In the past few years, defense counsel have attempted with increasing frequency to moot putative class actions in federal court by making a Rule 68 offer of judgment for complete relief on the plaintiff’s individual claims. Under the prevailing theory, such an offer would moot the plaintiff’s individual claim and thus force dismissal of the case as lacking an actual case or controversy under Article III of the U.S. Constitution. The plaintiffs’ bar developed strategies in response (generally filing a placeholder class certification motion with the complaint), and the issue eventually made its way to the U.S. Supreme Court in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). The Court decided that an unaccepted offer did not, in fact, moot an individual plaintiff’s claim, but the Court left many questions unanswered. Courts across the country are now grappling with those questions, and defendants have begun tendering settlement payments to named plaintiffs or depositing such amounts with the court, as opposed to merely offering full settlement. For the most part, courts have rejected these tactics. While courts are split on whether a defendant can moot a named plaintiff’s individual claims, they have nearly all held that class claims cannot be mooted in this manner. However, at least one district court judge held that the defendant’s actions mooted both the plaintiff’s individual claims and the plaintiff’s class claims. This article discusses several recent decisions on this topic in both the trial and appellate courts.
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