The Third Circuit’s analysis is brief, but may shed light on whether the post-Cambell-Ewald tactic of “furnishing” full relief – rather than merely offering it – is a distinction with a difference.
The Supreme Court held in Campbell-Ewald that an an unaccepted settlement offer, made to a putative class representative, “has no force” and therefore does not moot the class action. Since then, at least one court has distinguished Campbell-Ewald on the ground that when a settlement payment is furnished, rather than merely offered, the case may be mooted. Leyse v. Lifetime Entertainment Servs., No. 13-cv-5794 (S.D.N.Y. Mar. 17, 2016).
The Third Circuit’s ruling Monday in Weitzner v. Sanofi Pasteur, does not directly address the issue, but its language can be read to suggest that the relevant question is not whether a settlement has been furnished, but whether the furnished payment has been accepted:
These holdings [in Campbell-Ewald] resolve the question presented to us on interlocutory review. Because an unaccepted settlement offer “has no force,” it moots neither Plaintiffs’ individual claims nor the case as a whole.
(emphasis added); see also Jacobson v. Credit Control Servs., Inc., 2016 WL 929427, at *1 (10th Cir. Mar. 10, 2016) (“On January 20, 2016, the Court decided Gomez, holding that an unaccepted settlement offer does not, in fact, render a plaintiff’s case moot….”).
Given the still-frequent use of the “pick-off” tactic in class cases, this language will almost certainly be cited to a Third Circuit district court in the weeks to come.