Two Second Circuit Cases, Two Applications Of Campbell-Ewald, Two Different Results, Three Weeks Apart

Within roughly three weeks, the Second Circuit issued two opinions applying the Supreme Court's Campbell-Ewald Co. v. Gomez decision to class action cases involving Rule 68 offers of judgment. On February 15, 2017, in Leyse v. Lifetime Entertainment Services, LLC, the Second Circuit upheld entry of judgment in a case brought by a plaintiff individually and on behalf of a putative class alleging violations under the Telephone Consumer Protection Act (TCPA). The plaintiff moved for class certification, which was denied. The defendant subsequently made a Rule 68 offer of judgment to the plaintiff and deposited "the full amount of damages and costs recoverable by [the plaintiff] under the TCPA, even though [the plaintiff] had not accepted" the offer of judgment. Despite the plaintiff's rejection of the offer, the district court granted the defendant's motion to enter judgment on behalf of plaintiff. The plaintiff appealed, arguing that Campbell-Ewald abrogated Second