October 31, 2018 Articles

The Revival of Rule 68 as a Factor in Class Actions

A defendant’s unaccepted offer of judgment may make the plaintiff atypical and inadequate.

By Fred Burnside and Zana Bugaighis

When the Supreme Court issued its opinion in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016)—holding that a Rule 68 offer of judgment does not moot a class representative’s claim—most lawyers assumed that was the end of the Rule 68 gambit. Presumptions regarding the death of Rule 68 as a factor in class actions, however, appear premature.

While a defendant’s unaccepted Rule 68 offer of judgment will not moot a named plaintiff’s claims, it may make the plaintiff atypical and inadequate and thus ineligible to represent the putative class. In Franco v. Allied Interstate, 2018 WL 3410009 (S.D.N.Y. July 13, 2018), Judge Katherine B. Forrest of the Southern District of New York denied class certification in a Fair Debt Collection Practices Act case, holding that plaintiff Gilberto Franco was an inadequate class representative based on Franco’s decision to reject defendant Allied Interstate LLC’s Rule 68 offer to provide full satisfaction of Franco’s individual claims.

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