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Ha Ha -- You Can't "Pick Off" Class Reps in the 11th Anymore!

There's always been something slightly underhanded or perhaps even unfair about the recent practice of corporate counsel offering Rule 68 "full relief" to class reps in order to deprive them of standing to assert class claims.

It seems the 11th agrees:
Giving controlling effect to an unaccepted Rule 68 offer—dismissing a case based on an unaccepted offer as was done here—is flatly inconsistent with the rule. When the deadline for accepting these offers passed, they were “considered withdrawn” and were “not admissible.” See Fed. R. Civ. P. 68(b). The plaintiffs could no longer accept the offers or require the court to enter judgment. In short, the plaintiffs still had their claims, and BLP still had its defenses. BLP had not paid the plaintiffs, was not obligated to pay the plaintiffs, and had not been enjoined from sending out more faxes. The named plaintiffs’ individual claims were not moot.
Not only that, but the named plaintiffs got nothing out of the offer expect a loss of their rights:
The court did not enter a judgment for the named plaintiffs. The court did not issue an injunction. After the offers lapsed, and indeed after the district court entered its order dismissing the case, the legal relationship between BLP and the named plaintiffs was precisely the same as before the offers were made: the named plaintiffs had claims against BLP under the Telephone Consumer Protection Act; BLP retained all its defenses; no ruling had been made on the validity of the claims or defenses; and no judgment had been entered. BLP had not paid the plaintiffs, was not obligated to pay the plaintiffs, and had not been enjoined from sending out more faxes. The individual claims were not moot.
Other than that it seems totally fair!


  1. agree 12:23. well written stuff is fun to read. i opened my tool box.

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