Weitzner v. Sanofi Pasteur, Inc., 7 F. Supp. 3d 460

Plaintiffs (a physician and his professional corporation) sued Sanofi Pasteur and Vaxserve under the TCPA for receiving unsolicited facsimile advertisements and sought to represent a putative Rule 23 class. Complaint filed November 26, 2011.
Defendants moved to dismiss and for other relief earlier in the case; those motions were denied, and defendants did not file answers until November 12, 2013.
On November 15, 2013 defendants served Rule 68 Offers of Judgment to each named plaintiff, offering statutory treble damages calculated at $1,500 per fax (11 faxes assumed) plus costs and injunctive assurances; the offers would expire if not accepted within 14 days.
Plaintiffs did not accept the offers and have not moved for class certification. Defendants then moved to dismiss for lack of subject‑matter jurisdiction, arguing the offers mooted both individual and putative class claims.
The central legal question: whether an unaccepted Rule 68 offer that would fully satisfy the named plaintiffs moots (1) the plaintiffs’ individual claims and (2) the putative Rule 23 class claims when no certification motion has yet been filed.
The court applied Third Circuit precedent (Weiss) and analyzed whether plaintiffs unduly delayed such that a certification motion could not relate back to the complaint.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Rule 68 offers moot plaintiffs' individual claims	Weitzner did not contest that the offers provided maximum statutory relief; but plaintiffs argue class issues remain	Defendants contend the offers fully satisfied the individual claims and thus those claims are moot	Individual claims are mooted by offers that provide complete relief (court follows Weiss on this point)
Whether the Rule 68 offers moot the putative Rule 23 class claims when no certification motion yet filed	Weitzner argues that, under Third Circuit law, a timely class‑certification motion relates back to the complaint and preserves class claims	Defendants argue the offers extinguish plaintiffs' stake and thus the entire action is moot; they urge Weiss be limited or overruled by Genesis Healthcare	Court holds Weiss controls: because no undue delay occurred, a class‑certification motion would relate back and preserve class claims; thus dismissal is denied
Whether Genesis Healthcare v. Symczyk nullifies Weiss for Rule 23 class actions	Plaintiffs: Genesis is limited to FLSA collective actions and does not displace Weiss for Rule 23 TCPA suits	Defendants: Genesis undermines Weiss and supports dismissal where the named plaintiff's individual claim is fully satisfied before class status attaches	Court rejects defendants' argument: Genesis addressed FLSA collective actions and does not compel abandoning Weiss in Rule 23 context

Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004) (an unaccepted Rule 68 offer that moots an individual claim does not necessarily moot a putative Rule 23 class claim; certification motion may relate back absent undue delay)
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (U.S. 2013) (Supreme Court distinguished FLSA collective actions from Rule 23 class actions in assessing mootness after Rule 68 offers)
Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011) (Rule 68 offer that fully satisfies plaintiff moots the individual action)
McCauley v. Trans Union, LLC, 402 F.3d 340 (2d Cir. 2005) (unaccepted Rule 68 offer that would fully satisfy claim moots the plaintiff's action)
O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567 (6th Cir. 2009) (Rule 68 offer moots the case but court instructed entry of judgment consistent with offer)