Plaintiffs’ Response to Defendants’ Suggestion of Mootness — Blessed Cajuns, LLC v. Guzman (Dkt. 22, N.D. Tex.)

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The plaintiffs' response to the defendants' suggestion of mootness in Blessed Cajuns, LLC, et al. v. Isabella Casillas Guzman, et al., Case No. 4:21-cv-00677-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division, filed June 3, 2021 as Document 22. The defendants' brief of June 1, 2021 argued the case was moot because the named plaintiffs had received Restaurant Revitalization Fund money and processing of priority applications had been paused. The plaintiffs answer that the argument is foreclosed by the voluntary-cessation doctrine, noting that when they sued on May 23, 2021 the defendants were considering only priority applications. The response is signed by Jonathan F. Mitchell, counsel for the plaintiffs and the proposed class.

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Case 4:21-cv-00677-O Document 22 Filed 06/03/21            Page 1 of 4 PageID 718


              UNITED STATES DISTRICT COURT
           FOR THE NORTHERN DISTRICT OF TEXAS
                  FORT WORTH DIVISION


 Blessed Cajuns, LLC, et al.,

                       Plaintiffs,
                                               Case No. 4:21-cv-00677-O
 v.

 Isabella Casillas Guzman, et al.,

                       Defendants.


              PLAINTIFFS’ RESPONSE TO DEFENDANTS’
                   SUGGESTION OF MOOTNESS
      The defendants’ brief of June 1, 2021, claims that this case has become moot
because: (1) plaintiffs Blessed Cajuns LLC, Janice Smith, Jason Smith, PSBH LLC,
and Eric Nyman have received the money that they sought from the Restaurant Re-
vitalization Fund; and (2) the defendants have “paused processing of priority applica-
tions until its processing of non-priority applications reaches the point where such
priority applicants can be considered in sequential order.” Defs.’ Br. (ECF No. 20) at
5. The defendants’ mootness argument is mistaken for two separate and independent
reasons.
      First. The defendants’ mootness argument is foreclosed by the voluntary-cessa-
tion doctrine. When the plaintiffs filed their lawsuit on May 23, 2021, the defendants
were considering only “priority” applications from women and racial minorities — and
they had no intention of halting the processing of those priority applications so that
non-priority applications could catch up when the 21-day expired on May 24, 2021.
After the plaintiffs sued and sought a class-wide injunction to undo the advantages
that had been unlawfully conferred upon “priority” applicants, the defendants
changed their tune. They quickly “processed” the named plaintiffs’ applications and



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Case 4:21-cv-00677-O Document 22 Filed 06/03/21               Page 2 of 4 PageID 719


disbursed the money that they sought, and they announced to the Court on June 1,

2021, that they had indeed stopped processing priority applications so that non-pri-
ority applications could be considered and processed alongside the remaining priority
applications in the order in which they were originally received. See Third Miller Decl.
(ECF No. 20-1) at ¶ 6–8, 16. This is a textbook example of “voluntary cessation.”

See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (“[A] defend-
ant’s voluntary cessation of a challenged practice does not deprive a federal court of
its power to determine the legality of the practice.”). The defendants were engaged in

unconstitutional race and sex discrimination when the plaintiffs sued, and they
changed their ways only in response to the plaintiffs’ lawsuit. But the defendants
cannot escape classwide prospective relief by turning on a dime and halting the
challenged activities before this Court can rule on the legality of these practices.
    Second. A class-action defendant cannot “moot” a lawsuit by paying off the lead
plaintiffs before the district court has had an opportunity to rule on class certification.
The Supreme Court has repeatedly and emphatically rejected this attempted “pick
off” maneuver. See Campbell–Ewald v. Gomez, 136 S. Ct. 663, 672 (2016) (“While a
class lacks independent status until certified, see Sosna v. Iowa, 419 U.S. 393, 399
(1975), a would-be class representative with a live claim of her own must be accorded
a fair opportunity to show that certification is warranted.”); Deposit Guarantee Na-
tional Bank v. Roper, 445 U.S. 326, 339 (1980) (“Requiring multiple plaintiffs to
bring separate actions, which effectively could be “picked off” by a defendant’s tender
of judgment before an affirmative ruling on class certification could be obtained, ob-
viously would frustrate the objectives of class actions; moreover it would invite waste
of judicial resources by stimulating successive suits brought by others claiming ag-
grievement.”); see also Chen v. Allstate Ins. Co., 819 F.3d 1136, 1138–39 (9th Cir.
2016) (“[A] would-be class representative with a live claim of her own must be ac-
corded a fair opportunity to show that certification is warranted.” (emphasis added)


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Case 4:21-cv-00677-O Document 22 Filed 06/03/21              Page 3 of 4 PageID 720


(quoting Campbell–Ewald, 136 S. Ct. at 672)). The defendants are attempting to

deny the plaintiffs a “fair opportunity” to seek class-wide prospective relief while pre-
serving their ability to continue violating the constitutional rights of the absent class
members. This is precisely what Campbell–Ewald and Roper forbid.

                                             Respectfully submitted.

 Gene P. Hamilton                            /s/ Jonathan F. Mitchell
 Virginia Bar No. 80434                      Jonathan F. Mitchell
 Vice-President and General Counsel          Texas Bar No. 24075463
 America First Legal Foundation              Mitchell Law PLLC
 300 Independence Avenue SE                  111 Congress Avenue, Suite 400
 Washington, DC 20003                        Austin, Texas 78701
 (202) 964-3721                              (512) 686-3940 (phone)
 gene.hamilton@aflegal.org                   (512) 686-3941 (fax)
                                             jonathan@mitchell.law
 Charles W. Fillmore
 H. Dustin Fillmore                          Robert Henneke
 The Fillmore Law Firm, L.L.P.               Texas Bar No. 24046058
 201 Main Street, Suite 801                  Texas Public Policy Foundation
 Fort Worth, Texas 76102                     901 Congress Avenue
 (817) 332-2351 (phone)                      Austin, Texas 78735
 (817) 870-1859 (fax)                        (512) 472-2700 (phone)
 chad@fillmorefirm.com                       rhenneke@texaspolicy.com
 dusty@fillmorefirm.com

 Bradley A. Benbrook*
 California Bar No. 177786
 Stephen M. Duvernay*
 California Bar No. 250957
 Benbrook Law Group, PC
 400 Capitol Mall, Suite 2530
 Sacramento, California 95814
 (916) 447-4900 (phone)
 (916) 447-4904 (fax)
 brad@benbrooklawgroup.com
 steve@benbrooklawgroup.com

 * pro hac vice applications forthcoming
                                             Counsel for Plaintiffs and
 Dated: June 3, 2021                         the Proposed Class




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Case 4:21-cv-00677-O Document 22 Filed 06/03/21        Page 4 of 4 PageID 721


                         CERTIFICATE OF SERVICE

        I certify that on May 27, 2021, I served this document through CM/ECF
upon:

Christopher D. Dodge
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
(202) 598-5571
christopher.d.dodge@usdoj.gov

Counsel for Defendants

                                               /s/ Jonathan F. Mitchell
                                               Jonathan F. Mitchell
                                               Counsel for Plaintiffs and
                                               the Proposed Class




plaintiffs’ response to defendants’ suggestion of mootness             Page 4 of 4

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