Class actions can be an efficient and fair way to resolve, in one case, disputes that may affect a large number of people. By consolidating numerous individual claims with common issues into a single proceeding, the class-action device saves the resources of both the courts and the parties. The courts also recognize the deterrent effect of class action lawsuits, which hold defendants accountable for conduct that may be unlawful and widespread but difficult to address because the conduct does not harm any single individual enough to make it economically possible to bring a lawsuit.

          In recent years, however, the strategy of “picking off” the named plaintiff in order to moot the class-wide claims has become a popular way to try to thwart class actions. The “pick off” maneuver, in which the defendant cancels, pays off, or otherwise terminates the named plaintiff’s individual claim, can be a quick and easy way for a defendant to avoid potential class-wide liability.

          In a new opinion from the North Carolina Supreme Court arising from an appeal brought by Higgins Benjamin partner John Bloss, the Court ensured that a class action plaintiff in North Carolina will have a fair opportunity to present the issue of class certification to the trial court notwithstanding the defendant’s effort to “pick off” the named plaintiff’s claims.

          On 23 August 2011, Christopher Chambers had an emergency appendectomy at the Moses H. Cone Memorial Hospital in Greensboro. Mr. Chambers was uninsured at the time. When Chambers presented for treatment, he signed Moses Cone’s Contract agreeing to pay Moses Cone’s “regular rates and terms” for treatment. The hospital bill Plaintiff later received from Moses Cone was substantially greater than the payment amount required by Moses Cone from insured, Medicare, and Medicaid patients for similar services, although all patients signed the same agreement to pay Moses Cone’s “regular rates and terms.”

          In May 2012, Mr. Chambers, represented by Higgins Benjamin, filed a class action complaint against Moses Cone seeking a declaratory judgment that the contract Chambers signed as an uninsured patient entitled Moses Cone to recover no more than the reasonable value of the services it provided. Moses Cone filed a counterclaim against Chambers and his wife for payment of its emergency room bill. Later, Moses Cone abruptly dismissed its counterclaim and then successfully moved for dismissal of the putative class action on the ground that Chambers’ claim became moot because his individual obligation to Moses Cone had been extinguished.

          On June 5, 2020, the Supreme Court of North Carolina reversed. The Court adopted an exception to the mootness doctrine preventing a defendant from avoiding class-wide liability by unilaterally extinguishing the plaintiff’s individual claims. This “pick off” exception to the mootness doctrine applies, the Court held, “when the event that moots the plaintiff’s claim occurs before the plaintiff has had a fair opportunity to seek class certification and provided that the plaintiff has not unduly delayed in litigating the motion for class certification.” Thus, “when satisfaction of the plaintiff’s individual claim occurs before the court can reasonably be expected to rule on the class certification motion, the plaintiff’s stake in the litigation is not extinguished, and the case is not moot.”

If you would like to discuss a potential class action lawsuit contact John Bloss at (336) 273-1600 or