United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
RICHARD G. STEARNS, District Judge.
Plaintiff Manoucheka Charlessaint brings this lawsuit individually and on behalf of all others similarly situated against Persian Acceptance Corporation (PAC) for alleged violations of the federal Electronic Funds Transfer Act (EFTC), 15 U.S.C. §§ 1692 et seq., and the Massachusetts Electronic Funds Transfer Act (MEFCT), Mass. Gen. Laws ch. 167B. Both the EFTC and the MEFCT bar the conditioning of a consumer credit loan on a preauthorized electronic fund transfer. 15 U.S.C. § 1693k(1); Mass. Gen. Laws ch. 167B, §7(1).
PAC is an automotive finance company. At all relevant times, PAC had a Dealer Agreement with Malden Auto Brokers (MAB), a car dealership. Pursuant to the Agreement, PAC undertook to finance auto loans by purchasing qualified Retail Installment Sales Agreements from MAB. In April of 2013, Charlessaint sought to purchase a used car from MAB and applied for a loan with PAC through MAB. Wellington Duarte, the owner of MAB, assisted Charlessaint with her loan application. Duarte had been trained by PAC in the use of its online portal, which provided the loan application documents. These included a Document Checklist for Funding, a Customer Checklist, a Retail Installment Sale Agreement, and an A.C.H. (Automated Clearing House, a national electronic funds transfer system) Electronic Debit Authorization form. Duarte informed Charlessaint that she was required to open a bank account and agree to have weekly car payments electronically debited before PAC would approve her loan. Charlessaint followed Duarte's banking directions, completed the loan application (including the A.C.H. authorization form), and was given a loan. PAC automatically deducted the weekly loan payments from Charlessaint's bank account. Some months later, Charlessaint requested that PAC change the debits to a monthly payment cycle because the weekly withdrawals occasionally resulted in an overdraft of her account. PAC refused.
Charlessaint commenced this suit in April of 2014. In February of 2015, PAC made an Offer of Judgment to Charlessaint on her individual claims pursuant to Fed.R.Civ.P. 68. PAC offered to submit to judgment on the EFTA and MEFTA claims in the amount of one thousand and one dollars each (the maximum statutory damages for each statute is one thousand dollars), "together with the Plaintiff's actual damages (to the extent such actual damages exist)... in an amount to be determined by the Court." Def.'s Ex. 14. Charlessaint rejected the offer. After the completion of fact discovery, the parties filed the present cross motions for summary judgment.
In support of its motion for judgment of no liability, PAC advances two arguments. First, PAC contends that Charlessaint's rejection of its Rule 68 Offer of Judgment mooted her claims. The gist of the argument is that because PAC had offered Charlessaint all the relief that she could possibly have obtained on her individual claims, there is no remaining claim or controversy to sustain this court's exercise of subject matter jurisdiction. PAC further contends that without a personal stake in the claims, Charlessaint cannot act as a representative of the purported class.
The effect of an unaccepted Rule 68 offer of complete relief is at the moment an unsettled question of law. The majority of the Circuits - including the Third, Fourth, Fifth, Sixth, Seventh, and Tenth Circuits, hold that as a rule such an offer forecloses a plaintiff from continuing the litigation. See, e.g., Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991) ("Once the defendant offers to satisfy the plaintiff's entire demand, there is no dispute over which to litigate, and a plaintiff who refuses to acknowledge this loses outright, under Fed.R.Civ.P. 12(b)(1), because he has no remaining stake." (internal citation omitted)); Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 371 (4th Cir. 2012), as amended (Feb. 1, 2012) ("When a Rule 68 offer unequivocally offers a plaintiff all of the relief she sought to obtain, the offer renders the plaintiff's action moot." (internal quotation marks and citation omitted)); O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 574 (6th Cir. 2009) ("We agree with the Seventh Circuit's view that an offer of judgment that satisfies a plaintiff's entire demand moots the case and reject the plaintiffs' contention that the offer of judgment could not be considered."); Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004), as amended (Oct. 22, 2004) ("An offer of complete relief will generally moot the plaintiff's claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation."); Krim v. pcOrder.com, Inc., 402 F.3d 489, 502 (5th Cir. 2005) ("[A] full settlement offer, even if refused, would dispose of Beebe's individual claims."); Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1243 (10th Cir. 2011) ("As Rule 68 operates, if an offer is made for a plaintiff's maximum recovery, his action may be rendered moot.").
