Category Archives Offers of Judgment

The Supreme Court's opinion today in Campbell-Ewald v. Gomez, No. 14-857 significantly limits the defense tactic of making an offer of judgment to moot a plaintiff's or putative class representative's claim: We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists. In short, defendant cannot make a Rule 68 offer and then argue that an unaccepted offer renders the plaintiff's claim moot (i.e. no Article III standing). The cost-shifting consequence of plaintiff not accepting a Rule 68 offer remains: the plaintiff must pay costs incurred after the offer was made "if the judgment that the [plaintiff] finally obtains is not more favorable than the unaccepted offer."  Rule 68(d).  This is important, especially when a…

Filing an bare-bones motion for class certification alongside the class-action complaint is one tactic to avoid the mooting effect of a Rule 68 offer. But what are defendants and the courts supposed to do with such a motion and its flimsy thread-bare recitals of the Rule 23 requirements? Federal judges do not like motions lingering on their dockets longer than six months; it hurts their stats and gets reported to Washington.  See, e.g., Singer v. Illinois State Petroleum Corp., 2013 wl 2384314, at *2 (N.D. Ill. May 24, 2013) ("[T]his Court is unwilling to contemplate the prospect of shattering its unbroken record of more than three decades of reporting no 'stale' pending motions in its statutorily-required September 30 report where, as here, such purported staleness is occasioned by lawyer-caused delays rather than by this Court's failing to act on a live motion."). Instead of agreeing to an arbitrarily fast six-month class-cert…

Yesterday, the 11th Circuit held that a putative class representative's claim is not mooted by an unaccepted Rule 68 offer of judgment.  See Stein v. Buccaneers LP, No. 13-15417 (11th Cir. Dec. 1, 2014). Just in time for the holidays, here's a summary of the Rule 68 legal landscape in the 8th and 10th Circuits: 8th Circuit.  There's no Eighth Circuit decision squarely on point.  The district courts have reached opposite conclusions: Goans Acquisition, Inc. v. Merchant Solutions, LLC, 2013 WL 5408460 (W.D. Mo. Sept. 26, 2013) (following the 7th Circuit's decision in Damasco) March v. Medicredit, Inc., 2013 WL 6265070 (E.D. Mo. Dec 04, 2013) (finding that pre-certification offer does not moot a named plaintiff's claim); Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 2013 WL 3771397, at *2 (D. Minn. July 18, 2013) (same); Jenkins v. General Collection Co., 246 F.R.D. 600, 602–03 (D. Neb. 2007) (same); Liles v. Am. Corrective Counseling Servs., Inc., 201 F.R.D. 452, 455…

Last week, Magistrate Judge Maughmer issued an order in Goans Acquisition, Inc. v. Merchant Solutions, LLC, No. 12-00539, 2013 WL 5408460 (W.D. Mo. Sept. 26, 2013) tackling a popular class action topic these days: To what extent does an unaccepted Rule 68 Offer of Judgment moot a putative class action claim? Although the Supreme Court dodged this ultimate question under the FLSA context in Genesis (read about our previous posts about that case its aftermath here, here, and here), in Goans, Judge Maughmer held that Goans' claim under the Telephone Consumer Protection Act (“TCPA"), both on an individual and class basis, was mooted by the unaccepted offer.  Slip op. at  *3 ( "Most federal circuits have found that an offer of judgment that would provide all the relief a plaintiff requests (or is entitled to) has the effect of mooting the action even if the offer is not accepted.")  The court did, however, find that plaintiff's conversion claim…

In an interesting case of first impression, the District Court of Kansas held that the United States Supreme Court's recent decision in Genesis HealthCare Corp. v. Symczk, 133 S.Ct. 1523 (2013) (which we discussed back in April), does not allow defendants to moot an FLSA claim by making an offer of judgment to a representative plaintiff pursuant to Fed. R. Civ. P. 68.  In Michaels v. City of McPherson, Kansas, 2013 WL 3895343 (D. Kan., July 29, 2013), the City/Defendant served an offer of judgment on the lone plaintiff asserting an FLSA claim while the motion for conditional certification was pending (and of course before any class members were able to opt into the class).  The Defendant then opposed Plaintiff's motion to amend the complaint to add a new representative plaintiff on the grounds that amendment was futile, asserting that the offer of judgment mooted the Plaintiff's claims under Genesis…

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