Joining the Second, Ninth, and Eleventh Circuits, the Fifth Circuit has held that “the court is not deprived of the ability to enter relief—and thus the claim is not mooted—when a named plaintiff in a putative class action rejects a settlement offer from the defendant.” After reviewing the caselaw, the court concluded “that the reasoning of the Ninth and Eleventh Circuits is more persuasive and therefore hold that an unaccepted offer of judgment to a named plaintiff in a class action “is a legal nullity, with no operative effect.” Genesis, 133 S.Ct. at 1533 (Kagan, J., dissenting)…. It is hornbook law that the rejection of an offer nullifies the offer…. ‘Nothing in Rule 68 alters that basic principle,’ and, in fact, Rule 68 considers an unaccepted offer to be withdrawn…. We agree that a ‘plaintiff seeking to represent a class should be permitted to accept an offer of judgment on her individual claims under Rule 68, receive her requested individual relief, and have the case dismissed, or reject the offer and proceed with the class action.’ We have previously expressed concern for defendant-induced mootness in the class action context where defendants may attempt to ‘pick off’ individual plaintiffs before class certification ‘by tendering to the named plaintiffs the full amount of their personal claims each time suit is brought as a class action.’ Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1050 (5th Cir. Unit A July 1981). A contrary ruling would serve to allow defendants to unilaterally moot named-plaintiffs’ claims in the class action context—even though the plaintiff, having turned the offer down, would receive no actual relief. Even assuming Landmark’s offer were complete, it did not moot Hooks’s claim as the named plaintiff in the putative class action. Given that Hooks’s individual claim was not mooted by the unaccepted offer, neither were the class claims.” Hooks v. Landmark Industries, No.14-20496, 2015 WL 4760253 (5th Cir. Aug. 12, 2015).
[Note – This issue is currently before the U.S. Supreme Court in Campbell-Ewald Company v. Gomez, No. 14-857 (cert. granted May 18, 2015).]