There has been a lot of activity in the federal courts of appeals recently regarding the use of offers of judgment to named plaintiffs in class actions. The Fifth and Seventh Circuits recently held that an unaccepted Rule 68 offer to the named plaintiff for full relief will not render a putative class action moot (see my August 20 post for more on those decisions). The First Circuit has agreed on that point, but suggested an alternative strategy that defendants might be able to use, depending on how the Supreme Court decides Campbell-Ewald Co. v. Gomez (see my June 16 post for more on that). The First Circuit’s suggestion was to simply send the named plaintiff a bank check for an amount that constitutes full relief, where damages will fully satisfy the plaintiff’s claim. While defendants will need to evaluate carefully whether that’s the right approach, it is certainly worth considering.

In Bais Yaakov of Spring Valley v. ACT, Inc., 2015 U.S. App. LEXIS 14718 (1st Cir. Aug. 21, 2015), a private school filed a putative class action under the Telephone Consumer Protection Act (“TCPA”), alleging that ACT, Inc., the company that makes the ACT college-entrance examination, sent the school three unsolicited faxes in violation of the TCPA. In an attempt to end the case quickly, ACT made an offer of judgment under Rule 68 for the full amount of statutory damages available. ACT also offered to be enjoined from sending further unsolicited faxes to the plaintiff, and offered to pay attorneys’ fees and costs awarded by the court. The plaintiff ignored the offer. ACT moved to dismiss the suit as moot. The district court denied the motion to dismiss, but certified its ruling to the First Circuit under 28 U.S.C. § 1292(b).

The First Circuit’s opinion, by Judge Kayatta, reviewed the existing Supreme Court precedent, which lacks clarity on the issue (hence the recent grant of certiorari). The First Circuit agreed with recent decisions from other circuits that “an unaccepted Rule 68 offer cannot, by itself, moot a plaintiff’s claim.” Id. at *16. “To the contrary, Rule 68 expressly specifies what happens to a rejected offer: it is deemed to be ‘withdrawn,’ and it is ‘not admissible except in a proceeding to determine costs.’” Id. at *17.

Judge Kayatta suggested, however, another approach that defendants might take: “In many cases involving damages in a certain amount as the only remedy, delivery of a bank check might get around the infirmities in using a Rule 68 offer.” Id. at *21-22. He noted that “if substance is to prevail over form, and consumer class actions are not to be largely eviscerated, the Supreme Court will need to decide that a plaintiff’s request to proceed as a class representative pressing the real claims of those to be represented is a claim for relief that precludes a finding of mootness.” Id. Based on Justice Kagan’s dissent in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), there are probably four justices who would agree with that proposition. But we don’t know yet if there will be a fifth.

In the meantime, some defendants might want to take Judge Kayatta’s suggested strategy to the bank. They will need to think about the fact that the amount of the check and its delivery will not be protected from admissibility the way a settlement offer could be. So if the gambit fails (based on how the Supreme Court ultimately decides the issue), and the case continues, the defendant’s maneuver might come out at trial (if there ever is a trial). But that may not be a big deal, and a letter accompanying the check might help with the explanation for it at trial. Sending a check to the plaintiff may not be enough where the complaint also seeks injunctive and declaratory relief. As to those forms of relief, the defendant may need to not only provide the check but make an offer, or file something with the court formally offering to accept the relief as to the named plaintiff. There are risks to consider there, however, depending on the nature of the relief sought.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.