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. Continue reading