Judge Salinger: Class Action Defendant Cannot Pick Off the Named Plaintiff by Tendering Full Damages

In a case concerning alleged violations of the Massachusetts law governing the involuntary towing of motor vehicles, Judge Salinger concluded that the defendant’s “attempt to ‘pick off’ the named plaintiff did not moot [the plaintiff’s] individual claims or the class action.”

The named plaintiff, on behalf of a putative class, sued a towing company for allegedly violating the Massachusetts consumer protection law, G.L. c. 93A, § 9, among other claims. The towing company tendered full treble damages to the named plaintiff, who rejected the offer.

Quoting Campbell-Ewald Co. v. Gomes, a U.S. Supreme Court decision, Judge Salinger noted:

‘[w]hen a plaintiff rejects such an offer— however good the terms—her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity with no operative effect.’

The defendant argued that the Supreme Court decision was distinguishable because it tendered payment of the full amount of treble damages without requiring Silva to agree to the entry of judgment and without any other conditions or restrictions. Judge Salinger rejected the defendant’s argument:

The Court is not convinced that this distinction makes any difference. If a defendant cannot moot a putative class action by offering to pay the named plaintiff the full amount of her claimed damages, it similarly cannot do so by actually tendering payment of the same amount.

Silva v. Todisco Services

March 6, 2018

Full decision here.

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