Chelsea Pieroni

Christopher Rhodes Jr.

While perhaps rare, directly paying off a named plaintiff and putative class members before class certification is one tactic for potentially nipping a class action in the bud.  It can be effective when both parties are willing to play ball and negotiate a settlement. However, a recent Eleventh Circuit decision sheds light on a tricky obstacle to mooting a class action this way. This blog post will summarize that recent decision, its analysis of the pick-off exception, and the extent of the Fourth Circuit’s jurisprudence on this issue.

For starters, about seven years ago, Campbell-Ewald Company v. Gomez, 577 U.S. 153 (2016), held that a defendant cannot unilaterally moot a claim by offering to provide the plaintiff the relief sought if the plaintiff rejects the defendant’s offer, because an unaccepted settlement offer does not divest the plaintiff’s interest in the case. Since Campbell-Ewald, courts have been split on whether actual payment of full relief moots a class action. 

Several years ago, our colleague analyzed Chambers v. Moses H. Cone Memorial Hospital, where the North Carolina Supreme Court held that a plaintiff whose individual claim was mooted by the defendant’s action may continue to represent a putative class where (1) the mooting event occurred before the plaintiff had a fair opportunity to seek class certification and (2) the plaintiff has not “unduly delayed” litigating class certification. 

This year, the Eleventh Circuit weighed in. The Eleventh Circuit’s decision in Sos v. State Farm Mutual Automobile Insurance Company considered a set of facts in which the defendant likely did not offer full relief.  No. 21-11769, 2023 WL 5608014 (11th Cir. 2023). The Eleventh Circuit held that regardless of whether State Farm successfully mooted Sos’s individual claims, Sos retained standing to pursue the class claims via the pick-off exception. In other words, under Sos, a diligent plaintiff may overcome a presumption of pre-certification mootness, even if the defendant has tendered full relief, if the court determines that the defendant is capable of picking off the named plaintiff’s claims.

State Farm Pays Off Class Members in Hopes to Avoid Class Certification

In Sos, an insurance company argued that it mooted the named plaintiff’s and the putative class’s claims by offering incomplete remediation payments to each putative class member before the district court’s ruling on class certification and despite the named plaintiff’s rejection of the payments. 

The relevant factual background of Sos is as follows: Anthony Sos got into an accident in his leased car, which was covered by a State Farm insurance policy. State Farm declared the car a total loss and issued a settlement payment that included less than the full amount for title transfer fees. Mr. Sos filed a putative class action lawsuit on behalf of himself and all others similarly situated, claiming that State Farm failed to pay appropriate sales tax and title fees on leased vehicle total loss claims in Florida. 

State Farm attempted to remediate Mr. Sos’s claims individually and the claims of the putative class. First, State Farm sent a check to Mr. Sos’s attorney covering the full value of the insured driver’s claims for taxes, title fees, prejudgment interest, and attorney’s fees. State Farm also included a letter stating it expected Mr. Sos to accept the check as a settlement offer and, in return, dismiss the suit. Mr. Sos refused and responded that he would only be willing to discuss a settlement on a class-wide basis. State Farm did not respond to this offer.    

Meanwhile, State Farm engaged in unilateral remediation with putative class members by sending them checks for underpaid taxes and title transfer fees. Notably, those payments did not include amounts for attorney’s fees or prejudgment interest. 

The district court scheduled a status conference on class certification. A day before the status conference, State Farm sent another settlement payment check to Mr. Sos’s counsel.  During the status conference, State Farm argued that its delivery of a second check mooted Mr. Sos’s claims as well as the putative class claims. After an additional hearing on the class certification issue, the district court granted in part the renewed motion for class certification and eventually concluded that the class satisfied all applicable Rule 23 requirements.   

The Eleventh Circuit Rejects Attempt to Moot Class Certification by Paying Off Class Members

State Farm appealed the class certification order, contending its payments to the class members mooted the class action. The Eleventh Circuit affirmed the district court’s decision. The Eleventh Circuit reasoned that despite its efforts, State Farm’s remediation payments did not fully compensate all class members, State Farm did not pay any prejudgment interest and did not accord class members complete relief necessary to moot the class claims. Further, as discussed in more detail below, the Eleventh Circuit held that State Farm did not moot Mr. Sos’s claims or those of the putative class because Sos retained standing under the relation back doctrine. 

