined as . . . replace-
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60 Opinion of the Court 21-11769
ment cost minus normal depreciation.” (quotation marks omit-
ted)). Similarly, both Black’s Law Dictionary and Merriam-Web-
ster supported Sos’s position on the meaning of actual cash value.
See Actual Cash Value, Black’s Law Dictionary (11th ed. 2019) (defin-
ing actual cash value as “[r]eplacement cost minus normal depreci-
ation”); Actual Cash Value, Merriam-Webster Online Dictionary,
www.merriam-webster.com/dictionary/actual%20cash%20value
(last visited July 17, 2023) (defining actual cash value as “money
equal to the cost of replacing lost, stolen, or damaged property af-
ter depreciation”). Although Florida caselaw did not so plainly sup-
port Sos’s argument that replacement cost minus depreciation
must include taxes and title transfer fees, the caselaw was not con-
trary to that position either.
The district court believed that success was unlikely at the
outset of this litigation because of (1) State Farm’s “vigorous de-
fense and intent to appeal”; (2) the fact that Sos’s theory of liability
“had never been tested in the courts”; and (3) the “enormous out-
lay of capital,” time, and skill that “advancing this theory—particu-
larly through a class action—would require.” To be sure, these con-
siderations support the proposition that success was not likely at the
outset, which confirms the district court’s decision to reject the
smallest multiplier of 1 or 1.5. But we cannot say that these consid-
erations establish that success was unlikely. These considerations
are present in the mine run of cases—defendants usually intend to
defend, there are rarely identical cases that have been successfully
litigated, and a plaintiff’s attorneys will always need to marshal re-
sources to bring a class action to a successful conclusion. Nothing
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21-11769 Opinion of the Court 61
singles out this case as one that a plaintiff pursued even though it
was “unlikely” to succeed at the outset. For these reasons, the dis-
trict court should not have applied the highest multiplier to the at-
torney’s fees award.
VIII.
To summarize, we affirm the district court’s conclusions
that (1) this case is not moot, (2) Sos satisfied the Rule 23 class cer-
tification requirements, (3) State Farm breached its contract with
the class members, entitling them to damages for omitted taxes and
title transfer fees, and (4) the class members are entitled to prejudg-
ment interest. But we reverse and remand the district court’s attor-
ney’s fee award with instructions to recalculate the award in a man-
ner consistent with this opinion.
The district court is AFFIRMED IN PART and REVERSED
AND REMANDED IN PART.
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21-11769 L UCK , J., dissenting 1
L UCK , Circuit Judge, dissenting:
Anthony Sos, the named plaintiff, filed a putative class ac-
tion. Soon after that, he moved for class certification. And a few
months after that, before the district court ruled on his class certi-
fication motion, Sos moved for summary judgment on behalf of
himself and the putative class. Sos never asked the district court to
push back the summary judgment deadline, never asked the district
court to defer ruling on his summary judgment motion until it cer-
tified a class, and never asked the district court to stay any judgment
pending class certification.
While Sos’s class certification motion was still pending, the
district court granted his motion for summary judgment on his in-
dividual claims (leaving the class claims for later). The district
court entered judgment for Sos, awarding him sales tax, title fees,
and prejudgment interest. The award was in the exact amount Sos
had requested. But the district court did not address Sos’s entitle-
ment to attorneys’ fees. State Farm paid the judgment in full. At
that point, Sos had received everything he’d asked for (other than
attorneys’ fees).
The majority opinion concludes that, even though judg-
ment for Sos was entered and satisfied before the district court con-
sidered the class certification motion, his claims were not moot.
And, the majority opinion concludes, even if Sos’s claims were
moot, he retained standing to pursue his class claims under a nar-
row exception to the mootness doctrine.
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2 L UCK , J., dissenting 21-11769
I respectfully dissent as to both conclusions. First, Sos’s in-
dividual claims were moot. State Farm paid Sos the entire judg-
ment: taxes, title fees, and prejudgment interest. At that point, Sos
got everything he asked for and so his case was moot. Second, be-
cause Sos’s individual claims were moot, he could no longer repre-
sent a class. In general, a class action can’t go on when the named
plaintiff’s claims become moot. While there are some exceptions
to this general rule, the exceptions apply only when a defendant
can purposely evade class certification by settling with named
plaintiffs. But here, State Farm was powerless to pick Sos off and
evade class certification. Sos picked off himself by failing to ask the
district court to either push back the summary judgment deadline,
defer ruling on his summary judgment motion until it certified a
class, or stay any judgment pending certification. As other circuits
have recognized, the narrow mootness exceptions do not apply
here.
