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Yes, you really did settle all your claims when you said you did: Ninth Circuit dismisses appeal of class certification denial by plaintiff who accepted Rule 68 offer

By Donald Falk on November 17, 2014
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A plaintiff hopes to represent a class to pursue two sets of wage-and-hour claims but runs into headwinds in the district court.  First, one set of claims disappears because his legal theory doesn’t withstand a motion to dismiss.  Then class certification is denied on what was left.  After that, the defendant— invoking Rule 68 of the Federal Rules of Civil Procedure—offers to settle “any liability claimed in this action.”  Under Rule 68, if the case goes to judgment and the plaintiff wins less than the offer, he would be liable for the defendant’s costs for any proceedings after the offer was made.

What is to be done?  The plaintiff in Sultan v. Medtronic, Inc. thought that he could simply accept the offer of judgment and associated payment and then proceed as if he hadn’t done so.  Forging ahead with an appeal of the partial dismissal and the denial of class certification, the plaintiff principally relied on a Ninth Circuit decision that permitted a settling plaintiff to appeal because the accepted offer lacked broad language addressing all claims—and in fact, during negotiations in that case, the parties had deleted an explicit reference to class claims.

Sometimes a settlement really is a settlement, however, and the Ninth Circuit held that this was one of those times.  Rejecting the plaintiff’s arguments that the Rule 68 judgment did not moot the class claims because they were not specifically identified in its terms, the court held (in an unpublished opinion) that a settlement of “any liability claimed in this action” was enough to end the entire case.  Along with my colleagues John Zaimes and Ruth Zadikany, I was counsel for Medtronic on this appeal.

Photo of Donald Falk Donald Falk

Donald Falk has an extensive appellate practice in which he presents oral arguments, briefs, and motions in the US Supreme Court, and many other federal and state appellate and trial courts. His work involves a wide range of constitutional, statutory, patent, securities, administrative…

Donald Falk has an extensive appellate practice in which he presents oral arguments, briefs, and motions in the US Supreme Court, and many other federal and state appellate and trial courts. His work involves a wide range of constitutional, statutory, patent, securities, administrative, criminal and common law issues. Don has successfully argued before the United States Supreme Court and the highest courts of California, New York, Maryland and Texas, and has briefed winning appeals in the Delaware and Nevada Supreme Courts. Don frequently briefs and argues cases in the federal and California state appellate courts. He has substantial experience with California’s broad unfair competition law (Business & Professions Code § 17200), and many of his recent matters have involved class certification issues and preemption under the Federal Arbitration Act.

Read Don’s full bio.

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  • Posted in:
    Employment & Labor
  • Blog:
    Class Defense Blog
  • Organization:
    Mayer Brown
  • Article: View Original Source

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