September 19, 2013 Articles

Throwing to First: A Defendant's Pick-Off Move

The strategy may have received new life from Genesis Healthcare Corp. v. Symczyk.

By Matthew M.K. Stein

A pitcher facing the opposing team’s slugger, someone on base, and two outs can sometimes escape the inning by picking off the base runner. Like that pitcher, a defendant facing a class action may seek to escape the litigation without having to defeat a class-certification motion by picking off the plaintiff. In baseball, the pitcher throws to the right base and his teammate applies the tag. In litigation, the defendant tenders the relief requested by the individual plaintiff (through a Rule 68 offer of judgment or otherwise, or perhaps even by reaching an individual settlement with the named plaintiff).

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