As noted in last month's issue, the Supreme Court in Campbell-Ewald Co. v. Gomez, No. 14-857, 2016 WL 228345 (U.S. Jan. 20, 2016), left open the possibility that a defendant might moot a class representative's claim and the claims of the proposed class by paying the class representative and obtaining a court-ordered judgment rather than merely extending a settlement offer. In the first post-Gomez case to test this possibility, Brady v. Basic Research, No. 2:13-cv--7169 (E.D.N.Y.), the district court held that defendants may not moot the plaintiffs' claims by depositing funds with the clerk.
The day after the Supreme Court decided Gomez, the defendants in Brady, a putative false advertising class action, moved for permission to deposit their entire Federal Rule 68 offer of judgment with the Clerk of the Court, an amount sufficient to cover the full amount of the named plaintiffs' individual claims. Under Rule 67(a), leave of court is required before a party may deposit such funds with the clerk.
On February 3, 2016, District Judge Sandra J. Feuerstein denied the defendants' motion. Citing Gomez, she reasoned that "[a]s defendants seek Rule 67(a) permission to deposit funds into court to moot this case and not relieve themselves of the burden of administering an asset, and given the Supreme Court's directive that a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted, the Court finds that granting the Defendants' Rule 67(a) Motion is not warranted." It is likely that class action defendants will continue experimenting with ways to moot class actions that are consistent with Gomez, but Brady suggests that district courts may be reluctant to allow them to post funds with the courts themselves.