Class Action Alert – A New Strategy: An Unconditional Tender to the Named Plaintiff to Moot a Class Action
A strategy which we successfully used recently at an early stage of a class action (before a class was certified) to moot the action was to make payment through an unconditional tender to the named plaintiff for the amount of his individual claim. See Leon v. Blue Bell Creameries, Inc., 2:15-CV-03454 (E.D. La. 2016), Doc No. 22 (Blue Bell’s Motion to Dismiss and Memorandum in Support) and Doc. No. 27 (Order Granting Motion to Dismiss).
While the U.S. Supreme Court in Campbell-Ewald Company v. Gomez, 136 S.Ct. 663 (2016), ruled than an unaccepted offer of judgment pursuant to Rule 68 does not moot an action, actual payment to the named plaintiff before the class is certified through an unconditional tender provides a compelling basis for dismissal of the action as moot based on Gomez:
In sum, an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case, so the District Court retained jurisdiction to adjudicate Gomez’s complaint. That ruling suffices to decide this case. We need only, and do not, now decide whether the result would be different 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 for the plaintiff in that amount. That question is appropriately reserved for a case in which it is not hypothetical. Id. at 672.
Chief Justice Roberts explained in his dissent that even the majority in Gomez recognized that payment of the claim would moot the action:
… I am heartened that the Court appears to endorse the proposition that a plaintiff’s claim is moot once he has “received full redress” from the defendant for the injuries he has asserted. Ante, at 10, n. 5 (discussing Already, supra, and Alvarez v. Smith, 558 U.S. 87, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009)). Today’s decision thus does not prevent a defendant who actually pays complete relief—either directly to the plaintiff or to a trusted intermediary—from seeking dismissal on mootness grounds. Gomez at 685 (Roberts’ dissent) (emphasis added).
The majority opinion in fact recognizes that where a plaintiff, as in Alvarez v. Smith, 130 S.Ct. 576 (2009) and Already, LLC v. Nike, Inc., 133 S.Ct. 721 (2013), received “full redress” for the injuries asserted in the complaint, there was “no continuing controversy” for jurisdiction to exist. Id. at 671, n.5.
Justice Thomas in his concurrence in Gomez also recognized the distinction between simply expressing an offer or intent to pay compared to actual payment. Id. at 676. If the defendant had made actual payment through an unconditional tender, Justice Thomas would have held that the case was moot. Id. [1]
A fair reading of Gomez’s majority, concurring and dissenting opinionsstrongly supports the following conclusion: Where there is “actual payment” through an unconditional tender for the benefit of plaintiff (or by depositing the money in the court registry unconditionally), the case is moot and should be dismissed for lack of jurisdiction.[2]
[1] Article III of the Constitution limits federal court jurisdiction to “cases” and “controversies.” U.S. Const., Art. III, §2; Gomez, 136 S.Ct. at 669.The Supreme Court has interpreted this requirement to demand that “an actual controversy … be extant at all stages of review, not merely at the time the complaint is filed.” Id. “If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Id. The Supreme Court has also made it clear that an interest in attorney’s fees is not enough to create an Article III case or controversy when the underlying claim is moot. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107, 118 S.Ct. 1003, 1019 (1998); Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 1255 (1990).
[2] Along with Messrs. Goodman and Benjamin, Doug Williams and Thomas Temple were also counsel of record.