Normally, a putative class action becomes moot if no named plaintiff with a live claim remains at the time of the district court’s class certification order. If the named plaintiff’s claims are mooted before a class is formally certified, there are no justiciable claims before the court, and thus the case should be dismissed. 

However, courts have made exceptions to the mootness analysis. If one of these exceptions applies, class certification “relates back” to the filing of the complaint, giving the named plaintiff standing to pursue certification despite the intervening mootness of his individual claim. The Eleventh Circuit explained that in order to avoid the general presumption of mootness in these circumstances, two requirements must be met. First, the defendant must be capable of picking off the named plaintiff’s claims, and, second, the named plaintiff must be diligent in pursuing the class claims.

Here, both requirements were met. The record showed that State Farm tried to pick off Sos’s case and evade class certification from the very beginning of the litigation by making multiple offers, though clearly insufficient, to settle the claims with Sos individually and with putative class members. The record also showed that Sos had diligently pursued the class claims over the course of six years by personally participating in discovery and mediation and complying with all the district court’s filing deadlines.       

The Eleventh Circuit also noted important public policy reasons for invoking the relation back doctrine in circumstances like these. Allowing a class’s claims to be picked off by a defendant’s tender of judgment before an affirmative ruling on class certification would frustrate the objectives of a class action. Moreover, without an exception to the mootness analysis, district courts could avoid certifying meritorious class actions simply by entering judgment for named plaintiffs before addressing class certification. Ultimately, this approach would conflict with the Supreme Court’s instruction in Campbell-Ewald that a potential class representative must be accorded a fair opportunity to show that certification is warranted.

Coming Up Short: The Fourth Circuit’s Coverage of the Pick-Off Exception

Closer to home, the Fourth Circuit has not squarely addressed whether actual payment of full relief moots a potential class action. It came close to doing so in Bennett v. Office of Federal Employee’s Group Life Insurance, 683 F. App’x 186 (4th Cir. 2017), an unpublished per curiam decision.  In Bennett, former Judge James Beaty, Jr. of the Middle District of North Carolina found that MetLife’s offer of settlement, which included a check for the benefits of the named plaintiff in the full amount she asserted she was due, mooted the plaintiff’s claims. When Judge Beaty made this decision, however, Campbell-Ewald had not yet been issued. Applying Campbell-Ewald, the Fourth Circuit concluded that the plaintiff’s claims were not moot but did not expound on its reasoning. 

The Fourth Circuit has not addressed whether actual payment of full relief moots a claim. Accordingly, district courts in the Fourth Circuit continue to navigate the current circuit split themselves, with some contributing to the ongoing conversation. In Fernandez v. RentGrow, Inc., 341 F.R.D. 174, 205 (D. Md. 2022), for example, Judge James Bredar stated, citing Bennett, that “it is inappropriate for the Court to say whether a settlement offer is complete when a plaintiff’s recovery might include punitive damages.” 

More recently, in Hernandez v. KBR, INC., 2023 WL 3355332, at *8 (E.D. Va. 2023), Judge Henry Hudson—citing circuit and district court decisions from across the nation—concluded that, although the defendants paid the Department of Labor amounts owed to the plaintiffs for unpaid wages, the plaintiffs were “still entitled to seek judgment against [the defendants].” Judge Hudson also noted that full relief likely was not tendered because of plaintiffs’ ability to recover attorneys’ fees and costs under the applicable statute.

Conclusion

Attempts to moot a class action outside the settlement process may not make the class action go away at all, as the Supreme Court has made clear that a defendant cannot unilaterally moot a claim by offering to provide the plaintiff the relief sought when the plaintiff rejects the defendant’s offer. If a defendant would like to increase its chances of mooting claims with a plaintiff or putative class, the defendant should carefully assess the amount alleged in damages, any other statutory bases for monetary relief, and the jurisdiction’s rule on assessing attorney’s fees. 

**Ellis & Winters’s Best in Class Blog covers developments in class actions in courts across the United States, focusing on insights for class-action defense.**