Bais Yaakov of Spring Valley v. ACT, Inc., 798 F.3d 46

ACT sent three unsolicited faxes to Bais Yaakov that allegedly violated the TCPA and New York Gen. Bus. Law § 396-aa; Bais Yaakov sued individually and as putative class representative seeking damages and injunctive relief.
Before Bais Yaakov moved for class certification, ACT served a Rule 68 offer of judgment to the named plaintiff for the maximum statutory damages it asserted were available per fax, an injunction, and conditional attorney's fees; the offer went unaccepted and was withdrawn under Rule 68.
ACT moved to dismiss for lack of subject-matter jurisdiction, arguing the unaccepted/withdrawn Rule 68 offer mooted Bais Yaakov’s individual claim and thus the putative class action (no certification motion was pending at the time of the offer).
The district court denied dismissal; the question was certified under 28 U.S.C. § 1292(b) and taken up on interlocutory review.
The First Circuit considered (1) whether an unaccepted/withdrawn Rule 68 offer can moot a named plaintiff’s individual claim in a putative Rule 23 class action when made before any certification motion, and (2) related precedent about continuing economic interests (attorney’s fees, incentive awards) and pick-off strategies.
The panel concluded that an unaccepted Rule 68 offer does not by itself moot the plaintiff’s individual claim because it provides no binding relief and resolving ACT’s argument would require merits-like determinations inappropriate in a jurisdictional inquiry.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an unaccepted (and withdrawn) Rule 68 offer to the named plaintiff, made before any class-certification motion, moots the plaintiff’s individual claim and so deprives the court of Article III jurisdiction	Offer did not moot because it was unaccepted/withdrawn and thus conferred no relief; plaintiff retains interests (e.g., sharing attorney’s fees, possible incentive award, class certification)	Offer mooted the case because it provided all relief the named plaintiff could obtain on her individual claim; therefore there is no case or controversy	An unaccepted/withdrawn Rule 68 offer does not moot the plaintiff’s individual claim; denial of dismissal affirmed
Whether plaintiff’s asserted continuing economic interests (attorney’s fees, incentive award) preserve an Article III stake after a full-offer pick-off	Plaintiff argues a continuing economic interest exists (ability to shift fees, incentive award) supporting a live interest in the litigation	Defendant argues any purported continuing interest is illusory and cannot prevent mootness where full relief has been tendered	Court noted Roper’s fee-based rationale is unsettled post-Genesis Healthcare but did not rest decision on Roper; panel left fee/incentive issues unresolved and held plaintiff had not received "complete relief" regardless

Deposit Guaranty Natl. Bank v. Roper, 445 U.S. 326 (1980) (holding entry of judgment on individual claims after denial of certification did not moot appeals; discussed pick-off concerns and fee-shifting interest)
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013) (clarified limits of Roper reasoning and declined to decide whether an unaccepted offer moots a claim; distinguished FLSA collective actions)
Cruz v. Farquharson, 252 F.3d 530 (1st Cir. 2001) (putative class actions ordinarily moot if all named plaintiffs’ individual claims are fully resolved before certification decision)
Tanasi v. New Alliance Bank, 786 F.3d 195 (2d Cir. 2015) (post-Genesis decision rejecting that an unaccepted Rule 68 offer alone moots a plaintiff’s claim)
Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948 (9th Cir. 2013) (held an unaccepted Rule 68 offer does not by itself moot a claim)
Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698 (11th Cir. 2014) (similar holding that rejected Rule 68 offer does not moot an individual plaintiff’s claim)