Decapitating Class Actions

One potential early approach to a class action is to "decapitate" it -- to knock out the claims of the class representative(s), often by finding some deficiency in their individual claim that supports a motion to dismiss or for summary judgment. Another approach, though, is to settle with the named plaintiffs. That buys no peace with other class members, of course, and so isn't necessarily the end of the story, but in some cases plaintiffs' counsel may find recruitment of class reps to be challenging and a decapitation strategy may have more lasting effect.

There have been a flurry of opinions recently on the topic of settling with class representatives. The Tenth Circuit began the parade in Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239 (10th Cir. 2011), holding that a defendant can't moot a class action by making an offer of judgment to the named plaintiff -- even if the offer is indisputably enough to satisfy the individual claim -- if the plaintiff refuses to accept it.

The Ninth Circuit came to the same result last month in Pitts v. Terrible Herbst, Inc., holding that such a strategy by the defendant undermines the goals of Rule 23, potentially ensuring that claims ideally suited for class treatment (by their similarity and small size...