Keeping It In Court: Unaccepted Offer Of Judgment Doesn't Moot Class Claims

On April 6, 2016, the Third Circuit, in Weitzner v. Sanofi Pasteur, Inc., considered whether an offer of judgment under Federal Rule of Civil Procedure 68 moots a plaintiff's entire action, including class claims, thereby depriving a district court of subject matter jurisdiction. The opinion, authored by Judge Scirica, held that, pursuant to the Supreme Court's recent decision in Campbell-Ewald Company v. Gomez, 136 S. Ct. 663 (2016), an unaccepted offer of judgment does not moot a case.

Plaintiff Ari Weitzner, a physician from New York, together with his professional corporation, filed a putative class action against Sanofi Pasteur, Inc. and Vaxserve Inc., alleging violations of the TCPA. Plaintiffs alleged that defendants sent over 10,000 faxes to plaintiffs and other class members without prior invitation or permission. After the filing of the complaint, but before the filing of any motion for class certification, defendants made offers of judgment under Rule 68