We previously reported on two Rule 68 offer of judgment cases: Campbell-Ewald Co. v Gomez, 136 S.Ct. 663 (2016), see Supreme Court Rules Unaccepted Rule 68 Offer of Judgment Cannot Moot Class Action , in which the Supreme Court left open the possibility that an actual tender of the full amount of plaintiff’s claim would moot the claim, and Bais Yaakov v. Graduation Source, 2016 WL 1271693 (S.D.N.Y. March 29, 2016), see Will Tender of Full Amount of Named Plaintiff’s Claim Moot a TCPA Class Action?, in which the Southern District of New York answered that open question in the negative.
Now the Ninth Circuit has weighed in on the issue. As in Bais Yaakov, a defendant in a Telephone Consumer Protection Act (TCPA) case deposited the full amount of plaintiff’s individual claims into an escrow account and argued that a consented-to judgment would afford complete relief, moot plaintiff’s claims, and prevent the class from proceeding.
While the Ninth Circuit agreed that the offer afforded plaintiff complete relief, it disagreed that plaintiff’s individual claims or the case as a whole were moot. The court found plaintiff’s individual claims were not at that time mooted since he had not received the relief to which he was entitled. In effect, the court set a standard in which a defendant must deposit the money in the court and unconditionally relinquish his interest in the money before the law of tender operates to moot the case. Also, as in Bais Yaakov, the court read Campbell-Ewald to require plaintiff a fair opportunity to move for class certification before it would enter judgment.