In the wake of the U.S. Supreme Court's holding in Campbell-Ewald Company v. Gomez that an unaccepted Rule 68 offer of complete relief does not moot a plaintiff's individual claims, the U.S. Court of Appeals for the Third Circuit has affirmed a district court order denying the defendants' motion to dismiss a putative class action for lack of subject matter jurisdiction.

The Third Circuit's precedential opinion in Weitzner v. Sanofi Pasteur acknowledged that Gomez overruled the prior holding of the Third Circuit in Weiss v. Regal Collections that an unaccepted offer of complete relief will generally moot the plaintiff's individual claims. However, it expressly "decline[d] to elaborate on the implications" of Gomez on other closely related Article III jurisdictional issues.

The plaintiff in Weitzner filed a class action alleging violations of the Telephone Consumer Protection Act (TCPA). Before a motion for class certification was filed, the defendants made a Rule 68 offer of judgment to which the plaintiff did not respond. The defendants subsequently moved to dismiss the action as moot, contending that the unaccepted offer extinguished plaintiff's claims because they afforded him greater relief than he could obtain in court. The defendants also contended that the U.S. Supreme Court's 2013 decision in Genesis HealthCare v. Symczyk abrogated the Weiss court's conclusion that a plaintiff should be given a chance to pursue a class action even if his individual claims are moot. Although the district court denied the defendants' motion, it certified the mootness issue for interlocutory appeal. The Third Circuit granted leave to appeal and then held the case pending the decision in Gomez.

In affirming the district court, the Third Circuit rested its affirmance on the narrowest possible ground. Quoting Gomez, it held that "[b]ecause an unaccepted settlement offer 'has no force,' it moots neither Plaintiffs' individual claims nor the case as a whole." Notably, the Third Circuit expressly declined to address two important issues expressly left open in Gomez—whether a case is moot 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 in that amount, and whether a plaintiff's putative claim for class relief prevents a case from becoming moot. "Nothing in this opinion should be taken to express a view" on these issues, the Third Circuit cautioned.

Accordingly, companies that are sued in TCPA and other class actions in the Third Circuit may still be able to take steps that will enable them to assert mootness defenses to the complaint, even after Gomez. The same is true in many if not most other jurisdictions, where the post-Gomez case law is only beginning to evolve. We constantly monitor developments in this important area so that we can provide our clients with state-of-the-art defenses to class actions and other complex litigation.

Ballard Spahr's Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). In addition, we formed a TCPA Task Force comprising experienced regulatory attorneys and litigators with vast experience in avoiding TCPA liability, defending TCPA lawsuits, and who have counseled numerous clients on establishing autodialing and monitoring protocols.


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