It has been about five months since the Supreme Court decided in Campbell-Ewald that unaccepted Rule 68 offers to proposed class representatives do not give rise to mootness. As soon as that opinion issued, readers noted the question the decision expressly chose not to answer:
We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.
As two recent opinions demonstrate, courts continue to grapple with the Supreme Court’s unanswered question.
In the first, Demmler v. ACH Food Companies, Judge Sorokin of the District of Massachusetts held that the distinction between an unaccepted Rule 68 offer, on the one hand, and a check sent without any preconditions, on the other hand, “makes all the difference.” The court concluded it could not offer “any more relief” than what defendant had already tendered, and concluded both the individual and proposed class claims were moot.
In stark contrast, the Campbell-Ewald litigation has returned to the district court, where the defendant promptly paid $10,000 (in two separate ways) to the plaintiff, in an attempt to squeeze through the “opening” left by the Supreme Court. Judge Gee, followed Ninth Circuit precedent and rejected defendant’s attempt “to split hairs”:
In short, [plaintiff] Gomez’s matter remains “live” because he has not accepted the settlement offer, and because this Court has not entered judgment in his favor. Gomez has not yet had a fair opportunity to show whether or not class certification is warranted, and it would not be appropriate under the circumstances for the Court to enter judgment for Plaintiff against his wishes. Because depositing funds with this Court will not render Gomez’s claim moot, C-E’s motion for leave to deposit funds with the Court is denied.
For the time being, it seems the “pick off” method will be viable (or not) on a circuit-by-circuit and at times court-by-court basis.