Judge Arthur Spatt of the Southern District of New York ruled on March 14, 2005 that a class action initially filed in May of 2003 could proceed with a new class representative. While the Equitable’s motions to dismiss the original complaint were pending, the original plaintiff instituted a NASD arbitration against the broker who sold him his annuity, and the he accepted a settlement which included a release of Equitable. Defendant supplemented its motion to dismiss with these additional grounds, while a new plaintiff sought to intervene. A motion for class certification had never been filed. Recognizing the general rule that the entire action is mooted where the class representative’s claims are settled prior to certification, the court noted that the filing of a motion for class certification will generally preserve the controversy under the theory that the certification “relates back” to the filing of the complaint. Class claims are also preserved, the court held, where, as here, there is no “realistic and reasonable opportunity” to move for class certification, (as no answer had ever been filed and the Federal Rules do not “require or encourage premature certification determinations”). Eckert v. The Equitable Life Assur. Soc’y of the U.S., 277 F.R.D. 60 (S.D.N.Y. 2005).
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