Sos’s Individual Claims Were Moot
Sos’s claims were moot. We have held that a claim becomes
moot when a defendant satisfies the judgment. See Donald D. Forsht
Assocs., Inc. v. Transamerica ICS, Inc., 821 F.2d 1556, 1559 (11th Cir.
1987) (holding that the plaintiff’s “claim [was] extinguished and the
appeal [was] therefore moot” because “[t]he judgment for the en-
tire amount of pleaded damages [was] fully satisfied”); see also
Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 164 n.5 (2016) (case was
moot because the “plaintiffs had in fact received all the relief they
could claim”). Here, the district court entered judgment in Sos’s
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21-11769 L UCK , J., dissenting 3
favor—which included the full amount of sales tax, title fees, and
prejudgment interest. State Farm then satisfied that judgment. At
that point, Sos’s claims were moot.
Sos and the majority opinion raise two main arguments to
the contrary. First, they suggest that the parties did not “objec-
tively manifest an intent” to end the case through satisfying the
judgment and so the case is not moot. It’s true that there’s a line
of cases holding that we look to “the parties’ objective manifesta-
tions of intent” in assessing whether the payment of a judgment
“render[s] [an] appeal moot.” Alvarez Perez v. Sanford-Orlando Ken-
nel Club, Inc., 518 F.3d 1302, 1307 (11th Cir. 2008); see also United
States v. Hougham, 364 U.S. 310, 314 (1960); Alliant Tax Credit 31, Inc
v. Murphy, 924 F.3d 1134, 1140 (11th Cir. 2019).
But those cases were different. For one thing, they involved
cross-appeals, where the plaintiffs were appealing the district
court’s judgments as inadequate. As the Supreme Court has ex-
plained: “[i]t is a generally accepted rule of law that where a judg-
ment is appealed on the ground that the damages awarded are in-
adequate, acceptance of payment of the amount of the unsatisfac-
tory judgment does not, standing alone, amount to an accord and
satisfaction of the entire claim.” Hougham, 364 U.S. at 312 (plaintiff
cross-appealing the damages award as inadequate); Alliant, 924 F.3d
at 1140 (plaintiff cross-appealing the denial of prejudgment inter-
est); Alvarez, 518 F.3d at 1305 (plaintiff cross-appealing the denial of
liquidated damages).
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4 L UCK , J., dissenting 21-11769
This rule makes sense. When a plaintiff accepts satisfaction
of a judgment—but that plaintiff was seeking more than the judg-
ment—we must look to see if the parties’ actions showed “objec-
tive manifestations” of intent to end the case. This is the only way
we can tell if the plaintiff meant to settle and end the case or if the
plaintiff was simply holding onto a partial payment (like a super-
sedeas bond) but still looking to recover the full amount it was
owed. See Alliant, 924 F.3d at 1141. In our case, though, Sos re-
ceived everything he asked for: the tax, the title fees, and the pre-
judgment interest. At that point, we have no need to look at Sos’s
objective manifestations of intent to settle—and end—the case. He
was paid everything he was due, so there was no settlement. The
case was done.
Our case differs in another way. In most of the cases where
we’ve found that a defendant’s payment did not moot the appeal,
there were signs of gamesmanship on the part of the defendant
who urged mootness. See Hougham, 364 U.S. at 313 (explaining that
the defendant’s position that the case was moot “was totally incon-
sistent with their position in the [c]ourt of [a]ppeals where they
sought to avoid all liability”); Alvarez, 518 F.3d at 1304 (“Only after
learning that he had lost the appeal, and lost it big, did he tell us
about what he characterizes as jurisdiction-stripping events that
had occurred three-and-a-half months before we issued our deci-
sion.”). In this case, however, State Farm didn’t wait to lose in
front of us before raising a mootness defense. State Farm put
mootness front and center. There’s no evidence of gamesmanship
that should preclude a finding of mootness.
