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Williams v., Inc.

United States District Court, N.D. Illinois, Eastern Division

December 7, 2015

AMAZON.COM, INC., SMX LLC, d/b/a Staff Management--SMX, and STAFF MANAGEMENT SOLUTIONS LLC, d/b/a Staff Management--SMX, Defendants

          For 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.

         For 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.


         Gary Scott Feinerman, United States District Judge.

         After 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

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moved to strike the offer, Doc. 69, and the court denied the motion, Doc. 77. This opinion explains that decision.

         Rule 68 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).

         Sometimes 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).

         The 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.

         On June 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." ).

         Just 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.

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          The 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.

         Williams 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 ...

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