Class Action Dismissal Highlights Limits to the “Picking Off” Exception to Mootness
The District of New Jersey recently dismissed a putative class action lawsuit against Capital One Bank, finding the plaintiff’s recovery during the suit of the full amount of damages sought mooted her claim. The would-be class representative, plaintiff Ellen Fensterer, sued Capital One Bank to recover funds used to purchase British Airways flight tickets. After COVID-19 imposed travel restrictions and caused the flights to be canceled, Fensterer sought recovery of $4,906.31 in expended funds and rewards points. Neither British Airways nor Capital One Bank provided Fensterer’s requested refund, causing Fensterer to file a putative class action against Capital One Bank—and not British Airways—for recovery of the funds. Then, during the pendency of the lawsuit, British Airways issued the full refund sought by Fensterer, and Capital One Bank processed that refund and credited Fensterer’s account. Because a non-party ultimately provided the exact remedy sought, the District of New Jersey applied the general rule of mootness, rather than the “picking off” exception, and accordingly dismissed Fensterer’s claim.
The “picking off” exception prevents the loophole that would otherwise allow Capital One Bank (or any defendant) to simply buy off the named plaintiff’s claims before class certification, thereby preventing class certification indefinitely, causing piecemeal litigation, and undermining the purpose of class action litigation generally. But that did not happen here because British Airways—a non-party to this lawsuit—eventually provided the sought-after full refund. Because the Third Circuit has held that the “picking off” exception requires situations where “actions of a defendant” cause mootness, and that particular situation did not present itself in this case, the District of New Jersey found that it must analyze the matter under general mootness principles. Finding “Plaintiff no longer has a concrete interest in the outcome in this case because she has received the very refund she was seeking,” the district court dismissed the matter under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction as moot.
Overall, the Fensterer v. Capital One Bank (USA), N.A. class action litigation highlights the bounds of the “picking off” exception—i.e., only a defendant’s direct actions permit application of the exception to survive mootness challenges, allowing the named class representative to continue seeking to represent the class. Because Fensterer’s suit was against only Capital One Bank—and not British Airways—only a direct action by Capital One Bank providing the sought-after remedy could trigger the “picking off” exception, and thus prevent mootness. The outcome likely would have been different had Fensterer additionally named British Airways as a defendant. But simply being an intermediary or mere conduit (e.g., a credit card company) that facilitates transactions at the behest of another non-party entity is insufficient to apply the “picking off” exception to mootness.