In a highly anticipated decision issued earlier this year, the Supreme Court addressed the implications of an unaccepted offer of judgment for complete relief made under Federal Rule of Procedure (FRCP) 68. In particular, there previously had been a circuit split concerning whether an unaccepted offer for complete relief could serve to moot individual claims or putative class action claims. In Campbell-Ewald Co. v. Gomez, the Court held that that an unaccepted offer to satisfy a representative plaintiff's individual claims does not moot those claims. The Court also held that this type of offer cannot moot putative class claims because "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted." (136 S. Ct. 663, 671-72 (2016).)

Notably, however, the Court left open the question of "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount" (Campbell-Ewald Co., 136 S. Ct. at 672). Indeed, in his dissent, Justice Alito argued that the decision "does not prevent a defendant who actually pays complete relief – either directly to the plaintiff or to a trusted intermediary – from seeking dismissal on mootness grounds" (Campbell-Ewald Co., 136 S. Ct. at 684 (Alito, J., dissenting)). For more information on the Campbell-Ewald decision, see Legal Update, Supreme Court: FRCP 68 Offer of Judgment Does Not Moot Class Action Claims.

Lest this be viewed as a procedural issue reserved for stodgy corporate defendants, a recent district court decision addressed this issue in a case involving diet pills and a flamboyant reality television star. In Brady v. Basic Research, LCC, purchasers of a weight control supplement filed a putative class action against the manufacturer and its spokeswoman, Nicole "Snooki" Polizzi, for allegedly misrepresenting the weight loss and other effects of products including Zantrex-3 High Energy Fat Burner and the Zantrax-3 Power Crystals. Ms. Polizzi publicized her rapid weight loss using the Zantrex products on the reality television show Jersey Shore and also through an advertising campaign called "Snooki's Dirty Little Secret." (See Brady v. Basic Research, LCC, 101 F. Supp. 3d 217, 224, 236 (E.D.N.Y. 2015).)

Just one day after the Supreme Court's Campbell-Ewald decision, the defendants in Brady moved under FRCP 67 for permission to deposit funds with the clerk of the court "consistent with the Rule 68 offer of judgment that [they] previously made to Plaintiffs." The defendants argued that depositing the full amount of the individual claims in this manner may provide the basis for mooting the case before class certification. (Brady v. Basic Research LLC, , at *1 (E.D.N.Y. Feb. 3, 2016).)

The court denied the motion determining that the defendants' attempt to deposit funds with the court was just an attempt to moot the case and not to relieve themselves of an administrative burden as envisioned by FRCP 67 (see FRCP 67 (allowing for disputed funds to be deposited for safekeeping with the court pending the resolution of a legal dispute)). The court also observed that the FRCP 67 motion was unwarranted given the Supreme Court's directive that a would be class representative must be accorded an opportunity to show that certification is proper.

Brady represents an early attempt to test the scope of the Campbell-Ewald ruling, the bounds of which are sure to be the subject of additional litigation as defendants continue to make FRCP 68 offers with corresponding efforts at full payment.

For more on FRCP 68, see Practice Note, FRCP 68 Offers of Judgment.