In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2634
L ANCE W RIGHTSELL,
Plaintiff-Appellant,
v.
C OOK C OUNTY, ILLINOIS, and S HERIFF OF C OOK C OUNTY,
Defendants-Appellees.
JOHN S MENTEK,
Petitioner for Leave to Intervene.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division;
and Petition for Leave to Intervene.
No. 08 C 5451—John W. Darrah, Judge.
S UBMITTED S EPTEMBER 28, 2009—D ECIDED M ARCH 31, 2010
Before P OSNER, W OOD , and T INDER, Circuit Judges.
P OSNER, Circuit Judge. Lance Wrightsell, a former
inmate of the Cook County Jail, brought suit under 42
U.S.C. § 1983 against the County (and its sheriff, but we
can disregard the claim against him), charging that its
2 No. 09-2634
failure to make more than a single dentist available to the
jail’s 10,000 inmates was cruel and unusual punishment
and thus violated the Eighth Amendment. He asked the
district court to certify a class consisting of “all persons
who, while confined at Cook County Jail on and after
Sept. 23, 2006, made a request for treatment of dental
pain and were not examined by a dentist within 7 days
of that request.” The district court denied class certifica-
tion, and after we denied Wrightsell’s petition for leave
to appeal the denial, Wrightsell v. Sheriff of Cook County,
No. 09-8016 (Apr. 2, 2009), he agreed to the defendant’s
offer of judgment, made pursuant to Fed. R. Civ. P. 68, of
$10,000. The offer stated that the plaintiff agrees to
dismiss his suit and renounce “any right to appeal.”
Nevertheless he filed a notice of appeal from the dis-
missal. The County has asked us to dismiss the appeal,
while another former inmate, John Smentek, has peti-
tioned us for leave to intervene in the appeal. Smentek
is represented by the same lawyer as Wrightsell, and his
own class action suit against the County, also based on
denial of adequate dental care at the Cook County Jail, is
pending in the district court. Smentek v. Cook County, No. 09
C 00529 (N.D. Ill.). His proposed class differs from
Wrightsell’s only in its beginning date. Wrightsell’s class,
as we know, encompasses all inmates who, beginning on
September 23, 2006, went without needed dental treat-
ment for a week; in Smentek’s proposed class the opening
date is three months later, January 1, 2007.
On January 27, 2009, the district judge denied class
certification in Smentek’s case but made the denial “sub-
No. 09-2634 3
ject to refiling [of the motion for class certification]
after the court of appeals rules in” the present case.
In Pastor v. State Farm Mutual Automobile Ins. Co., 487 F.3d
1042, 1043-44 (7th Cir. 2007), we allowed the named
plaintiff to appeal the denial of class certification despite
her having settled her individual claim. We said that “her
acceptance of the [defendant’s] offer did not resolve
the dispute between the unnamed class members and
the defendant and so did not render the case moot.” See
also Culver v. City of Milwaukee, 277 F.3d 908, 910 (7th
Cir. 2002); Kifer v. Ellsworth, 346 F.3d 1155, 1156 (7th Cir.
2003); Hines v. Widnall, 334 F.3d 1253, 1257 (11th Cir. 2003)
(per curiam); Love v. Turlington, 733 F.2d 1562, 1565
(11th Cir. 1984); cf. Dugas v. Trans Union Corp., 99 F.3d
724, 726 (5th Cir. 1996). We were concerned that “other-
wise defendants might delay the grant of relief in class
actions indefinitely by buying off the class representa-
tives in succession.” Kifer v. Ellsworth, supra, 346 F.3d
at 1156; see also Culver v. City of Milwaukee, supra, 277
F.3d at 910.
Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009),
however, held that a named plaintiff who settles his
claim and is awarded attorneys’ fees cannot be allowed
to appeal the denial of class certification because, having
gotten all the relief that he sought, he has no personal stake
in having the class certified. It would be different, the
opinion states, id. at 491-92, if, as in Deposit Guaranty
National Bank v. Roper, 445 U.S. 326, 336 (1980), the appel-
lant had a pecuniary interest as class representative
(as distinct from as plaintiff), for example in being reim-
4 No. 09-2634
bursed by other members of the class for the attorneys’
fees that he had incurred; but the plaintiff in Muro had
no such interest. The distinction between the named
plaintiff’s stakes as plaintiff and as representative is
made in other cases as well. See Pettrey v. Enterprise Title
Agency, Inc., 584 F.3d 701, 705-06 (6th Cir. 2009); Anderson
v. CNH U.S. Pension Plan, 515 F.3d 823, 827 (8th Cir. 2008);
Potter v. Norwest Mortgage, Inc., 329 F.3d 608, 613-14
(8th Cir. 2003); Toms v. Allied Bond & Collection Agency, Inc.,
179 F.3d 103, 105-06 (4th Cir. 1999). There is thus a tension,
unnecessary to resolve in this case but worth noting
for future reference, between the Pastor and Muro lines
of cases.
Some cases distinguish between “voluntary” and
“involuntary” settlements. In the first type the named
plaintiff willingly accepts a settlement offer (as in Pas-
tor) and also—as in the present case—executes a waiver
of his right to appeal. In the second type of case the
defendant makes an offer of settlement that equals or
exceeds the maximum amount of money, including any
attorneys’ fee or court costs, that the law would entitle
the plaintiff to recover if he prevailed in the suit. If the
plaintiff refused such an offer in a case that was not a
class action, the court would lose jurisdiction because
he would have nothing to gain by continuing to litigate.
Thorogood v. Sears, Roebuck & Co., No. 09-3005, 2010 WL
476653, at *3 (7th Cir. Feb. 12, 2010). (Thorogood began as
a class action, but by the time the plaintiff refused the
defendant’s Rule 68 offer the class had been decertified.)
But several cases suggest that when the suit is a class
action, the named plaintiff can refuse the offer and appeal.
No. 09-2634 5
Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 920-21
(5th Cir. 2008); Weiss v. Regal Collections, 385 F.3d 337, 348-
49 (3d Cir. 2004); Zeidman v. J. Ray McDermott & Co., Inc.,
651 F.2d 1030, 1051 (5th Cir. 1981). It has even been ques-
tioned whether Rule 68 offers should be permitted
in class action cases, because they provide a means
by which a defendant can pick off successive class rep-
resentatives by offering more than the maximum value
of the class representative’s personal claim. McDowall v.
Cogan, 216 F.R.D. 46 (E.D.N.Y. 2003).
To allow a person to litigate a class action after his
personal claim has evaporated, whether by his voluntary
acceptance of a settlement offer or by the defendant’s
making a Rule 68 offer that exceeds the plaintiff’s
potential stakes in the case, may seem to violate the
bedrock principle that at all stages of a case in federal
court the plaintiff must have something tangible to gain
by winning; otherwise the court loses jurisdiction. But
there are exceptions to this as to most legal generaliza-
tions. They include the inherently transitory claim,
Gerstein v. Pugh, 420 U.S. 103, 110-11 n. 11 (1975); Olson v.
Brown, No. 09-2728, 2010 WL 375677, at *1 (Feb. 4, 2010)
(that is, a claim bound to become moot before it can be
litigated to judgment), the claim capable of repetition by
the person advancing it but evading review, Federal
Election Comm’n v. Wisconsin Right To Life, Inc., 127 S. Ct.
2652, 2662 (2007); U.S. Parole Comm’n v. Geraghty, 445 U.S.
388, 398 (1980); Weinstein v. Bradford, 423 U.S. 147, 148-49
(1975) (per curiam); Bowens v. Quinn, 561 F.3d 671, 673
(7th Cir. 2009), and other exceptions listed in 15 Moore’s
6 No. 09-2634
Federal Practice § 101.99 (3d ed. 2009), and Alba Conte &
Herbert Newberg, Newberg on Class Actions §§ 2:13-2:22,
pp. 130-54 (4th ed. 2002)—including the involuntary-
settlement cases that we cited earlier, which permit a
class representative who no longer has a personal stake
in the class action to continue litigating it nonetheless.
