2017 Award Winner F. Paul Bland, Jr.

2017 Appellate Advocacy Award to F. Paul Bland, Jr. of Public Justice

F. Paul Bland, Jr.

The Officers and Trustees of the Pound Civil Justice Institute have given the Institute’s 2017 Appellate Advocacy Award to Paul Bland of Public Justice for his work on Chen v. Allstate Insurance Co., 819 F.3d 1136 (9th Cir. 2016). The award will be presented on July 23, 2017, at the Pound Fellows reception, 5:30-7:00 pm at the Sheraton Boston Hotel.

Bland conducted the oral argument in Chen, and authored the brief with co-counsel Karla Gilbride of Public Justice and Claire Prestel now with James & Hoffman, Washington, D.C. The attorneys persuaded the Ninth Circuit to reject the defendant’s attempt to avoid legal liability to a class of thousands by settling with the named class representative―a strategy known in consumer law circles as “picking off” a plaintiff. On April 12, 2016, the court held that the “pick off” tactic should not be allowed. The court reasoned that, if the strategy were permitted, the defendant could pick off named class plaintiffs indefinitely, and the claims of the remaining thousands of class members who were harmed by the defendant’s conduct would never be heard, thus defeating the purpose of a class action.

The case grappled with issues left open by the U.S. Supreme Court’s January 2016 decision in Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 2016 WL 228345. In Gomez, the Supreme Court held that, if a defendant made an offer of judgment and the plaintiff didn’t accept it, the class action was not rendered moot. But the Supreme Court left open an “unanswered hypothetical”―it declined to say whether the pick-off maneuver would have been permissible if the defendant had actually placed the settlement funds in an escrow account and the district court had entered judgment in favor of the plaintiff.

The plaintiffs in the Chen litigation, for which Pound’s 2017 award is made, alleged privacy violations under the Telephone Communications Protection Act, complaining that the defendant sent numerous unsolicited automated calls and text messages sent to their wireless telephone. They soon found themselves at the center of the latest “pick off” strategy. Allstate deposited funds to back up its pick-off offer in an escrow account, pending entry of a final district court order directing the escrow agent to pay the tendered funds to the plaintiff and ordering the defendant not to make unauthorized phone calls or send text messages to the named class representative. By doing this, Allstate attempted to use the loophole to which the Gomez court alluded in its “unanswered hypothetical.”

As a result of Bland’s superb advocacy the Ninth Circuit rejected Allstate’s attempt to pick off the named plaintiff, holding that, even if Allstate’s offer fully satisfied the named class representative’s individual claims, that did not moot the entire case. The Court explained that, if a defendant were allowed to pick off each named class plaintiff serially, the claims of the full group of people harmed by the defendant’s illegal conduct would evaporate over time and never be heard. The Ninth Circuit additionally held that the plaintiff’s claims could not be considered moot until he had a fair opportunity to seek formal class certification. In dictum, the Ninth Circuit also acknowledged what all consumer lawyers and fair-minded lawmakers know: that the class action device is often the only effective means of pursuing relief on behalf of injured persons.