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District Court Denies Motion to Dismiss After Defendant Makes Rule 68 Offer of Judgement to Class Representative

On March 12, 2014, the United States District Court for the Middle District of Pennsylvania denied defendants' motion to dismiss that had been filed after plaintiffs refused to accept defendants' Rule 68 Offer of Judgement.

In this class action suit brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (b)(1)(c), plaintiffs allege that defendants Sanofi Pasteur, Inc. and Vaxserve, Inc. illegally transmitted some 11,000,000 facsimile advertisements to person and businesses who did not consent to receive such facsimiles. Following the denial of prior motions to dismiss, defendants made Offers of Judgement under Rule 68 to the two proposed class representatives. Defendants' offers were clearly intended to set-up their most recent motion to dismiss.

In that motion, defendants argued that because they offered the two proposed class representatives all of the relief that they could have recovered if they prevailed at trial, the case essentially became moot, even through the proposed class representatives did not accept the offers. The case law on this subject - whether an Offer of Judgement for full relief moots the rest of the lawsuit, including the claims of class members in a class action - is still evolving. Some courts have held that they no longer have jurisdiction once the Rule 68 Offer has been made; other courts have held that the Rule 68 Offer cannot be used to avoid class action litigation through settlement offers to the class representatives.

A copy of the Court's Memorandum is available in the link below. Defendants have been granted permission to take an immediate interlocutory appeal to the Third Circuit Court of Appeal. Oral argument is scheduled for March 4, 2015.

readerRule 68 Opinion
      (March 12, 2014)