The Ninth Circuit has recently decided this precise question. In Chen v. Allstate Insurance Co., No. 13-16816 (9th Cir. Apr. 12, 2016), the plaintiff sued for alleged violation of the Telephone Consumer Protection Act (“TCPA”), complaining about automated calls to his cell phone without his consent. Allstate initially made plaintiff a Rule 68 offer of judgment in the amount of $20,000, which more than satisfied his individual claim. After Gomez, Allstate took the additional step of depositing this offer in a bank escrow account. Allstate then filed a motion to dismiss plaintiff’s entire case for lack of subject matter jurisdiction, arguing that under the logic of Gomez the district court should be required to enter judgment against Allstate and order payment of the $20,000 to plaintiff. The district court denied Allstate’s motion.
On appeal, the Ninth Circuit narrowly interpreted Gomez and affirmed the district court’s denial of Allstate’s motion to dismiss. First, the Ninth Circuit held that Gomez did not overrule the governing Ninth Circuit precedent in Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011), which had held that a plaintiff could continue to represent a class despite a settlement offer for complete individual relief from defendant—provided that the plaintiff could still file a timely motion for class certification at the time the offer was made. Chen extended...
