Additional Thoughts On Class Plaintiff 'Pick-Offs'

Law360, New York (February 12, 2016, 3:09 PM EST) -- Within days after the U.S. Supreme Court's decision in Campbell-Ewald v. Gomez, rejecting an effort to "pick off" a class plaintiff and ending the case, a judge in the Eastern District of New York, Sandra J. Feuerstein, read the decision of the Supreme Court as not permitting a defendant to "pick off" a class plaintiff by depositing allegedly sufficient funds to satisfy a plaintiff's claim, and therefore, end the case. I believe this is the first district court to consider the opinion. In Brady v. Basic Research LLC, the defendant moved for permission to deposit funds with the clerk of the court pursuant to Federal Rule of Civil Procedure 67 "consistent with Rule 68 offer of judgment that they had previously made to plaintiffs." Reading Gomez to require the defendant to concede class certification, clearly something that had not occurred, Judge Feuerstein wrote, "The Supreme Court's directive is that 'a would-be class representative with a live claim of her own must be awarded a fair opportunity to show that certification is warranted,' Gomez at *11."...

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