May 09

Third Circuit May Soon Consider Whether Offer of Judgment Moots Class Claims

UPDATE – July 17, 2014: Third Circuit Grants Appeal in Weitzner v. Sanofi

The Third Circuit granted a petition for leave to appeal in this matter. See attached notice.

Will the Third Circuit heed Justice Kagan’s dissent in Genesis and “rethink [its] mootness-by-unaccepted-offer theory” or provide defendants with a powerful tool to moot class claims? Stay tuned.


The Third Circuit may soon weigh in on whether a Rule 68 Offer of Judgment, made before a plaintiff moves for class certification, moots a proposed class action.

In Weitzner v. Sanofi Pasteur, Inc., Plaintiffs filed a proposed class action against Sanofi Pasteur, Inc. and Vaxserve, Inc., alleging violations of the Telephone Consumer Protection Act (TCPA). Two years after commencement of the action—but before Plaintiffs moved for class certification—Defendants served Offers of Judgment under Rule 68 of the Federal Rules of Civil Procedure, offering Plaintiffs the maximum relief available under the TCPA were they to prevail. When Plaintiffs failed to respond, Defendants moved to dismiss under Rule 12(b)(1) on grounds that the offers mooted the claims.

The district court denied Defendants’ motion but certified, for immediate appeal, whether an unaccepted offer of judgment in a putative class action, when the offer is made before plaintiff moves for class certification, moots plaintiff’s entire claim, including the proposed class claims. In certifying the question, the district court noted that although the Third Circuit in Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004), held that Rule 68 offers do not moot class claims, the Supreme Court in Genesis Healthcare Corp v. Symczyk, 133 S. Ct. 1523 (2013), rejected the applicability of three of the cases on which Weiss relied to the question of whether an FLSA collective action is justiciable when the lone plaintiff’s individual claim becomes moot.

We will keep a close eye on whether the Third Circuit certifies this question for interlocutory appeal. The potential to moot class claims with an offer of judgment would be a powerful tool should it be available to class action defendants.

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