News & Analysis as of

Rule 68

Seventh Circuit Rejects Latest Attempt To Pick Off TCPA Plaintiffs

by Foley & Lardner LLP on

Defense counsel facing potential multimillion-dollar judgments from the threat of class action proceedings—particularly class actions brought under statutes providing for treble damages and attorney’s fees, such as the...more

The Seventh Circuit Forecloses One “Pick Off” Method Under Rule 67, But Leaves A Trail Of Crumbs For Both The Plaintiffs’ And...

Takeaway: The U.S. Supreme Court ruled in January 2016 in Campbell-Ewald Co. v. Gomez that an unaccepted Rule 68 offer of judgment has no legal effect and therefore does not serve to moot a class action. 136 S. Ct. 663...more

Seventh Circuit Rejects Rule 67 Deposit Into Court Account as Easier Alternative to Rule 68 Offer of Judgment

by BakerHostetler on

Over the years, Rule 68 offers of judgment have been touted as a means of picking off class representatives and a potentially easy way to terminate a class or collective action before it starts. It rarely really works that...more

Seventh Circuit Limits Ability to Moot Claims of Class Representative in the Wake of Campbell-Ewald

On June 20, 2017, the Seventh Circuit ruled that a defendant cannot moot the individual claims of a putative class representative by depositing an unaccepted settlement offer with the court covering all relief purportedly...more

Seventh Circuit Rejects Rule 67 Mootness Argument But Keeps Campbell-Ewald Full Deposit Maneuver Alive

by Dorsey & Whitney LLP on

Rien n’est eternel. Nothing lasts forever. In TCPAland, things don’t even last a week. Just days after a Chicago district court endorsed the tactic in A Custom Heating & Air Conditioning, Inc. v. Kabbage, Inc., 2017 U.S....more

The Case Goes On, For Now: Seventh Circuit Holds Rule 67 Cannot Moot TCPA Class Action

by Benesch on

In January 2016, the Supreme Court issued its Campbell-Ewald v. Gomez decision and definitely ruled that Federal Rule of Civil Procedure 68 could not be used to moot the claims of a named plaintiff. Prior to that ruling,...more

“Junk Fax” Case Determined Not To Make Junk Law, Strengthens Post-Spokeo Standing and Rule 67 Mootness Arguments

by Dorsey & Whitney LLP on

In a world pushed forward by new technology, it’s a “junk fax” case that advances two case dispositive TCPA defense bar arguments: (1) a plaintiff lacks Article III standing post-Spokeo unless there is a sufficient...more

An Offer You Can Refuse

by Carlton Fields on

The Second Circuit Court of Appeals recently confronted (again) a situation where a defendant made an offer of judgment to the putative class representative to provide all of the relief available to the individual plaintiff....more

SDNY Pancakes Parties’ Attempt to Bypass Cheeks: Requires Approval of Rule 68 Settlement

by Seyfarth Shaw LLP on

Seyfarth Synopsis: The Southern District of New York recently held that parties may not settle FLSA claims without court approval through an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure....more

TCPA Connect - April 2017

FCC Combats Spoofed Robocalls - As part of an initiative that would enable voice service providers to better protect subscribers from illegal and fraudulent robocalls, the Federal Communications Commission has released a...more

No Pick-Off, No Problem: How a Pre-Certification Rule 68 Offer Survived (Twice)

by Carlton Fields on

A magistrate judge in the United States District Court for the Western District of Pennsylvania denied plaintiff’s motion to strike a Rule 68 offer of judgment served prior to class certification. The Rule 68 offer in this...more

Two Second Circuit Cases, Two Applications of Campbell-Ewald, Two Different Results, Three Weeks Apart

by Carlton Fields on

Within roughly three weeks, the Second Circuit issued two opinions applying the Supreme Court’s Campbell-Ewald Co. v. Gomez decision to class action cases involving Rule 68 offers of judgment. On February 15, 2017, in Leyse...more

