Earlier this year, the Supreme Court issued its opinion in Campbell-Ewald v. Gomez, and held that an unaccepted Rule 68 offer does not moot putative class action claims. Almost immediately afterward, the lower courts began grappling with the question the SCOTUS expressly held open: whether a furnished payment (as opposed to a mere offer) could suffice to moot putative class claims. Most recently, we wrote about the Ninth Circuit’s ruling in Chen v. Allstate, in which the Ninth Circuit held that a furnished payment did not have the effect of mooting the claims in that case.
How have the district courts ruled on the issue outside the Ninth Circuit? Most recently, Judge Elaine E. Bucklo of the Northern District of Illinois opted to follow the Ninth Circuit’s ruling, holding:
I agree with the Ninth Circuit and the several district courts that have concluded that the Campbell–Ewald Court’s admonition that “a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted,” id. means that it is inappropriate to enter judgment on a named plaintiff’s individual claims, “over the plaintiff’s objection, before the plaintiff has had a fair opportunity to move for class certification.”
Fauley v. Royal Canin U.S.A., Inc., No. 15 C 2170, 2016 WL 2766286, at *1 (N.D. Ill. May 13, 2016).
In the same opinion, Judge Bucklo surveyed how other district courts have ruled in recent months. The inconsistent outcomes in the surveyed cases all but guarantees that we’ll see an opinion from the Second Circuit (and likely other circuits) in the coming months:
- Yaakov v. Graduation Source, LLC, 2016 WL 872914 (S.D.N.Y. Mar. 7, 2016) (denying defendants’ request to issue an order “directing the Court’s Finance Unit to accept payment of $9,200.00 into the Court’s registry for the benefit of Plaintiff, and upon proof of payment, to enter judgment in favor of Plaintiff”)
- Brady v. Basic Research, LLC., 312 F.R.D. 304 (E.D.N.Y. Feb. 3, 2016) (denying motion for permission to deposit funds with Clerk of Court in plaintiffs’ favor, “consistent with the Rule 68 offer of judgment”)
- South Orange Chiropractic Center, LLC v. Cayan LLC, 2016 WL 1441791 (D. Mass Apr. 12, 2016) (holding the named plaintiff’s individual TCPA claims moot “because Defendant has offered to deposit a check with the court, to satisfy all of Plaintiff’s individual claims (and more), and to have the district court enter judgment in Plaintiff’s favor”)
- Price v. Berman’s Automotive, Inc., 2016 WL 1089417 (D. Md. Mar. 21, 2016) (issuance of unconditional cashier’s check with proof of payment and delivery to plaintiff would moot plaintiff’s claim)
- Leyse v. Lifetime Entertainment Services, LLC, 2016 WL 1253607 (S.D.N.Y. Mar. 17, 2016) (“a defendant’s deposit of a full settlement with the court, and consent to entry of judgment against it, will eliminate the live controversy before a court”).