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21-11769 L UCK , J., dissenting 5
The last thing is that Hougham, Alliant, and Alvarez were all
about mootness on appeal. In other words, the district courts en-
tered judgment for the plaintiffs (ending their whole case) and then
the parties cross-appealed. Hougham, 364 U.S. at 312 (defendant
satisfied judgment after the trial court entered judgment and before
the court of appeals affirmed); Alliant, 924 F.3d at 1140 (same); Al-
varez, 518 F.3d at 1304 (same). It’s one thing to say that a plaintiff
can appeal an insufficient judgment that was satisfied. It’s another
to say that a plaintiff can accept a judgment for exactly what he
asked for—and then continue to litigate summary judgment, class
certification, and attorneys’ fees before the district court.
Second, Sos and the majority opinion suggest that Sos’s in-
terest in attorneys’ fees may keep his case alive. I don’t think that’s
right. It’s true, as the majority opinion points out, that “a claim for
attorneys’ fees remains viable even after the underlying action be-
comes moot.” Schell v. OXY USA Inc., 814 F.3d 1107, 1124 (10th Cir.
2016); see also, e.g., Doe v. Marshall, 622 F.2d 118, 120 (5th Cir. 1980)
(explaining that “a determination of mootness” will not “preclude[]
. . . an award of attorneys’ fees”). This makes sense: if a plaintiff
settles his case, for example, he can still adjudicate the separate and
collateral question of attorneys’ fees before the district court (even
though the merits of the case are mooted by the settlement). The
plaintiff’s separate and collateral claim for attorneys’ fees is not
moot, and the district court would have jurisdiction to award fees.
This happens all the time.
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6 L UCK , J., dissenting 21-11769
But the mere fact that a plaintiff may seek fees when a case
ends does not mean that the plaintiff may continue to litigate the
merits of a case. In Lewis v. Continental Bank Corp., 494 U.S. 472
(1990), for example, the litigation “had been in progress for almost
seven years” when the plaintiff’s case became moot. Id. at 480. The
Supreme Court explained that the plaintiff’s “interest in attorney’s
fees [was], of course, insufficient to create an Article III case or con-
troversy where none exist[ed] on the merits of the underlying
claim.” Id. “Where on the face of the record it appears that the
only concrete interest in the controversy has terminated, reasona-
ble caution is needed to be sure that mooted litigation is not
pressed forward, and unnecessary judicial pronouncements on
even constitutional issues obtained, solely in order to obtain reim-
bursement of sunk costs.” Id.
Applied here, Sos’s interest in attorneys’ fees was not moot.
Sos could’ve filed a motion for attorneys’ fees before the district
court, and the district court would’ve had jurisdiction to adjudicate
that separate and collateral issue. This is a standard feature of liti-
gation. See generally Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
395 (1990) (“It is well established that a federal court may consider
collateral issues after an action is no longer pending. . . . This Court
has indicated that motions for costs or attorney’s fees are independ-
ent proceedings supplemental to the original proceeding and not a
request for a modification of the original decree. Thus, even years
after the entry of a judgment on the merits a federal court could
consider an award of counsel fees.” (cleaned up)).
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21-11769 L UCK , J., dissenting 7
But that’s not what happened in our case. Sos didn’t seek to
litigate only the separate and collateral question of attorneys’ fees.
Instead, he sought to act as a class representative, litigate the class
certification motion, argue for summary judgment on behalf of a
class, and seek fees and costs (not just for his claim but) for others
too. That’s what the Supreme Court said a plaintiff cannot do in
Lewis. There, the Supreme Court explained that, when the under-
lying controversy is over, “reasonable caution is needed to be sure
that mooted litigation is not pressed forward, and unnecessary ju-
dicial pronouncements on even constitutional issues obtained,
solely in order to obtain reimbursement of sunk costs.” Lewis, 494
U.S. at 480. But that’s exactly what Sos did here. He pressed for-
ward—looking to obtain substantive pronouncements on the mer-
its—to collect sunk costs. That’s not allowed.
The Supreme Court has repeatedly held that an interest in
attorneys’ fees is not enough (standing alone) to sustain a case and
obtain rulings on substantive issues. See, e.g., Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 107 (1998) (explaining that “a plaintiff
cannot achieve standing to litigate a substantive issue” by seeking
“reimbursement of costs that are a byproduct of the litigation it-
self”); Thole v. U. S. Bank N.A., 140 S. Ct. 1615, 1619 (2020) (“To be
sure, their attorneys have a stake in the lawsuit, but an interest in
attorney’s fees is, of course, insufficient to create an Article III case
or controversy where none exists on the merits of the underlying
claim.” (cleaned up)); Campbell-Ewald Co. v. Gomez, 577 U.S. 153,
178 n.1 (2016) (Roberts, C.J., dissenting) (noting that an “interest in
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8 L UCK , J., dissenting 21-11769
sharing attorney’s fees among class members . . . does not create
Article III standing”).
