After the Supreme Court’s decision in Campbell-Ewald, courts around the country have been forced to reexamine not only when a plaintiff’s claims can be mooted, but also whether a defendant’s attempt to “pick off” the named plaintiff’s claim can moot the entire proposed class’s claims.
While Campbell-Ewald, as mentioned above, does not actually address the picking off exception, we see in it some support for the principles animating the exception in the Court’s discussion of class action standing. Specifically, the Court noted that while a class does not become an independent entity until certification, “a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” This statement seems to suggest a corollary: when a would-be class representative is not given a “fair opportunity” to show that certification is warranted (perhaps because her individual claim became moot before she could reasonably have been expected to file for class certification), she should be permitted to continue seeking class certification for some period of time after her claim has become moot.
Without this “fair opportunity,” there would be, as we explained in Weiss, a race between the plaintiff and the defendant to see who could act first—the plaintiff in moving for class certification or the defendant in mooting the claims of would-be class representatives. Such a race would often thwart proper factual development of class action claims and thus prevent courts from fully and fairly assessing the merits of class certification.…Based primarily on Weiss, but also upon consideration of the well-reasoned approaches of our sister circuits, we reaffirm the validity of the picking off exception. When an individual plaintiff’s claim for relief is acutely susceptible to mootness and it is clear from the complaint that the plaintiff is seeking to represent a class, we may relate such a claim back to the date of the filing of the class complaint.