In August, I reported on a new Ninth Circuit opinion holding that a defendant may not defeat a class action by "picking off" the class representatives. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011).
In the Seventh Circuit, however, it appears the defendant can "pick off" the class representive -- simply by extending a full-relief settlement offer before the class certification motion is filed. Damasco v. Clearwire Corp., ___ F.3d ___ (7th Cir. Nov. 18, 2011). The solution to the obvious problem this creates? File the class certification motion simultaneously with the complaint:
A simple solution to the buy-off problem that Damasco identifies is available, and it does not require us to forge a new rule that runs afoul of Article III: Class-action plaintiffs can move to certify the class at the same time that they file their complaint. The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs. See Primax, 324 F.3d at 546-47.
Slip op. at 9 (emphasis added).
And if discovery is needed to draft that motion? Well of course the district court will postpone the hearing to allow it:
Damasco argues that this solution would provoke plaintiffs to move for certification prematurely, before they have fully developed or discovered the facts necessary to obtain certification. See 5 MOORE’S FEDERAL PRACTICE § 23.64[b], at 350 (3d ed. 2011). But this objection is unpersuasive. If the parties have yet to fully develop the facts needed for certification, then they can also ask the district court to delay its ruling to provide time for additional discovery or investigation.
Id. (emphasis added). In other words, for cases within the jurisdictional bounds of the Seventh Circuit, it will be necessary to file the complaint, the class certification motion, and a motion to delay the ruling on that motion -- all at the same time -- or risk getting involuntarily "picked off."