Rule 68 Offers of Judgment in Putative Class Actions: Litigation Strategies After Campbell-Ewald Co. v. Gomez

Description

Defendants have used offers of judgment as part of a strategy to put settlement pressure on plaintiffs and potentially moot class actions. In 2016, SCOTUS decided Campbell-Ewald Co. v. Gomez, resolving a significant circuit split and holding that an unaccepted offer of judgment does result in mootness of the named plaintiff’s claims. But Campbell-Ewald only dealt with the discrete question of whether the named plaintiff's case was mooted. Class claims were not addressed, nor were accepted offers of judgment. The Court specifically left open the possibility of mootness if a defendant tenders the full amount of the plaintiff's individual claim, and the court then enters judgment for the plaintiff.

Courts have since taken divergent approaches to address these questions. Courts finding that full tender moots a named plaintiff’s claim have used different approaches depending on the payment method. Even when a full and tendered offer of judgment has mooted a named plaintiff’s claims, courts have split on the legal implications for the overall class.

Counsel for both sides must formulate strategies regarding the best jurisdiction for litigating their case. Plaintiff's counsel should weigh whether to use placeholder certification motions to proactively managing Rule 68 offers of judgment. Defense counsel must also evaluate the long-term impact of using Rule 68 offers of judgment to dispose of named plaintiffs' claims and future class litigation.

Listen as our authoritative panel of class litigators discusses how Rule 68 offers of judgment are being strategically used by defense counsel to attempt to dispose of putative class actions. The panel will review the latest case law addressing the issue and best practices for the plaintiff and defense counsel in light of the growing circuit court split.