Rule 68 Offer of Judgment: A Neglected Tool for Patent Infringement Defendants

Originally published in the Westlaw IP Journal - March 1, 2017. Patent litigation is expensive. According to a 2015 report by the American Intellectual Property Law Association, even an infringement suit with less than...more

The Northern District of California Seeks to Bring More Clarity to Damages with its Latest Revised Patent Local Rules

On January 17, the Northern District of California approved the latest amendments to its Patent Local Rules, which became effective immediately. Traditionally seen as a thought leader on organizing and structuring patent...more

Advertising Litigation Report: Vol. 2, No. 1

Lanham Act False Advertising - Lanham Act Liability for Native Advertising Violations - Casper Sleep, Inc. v. Mitcham, --- F. Supp. 3d ---, No. 16 Civ. 3224 (JSR), 2016 WL 4574388 (S.D.N.Y. Sept. 1, 2016)...more

The U.S. Supreme Court And Workplace Class Actions

by Seyfarth Shaw LLP on

Seyfarth Synopsis: As profiled in our recent publication of the 13th Annual Workplace Class Action Litigation Report, the U.S. Supreme Court’s rulings have a profound impact on employers and the tools they may utilize to...more

It’s a Trap!! – Be Careful When Crafting Your Rule 68 Offers of Judgment

by Butler Snow LLP on

Federal Rule of Civil Procedure 68 presents a valuable settlement tool for defense attorneys. Specifically, it allows the defendant to make a pre-trial offer of judgment on specified terms, and provides for the recovery of...more

Opt Ins are Out (of Luck) Appealing Decertification

by Seyfarth Shaw LLP on

With all the drama of a get-away chase, the Third Circuit recently brought to a screeching halt plaintiffs’ counsel’s elaborate maneuvers to end run repeated decertification of their FLSA actions, and held as a matter of...more

North Carolina Business Court Ruling Regarding Fees May Impact Class Action Claims

by Brooks Pierce on

North Carolina Business Court Judge Louis Bledsoe III has held that the named plaintiff must pay any defendant's costs incurred after the plaintiff rejected the defendant’s offer of judgment. This decision brings to an end...more

Don’t Pick Me Off: Are Pre-Certification Claims Mooted By Deposited Full Settlement Offers?

On January 20, 2016, the Supreme Court held in Campbell-Ewald v. Gomez, 136 S. Ct. 663, 672, 193 L. Ed. 2d 571 (2016) that an unaccepted pre-certification settlement offer of complete relief in a putative class action, made...more

“Placeholder” Motions to Certify are Unnecessary after Campbell-Ewald According to South Carolina District Court

by Carlton Fields on

Relying on the Supreme Court’s 2016 opinion in Campbell-Ewald, the United States District Court for the District of South Carolina ruled that a class action plaintiff need not file a “placeholder” motion to certify to avoid a...more

Tendering Funds to Support Unaccepted Offer of Judgment Still Does Not Moot Case

by Carlton Fields on

On July 6, the Sixth Circuit addressed a question apparently left open by the Supreme Court in its recent Campbell-Ewald case.  In Campbell-Ewald, the Supreme Court ruled that an unaccepted Rule 68 offer of judgment did not...more

District of Massachusetts Grapples with Campbell-Ewald’s Unanswered Questions

by Pierce Atwood LLP on

Chief Judge Saris and Judge Sorokin of the District of Massachusetts recently tackled questions left unanswered by the Supreme Court’s opinion earlier this year in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016)....more

Ninth Circuit First to Take Up Offers of Judgment After Campbell-Ewald

by BakerHostetler on

As we reported earlier this year in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the Supreme Court held that a putative class action does not become moot when a defendant merely offers a named plaintiff full...more

…And We’re Back! Still No Resurgence of “Picking Off” After Campbell-Ewald

by Carlton Fields on

Following an interlocutory appeal, in which the First Circuit ruled that a Rule 68 offer made prior to class certification did not moot the plaintiff’s claim, defendant returned to the Massachusetts district court seeking...more

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