United States District Court, N.D. Illinois, Eastern Division
Gregory Williams, on behalf of himself and all others
similarly situated, Plaintiff: James A. Francis, John
Soumilas, Lauren Kw Brennan, LEAD ATTORNEYS, PRO HAC VICE,
Francis & Mailman, P.C., Philadelphia, PA; Larry Paul Smith,
SmithMarco, P.C., Chicago, IL; Christopher E Green,
CHRISTOPHER E. GREEN, ATTORNEY AT LAW, SEATTLE, WA.
Amazon.com Inc, SMX LLC, doing business as Staff Management -
SMX, Staff Management Solutions LLC, doing business as Staff
Management - SMX, Defendants: Cara Robin Sherman, LEAD
ATTORNEY, PRO HAC VICE, Thompson & Knight LLP, San Francisco,
CA; David R Ongaro, LEAD ATTORNEY, PRO HAC VICE, ONGARO, PC,
SAN FRANCISCO, CA; Joel Griswold, Melissa Anne Siebert,
Bonnie L. Keane, LEAD ATTORNEYS, Baker & Hostetler, LLP,
Chicago, IL; Joel C Griswold, LEAD ATTORNEY, PRO HAC VICE,
BAKER HOSTETLER LLP, CHICAGO, IL.
OPINION AND ORDER
Scott Feinerman, United States District Judge.
being turned down for a job, Gregory Williams filed this
putative class action, which alleges violations of the Fair
Credit Reporting Act (" FCRA" ), 15 U.S.C. §
1681 et seq. Doc. 1. Defendants made Williams an
offer of judgment under Federal Rule of Civil Procedure 68,
Doc. 62-1, Williams
moved to strike the offer, Doc. 69, and the court denied the
motion, Doc. 77. This opinion explains that decision.
allows the defendant in a civil suit to make a settlement
offer in the form of " an offer to allow judgment on
specified terms." Fed.R.Civ.P. 68(a). If the plaintiff
accepts the offer, the clerk of court enters the judgment and
the case is over. Ibid. If the plaintiff declines
the offer and goes on to win a judgment that is " not
more favorable than the unaccepted offer," the plaintiff
must reimburse the defendant for the costs it " incurred
after the offer was made." Fed.R.Civ.P. 68(d).
the defendant will make a Rule 68 offer that gives the
plaintiff all the relief he seeks. It used to be doctrine in
the Seventh Circuit that if a plaintiff rejected such an
offer, the case became moot. See Thorogood v.
Sears, Roebuck & Co., 595 F.3d 750, 752 (7th Cir. 2010);
Greisz v. Household Bank (Ill.), N.A., 176 F.3d
1012, 1015 (7th Cir. 1999); Rand v. Monsanto Co.,
926 F.2d 596, 597-98 (7th Cir. 1991). That was true even in
putative class actions, so long as the offer was made before
the plaintiff moved under Rule 23 for class certification; if
the defendant offered the plaintiff everything he requested
for himself before he moved for class certification,
the case was mooted even if the offer granted no relief to
the putative class. See Damasco v. Clearwire
Corp., 662 F.3d 891, 896 (7th Cir. 2011).
Seventh Circuit recently altered the landscape in Chapman
v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015).
Chapman held that because a case is moot only if the
court cannot grant relief, and because an unaccepted Rule 68
offer does nothing to prevent a court from granting relief,
an unaccepted offer, even one offering the plaintiff complete
relief, cannot make a case moot. Id. at 786 (citing
Knox v. Serv. Emps. Int'l Union, 132 S.Ct. 2277,
2287, 183 L.Ed.2d 281 (2012)). Chapman overruled the
Seventh Circuit's earlier cases " to the extent they
hold that a defendant's offer of full compensation moots
the litigation or otherwise ends the Article III case or
controversy." Id. at 787. Chapman took
pains to note, however, that it was not rejecting the general
proposition that " [y]ou cannot persist in suing after
you've won." Ibid. (quoting
Greisz, 176 F.3d at 1015). Instead, Chapman
explained, it was holding only that the rule against a
plaintiff continuing to litigate after receiving an offer of
complete relief was an affirmative defense, " perhaps in
the nature of an estoppel or a waiver," rather than a
jurisdictional bar. Ibid.
1, 2015, before Williams moved to certify a class, Defendants
made him a Rule 68 offer. Doc. 55 at 12. Williams rejected
the offer, and Defendants moved for summary judgment under
Chapman 's estoppel/waiver principle. Doc. 52.
The court denied the motion in an oral ruling on the ground
that Defendants had not offered Williams complete relief,
i.e., everything that he had demanded. Doc. 59;
see Smith v. Greystone Alliance, LLC, 772
F.3d 448, 450 (7th Cir. 2014) (pre- Chapman )
(" [A] jurisdictional dismissal is proper only if the
defendant offers more than the plaintiff's demand. ... An
excessive demand may lead to sanctions for frivolous
litigation but does not diminish the court's
jurisdiction. A defendant cannot have the suit dismissed by
making an offer limited to what it concedes the plaintiff is
entitled to receive, even if the defendant happens to be
right about its view of the plaintiff's entitlement,
because deciding that entitlement resolves the merits."
before Williams moved for class certification, Doc. 60,
Defendants followed up with a more generous Rule 68 offer,
Doc. 62-1. Williams rejected that offer, too, and Defendants
moved for leave to file an amended summary judgment
motion--again on the ground that Williams had rejected
complete relief and therefore had no right to keep
litigating. Doc. 62. Williams then filed the " motion to
strike" at issue in this opinion. Doc. 69. " Motion
to strike" is placed in scare quotes because in fact the
motion requested two forms of relief: first, for the court to
strike from Defendants' proposed summary judgment motion
the email containing the second Rule 68 offer; and second,
for the court to declare invalid the second Rule 68 offer, so
that Williams has no risk of being saddled with
Defendants' costs if he obtains a judgment less favorable
than the offer. Id. at 3 n.2, 7.
court denied Williams's motion. Doc. 77. Because
Defendants' motion for leave to file an amended summary
judgment motion also was denied, there is no need to discuss
Williams's request to strike the attachment to it.
However, the court also denied his request that the court
declare invalid the second Rule 68 offer, and that decision
bears further explanation.
argued that the offer is invalid because Rule 68 does not
apply to putative class actions. Doc. 69-1. That is wrong.
Nothing in the text of Rule 68, Rule 23, or any other rule or
statute supports the existence of such an exception. Williams
pointed to Rule 68(b), which states in relevant part that
" [e]vidence of an unaccepted offer is not admissible
except in a proceeding to determine costs." Fed.R.Civ.P.
68(b). According to Williams, Rule 68(b) prohibits using
evidence of an ...