On February 3, 2016, U.S.D.J. Sandra J. Feuerstein denied defendant, Basic Research LLC’s motion for permission to deposit funds with the Clerk of the Court in an attempt to moot Plaintiffs’ individual claims, thereby defeating Plaintiffs’ attempt to certify a class. The Court’s denial rested in large part on the underlying intent behind Rule 67, which she acknowledged was a procedural device intended to provide a place of safekeeping for disputed funds pending a resolution of the case. More specifically, the Court recognized that Rule 67 was meant to relieve a depositor of the burden of administering an asset, and not to moot a plaintiff’s individual claims.
Without much analysis, the Court further reasoned that under the U.S. Supreme Court’s recent ruling in Campbell-Ewald, “a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” Id. at 4 (citing Campbell-Ewald Co. v. Gomez, __ S. Ct. __, 2016 WL 228345 (U.S. Jan. 20, 2016)) (emphasis in original). Therefore, in its own discretion, the Court found that Defendant’s Rule 67(a) Motion was not warranted under the circumstances. Tellingly, Judge Feuerstein’s order acknowledges that under Campbell-Ewald, the majority noted that “[w]e need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to plaintiff, and the court then enters judgment for the plaintiff in that amount.” Opinion, p. 3 (quoting Campbell-Ewald, at *11) (emphasis in original).
In a second attempt to moot Plaintiffs’ individual claims under the guidance of the Court andCampbell-Ewald, Defendant explained that it had wired the full amount of its Rule 68 offer of judgment into a private bank account where the funds are segregated and available to be disbursed once the Court enters judgment in favor of Plaintiffs. As its basis for taking such action, Defendant pointed out that under Campbell-Ewald (1) the majority had not decided whether a plaintiff’s case could be mooted if a defendant actively deposits the full amount sought by a plaintiff in an account payable to plaintiff; and (2) that the dissent also “made clear that paying the funds into an accountwill moot a plaintiff’s claim.” 2-4-16 Letter, at p. 2 (citing Campbell-Ewald, 2016 WL 228345, at *12-20). Defendant reasoned that once Plaintiffs receive these funds, they will no longer have any live or justiciable claim, which in turn moots their class claims. The Court has not taken any action yet in light of Defendant’s letter.
Judge Feuerstein’s order denying Defendant’s Rule 67 Motion, however, and Defendant’s subsequent attempt to then deposit funds in a private account available to Plaintiffs, illustrate how counsel are attempting to implement and comply with Rule 68 under Campbell-Ewald. At the very least, according to one court, if defendants are seeking to moot an individual claim in a class action under Rule 68, a Rule 67 Motion to deposit funds with the Clerk of the Court will not accomplish this goal in light of its underlying purpose and Campbell-Ewald. It remains unclear whether other courts will follow suit with this ruling.