Philadelphia partner Michael P. Daly was quoted in a Law360 article titled “TCPA Defendants Down, But Not Out, With ‘Pick-Off’ Ruling.”

The Seventh Circuit recently held in Fulton Dental LLC v. Bisco Inc. that even tendering funds into a court-monitored interest-bearing account is not enough to moot a claim. The court relied on the Supreme Court’s Campbell-Ewald v. Gomez, and concluded that “there was no principled distinction between” depositing money under Federal Rule of Civil Procedure 67 and offering a judgment under Rule 68, because “[i]n either case, all that exists is an unaccepted contract offer.”

Mike questioned this conclusion, noting that “While Rule 68 does involve an ‘offer’ that is deemed 'withdrawn' if it is not ‘accepted,’ nothing in Rule 67 speaks in terms of an ‘offer.’” He continued, “Rather, Rule 67 speaks in terms of a deposit into an interest-bearing account, and actually anticipates that a defendant can seek leave to make such a deposit even if it no longer ‘claims any of it’ as its own.”

Mike also queried, “If a defendant makes such a deposit, disclaims any interest in it and invites the plaintiff to withdraw it, how is that functionally different from making a deposit into the plaintiff’s bank account?”

Read “TCPA Defendants Down, But Not Out, With ‘Pick-Off’ Ruling.”

Source: Law360
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