In Practice Management Support Services v. Cirque Du Soleil, Inc., the United States District Court for the Northern District of Illinois denied the defendants’ motion for summary judgment that followed a Rule 67 motion to deposit $15,000 to moot the plaintiff’s claim for relief under the Telephone Consumer Protection Act.  The plaintiff seeks, on behalf of itself and the class, the TCPA’s maximum statutory damages of $1,500 per violation. 

Days after the Supreme Court’s ruling in Campbell-Ewald, Cirque De Soleil, Inc. and Cirque Du Soleil (US), Inc. filed a Rule 67 motion seeking to deposit funds with the Court in an attempt to moot their liability under TCPA.  The motion sought leave to deposit $15,000 into the registry of the Court.  The defendants earmarked $3,000 to satisfy the maximum statutory damages available to the plaintiff for the two alleged TCPA violations.  The remaining $12,000 would be deposited “so the funds are readily available” to cover the plaintiff’s allowable costs, exclusive of attorneys’ fees. 

On the heels of the Rule 67 motion, the defendants moved for summary judgment and an order dismissing the case as moot, arguing the tender satisfied the plaintiff’s claims.  The defendants’ actions placed before the court the scope of the recent Supreme Court Campbell-Ewald decision.  Campbell-Ewald, based on the contract law principles that an unaccepted offer of judgment does not moot a plaintiff’s case, noted that an offer of judgment, “once rejected, has no continuing efficacy.”   The Supreme Court wondered “whether the result would be different if a defendant deposited the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enter[ed] judgment for the plaintiff in that amount.” 

In the months since the Supreme Court decided Campbell-Ewald, defendants have tried to invoke this tactic as a way to short-circuit class treatment.  In Practice Management, Judge Thomas M. Durkin outlined the varied rationales courts have applied when defendants have tendered money through Rule 67 motions, describing cases where: (i) courts refused to exercise their discretion to permit tenders intended to moot class plaintiffs’ claims; (ii) courts permitted tenders of complete monetary relief to moot the claims of named plaintiffs, but preserved class claims; and (iii) courts permitted class defendants to deposit funds without entering judgment in favor of the plaintiff or releasing funds to the plaintiff, thereby holding that the deposit alone had no bearing on mootness. 

Judge Durkin followed the third approach, holding that although a defendant should be able to deposit funds sufficient to satisfy a plaintiff’s claim, the Court “will not enter judgment over a plaintiff’s objection while a timely-filed motion for class certification is pending.”  The Court found no discernible difference between a rejected settlement offer, a lapsed Rule 68 offer of judgment, and an objection by a plaintiff to a defendant’s motion seeking entry of judgment against it.