In Campbell-Ewald Co. v Gomez, 136 S.Ct. 663 (2016), the Supreme Court held that Rule 68 offers of judgment to a class representative do not moot a class action. See http://classifiedclassaction.com/supreme-court-rules-unaccepted-rule-68-offer-judgment-cannot-moot-class-action/. The Supreme Court left open the possibility that an actual tender of the full amount of plaintiff’s claim, evidencing an intent to pay – as opposed to a mere contract offer, would moot the claim.

That open possibility has been addressed by Bais Yaakov of Spring Valley v. Graduation Source, LLC, 14-cv-3232 (S.D.N.Y.). Defendants facing a Telephone Consumer Protection Act (TCPA) putative class action paid $9,200 into the court’s registry for plaintiff’s benefit and requested entry of judgment in favor of plaintiff, as well as an order enjoining defendants from violating the TCPA. The court declined to do so. It held that plaintiff’s individual claims remained live, such that plaintiff should be afforded “a fair opportunity to show that class certification is warranted.” This “fair opportunity,” the court indicated, would allow plaintiff a chance to contest a motion to dismiss and pursue discovery, after which, if plaintiff failed to certify a class, defendants could renew their request for issuance of judgment in favor of plaintiff based upon its complete offer of relief.

Bais Yaakov of Spring Valley v. Graduation Source, LLC, 14-cv-3232 (NSR) (S.D.N.Y. Mar. 7, 2016)