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Note: You Can Pick Your Friends, but You Cannot Pick Off the Named Plaintiff of a Class Action: Mootness and Offers of Judgment Before Class Certification


Among all of the complexities of class actions, courts have consistently struggled with applying traditional principals of mootness to the named plaintiff of a proposed class action complaint and determining its corresponding effect class-wide. Courts have reached differing—and often irreconcilable—positions where (1) a named plaintiff's claim has been rendered moot before filing a motion for class certification, or (2) before the motion for certification has been decided. This ambiguity has generated a tactical mechanism for defendants, dubbed by the Court as "picking off" or "buying off" the named plaintiffs. "Picking off" is accomplished by submitting an offer of judgment to the named plaintiff under Federal Rule of Civil Procedure 68, thereby satisfying the plaintiff's claim in its entirety. This Note argues that in a proposed class action suit, a defendant's offer for complete satisfaction of a named plaintiff's claim—a Rule 68 offer—prior to certification should not render the entire claim moot if that offer was made with the intent to avoid class litigation of the issue by intentionally "picking off" the named plaintiff before the named plaintiff could reasonably file for class certification.