Two years after Campbell-Ewald, defendants face uphill battle “picking off” named plaintiffs
Two years ago, in Campbell-Ewald Co. v. Gomez, the Supreme Court held that unaccepted offers of settlement in full satisfaction of a named plaintiffs’ claim do not immediately moot a plaintiff’s Article III standing in a class action. The Court did not rule, however, on whether a deposit of the amount payable and entry of judgment by a court may moot a case or otherwise defeat standing. This tactic, known as “picking off,” has been tested by class-action defendants numerous times since Campbell-Ewald, with limited success.
The procedural context of Campbell-Ewald dealt with mootness; that is, whether a court loses jurisdiction over the matter pursuant to Article III because no case or controversy continues to exist. This question, which the Supreme Court left open in Campbell-Ewald, has arisen since in two contexts: first, the question the Supreme Court noted—whether the deposit of the sum sought by the plaintiff would moot the class case, and second, whether an offer or deposit of the sum sought by a potential plaintiff, before a case is even filed, would defeat the plaintiff’s Article III standing. The difference between mootness and standing is time; as the Supreme Court has stated, “mootness [is] the doctrine of standing set in a time frame.” The former scenario arises pursuant to Rule 68 of the Federal Rules of Civil Procedure, offers of judgment in satisfaction. The latter arises under Rule 67, deposit into court. Since Campbell-Ewald, numerous circuit courts of appeals have addressed these two questions, holding either that rule 67 or 68 offers and deposits neither render a case moot nor defeat standing in a class action.
Shortly after Campbell-Ewald, in Chen v. Allstate, the Ninth Circuit considered the Supreme Court’s question. The defendant had deposited $20,000 in an escrow account for the plaintiff, providing complete relief, and moved to dismiss the case. The Ninth Circuit held that the lower court should not have dismissed the case before the plaintiff was “accorded a fair opportunity to show that [class] certification was warranted.”
The Seventh Circuit has on at least two occasions addressed the Rule 67 and Rule 68 distinction. In Fulton-Dental v. Bisco, the named plaintiff had received an unsolicited fax from defendant Bisco, and sought relief on behalf of a putative class pursuant to the Telephone Consumer Protection Act (“TCPA”). Defendant Bisco sought leave from the District Court pursuant to Rule 67 to deposit $3,600 into the plaintiff’s bank account, an amount the defendant believed represented the maximum damages the plaintiff could receive plus $595 for fees and costs. The District Court granted the motion and dismissed the case. Upon review, the Seventh Circuit held there was no principled distinction between attempting to force a settlement on an unwilling party through Rule 68, as in Campbell–Ewald, and attempting to force a settlement on an unwilling party through Rule 67. In either case, all that exists is an unaccepted contract offer, and as the Supreme Court recognized, an unaccepted offer is not binding on the offeree.
Later, in Laurens v. Volvo Cars of North America, LLC, the Seventh Circuit again considered whether a defendants’ offer for a full refund of a vehicle’s purchase price negated the party’s standing because she never suffered an injury. In Laurens, defendant Volvo offered a car owner a full refund for her vehicle, just prior to the individual being added as a named plaintiff in a class action suit alleging misleading advertising. The Seventh Circuit held that it did not matter that the defendant’s offer of settlement preceded the plaintiff being added to the suit. In applying the Supreme Court’s contract-based approach to unaccepted offers of settlement in Campbell-Ewald, the Seventh Circuit panel noted that an unaccepted offer of settlement prior to litigation was as simple as an offer to “trade one form of property (claim) for another (currency),” and Volvo had “no right preemptively to force [the plaintiff] to accept a contract offer.”
The “pick-off route is effectively closed to class defendants in the Sixth Circuit, regardless of what mechanism they employ to attempt to ‘moot’ the plaintiff's claim.” In Wilson v. Gordon, the Sixth Circuit likewise held that defendants expediting processing of benefits claims for plaintiffs named in the suit would not moot the need for a class-wide remedy. The Sixth Circuit has gone even further in favor of plaintiffs, holding that even when a defendant provided complete relief to the plaintiff, and the district court entered judgement in the plaintiff’s favor, the action would not be moot until all members of the putative class were afforded the same relief.
