In the wake of the Supreme Court’s decision in Campbell-Ewald v. Gomez, the Ninth Circuit has held that an offer tendering complete relief, conditioned on the dismissal of a putative class action, is insufficient to moot the action for purposes of Article III jurisdiction.

In Chen v. Allstate, No. 13-16816 (9th Cir. April 12, 2016), the defendant deposited in escrow an amount exceeding the value of the plaintiff’s individual TCPA claim. The escrow instructions conditioned the payment of the funds on the entry of an order from the district court dismissing the action as moot. The defendant asked the Ninth Circuit to supplement the record on its pending appeal, to hold that the tender had mooted the plaintiff’s claims under Article III, and to direct the district court to dismiss the action.

The Ninth Circuit agreed to consider the conditional tender but found it insufficient to moot the plaintiff’s individual TCPA claims. While finding that the plaintiff had been offered complete relief, the panel held that his action had not been mooted because he had not yet received the funds or otherwise obtained relief on his claims. In doing so, it suggested that defendants must unconditionally relinquish any interest in tendered funds in order to moot a plaintiff’s claims.

The panel also declined to instruct the district court to dismiss the action. Instead, because it found that the plaintiff still had a “live claim” for individual relief, it held that the district court was required to afford the plaintiff an opportunity to move for class certification. The panel reasoned that dismissal was improper, given what it described as plaintiff’s personal stake in the putative class claims.

This rationale seems open to question, given recent Supreme Court precedent and the Rules Enabling Act. Further, the Chen decision does not look to be the last word on the topic of tenders, as the case (according to the Ninth Circuit) does not address unconditional tenders in full satisfaction of claims – the scenario identified in the majority and dissenting opinions in Campbell-Ewald as open for further consideration as a means for mooting individual TCPA claims, including those joined with putative class claims.