The Bar News

Reinstating the pick-off move for class certifications

The pick-off move isn't limited to baseball, as Hon. James Fitzgerald Smith and Sonja Dimitrijevic explain in the latest issue of the ISBA's Trial Briefs newsletter.

In class action cases, defendants "pick off" a class representative by tendering him or her complete relief before the class is certified. That moots the class action and "compel[s] plaintiff’s counsel to seek another class representative, which is frequently tricky," the authors observe.

Appellate courts, not fans of the move, developed a pick-off exception that allowed the class to be certified despite the tender. But the supreme court put a stop to that this year in Barber v. American Airlines, "explicitly rejecting the 'pick off' exception" and reaffirming "the 'pick off' rule, under which a tender prior to certification automatically results in the mooting of the class action," Smith and Dimitrijevic write.

They go on to discuss Gatreaux v. DKW Enterprises, LLC, a first district case from last month that implements the Barber pick-off rule. Read their analysis.

Posted on October 18, 2011 by Mark S. Mathewson
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