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

June 22, 2017 by

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.

Keith Dubanevich
Keith is an accomplished trial, appellate, and healthcare lawyer with over 30 years of experience in more than a dozen different jurisdictions around the country. With a focus on complex dispute resolution, with particular emphasis in the healthcare industry, Keith is adept at handling multi-state and internal antitrust cases, consumer litigation, and securities disputes. In healthcare, he has handled peer review disputes, partnership and incorporation matters, and billing investigations. Keith has led internal investigations for public entities as well as for not-for-profit organizations. Keith's clients value his keen instincts in court and his ability to delve into complex legal issues while never losing sight of the overall strategy of a case. During his time at the Oregon Department of Justice as Associate Attorney General and Chief of Staff, Keith led the creation of a civil rights unit, managed securities litigation including multiple cases against financial services companies, and supervised antitrust investigations and prosecutions. He was also involved with the adoption of legislation that expanded the Unlawful Trade Practices Act and legislation that imposed a mediation requirement prior to non-judicial foreclosures.

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