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

by BakerHostetler

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 way, as many courts, particularly those that are disposed to class actions, have found endless ways of finding them unenforceable. We’ve blogged some of these attempts in the past, but the Supreme Court’s decision Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), seemed to give some slight hope that such an attempt might work. In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), however, the Court largely negated the Symczyk holding and seemed to have put at least one nail in the coffin of the claim that an unaccepted offer of judgment could moot a class action. (We blogged that decision here.)

The defendant in Fulton Dental, LLC v. Bisco, Inc., Case No. 16-3574 (7th Cir. June 20, 2017), tried a different avenue to what was essentially an offer of judgment, but it too failed. Bisco was not an employment case but rather one involving unsolicited faxes. The defendant, apparently following Symczyk, first tried to make an offer of judgment to the named plaintiff, but only two days later, the Supreme Court issued its decision in Campbell-Ewald, suggesting strongly that avenue would not work. Undaunted, the defendant used Rule 67, which permits a party to deposit a disputed money judgment into the court’s account. That move was not entirely unwarranted because even the decision in Campbell-Ewald had held out that possibility:

We need not, and do not, now decide whether the result would be different

if a defendant deposits the full amount of the plaintiff’s individual claim in an account

payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.

(136 S. Ct. 672).

The defendant, upon depositing the disputed amount under Rule 67, argued that the individual claim was thus moot, as the amount deposited would provide all of the relief to which the named plaintiff was entitled. The District Court accepted the maneuver and found that the deposit both mooted the named plaintiff’s claim and rendered it an inappropriate class representative under Rule 23(a).

It was, of course, too good to be true. The Seventh Circuit concluded that the move was simply a “variation” of the Rule 68 theme and that Rule 67 was “just a procedural mechanism that allows a party to use the court as an escrow agent.” Indeed, the court noted limitations contained in Rule 67 itself, which do not give the plaintiff automatic access to the deposited funds. More importantly, the court viewed the move as simply an effort to avoid the Campbell-Ewald holding and to short-circuit class litigation. The court also showed its hand by converting, as some courts do, Rule 23’s procedural mechanisms into some kind of procedural right, declaring that the offer might not be “sufficient to compensate plaintiff . . .  for its loss of the opportunity to represent the putative class.” The court did not explain how that purely procedural role was somehow a right or conferred any legally cognizable benefit.

The decision in Fulton is not a surprise. Courts and judges that like class actions as a convenient vehicle to use litigation expense to impose rough justice are adverse to steps that might limit their scope or make them less costly to terminate. Still, the court essentially closed this avenue as a means of bringing the case to an early resolution.

One difficulty with holdings like these is that they fail to come to grips with the fact that class litigation is lengthy, difficult and expensive irrespective of the merits of the underlying claim. Defendants frequently look to means of terminating these cases early because they are costly even if meritless. Rather than simply swat down efforts to control those costs, courts should consider other avenues to end class actions at an early stage when questions arise as to their viability or merits.

The bottom line: An unaccepted deposit of funds under Rule 67, like an offer of judgment under Rule 68, will not moot the named plaintiff’s claims or cut off class action litigation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.