Superman’s weakness is kryptonite, Dracula’s holy water, and the Wolfman’s silver bullets. What about class-action plaintiffs? On May 18, 2015, the U.S. Supreme Court agreed to hear a case that, depending on its result, could allow companies to defeat nearly every type of class action out there. The idea would be for a business to offer full payment (presumably a small sum) to the individual trying to create a class action. That offer would then “moot” the plaintiff’s lawsuit and cut off her ability to seek class liability. The process would be repeated for any other would-be class representative, and in theory the paltry recoveries would discourage crusading attorneys from pursuing the case. Will it work?
That question has divided courts around the country. Some federal courts of appeals have approved this sort of “pick off” strategy, while others have flatly rejected it. And two years ago, in the case of Genesis Healthcare Corporation v. Symczyk, the U.S. Supreme Court came close to resolving the debate. But Symczyk was technically not a class action, but rather it was a collective action under the federal Fair Labor Standards Act (FLSA). Although the high court allowed the pick-off maneuver to work in that case, the tribunal’s language implied that the same outcome would not necessarily occur in a garden-variety class action. Since then, lower courts have seized on that language as grounds for spurning pick-offs outside the context of FLSA actions.