The Seventh Circuit has again rejected a pick-off attempt in a class action overturning a dismissal that approved use of that tactic.
Just because someone offers to make a payment to settle a legal dispute does not mean the payee is required to accept the payment. Nor does the offer of payment (or deposit made to the court) negate the existence of the legal dispute. Nevertheless, that’s exactly what Bisco Inc. tried to claim after Fulton Dental, LLC filed a putative class action lawsuit against the dental company.
Fulton sued Bisco for allegedly violating the Telephone Consumer Protection Act (TCPA) by sending unsolicited fax messages about dental products. Fulton sued on behalf of itself and all those similarly situated who received unsolicited fax messages from Bisco (for which Fulton was therefore made to pay). But before Fulton had a chance to file a motion to certify its class of plaintiffs, Bisco offered to pay Fulton about $3,000 in order to settle the dispute. Fulton refused, but Bisco made a deposit to the court of $3,600 and claimed that settled the whole matter.
The Seventh Circuit Court disagreed, going off the Supreme Court’s 2016 in Campbell-Ewald, in which the Supreme Court rejected the assertion that an offer to pay the plaintiff’s damages in full did not render the class action lawsuit moot under Rule 68 of the Federal Rules of Civil Procedure.
However, in its written opinion, the Supreme Court did note that, by making the ruling in this particular case, the Court was not trying to rule in any other legal disputes of a similar nature. Bisco took that to mean the deposit it made to the Seventh Circuit Court of Appeals was still a valid method of ending its legal dispute with Fulton Dental.
But both Fulton and the Seventh Circuit Court disagreed. Fulton rejected Bisco’s offer, saying it was not enough to pay the damages of all the plaintiffs included in the proposed class, and the Seventh Circuit Court rejected Bisco’s assumption that the Supreme Court’s language in its written opinion meant a deposit made to the court under Rule 67 negated the legal dispute.
On the contrary, in its written ruling, the Seventh Circuit Court of Appeals drew on the Supreme Court’s decision in Campbell-Ewald to provide reasoning for its rejection of Bisco’s assertion that the company’s offer of a settlement rendered the entire legal dispute moot. Bisco insisted it was relying on Rule 67 which allows deposits to be made with a federal court), saying it’s own deposit in Fulton’s lawsuit against Bisco should render that case moot.
The majority ruled that Rule 67 said nothing about a deposit forcing a settlement on another party that had not agreed to the settlement. Instead, the Seventh Circuit Court’s ruling pointed out it is usually best to take the Supreme Court at its word and that, just because the Court is reserving judgment on issues that might benefit from further attention and are not directly related to the case at hand, does not mean the Court is choosing to rule on related issues.
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