Rule 68

News & Analysis as of

Supreme Court to Decide Two Cases Addressing Important Class and Collective Action Issues

The Supreme Court has agreed to hear two cases during its Fall 2015 term that could further transform the wage and hour class action landscape. We briefly discuss those two cases below. Gomez: The Effect of Rule 68...more

The Class Action Chronicle - Summer 2015

In This Issue: - The Fairness in Class Action Litigation Act of 2015 - Class Certification Decisions: ..Decisions Granting Motions to Strike/Dismiss Class Claims ..Decisions Denying Motions to...more

Supreme Court to Resolve Circuit Split on Whether Rule 68 Offer Moots Claims Prior to Class Certification Motion

On May 18, 2015, the U.S. Supreme Court granted certiorari in Campbell-Ewald Company v. Gomez (“Gomez”), potentially opening the door for the high court to resolve a split among the circuits on the issue of whether an offer...more

Supreme Court Grants Cert In U.S. Navy Texting Suit

On May 18, 2015, the United States Supreme Court granted certiorari to consider the issue of whether a proposed class action is mooted when the named plaintiff receives an offer of complete relief on his claim. See...more

Supreme Court Grants Cert. to Decide if Offer of Complete Relief Moots Case

On May 18, the Supreme Court granted certiorari to resolve a circuit split as to whether an offer of complete relief to a plaintiff seeking to represent a putative class moots the case. Campbell-Ewald Co. v. Gomez, 2015 WL...more

Supreme Court to Determine if Offer of Relief to Named Plaintiff Moots Class Action

Over the past several years, employers defending wage and other class action lawsuits have increasingly used a procedural move intended to defeat the class claim. In these cases, the employer offers complete financial and...more

Call Answered: Supreme Court to Decide if Offer of Judgment Moots TCPA Class Action and Scope of Gov’t Contractor Liability

On May 18, the U.S. Supreme Court granted certiorari in Campbell-Ewald Co. v. Gomez, a Telephone Consumer Protection Act (TCPA) class action. The case raises two related questions that are the source of frequent litigation...more

Supreme Court to decide if a TCPA class action can be mooted by a pre-certification offer of judgment

Monday, the United States Supreme Court accepted certiorari to review the Ninth Circuit’s decision in Campbell-Eward Co. v. Gomez, 768 F.3d 871 (9th Cir. 2014), which involved a TCPA class action brought by the recipient of a...more

Genesis Healthcare May Be Merely the First Book in Bible on Mooting Class/Collective Actions

In the beginning, the U.S. Supreme Court decided in Genesis Healthcare that an FLSA case is moot when the plaintiff accepts an offer of full relief. As we noted in our previous blog, the decision left open, however, the...more

U.S. Supreme Court to Use TCPA to Determine Power of Rule 68 Offers of Judgment

Three weeks ago, the U.S. Supreme Court raised eyebrows when it granted certiorari in Spokeo, Inc. v. Robins, — S.Ct. —, 2015 WL 1879778 (Apr. 27, 2015), where it appears the Court will decide whether a consumer has...more

Supreme Court to decide whether an offer of judgment for full relief moots a named plaintiff’s class-action claims

Article III of the Constitution limits the jurisdiction of the federal courts to “cases” and “controversies.” The Supreme Court has held that “‘an actual controversy … be extant at all stages of review, not merely at the time...more

Supreme Court Grants Certiorari To Resolve Circuit Split As Second Circuit Holds That Offer Of Judgment Can Moot Named Plaintiffs’...

As we noted a few months ago, several pending Circuit appeals and a pending petition for certiorari to the United States Supreme Court foreshadowed that clarity might be coming to the question whether an offer of complete...more

Eleventh Circuit Says No to Mooting Class Actions with Individual Offers of Judgment

Serving a Rule 68 offer of judgment for maximum individual statutory damages before the filing of a class certification motion was once a common strategy used to moot putative class actions alleging claims for violations of...more

Rule 23 Study Agenda – FRCP 68 and Mootness

Courts look down on offers of judgment in class actions as a procedural trick. Used properly, however, they are an effective early screen for cases that can’t be certified. ...more

District of Connecticut Blocks Pick-Off Attempt (Twice)

In Mey v. Frontier Communs. Corp., No. 3:13-1191-MPS, 2014 U.S. Dist. LEXIS 161675 (D. Conn. Nov. 18, 2014), Plaintiff Diana Mey alleged that she received two calls to her cell phone from Frontier’s automatic telephone...more

Eleventh Circuit Holds Unaccepted Rule 68 Offer To Named Plaintiffs Does Not Moot A Class Action

The Eleventh Circuit recently held that a defendant may not moot a class action through an unaccepted Federal Rule of Civil Procedure 68 offer of complete relief to the named plaintiffs—but not to class members—before the...more

What Will Be in the Coming Class Action Amendments?

I’ve written a little so far about the fact that Rule 23 is likely to undergo revision in the next few years. Last week Judge Robert Michael Dow, who is a member of the Advisory Committee on the Rules of Civil Procedure’s...more

11th Circuit Rules Unaccepted Offers of Judgment Do Not Moot Action

With apologies to Tampa Bay Buccaneer fans, I write today about a recent 11th Circuit opinion involving the Buccaneers Limited Partnership (“BLP”) and the more than 100,000 unsolicited faxes sent by BLP, advertising tickets...more

Class Action Not Mooted by Unaccepted Rule 68 Offers of Judgment to Putative Class Representatives, 11th Circuit Holds

The U.S. Court of Appeals for the 11th Circuit recently held that a class action was not mooted by the unaccepted offers of judgment made by the defendant to each putative class representative in the full amount of his or her...more

Offer of Judgment to Named Plaintiff Did Not Moot Putative Class Action, According to Eleventh Circuit

Following the Supreme Court’s decision in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), lawyers have debated whether a defendant can defeat a class action by offering full relief to the named plaintiff(s),...more

Eleventh Circuit: Rule 68 Offers of Judgment Do Not Moot Putative Class Actions

On December 2, 2014, the United States Court of Appeals for the Eleventh Circuit reversed a district court order dismissing a putative class action as moot, holding that: (1) an unaccepted Rule 68 offer of judgment does not...more

Eleventh Circuit Joins Circuit Split On Whether Offers of Judgment May Moot Individual Or Class Claims

On December 1, 2014, the Eleventh Circuit Court of Appeals joined the growing nationwide split between Circuits over whether an unaccepted offer of judgment under Fed. R. Civ. P. 68 may moot an individual plaintiff’s claim...more

To Be Or Not To Be: Mooting Rule 23 Class Actions Through Rule 68 Offers of Judgment

The use of Rule 68 offers of judgment to moot the claims of plaintiffs in the Fair Labor Standards Act (FLSA) collective action context has received much attention recently as the courts consider defendants’ use of this...more

Class Action Defense Counsel adding ‘The Pick Off’ to Their Playbooks

In recent years, we’ve noticed a new maneuver that class-action defense counsel have increasingly added to their playbooks: The Pick Off. This is how the play is run: Offer the named plaintiff(s) full relief through a Rule...more

Yes, you really did settle all your claims when you said you did: Ninth Circuit dismisses appeal of class certification denial by...

A plaintiff hopes to represent a class to pursue two sets of wage-and-hour claims but runs into headwinds in the district court. First, one set of claims disappears because his legal theory doesn’t withstand a motion to...more

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