Presenting a live 90-minute webinar with interactive Q&A Offers of Judgment in Employment Litigation After Campbell-Ewald Co. v. Gomez Leveraging Rule 68 as a Strategic Tool to Minimize Damages, Identifying Remaining Opportunities to Moot Claims WEDNESDAY, MARCH 30, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: James N. Boudreau, Shareholder, Greenberg Traurig , Philadelphia Glenn S. Grindlinger, Partner, Fox Rothschild , New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Offers of Judgment in Employment Litigation After Campbell-Ewald Co. v. Gomez
Offers of Judgment After Campbell-Ewald v. Gomez Federal Rule of Civil Procedure 68: Offer of Judgment (continued) (b) Unaccepted Offer . An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. 5
Offers of Judgment After Campbell-Ewald v. Gomez Federal Rule of Civil Procedure 68: Offer of Judgment (continued) (c) Offer After Liability Is Determined . When one party’s liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time – but at least 14 days – before the date set for a hearing to determine the extent of liability. (d) Paying Costs After an Unaccepted Offer . If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. 6
Offers of Judgment After Campbell-Ewald v. Gomez Rule 68 Offers of Judgment – If there is any ambiguity in the offer of judgment it will be construed against the party that made the offer. – If accepted judgment is entered against the offeror. – If not accepted within the 14 day period, it is deemed withdrawn. 7
Offers of Judgment After Campbell-Ewald v. Gomez Rule 68 Offers of Judgment – Unaccepted Offers • Cannot be used against the party that makes the offer. • If the party that rejects the offer does not obtain a more favorable judgment, then the party that made the offer is entitled to costs accrued after the offer was made. • In employment cases, if ultimate judgment is less than offer, Generally, Plaintiff’s attorneys’ fees and costs are cut off at the time the offer is rejected. – Will depend on whether attorneys’ fees are defined as “costs”. • If Defendant wins the case, offer has no effect. 8
Offers of Judgment After Campbell-Ewald v. Gomez Part 2: Campbell-Ewald v. Gomez 9
STRATEGIC CONSIDERATIONS WHEN MAKING RULE 68 OFFERS > In What Cases Do Offers Make the Most Sense? – Where there is real potential exposure? – Frivolous cases? – Class Actions? Adequacy? See Chapman v. First Index Inc ., 796 F.3d 783 (7th Cir. 2015) (suggesting “[f] ailure to accept a fully compensatory offer . . . may suggest that the plaintiff is a bad representative of the class.” Such a plaintiff “has nothing to gain (implying poor incentives to monitor counsel) and may have given up something the class values (here, an injunction that would have stopped any further improper faxing).”) Estoppel/Waiver Defenses? See Williams v. Amazon, Inc., 2015 WL 8013501 (N.D. Ill. Dec. 7, 2015) (denying defendant summary judgment on estoppel/waiver affirmative defense in Fair Credit Reporting Act putative class action because defendant did not offer complete relief). Greenberg Traurig, LLP | gtlaw.com Offers of Judgment After Campbell-Ewald 10
STRATEGIC CONSIDERATIONS WHEN MAKING RULE 68 OFFERS (cont’d) > Is There A Best Time to Make an Offer? – Depends on the Precise Claim at Issue and the Goal Shift Fees for Leverage? What’s the underlying statute? • If fee-shifting, the earlier the better > What If You Are Trying To Moot A Class Claim? – As soon as you can quantify the claim May have to wait for discovery Before class certification motion is on file Greenberg Traurig, LLP | gtlaw.com Offers of Judgment After Campbell-Ewald 11
STRATEGIC CONSIDERATIONS WHEN MAKING RULE 68 OFFERS (cont’d) > Potential Impact on Future Litigation If It Is Accepted? – In Insured Actions, Can Pose Conflicts – think it through > Growing Concern that Won’t Moot Class Claim – Be Ready – Mavris v. RSI Enterprises Inc ., 303 F.R.D. 561 (D. Az. 2014) (positing named plaintiff could continue to pursue class action even after accepting Rule 68 offer) > Removed Actions – Be Careful! – 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”) Greenberg Traurig, LLP | gtlaw.com Offers of Judgment After Campbell-Ewald 12
Offers of Judgment After Campbell-Ewald v. Gomez Part 3: Campbell-Ewald v. Gomez 13
Offers of Judgment After Campbell-Ewald v. Gomez Campbell-Ewald v. Gomez Background • The Telephone Consumer Protection Act (TCPA) prohibits any person, absent prior consent, to “make any call. . .[u]sing any automatic telephone dialing system. . .to any telephone number assigned to a paging service [or] cellular telephone service. ” – Includes sending text messages. – Aggrieved individuals can recover actual damages or $500 (whichever is greater) for each violation. – Damages are trebled if the defendant willfully or knowingly violated the TCPA. 14
Offers of Judgment After Campbell-Ewald v. Gomez Campbell-Ewald v. Gomez Background • In 2000, the U.S. Navy engaged Campbell-Ewald, a national advertising/marketing firm to assist its recruitment efforts. • In 2005, Campbell-Ewald proposed that text messages be sent to young adults (18-24 year olds). • The Navy approved the campaign provided that the text messages were only sent to those who had “opted in” to receipt of marketing solicitations on topics that included service in the Navy. 15
Offers of Judgment After Campbell-Ewald v. Gomez Campbell-Ewald v. Gomez Background • Jose Gomez received one text message as part of the Navy’s recruitment campaign. • Gomez claimed that he had never consented to receipt of marketing solicitations on topics that included service in the Navy. • Gomez filed a putative class action complaint in federal court in California claiming that Campbell-Ewald willfully violated the TCPA. 16
Offers of Judgment After Campbell-Ewald v. Gomez Campbell-Ewald v. Gomez Background • After answering Campbell-Ewald made a Rule 68 Offer of Judgment in which it offered to pay Gomez $1,503 per text message that he received plus his costs to date. • Gomez did not respond within 14 days. • Campbell-Ewald then moved to dismiss the complaint arguing the case was now moot and the court lacked subject matter jurisdiction. – Campbell-Ewald offered Gomez all the individual relief he could obtain under TCPA and thus there was no longer any case or controversy under Article III of the Constitution. 17
Offers of Judgment After Campbell-Ewald v. Gomez Campbell-Ewald v. Gomez Background – District Court rejected Campbell- Ewald’s argument. – Ninth Circuit affirmed the District Court. – Supreme Court granted cert. to decide the following issue: • Is an unaccepted offer to satisfy the named plaintiff’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated. 18
Offers of Judgment After Campbell-Ewald v. Gomez Campbell-Ewald v. Gomez Supreme Court Opinion – Issue left open by Genesis HealthCare Corp. v. Symczyk, 569 U.S. __ (2013) • Plaintiff brought putative collective action under the Fair Labor Standards Act. • Defendant made an offer of judgment that Plaintiff conceded mooted her individual claim. • Supreme Court held that once named plaintiff’s claims were mooted, the court lacked jurisdiction as there was no longer a case or controversy. 19
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