It will help in unraveling the mysteries of the present
case to note the sheer strangeness of the fact that settle-
ments with class representatives often, as in this case,
contain explicit waivers of the right to appeal; in an
ordinary civil settlement it is taken for granted that the
settlement extinguishes all rights to further prosecution
of the suit, including the right to appeal. Friends of the
Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S.
167, 191-92 (2000); In re Consolidated Industries Corp., 397
F.3d 524, 527-28 (7th Cir. 2005); 13B Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice &
Procedure § 3533.2, pp. 777-81 (3d ed. 2008). The frequency
in settlements with class plaintiffs of explicit waivers of
appeal may reflect a concern that in the absence of such
a waiver a class representative who settled could never-
theless, as in Pastor, appeal because a named plaintiff
plays a dual role in a class action—as plaintiff and as
representative of the unnamed class members. A settle-
ment of his personal claim might coexist with a duty
as class representative to appeal on behalf of the class
should there be meritorious grounds for appealing.
The plaintiff’s renunciation of his status as class repre-
sentative, and of any duties attached to it, would usually
be harmless, or at least not fatal, if another member of
No. 09-2634 7
the class stepped forward as named plaintiff suing on
behalf of the class. But there could be delay and with it
possible statute of limitations problems. Harmless or
not, by explicitly waiving his right to appeal a class
representative resigns his representative status and if he
does attempt to appeal it is in violation of an explicit
term of the settlement agreement. A rule prohibiting a
class representative from waiving his right to appeal
would deter the filing of class actions by locking a class
action plaintiff into a litigation that he might decide
down the road that he wanted nothing more to do with.
The waiver of appeal does facilitate the “picking off”
danger that lies behind the exception to the doctrine
of mootness that we have explained. But that effect has
to be balanced against the adverse effect on the willing-
ness of a person to be a named plaintiff in a class action
if he cannot waive his right to appeal.
Wrightsell, though he filed a notice of appeal, can be
considered a placeholder for Smentek. The two have the
same lawyer, as we said; and the notice of appeal filed
by the lawyer in Wrightsell’s name could be viewed as
an effort to preserve appellate remedies by looking for
a class member to step into his shoes, Smentek being
a member of Wrightsell’s class as well as his own.
Wrightsell’s settlement, including his explicit waiver of
a right to appeal, has removed him from the case but
without precluding other class members from picking
up the fallen torch. Smentek’s motion to intervene
states that “intervention is warranted because plaintiff
Wrightsell may not have standing to seek review of
8 No. 09-2634
the district court’s adverse class determination for the
unnamed members of the class.”
Suppose Wrightsell’s class had been certified, and he
had then settled in the district court on behalf of the
class rather than purely as an individual; and suppose
that Smentek, as a member of the class, had objected
to the settlement at the hearing in the district court to
consider whether it should be approved (the “fairness
hearing,” as it is called). Smentek could then have chal-
lenged the settlement in this court without having to
intervene in the district court. Devlin v. Scardelletti, 536
U.S. 1, 10-11 (2002). But before certification, a class mem-
ber who like Smentek would like to appeal the denial
of certification must ask the district court for permission
to intervene in the case and must do so within the
statutory deadline for filing a notice of appeal. United
Airlines, Inc. v. McDonald, 432 U.S. 385, 395-96 (1977);
Larson v. JPMorgan Chase & Co., 530 F.3d 578, 582-83
(7th Cir. 2008); Hutchinson v. Pfeil, 211 F.3d 515, 519 (10th
Cir. 2000). Otherwise he has no legally protected interest
in the litigation, In re Integra Realty Resource, Inc., 354
F.3d 1246, 1257 (10th Cir. 2004), and if nevertheless he
could appeal it would mean that every member of a
proposed class of millions could appeal from the denial
of class certification.
Smentek didn’t petition the district court to be allowed
to intervene at all, let alone on time, to oppose the denial
of class certification, and he offers no excuse for his
failure—how could he, since he has the same lawyer
as Wrightsell?
No. 09-2634 9
Smentek’s petition to intervene is therefore D ENIED.
Wrightsell’s appeal is D ISMISSED.
3-31-10