The cases cited by the majority opinion appear to contem-
plate only that a plaintiff whose claim is mooted may still litigate
(and collect) fees. But, as best as I can tell, no court has allowed a
plaintiff whose claim is mooted to continue litigating substantive
issues in federal court. Consider the Seventh Circuit’s decision in
Premium Plus Partners, L.P. v. Goldman, Sachs & Co., 648 F.3d 533,
538 (7th Cir. 2011). There, the named plaintiff’s claim was mooted
after it agreed to settle. Id. at 535. Still, the named plaintiff (just
like Sos) wanted to move for class certification and serve as the
class representative, arguing that “its claim [hadn’t] been fully re-
solved because if the class litigates, and wins, some of the expenses
that [it] ha[d] incurred along the way could be allocated to the class,
and its net recovery therefore would be larger.” Id. at 538. The
Seventh Circuit noted that this position “flopped” in Lewis and that
“it fare[d] no better when advanced by a would-be class representa-
tive.” Id. The Seventh Circuit explained that an interest in attor-
neys’ fees can’t keep a case going, and “that’s equally true of costs
and the other expenses that [a named plaintiff] hopes to offload to
the class.” Id. The same holds true here.
In sum, State Farm satisfied the judgment in full. Sos re-
ceived everything he wanted at that point. His case was moot.
And, at least in my view, neither of Sos’s counterarguments are
persuasive. First, his objective manifestations of intent to settle
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21-11769 L UCK , J., dissenting 9
don’t enter the equation because Sos was not challenging the judg-
ment as inadequate. So we have no need to see whether the pay-
ment of an inadequate award served as a settlement that ended the
case. Second, an interest in attorneys’ fees isn’t enough to keep a
case alive. It’s true that a plaintiff in a mooted case can still seek
fees. But a plaintiff can’t push forward and seek substantive deter-
minations on merits issues (like summary judgment or class certi-
fication).
Sos Could No Longer Represent a Class
The next question is whether Sos can represent a class even
though his individual claims are moot. He can’t. There are three
circumstances in which a class action can go on as usual even
though the named plaintiff’s claim was mooted. First, once a dis-
trict court has certified a class, mooting the named plaintiff’s claims
will not moot the entire class action. See Sosna v. Iowa, 419 U.S. 393,
399 (1975). That’s because, once the class is certified, the class
members “acquire[] a legal status separate from the interest as-
serted by” the class representative. Id.; see also 3C Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure §
3533.9.1 (3d ed. updated Apr. 2022) (“Mooting the representative’s
claim after a class is certified does not moot the action if the class
claim persists.”).
Second, there are some narrow exceptions that allow a case
to continue even if the class representative’s claim becomes moot
before certification. For example, the Supreme Court has found a
“limited exception to Sosna’s requirement that a named plaintiff
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10 L UCK , J., dissenting 21-11769
with a live claim exist at the time of class certification” in cases
where the “pace of litigation and the inherently transitory nature
of the claims at issue conspire to make that requirement difficult to
fulfill.” United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1539 (2018);
see also, e.g., Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)
(“[S]ome claims are so inherently transitory that the trial court will
not have even enough time to rule on a motion for class certifica-
tion before the proposed representative’s individual interest ex-
pires. In such cases, the relation back doctrine is properly invoked
to preserve the merits of the case for judicial resolution.” (cleaned
up)).
Our circuit has extended this inherently transitory exception
to cases in which “the defendants have the ability by tender to each
named plaintiff effectively to prevent any plaintiff in the class from
procuring a decision on class certification.” Zeidman v. J. Ray
McDermott & Co., 651 F.2d 1030, 1050 (5th Cir. 1981). The “defend-
ant’s purposive acts” in picking off plaintiffs will not render a case
moot if the “named plaintiff acts diligently to pursue the class
claims.” Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698, 707 (11th Cir.
2014); see also, e.g., Richardson v. Bledsoe, 829 F.3d 273, 279 (3d Cir.