District Courts have held similarly to the Sixth, Seventh, and Ninth Circuits. In an antitrust case, simply depositing the amount of the overcharge in a named plaintiffs’ account has been deemed insufficient when the plaintiff seeks further relief, such as injunctive relief or punitive damages. In Keating v. Nordstrom, Inc. for example, the Alaska District Court held that Nordstrom’s reimbursement of the named plaintiffs’ overcharge was insufficient, not only under the standard the Ninth Circuit articulated in Chen, that a case should not be dismissed until the named plaintiff has had an opportunity to certify the class, but also because the plaintiff sought “injunctive relief, punitive damages, statutory penalties, and attorneys’ fees and costs, none of which Nordstrom [had] offered to provide.”
These consistent findings, that a class case retains a live “case or controversy” even after a defendant has offered or deposited the monetary relief sought by a named plaintiff, are correct. Although courts have typically found that the “picking off exception” is an exception to mootness in its own right, or that it falls within the “inherently transitory” exception to mootness, should this issue arise back to the Supreme Court, the Supreme Court needs only rest on Supreme Court doctrine dating back to 1911 and famously relied upon in Roe v. Wade. Specifically, in Southern Pacific Terminal Co. v. ICC, the Supreme Court held in 1911 that a court would retain jurisdiction to hear a case which, while technically moot, was “capable of repetition, yet evading review” This doctrine was expanded to the class-action context in 1980: “When the claim on the merits is ‘capable of repetition, yet evading review,’ the named plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation.” Every class action in which a defendant has attempted to “pick-off” named plaintiffs would fall into this category, unless each class member was compensated—eliminating the need to pick-off named plaintiffs (and in most cases, to continue litigating at all). Thus, should the door left open by Campbell-Ewald open again to the chambers of the Supreme Court, it has a simple and solid foundation upon which to close it. Thus, should defendants continue with even more creative measures of picking off named plaintiffs in an attempt to have an entire case dismissed, their efforts are unlikely to succeed.
 136 S.Ct. 663. For more on Campbell-Ewald see, Michaela Spero, Clarify and Confusion: Unpacking the Impact of the Supreme Court’s Recent Class Action Decisions, (Aug. 13, 2016), https://www.hausfeld.com/print/news/us/clarity-and-confusion-unpacking-the-impact-of-the-supreme-courts-recen
 Id. at 672.
 United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980).
 In addition to the cases discussed below, the Fourth Circuit held that tendering a check for benefits to which the named plaintiff alleged she was entitled did not moot her class action claims. Bennett v. Office of Federal Employee’s Group Life Insurance, 683 Fed. Appx. 186, 188 (2017). The Third Circuit has also found that defendants cannot moot class actions by picking off named plaintiffs. Richardson v. Bledsoe, 829 F. 3d 273 (3d. Cir 2016) (finding named plaintiff must be given a “fair opportunity” to show that certification is warranted).
 819 F.3d 1136 (9th Cir. 2016).
 Id. at 1139.
 860 F.3d 541, 542 (7th Cir. 2017).
 Id. at 543.
 Id. at 545.
 868 F.3d 622, 624 (2017).
 Id. at 628.
 Progressive Health and Rehab Corp. v. Strategy Anesthesia, LLC, 271 F. Supp. 3d 941 (S.D. Oh. 2017) (quoting Compressor Eng'g Corp. v. Comfort Control Supply Co., Inc., No. 16–11726, 2016 WL 4502467, at *1 (E.D. Mich. Aug. 29, 2016)).
 822 F.3d 934, 951 (6th Cir. 2016).
 Unan v. Lyon, 853 F.3d 279, 284 (6th Cir. 2017).
 2018 WL 576825 at *5 (D. Alaska, Jan. 26, 2018).
 E.g. Unan, 853 F.3d at 947.
 410 U.S. 113 (1973)
 219 U.S. 498, 514-15 (1911).
 United States Parole Comm'n v. Geraghty, 445 U.S. 388, 398 (1980).
*Sarah LaFreniere is an Associate in the Washington, DC office.