Plaintiffs brought individual and putative class action claims for unpaid interest under the Illinois Security Deposit Interest Act.  Prior to the filing of a motion for class certification, the defendant responded by tendering plaintiffs’ requested damages and attorney fees on one count and moving to dismiss the other two. Ultimately, the case came to the Illinois Supreme Court, which was asked to reconsider the Barber Rule – i.e. when a defendant tenders the full amount requested by a plaintiff purporting to represent a class before the named plaintiff files a motion for class certification, the plaintiff’s claim becomes moot – in light of the U.S. Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016).  But the Illinois Supreme Court declined to do so:

“Justice Thomas concurred with the result in Campbell-Ewald but disagreed with the reasoning. He reviewed the history of Rule 68 and the common law of tenders.  He pointed out that Rule 68 authorizes a defendant to serve on an opposing party an offer to allow judgment on specified terms and allows the plaintiff to accept or reject that offer. An unaccepted offer is considered withdrawn, he continued, and withdrawn offers (unlike common-law tenders) cannot be used in court as an admission against defendants.  A tender, at common law, required that the defendant actually and unconditionally produce the claimed damages at the time of tender….

“As described above, an offer is different than a tender. As described in Rule 68, an offer of judgment can be on any terms so long as those terms include the costs accrued.  Such an offer can deny liability.  Because an offer of judgment can be on any terms – including, for example, an amount equal to or an amount less than that claimed due, with or without an admission of liability – the plaintiff is free to accept or reject the offer but will incur a penalty if she does not obtain a more favorable judgment. In this way, an offer of judgment is really an offer to settle. Settlements are construed by courts as contracts, hence the decisions in Campbell-Ewald and Chapman.

“A tender, conversely, is only effective if it is for the entire amount owed. The defendant must actually produce the tender; a mere offer or promise is insufficient. In making an effective tender, the defendant admits liability. The Campbell-Ewald majority noted that the situation might be different if the defendant had tendered the damages instead of merely offering them. A sufficient tender therefore provides the plaintiff with the relief she seeks, not just a promise to provide that relief, as well as an admission of liability. Because an effective tender is unconditional, no return consideration is given. A lack of consideration means that the tender does not form a contract and a tender should not be construed as a contract.”


Joiner v. SVM Management, 161 N.E.3d 923 (Ill. 2020).