In Keim v. ADF MidAtlantic, LLC, decided on July 15, 2013 in the Southern District of Florida, the defendants were allowed to moot the threat of a class action by paying the plaintiff everything he demanded on his individual claim. This procedure, known as "picking off", is sure to anger class-action plaintiff attorneys and set off new legal strategies designed to ensure the class actions under the Telephone Consumer Protection Act (TCPA) can continue at their current pace.
Attorneys for Brian Keim filed a class action lawsuit in May 2012 over auto-dialed calls allegedly made without consent. The attorney sought up to $1500 for each call to a class member, but as is the common practice, they did not immediately ask the judge to rule on whether they could represent the entire class instead of just Keim. Trying a tactic often used in the Northern District of Illinois, the defendants made an offer of judgment to pay $1500 and have judgment entered against them in order end Keim's claim. Seeking to represent the entire class (and earn legal fees accordingly), Keim's attorneys refused the offer.
The defendants then asked Judge Kenneth A. Marra to enter the judgment in favor of Keim and then declare the class-action portion of the case moot. Judge Marra agreed that the defendants' offer of judgment prevented Keim's attorneys from pursuing a class action. According to Judge Marra's ruling, picking off plaintiffs is acceptable up until the time that the plaintiff seeks class certification, which had not yet been done by Keim's attorneys. Judge Marra ruled that if plantiffs' attorneys don't want their clients picked off, they 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," wrote Marra. In light of this ruling, class action defense attorneys will likely rush to pick off plaintiffs, while plaintiffs' attorneys should be quick to ask the court to certify their proposed class.
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