In Geismann, M.D., v. ZocDoc, Inc., 14 Civ. 7009 (LLS), 2017 WL 3263140 (S.D.N.Y. July 28, 2017), Judge Stanton filled the gap left by Campbell-Ewald, and allowed a TCPA defendant to tender to the Court all sums for which it could possibly be liable and then move for summary judgment on an Article III basis.
I agree with those cases finding that a defendant’s full tender renders the action moot. There is a consequential difference between on the one hand a defendant’s offer of an adequate amount in an offer of judgment whose utility depends on its being timely accepted under principles of contract and Fed. R. Civ. P. 68, and on the other hand a tender (“A valid and sufficient offer of performance; specif., an unconditional offer of money or performance to satisfy a debt or obligation” Black’s Law Dictionary 1696 (10th ed. 2014)) which independently and fully satisfies a plaintiff’s claim, not because of plaintiff’s agreement but because full payment extinguishes the claim. That is the principle which underlies the declaration imprinted on each Federal Reserve note: “This note is legal tender for all debts, public and private.” In Campbell-Ewald, the majority reserved (for a case presenting it) the question whether a tender moots a plaintiff’s claim (136 S. Ct. at 672); the remaining four justices insisted that tendering payment moots an action. Justice Thomas concurred only because “…a mere offer of the sum owed is insufficient to eliminate a court’s jurisdiction to decide the case to which the offer related” (id. at 674), unlike “a fully tendered offer that extinguished the tax debt under California law.” Id. at 677. Justice Roberts, joined by Justice Alito and Justice Scalia, dissented, basically because “the federal courts exist to resolve disputes, not to rule on a plaintiff’s entitlement to relief already there for the taking.” Id. at 678. “If the defendant is willing to give the plaintiff everything he asks for, there is no case or controversy to adjudicate, and the lawsuit is moot.” Id. at 682. If there were any “question whether Campbell is willing and able to pay, there is an easy answer: have the firm deposit a certified check with the trial court.” Id. at 681. Justice Alito noted in his own dissent “outright payment is the surest way for a defendant to make the requisite mootness showing.” Id. at 684. ZocDoc’s proposal presents precisely those facts. It seeks permission to deposit a total of $20,000.00 with the Clerk of Court. The additional $13,900.00 it seeks to deposit brings the total to an amount far exceeding any Geismann could recover under the statute. Campbell-Ewald, 136 S. Ct. at 683 (Alito, J., dissenting) (“…a defendant may extinguish a plaintiff’s personal stake in pursuing a claim by offering complete relief on the claim, even if the plaintiff spurns the offer. Our Article III precedents make clear that, for mootness purposes, there is nothing talismanic about the plaintiff’s acceptance.”) (citation omitted). There is no occasion to harmonize Rule 68 in the analysis: the matter is not one of contract, but of Constitutional law. . .Thus on authority, and sound principles applied in the Second Circuit summary order after Campbell-Ewald, when ZocDoc has deposited with the Clerk of Court an additional $13,900,000 comprising an amount securing a judgment satisfying all of Geismann’s monetary claims, and an unconditional consent to a proper form of injunction, it can make a cognizable, good-faith argument that this case should be terminated. The relevant law will no longer be that of contract, offer and acceptance, or Rule 68; it will be the Constitutional requirement of a case or controversy.