Pick-Off Move Does Not Work

Timlick v. Nat’l Enter. Sys., Inc., No. A15423 (D1d3 Jun. 21 2019)

This is a class action over debt collection practices. The relevant statue provides for an opportunity to cure. Which defendant did as to the lead plaintiff. The principal question is whether once that happened, the trial court could appropriately dismiss the whole class action. 

The Court of Appeal holds it could not, under what is known as the “pick off” exception. The whole point of a class action—giving a large number of people relatively small amounts of relief—would be frustrated if a defendant could unilaterally resolve claims by a class rep by tendering the available relief while withholding the same relief from the rest of the class. At minimum, the class must be afforded an opportunity to amend and find a new rep. And even if that can’t happen, the named plaintiff can continue on as the rep if he or she can “continue to fairly represent the class in light of the individual relief offered by defendant.” And in any event, that’s an issue that needs to be decided in the class cert context. A defendant can’t just tender relief to the rep and then move to dismiss the whole case.

Reversed.