7th Circuit expands Supreme Court ruling prohibiting pick-off attempts

Posted on: June 22nd, 2017 by Keith Dubanevich

On June 20, 2017, the 7th U.S. Circuit Court of Appeals reversed a trial judge’s dismissal of a putative class action case finding that a pick-off attempt was unsuccessful. Fulton Dental LLC v. Bisco Inc., ___F.3d___, No. 16-3574 (7th Cir. June 20, 2017). In this case under the Telephone Consumer Protection Act, the defendant had deposited a payment with the court under FRCP 67, which payment it claimed was sufficient to make the named plaintiff whole (the full amount of the named plaintiff’s individual claim). The plaintiff never accepted the payment and denied any agreement to settle. Nonetheless, the district court ruled that the payment mooted the plaintiff’s claim and disqualified it from serving as a class representative.  Thereafter the court dismissed the case in its entirety.

The 7th Circuit rejected the defendants attempt at mooting the case stating:

“we see no principled distinction between attempting to force a settlement on an unwilling party through Rule 68, as in CampbellEwald [v. Gomez, 136 S.Ct. 663 (2016)], and attempting to force a settlement on an unwilling party through Rule 67. In either case, all that exists is an unaccepted contract offer, and as the Supreme Court recognized, an unaccepted offer is not binding on the offeree.”

Slip op. at p. 8.