The Supreme Court ruled in Campbell-Ewald v. Gomez earlier this year that a defendant may not “pick off” the class representative by offering full individual relief under Rule 68. The holding was believed by many to be the end of the pick off defense. Maybe not.
In Leyse v. Lifetime Entertainment Servs., No. 13-cv-5794 (S.D.N.Y. Mar. 17, 2016), a court yesterday entered judgment as a result of a defendant’s offer of full judgment. From the opinion:
Only Leyse’s individual claim remains, for which he can recover $500 in statutory damages, or a maximum award of $1500 if the violation was willful or knowing. … Defendant Lifetime has offered to pay the plaintiff $1,503 .00 plus costs, and moved for entry of judgment in favor of plaintiff and to dismiss the complaint. Leyse has not accepted this offer. … Defendant’s motion to enter judgment on behalf of plaintiff Leyse will be granted upon payment to the Clerk of Court for credit to plaintiff, of the full offered amount and an additional amount of $400 to cover the costs estimated by the Clerk.
How did the district court distinguish Campbell-Ewald?
I do not read Campbell-Ewald to disrupt the Second Circuit’s precedent allowing for the entry of judgment for the plaintiff over plaintiffs objections. Cambpell-Ewald precludes a dismissal in favor of the defendant because of unaccepted, offered relief that obliges the defendant to pay nothing, where such offered relief is “only a proposal” with “no continuing efficacy.” … But once the defendant has furnished full relief, there is no basis for the plaintiff to object to the entry of judgment in its favor.
(citations omitted.) As noted in the first quote above, the case was no longer a putative class action — perhaps that will be a basis on which future courts distinguish yesterday’s holding in Leyse.