Litigating Against the Government vs. Private Plaintiffs


3 minute watch | December.20.2024

Erin Connell and Esther Lander offer guidance on:

  • Key strategies to prepare when facing the government
  • A defining procedural difference between government litigation and private class actions
  • Esther Lander:

    Alright, Erin, let's talk about litigation. How is litigating against a government opponent different than litigating against a private plaintiff in a class action?

    Erin Connell:

    So there are a lot of differences between litigating against the government and litigating against private class counsel in a systemic discrimination case. The first is that when your opponent is the federal government and the federal government is accusing your client of systemic discrimination, it carries a weight, a gravitas to it, that just doesn't exist when you're dealing with private class counsel. In addition to having to develop a winning litigation strategy, which in and of itself is complicated, you also need to deal with other strategies, including a media strategy and a strategy for dealing with all of the internal and external stakeholders that are interested in the case in a way that they wouldn't be interested in a private class action. That can include executives, the C-Suite, employees or potential employees, customers or clients, it can have a big impact on your client’s business. It can include investors, shareholders, suppliers and vendors. The list goes on and on. When you have the government accusing you of systemic discrimination, it takes on a life that private class actions don't.

    The second point is more procedural. Private class actions need to go through class certification, and that tends to be where the big focus and fight is for most of the litigation. The issue being, should this case proceed as a class action? Do common issues predominate over individual issues? Are the requirements of Rule 23 otherwise met? Government agencies, as you know, do not need to go through class certification. You're going straight to the merits. In addition to not having that procedural hurdle before getting to the merits, the arguments are somewhat different. It often comes down to a battle of the experts. Each side has their expert, and you're really going straight to liability.

    Now, that doesn't mean the issue of commonality doesn't come up in government litigation, because it does. The government, to prove an intentional claim of systemic discrimination, would need to prove a pattern or practice of discrimination. Usually, you're focusing on a common policy or a practice and the issue of what we call centralized decision-making to prove intentional discrimination on a class-wide basis. For disparate impact litigation, the focus is on: is there a common policy or practice that's having an unlawful disparate impact? So that issue of commonality is still a big part of the litigation, but it's on the merits and not at the procedural step of class certification. I think those are probably the two biggest differences between having the government as your opponent and having private class counsel.