Seventh Circuit Holds that Defendants Cannot Use Deposits Under Rule 67 To Moot Putative Class Actions
On June 20, the Seventh Circuit held that a defendant cannot moot a plaintiff’s claim simply by depositing with the court an amount intended to fully compensate the plaintiff. Taking up the question left open by the Supreme Court in Campbell-Ewald Co. v. Gomez, Chief Judge Wood’s opinion for the unanimous panel explained that defendants may not use Rule 67 to pick-off putative plaintiff class representatives.
In Fulton Dental, LLC v. Bisco, Inc., Fulton Dental filed a class action complaint alleging that Bisco had sent unsolicited faxes in violation of the Telephone Consumer Protection Act. In addition to declaratory and injunctive relief, Fulton sought statutory damages for two alleged violations—worth $500 per negligent violation or $1,500 per willful violation. Hoping to moot the suit before class certification, Bisco made Fulton an offer of judgment under Rule 68. But before Fulton responded to the offer, the Supreme Court issued its opinion in Campbell-Ewald, which held that an unaccepted offer of judgment does not moot a plaintiff’s claim. Shortly thereafter, Fulton rejected Bisco’s offer.