As we previously reported, the Supreme Court recently issued its decision in Campbell-Ewald Co. v. Gomez, where the Court held that an unaccepted offer that would fully satisfy a plaintiff's individual claim is insufficient to render that claim moot in a class case. The Supreme Court's opinion, however, left open the question of whether actual payment – as opposed to a mere offer – might moot a class action.
On remand from the Supreme Court, Campbell-Ewald filed a motion to dismiss for lack of jurisdiction or, in the alternative, entry of judgment for the plaintiff and a motion for leave to deposit funds with the Court, hoping again to moot plaintiff's putative Telephone Consumer Protection Act (TCPA) class action. Campbell-Ewald argued that "consistent with the guidance from the United States Supreme Court, it has now paid $10,000 (in two separate ways) to Gomez ... by sending Gomez's counsel a certified check and, separately, by asking the Court to accept a payment in the same amount." By sending an "unconditional, irrevocable" payment to Gomez's counsel, Campbell-Ewald argued that Gomez has "actually received" the relief at issue.
Relying on the Ninth Circuit's decision in Chen v. Allstate Ins. Co., the district court rejected Campbell-Ewald's argument. In Chen, the court held that funds deposited in an escrow account have not been "actually received" for purposes of mooting an individual plaintiff's claims. Here, the Court likewise held that "Gomez's matter remains 'live' because he has not accepted the settlement offer, and because this Court has not entered judgment in his favor." The Court further stated that "Gomez has not yet had a fair opportunity to show whether or not class certification is warranted, and it would not be appropriate under the circumstances for the Court to enter judgment for Plaintiff against his wishes."
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