Geismann v. ZocDoc: Depositing Money With the Court Can't Pick Off a TCPA Class Plaintiff

ZocDoc tried to walk through that door. The Second Circuit shut it in Radha Geismann, M.D., P.C. v. ZocDoc, Inc., No. 17-2692, 909 F.3d 534 (2d Cir. Nov. 27, 2018).

The faxes and the first round

Geismann, a Missouri medical practice, said it got two unsolicited faxes from ZocDoc advertising a "patient matching service" for doctors. It filed a putative class action under the Telephone Consumer Protection Act (TCPA) and moved for class certification the same day.

ZocDoc made a Rule 68 offer of judgment: $6,000 plus attorney's fees and an injunction. Geismann rejected it because it did nothing for the class. The Southern District of New York dismissed the case as moot anyway. After Campbell-Ewald came down, the Second Circuit vacated that ruling in Radha Geismann, M.D., P.C. v. ZocDoc, Inc., No. 14-3708, 850 F.3d 507 (2d Cir. Mar. 9, 2017).

The second try: Rule 67

On remand, ZocDoc changed tactics. It got permission to deposit money in the court's registry under Federal Rule of Civil Procedure 67, bringing the total to $20,000, and offered to accept an injunction. Then it asked the court to enter judgment for Geismann and dismiss the class claims. The district court did exactly that. Geismann sent back the clerk's check.

What the Second Circuit held

Judge Sack wrote for the panel joined by Judge Raggi and District Judge Gardephe, sitting by designation. The court vacated and remanded again.

A Rule 67 deposit is still just an offer. Agreeing with the Seventh Circuit's decision in Fulton Dental v. Bisco, the court saw no real difference between a rejected Rule 68 offer and a rejected Rule 67 tender. Once rejected, "all that exists is an unaccepted contract offer."

The plaintiff is still empty-handed. Rule 67 just lets the court act as an escrow agent. Money deposited there is held in the court's name and can only come out by court order. That's "nothing like a bank account in the plaintiff's name." So the deposit alone didn't moot anything. So the deposit wasn't enough to moot the case, and the court doubted mootness was the right concept, as the court could still grant relief (and it did when it entered judgment).

Class certification comes first. The court acknowledged that in some cases a court may enter judgment when a defendant surrenders to complete relief. But a judgment on the individual claim isn't complete relief for a plaintiff suing on behalf of a class. By rejecting the money Geismann made clear its case was about more than its own statutory damages. So the district court has to rule on the pending class certification motion before entering judgment and calling the case moot based only on individual relief.

The reason is practical. Otherwise defendants could use "tactical procedural maneuvers to thwart class litigation at will," picking off named plaintiffs one by one.

Why this matters

If you're defending a TCPA class action in the Second Circuit, buying off the named plaintiff with a court deposit isn't a shortcut. If you're a plaintiff, Geismann gives you solid footing to reject a tender and push for a class ruling.

Some practical points:

1. Don't plan a defense around mooting the named plaintiff. Focus on the merits and Rule 23.
2. Fax campaigns require consent or a valid established business relationship and compliant opt-out, as class exposure won't end with a buyout.
3. Plaintiffs should move for certification early and keep the motion pending.
4. Watch whether the case stays in the Second Circuit, since other circuits have their own approaches.

Read the Second Circuit's opinion in Geismann v. ZocDoc.