Last week, the U.S. Supreme Court resolved a circuit split when holding in Campbell-Ewald Co. v. Gomez¸ No. 14-857, that an unaccepted Rule 68 offer of judgment that would fully satisfy a named plaintiff’s individual claim does not moot individual or class claims. The Court left open the question of whether actual payment in some form, rather than merely offering to pay a settlement or judgment, would lead to the same result.

In the underlying case, the plaintiff received a single, unsolicited recruitment text from a marketing consultant hired by the U.S. Navy. The plaintiff responded by filing a putative class action against the consultant, which alleged a violation of the Telephone Consumer Protection Act (TCPA). Before the plaintiff moved for class certification, the marketing consultant made a Rule 68 offer of judgment to the plaintiff for $1,503—$3 more than the maximum amount of treble statutory damages the plaintiff could recover for a single violation of the TCPA. Rule 68(a) provides that “a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” In this case, however, the plaintiff declined the offer. Thereafter, the defendant moved to dismiss the plaintiff’s claim, arguing that the claim was moot because it already had offered the plaintiff full and complete relief under the TCPA. The district court denied the motion.

On appeal, the U.S. Court of Appeals for the Ninth Circuit agreed. The Ninth Circuit held that an unaccepted Rule 68 offer does not moot a plaintiff’s individual claims or putative class claims. 768 F.3d 871 (9th Cir. 2014). Although the mootness ruling was consistent with Ninth Circuit precedent, several other federal circuit courts of appeals had held otherwise.

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