2016) (“[W]hen a plaintiff’s individual claim for relief is acutely sus-
ceptible to mootness by the actions of a defendant, that plaintiff
may continue to represent the class he is seeking to certify even if
his individual claim has been mooted by actions of the defend-
ant.”).
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21-11769 L UCK , J., dissenting 11
Third, in some cases, a named plaintiff whose claim be-
comes moot after class certification was denied can continue with
its appeal. In Geraghty, for example, the Supreme Court held that,
“when a [d]istrict [c]ourt erroneously denies a [class certification]
motion, which, if correctly decided, would have prevented the ac-
tion from becoming moot, an appeal lies from the denial and the
corrected ruling ‘relates back’ to the date of the original denial.”
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 n.11 (1980); see also
Deposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 340–
41 (1980) (similar). Both Geraghty and Roper were premised on the
notion that “[c]ourts have a certain latitude in formulating the
standards that govern the appealability of procedural rulings.”
Roper, 445 U.S. at 340
None of these exceptions apply here. First, Sos’s individual
claims were moot before the class was certified, so the Sosna excep-
tion doesn’t apply. Zeidman, 651 F.2d at 1046 (“[C]ertification saves
the suit from dismissal only if it occurs prior to the satisfaction or
expiration of the named plaintiffs’ claims.”). Second, this isn’t a
case where the “defendant’s purposive acts” in picking off plaintiffs
rendered the case moot. Stein, 772 F.3d at 707. Instead, Sos picked
off himself—by moving for summary judgment on his individual
claim, in failing to request that the district court rule on class certi-
fication before summary judgment, and in never asking the district
court to stay its entry of judgment.1 Third, this case isn’t like
1 To be clear, Sos moved for summary judgment on his individual claims, sep-
arate and apart from the class. His motion was entitled, “Plaintiff Anthony
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12 L UCK , J., dissenting 21-11769
Geraghty and Roper because Sos didn’t seek to appeal a class certifi-
cation denial.
The majority opinion homes in on the second mootness ex-
ception, saying our case is “closely analogous” to Zeidman. In my
view, it would be improper to extend Zeidman—and thus our sub-
ject matter jurisdiction—to this kind of case. As an initial matter,
in general, I think we should hesitate before straying too far from
the mootness doctrine. Mootness is grounded in Article III’s case
or controversy requirement. See Arizonans for Off. Eng. v. Arizona,
520 U.S. 43, 67 (1997) (“[A]n actual controversy must be extant at
all stages of review, not merely at the time the complaint is filed.”
(quotation omitted)). We shouldn’t so easily carve out new moot-
ness exceptions and expand our jurisdiction. And the Zeidman ex-
ception is, in my view, inapplicable here.
The picking off exception from Zeidman applies when—be-
cause of a defendant’s actions—the case “becomes moot . . . before
Sos Motion for Summary Judgment.” The first sentence of the motion reads,
“Plaintiff Anthony Sos (‘Plaintiff’ or ‘Mr. Sos’) files this Motion for Summary
Judgment.” His motion requested that the district court “grant summary
judgment in his and the class members’ favor.” And the motion concluded by
requesting the district court to enter “summary judgment in favor of Mr. Sos
and awarding him $2,239.12 in sales tax (plus applicable local surtax), $79.25
in title transfer fee (offset by $58.75 already paid), prejudgment interest, attor-
ney’s fees, injunctive relief and all other relief this court deems just and
proper.” It’s no wonder the district court granted his summary judgment mo-
tion, and entered judgment on his individual claims, because that’s what he
asked the district court to do.
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21-11769 L UCK , J., dissenting 13
the district court can reasonably be expected to rule on a certifica-
tion motion.” Sosna, 419 U.S. at 402 n.11; Zeidman, 651 F.2d at 1045
(“[T]his general rule [requiring the plaintiff to have a live claim at
time of class certification] must yield when the district court is un-
able reasonably to rule on a motion for class certification before the
individual claims of the named plaintiffs become moot.”). But that
wasn’t the case here. The certification motion was ready and pend-
ing when the district court granted Sos summary judgment and en-
tered judgment in his favor. So this isn’t a situation in which the
defendant’s actions mooted the plaintiff’s claims before the district
court had a chance to rule on a certification motion.
