Both the Fifth and Seventh circuits recently held that an unaccepted offer of judgment cannot moot a named-plaintiff’s claim in a putative class action.  Both courts relied on Justice Kagan’s dissenting opinion in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1532-37 (2013) that an expired or unaccepted offer of judgment “does not satisfy the Court’s definition of mootness, because relief remains possible.”  See Chapman v. First Index, Inc., No. 14-2773, (7th Cir. Aug. 6, 2015) and Hooks v. Landmark Industries Inc., No. 14-20496 (5th Cir. Aug. 12, 2015).

In doing so, the Seventh Circuit expressly “overrule[d] Damasco, Thorogood, Rand, and similar decisions to the extent they hold that a defendant’s offer of full compensation moots the litigation or otherwise ends the Article III case or controversy.”   Defendants may be able to take cold comfort in the Seventh Circuit’s comment that “[r]ejecting a fully compensatory offer may have consequences other than mootness” such as “suggest[ing] that the plaintiff is a bad representative of the class” and, possibly, creating an “affirmative defense, perhaps in the nature of an estoppel or a waiver.”

Now, the Second, Fifth, Seventh, Ninth, and Eleventh circuits are all in accord with Justice Kagan’s dissenting opinion in Genesis HealthCare.

This issue, however, remains very much alive and is pending before the Supreme Court in Gomez v. Campbell Ewald Co., 768 F.3d 871 (9th Cir. 2014), cert. granted, 135 S. Ct. 2311 (2015).