Tag Archives: Standing/Mootness

Seventh Circuit Weighs in on Offers of Judgment

View David Wright's Complete Bio at robinsonbradshaw.comIn this space, we concentrate on class action decisions in the Carolinas, as well as Fourth Circuit and United States Supreme Court precedent. Occasionally, though, we venture beyond these jurisdictions to highlight issues of particular note, including those where courts are divided. We’ve previously reported here how offers of judgment interact with mootness. In Campbell-Ewald Co. v. Gomez, the United States Supreme Court held that an unaccepted settlement offer, even if it offers all relief sought in the case, does not render a case moot when the affected party seeks relief on behalf of a class. Last Friday, the Seventh Circuit considered a question not resolved by Gomez: What happens when the named representative accepts a Rule 68 offer of judgment? Can he still appeal the denial of class certification? Like the question of appellate standing upon which the Supreme Court accepted certiorari in Microsoft, the answer is significant.

In Wright v. Calumet City, Illinois, No. 14-cv-10351 (7th Cir. Feb. 17, 2017), the Seventh Circuit acknowledged a split of authority on this question: “Where the Rule 68 offer is accepted but by its terms exempts the class certification issue, courts are divided as to whether the plaintiff retains a concrete interest sufficient to meet the case or controversy requirement of Article III.” The Seventh Circuit noted that Wright’s claim to standing was particularly strained because he accepted the Rule 68 offer without reservation, and he preserved no interest in receiving an incentive award. Wright argued that he had a sufficient interest in the case because his offer of judgment did not include attorney’s fees for the class claim (as opposed to his individual claim), but – as the Seventh Circuit observed – Lewis v. Continental Bank Corp.,  494 U.S. 472, 480 (1990) holds that “an interest in attorneys’ fees is, of course, insufficient to create an Article III case or controversy where none exists.” The court noted that there is some tension between Lewis and Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), in which the Supreme Court allowed plaintiffs, whose individual claims had been satisfied, to appeal the denial of class certification based on their asserted interest in shifting attorney’s fees to the class members. But the court distinguished Wright’s case from Roper on the ground that Wright had accepted the Rule 68 offer “as satisfaction of all of the relief that he sought in the district court.” In Roper, by contrast, the district court entered judgment for the plaintiffs in the amount tendered by the defendant, even though the plaintiffs had refused that offer. Thus, even under Roper, Wright’s claims are moot.

There will likely be more permutations on the Rule 68/mootness issues, so stay tuned.

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Experian Petitions Fourth Circuit to Review Certification of 88,000-Member Class

View Stuart Pratt’s Complete Bio at RBH.comExperian recently petitioned the Fourth Circuit to immediately review a district court’s order certifying an 88,000-member, nationwide class of consumers who requested Experian credit reports that listed accounts with the now-defunct Advanta Bank. In this case, Dreher v. Experian Information Solutions, Inc., No. 14-325 (4th Cir. July 3, 2014), Experian requested an interlocutory appeal under Rule 23(f), contending that, among other things, the district court’s order that certified a class with members that had suffered no injury and found Rule 23’s predominance requirement to be satisfied was “manifestly erroneous.”

In January 2012, the plaintiff filed a class-action complaint in the Eastern District of Virginia, alleging Experian had committed multiple violations of the Fair Credit Reporting Act (“FCRA”) by failing to provide notice and accurate information about accounts with the defunct Advanta Bank listed on his and other consumers’ credit reports. Specifically, the plaintiff claimed that Experian erroneously reported that Advanta had supplied the credit-report information, when, in fact, Cardworks, a newly appointed servicer of the Advanta accounts, had given Experian this information. For these violations, the plaintiff sought statutory damages and attorneys’ fees and costs.

Upon the plaintiff’s motion, the district court, in June 2014, issued an order and opinion finding that the plaintiff had satisfied the class-action requirements of Rule 23 and certifying a class of individuals who had received a credit report from Experian after August 1, 2010, that identified Advanta as the sole source of information for an account entry. The district court rejected Experian’s arguments that issues of individual statutory damages would predominate over common issues of liability, concluding that the damages calculation for each class member would simply be based on the number of discrete statutory violations, and not, as Experian contended, based on each member’s individualized actual harm. The district court did not address Experian’s argument that most of the potential class members lacked Article III standing because they had not suffered an injury-in-fact.

Experian’s petition to the Fourth Circuit for interlocutory review focused on these two issues: Article III standing and predominance. Experian first argued that interlocutory review was appropriate because the district court—despite recognizing that “it is unlikely that anyone suffered actual injury”— ignored Experian’s Article III standing argument. The Fourth Circuit, Experian said, recently held that “deprivation of [a] statutory right” was not “sufficient to constitute injury-in-fact for Article III standing.” David v. Alphin, 704 F.3d 327, 338 (4th Cir. 2013). Thus, Experian contended that the district court’s admission about the lack of actual injury meant the class members did not have Article III standing and the class should not have been certified.

Second, Experian claimed that the certification order erroneously found that common issues predominated over individual members’ issues. Experian said the district court justified this conclusion by improperly adopting a “Trial by Formula” approach—using a mathematical calculation based on the FCRA’s statutory-damages limits to determine the class’s total damages. Again, Experian argued that the district court’s decision conflicted with a previous Fourth Circuit decision, this time Soutter v. Equifax Information Services, LLC, 498 F. App’x 267 (4th Cir. 2010). Instead of using a math formula to determine a class’s statutory damages under FCRA, Experian asserted that Soutter requires a court to typically do an “individualized inquiry” to determine damages. Further, Experian said the district court’s “Trial by Formula” approach was improper under Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), because the Dukes Court had rejected using such formulas to adjudicate class actions.

The plaintiff’s response to Experian’s petition is due in August. Then, it will be up to the Fourth Circuit to decide whether to allow an interlocutory appeal. We’ll continue to monitor and report on this case as it progresses in the courts.

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Can an offer of judgment to the named plaintiff moot a class action lawsuit? District of South Carolina says “No”

View David Wright's Complete Bio at RBH.comIt is often expedient for a defendant to make an offer of judgment in order to avoid the expense of lengthy proceedings, particularly when the plaintiff’s damages claim is small. But what happens when the offer of judgment is made to a class representative? Does that mean that the individual no longer has standing? And does it make any difference if the offer is made before or after the class certification motion is filed? Judge Currie grappled with these issues last week in a Fair Debt Collection Practices Act case, Chatham v. GC Services, LP, No. 3:14-cv-00526 (D.S.C. July 16, 2014), lamenting that “neither party [had] cite[d] to any Fourth Circuit or United States Supreme Court authority on this precise issue,” namely: “Do the presence of class allegations in the Complaint and the pendency of a motion for class certification . . . preclude the offer of judgment from rendering the Plaintiff’s class action moot?”

Although most circuits have rebuffed this defense tactic, there appears to be a bit of light in the Supreme Court’s decision in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013). But that was a Fair Labor Standards Act case, and rules for collective actions are different. In the end, Judge Currie aligned herself with the majority rule, finding that “an offer of judgment will not moot a named plaintiff’s claim if the offer is made while a motion to certify the class is pending.”

It remains to be seen whether or not the filing of the class certification motion is dispositive in this line of cases. If it is, you can expect to see in consumer class actions simultaneous filings of class certification motions with the complaint.

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