The picking off exception is also grounded in the notion
that, without carving out the exception, the class certification “is-
sue would [otherwise] evade review” and a class could never be
certified. Sosna, 419 U.S. at 402 n.11; Zeidman, 651 F.2d at 1045
(noting that the “defendants should not be allowed to prevent con-
sideration of [a certification] motion by tendering to the named
plaintiffs their personal claims” and thereby “evade review” (quo-
tation omitted)). But that wasn’t the case here. State Farm had no
ability to evade review of the class certification motion. Sos picked
himself off by never asking the district court to push back the sum-
mary judgment deadline, never asking the district court to defer rul-
ing on his summary judgment motion until it certified a class, and
never asking the district court to stay any judgment pending certifi-
cation. It’s also worth noting that a different class member could
still re-file this case and avoid these mistakes. And if it did, State
Farm wouldn’t be able to evade review. This isn’t a case, in other
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14 L UCK , J., dissenting 21-11769
words, in which “the defendants have the ability by tender to each
named plaintiff effectively to prevent any plaintiff in the class from
procuring a decision on class certification.” Zeidman, 651 F.2d at
1050.
Other circuits have refused to carve out a new exception to
the mootness doctrine under similar circumstances—where the
plaintiff has (in effect) picked off himself. Take Murray v. Fidelity
National Financial, Inc., 594 F.3d 419 (5th Cir. 2010), for example.
In that case, the original plaintiffs to a lawsuit filed a putative class
action against defendants who allegedly overcharged them. Id. at
420. At some point, it became obvious that the original plaintiffs
never actually bought anything from the defendants. Id. So the
original plaintiffs moved to amend their complaint to add two new
plaintiffs as class representatives. Id. While that motion was pend-
ing, the defendants “tendered a check to the [new plaintiffs’] coun-
sel as full payment of their claim.” Id. The district court granted
the motion to amend. Id. And then the defendants moved to dis-
miss, arguing that the new plaintiffs’ “claims had been mooted by
the tender of payment before they became parties to the suit.” Id.
at 420–21.
The Fifth Circuit agreed that the case was moot even though
the defendants paid off the named plaintiffs to make the case go
away. It started by noting that, “[a]s a general principle, a pur-
ported class action becomes moot when the personal claims of all
named plaintiffs are satisfied and no class has been certified.” Id. at
421. The court recognized that in Zeidman the Fifth Circuit had
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21-11769 L UCK , J., dissenting 15
held that picking the plaintiffs off would not moot the case because,
if we allowed that, “the defendants would have the option to pre-
clude a viable class action from ever reaching the certification
stage.” Id. (quotation omitted). The new plaintiffs argued their
case was the same because the defendant paid them off while their
motion to amend (and join the case) was pending. Id. at 422.
But the Fifth Circuit rejected that argument. It reasoned
that, “[u]nlike the plaintiffs in Zeidman . . . , the [new plaintiffs] had
a readily available means of preventing the defendants from moot-
ing their suit.” Id. “Had the [new plaintiffs] chosen to file a separate
complaint rather than seeking to be added to the original com-
plaint, the defendants would have been unable to moot their
claims.” Id. “Further, had the [new plaintiffs], rather than individ-
uals who had no valid claims against [the defendants], been the
original parties to the suit, [the defendants] would have been una-
ble to moot their claims.” Id. “In light of these available remedies,
we see no need to extend Zeidman . . . to the circumstances of this
case.” Id.
Our case is just the same. As in Murray, the named plaintiff
in our case (Sos) had “readily available means of preventing [State
Farm] from mooting [his] suit.” He could’ve resisted filing an indi-
vidual motion for summary judgment. He could’ve asked the dis-
trict court to delay ruling on his motion for summary judgment (or
delay entering judgment) until after a class was certified. But Sos
did none of those things. In light of all the remedies he had availa-
ble, there’s no need to extend Zeidman here. See Fontenot v. McCraw,
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16 L UCK , J., dissenting 21-11769
777 F.3d 741, 751 (5th Cir. 2015) (“This case, like Murray, is simply
not one in which an exception is required lest otherwise the issue
would evade review. Where plaintiffs may avoid being ‘picked off’
by using the tools within the Federal Rules of Civil Procedure, the
rationale for creating further exceptions to mootness cannot be sus-
tained.” (quotation omitted)).
Conclusion
Because Sos’s claims were moot, and none of the narrow
mootness exceptions apply, I would vacate the judgment and re-
mand for the district court to dismiss without prejudice.
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