Courts look down on offers of judgment in class actions as a procedural trick.  Used properly, however, they are an effective early screen for cases that can’t be certified. 

One of the most heated debates in the last five years of class action practice has been the proper use of Rule 68’s offer of judgment.  Defendants like the offer of judgment because it can either moot a case early in (thus shutting down lawsuits that could cost hundreds of thousands of dollars to defeat in conventional litigation), and because the cost-shifting procedures place some of the financial risk of the … Continue Reading

Year-end lists are funny things.  They take a sort-of arbitrary starting and stopping point, and then they cram a bunch of prejudices into a (usually) arbitrary number of items.  And then people take them kind of seriously.  But they can be handy ways of catching trends one did not see before.  And in a year that has seen the beginning of a new debate over the shape of Rule 23, looking at the trends in caselaw can be important.  This year’s cases include some pro-plaintiff and some pro-defendant, and some hard to quantify.  But most of them are notable … Continue Reading

In Franco v. Allied Interstate LLC, No. 13 Civ. 4503, 2014 U.S. Dist. LEXIS 47077 (S.D.N.Y. Apr. 2, 2014), the named plaintiff sued the defendant for sending him a debt collection letter that implied he could face garnishment of his wages if he did not pay his debt. He did not allege any actual damages, relying instead on the FDCPA’s statutory damages provision.

In response, the defendant made a Rule 68 offer of judgment of $1,501 plus reasonable costs and attorneys’ fees as allowed by the court, one dollar more than the statutory maximum damages the plaintiff could receive. … Continue Reading

Rule 68 offers of judgment have been controversial in the class action context. Defendants will often use them in an attempt to moot the class claims of the named plaintiff: offering full relief first, and then moving to dismiss the case on jurisdictional grounds should the plaintiff decline the offer.

But there is a second, also controversial, use of the offer of judgment, where the defendant makes the offer as a means of limiting litigation costs. Under Rule 68(d), if the defendant makes an offer for a definite amount, the plaintiff rejects the offer, and then recovers less than … Continue Reading

2013 did not offer the blockbuster docket in front of the Supreme Court that 2011 did, but that didn’t stop the Court from issuing a number of opinions whose effects will be felt for some time to come. In addition, a number of other courts took bold steps to either support or constrain class action practice. The key trends coming out of 2013: watch out for predominance, and watch out for tricky settlement provisions. Also, pay attention to the complaint; key flaws can still lurk in there.

(1) Comcast Corp v. Behrend (Supreme Court).  This case was … Continue Reading

 Ellen Delgado sued collection agency Collecto, Inc., accusing it of violating the Fair Debt Collection Practices Act by sending her an improper debt collection letter. After she filed suit (but before she moved for class certification), Collecto made an offer of judgment for Ms. Delgado’s full damages, as well as attorneys’ fees and costs. It then, some minor procedural maneuvering aside, moved to dismiss the case as moot.

These facts should sound familiar to readers of this blog; they’re part of the ongoing battle over whether a defendant can moot a named plaintiff’s claims in a class action by offering Continue Reading

Rule 68 offers of judgment have been controversial in class action practice for quite some time. Proponents of the tactic believe that it offers a valuable means of limiting frivolous lawsuits: where there are really only a few affected claimants, an offer of judgment can force them to face up to the costs of meritless class allegations. Opponents believe that corporate defendants would rather buy off potential claimants one by one than face a class-action lawsuit. Circuit courts of appeal had split on whether the tactic could actually moot a class action.

Genesis Healthcare Corp. v. Symczyk, in … Continue Reading

 I hope everyone had a good Memorial Day weekend. This week, we take a brief look at a number of opinions that were decided last week, none of which are revolutionary, but all of which are useful to defendants at some stage of the class action. Think of it like a Memorial Day barbecue, a little something for each course.

Discovery. Both plaintiffs and defendants like to serve contention interrogatories, and both also like to give vague answers. It’s part of the chess game that is pretrial discovery, and it can be frustrating to both observers and participants. In … Continue Reading