Ari Weitzner v. Sanofi Pasteur Inc
819 F.3d 61
3rd Cir.2016Background
- Plaintiffs Dr. Ari Weitzner and his professional corporation filed a putative class action under the TCPA alleging defendants sent unsolicited fax advertisements to them and thousands of others.
- Before any motion for class certification was filed, defendants served Rule 68 offers of judgment to each named plaintiff, offering payment calculated on 11 faxes plus costs and injunctive relief; the offers expired unaccepted after 14 days.
- Defendants moved to dismiss under Rule 12(b)(1), arguing the unaccepted Rule 68 offers rendered the plaintiffs’ individual claims and the entire action moot, depriving the court of subject-matter jurisdiction.
- The district court denied the motion to dismiss, relying on Third Circuit precedent that a putative class representative may retain a live interest through relation-back of a later class certification.
- Defendants sought interlocutory review on whether an unaccepted pre-certification Rule 68 offer moots the entire putative class action; the Third Circuit held the question pending the Supreme Court’s decision in Campbell-Ewald.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unaccepted Rule 68 offer made before a Rule 23 class-certification motion moots the named plaintiffs’ individual claims and the entire putative class action | Weitzner argued the unaccepted offer has no force and the action is not moot; class certification (if later granted) would relate back to the complaint so jurisdiction remains | Sanofi argued the unaccepted Rule 68 offer provided complete relief to the named plaintiffs, mooting their individual claims and thus the entire action for lack of jurisdiction | The Third Circuit held that under Campbell-Ewald an unaccepted Rule 68 offer does not moot the case; affirmed district court denial of the dismissal motion |
Key Cases Cited
- Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (an unaccepted Rule 68 offer does not moot a plaintiff’s lawsuit seeking class relief)
- Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004) (pre-Campbell-Ewald Third Circuit decision holding relation-back can preserve a class representative’s standing)
- Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) (Addressed mootness in the context of FLSA collective actions; distinguished from Rule 23 class actions)