The Circuits differ, however, on the effects of such an offer on a class action suit, such as in this case, when the offer was made prior to a motion for class certification. The Third and Fifth Circuits permit the nominee plaintiff to continue her pursuit of certification even though her personal claims may be deemed moot. See Weiss, 385 F.3d at 347-348 ("The mootness exception recognizes that, in certain circumstances, to give effect to the purposes of Rule 23, it is necessary to conceive of the named plaintiff as a part of an indivisible class and not merely a single adverse party even before the class certification question has been decided. By relating class certification back to the filing of a class complaint, the class representative would retain standing to litigate class certification though his individual claim is moot."); Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 920-921 (5th Cir. 2008) (applying the same rationale to a collective action case). In so holding, these Circuits expressed a shared concern that without such an exception, defendants could "pick off" class representatives by making early offers of judgment to the named plaintiffs. Weiss, 385 F.3d at 343-344 ("As in [ Deposit Guar. Natl Bank, Jackson, Miss. v. ] Roper [445 U.S. 326, 339 (1980)], allowing the defendants here to pick off' a representative plaintiff with an offer of judgment less than two months after the complaint is filed may undercut the viability of the class action procedure, and frustrate the objectives of this procedural mechanism for aggregating small claims."); Sandoz, 553 F.3d at 920 ("By tendering to the named plaintiffs the full amount of their personal claims each time suit is brought as a class action, the defendants can in each successive case moot the named plaintiffs' claims before a decision on certification is reached. A series of individual suits, each brought by a new named plaintiff, could individually be picked off' before class certification.... The fact remains that in those cases in which it is financially feasible to pay off successive named plaintiffs, the defendants would have the option to preclude a viable class action from ever reaching the certification stage." (citation omitted)). The Tenth Circuit has gone further, holding that "a nascent interest attaches to the proposed class upon the filing of a class complaint such that a rejected offer of judgment for statutory damages and costs made to a named plaintiff does not render the case moot under Article III." Lucero, 639 F.3d at 1249.
The Supreme Court, for its singular part, rejected the theory of continuing justiciability in the context of a Federal Labor Standards Act (FLSA) collective action where the plaintiff's individual claims were mooted by an unaccepted Rule 68 offer. See Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1529 (2013). The majority opinion, by acknowledging that "Rule 23 actions are fundamentally different from collective actions under the FLSA, " id. at 1529, leaves open the question of remnant standing in a class action context. Justice Kagan, in a dissent joined by three other justices, criticized the premise that an unaccepted Rule 68 offer had the effect of mooting a plaintiff's individual claims.
"[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." [ Chafin v. Chafin, 133 S.Ct. 1017, 1023 (2013)] (internal quotation marks omitted). By those measures, an unaccepted offer of judgment cannot moot a case. When a plaintiff rejects such an offer - however good the terms - her interest in the lawsuit remains just what it was before. And so too does the court's ability to grant her relief. An unaccepted settlement offer - like any unaccepted contract offer - is a legal nullity, with no operative effect. As every first-year law student learns, the recipient's rejection of an offer "leaves the matter as if no offer had ever been made." Minneapolis & St. Louis R. Co. v. Columbus Rolling Mill, 119 U.S. 149, 151  (1886). Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that "[a]n unaccepted offer is considered withdrawn." Fed. Rule Civ. Proc. 68(b). So assuming the case was live before - because the plaintiff had a stake and the court could grant relief - the litigation carries on, unmooted.
Genesis Healthcare, 133 S.Ct. at 1533-1534 (Kagan, J., dissenting).
Adopting the rationale of Justice Kagan's dissent, the Ninth and Eleventh Circuits have held that "an unaccepted Rule 68 offer that would have fully satisfied a plaintiff's claim does not render that claim moot." Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 954-955 (9th Cir. 2013); see also Stein v. Buccaneers Ltd. P'ship, 772 F.3d 698, 703 (11th Cir. 2014) ("We agree with the Symczyk dissent."). Recognizing the divergence in the Circuits, in Campbell-Ewald Co. v. Gomez, 2015 WL 241891 (U.S. Jan. 16, 2015), the Supreme Court granted certiorari on the following questions:
1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.
2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of ...