Ninth Circuit Holds That Class Representative Must Have Opportunity To Show Certification Warranted.
On January 29, 2016, we posted on the U.S. Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, 136 S.Ct. 163 (2016), which held that F.R.Civ.P. 68 unaccepted offers do not moot either an individual or a class action matter (usually with both claims present in an individual/class hybrid case). We can now report that there are some published post-SCOTUS decisions in the area.
The Ninth Circuit, in Chen v. Allstate Ins. Co., Case No. 13-16816 (9th Cir. Apr. 12, 2016) (published), decided that the defense tender of $20,000 in settlement of individual claims under an unaccepted Rule 68 offer did not moot class or individual claims. With respect to class claims, it determined that the putative class representative should have an opportunity under Campbell-Ewald to demonstrate that certification was warranted. Also, the $20,000 monetary tender did not show that injunctive relief requested by the plaintiff individually had been obtained.
About a week earlier, the Third Circuit in Weitzer v. Sanofi Pasteur, Inc., No. 14-3423 (3d Cir. Apr. 6, 2016) (precedential) also acknowledged that an unaccepted Rule 68 offer mooted neither individual nor class action claims based on Campbell-Ewald.