rule sixty eight offer of judgment and open ended settlement offer the district court held that the offer rendered the plaintiff's individual claim moot and then entered an individual judgment for the plaintiff over her objection while we're on while we were on appeal to this court deposited the amount of the offer with the district court and this court reversed in zoc doc one and the court held that all of those actions alone or in combination did not moot the plaintiff's individual claim because mootness under the supreme court's decision in campbell he wald versus gomez means that it is impossible for the district court to award any meaningful relief to the point and depositing money when the court does not make it impossible to grant meaningful relief in fact it presupposes that the district court will go further to disperse the funds something that a court can only do if it has subject matter jurisdiction can't do that  all you can really do with a new case is to dismiss it without prejudice the second time around and remained the defendant made another open ended offer of twenty thousand dollars made a motion to deposit the funds which we opposed the district court granted the motion to deposit the bonds with the court and then it entered judgment for the plaintiff over her objection struck her class claims and now we're back in here before the court essentially doing here following up on that that the area that the supreme court had left open he was i think the seventh circuit court of appeals got that correct in fulton dental where it said that hypothetical was wasn't saying the district court should allow a deposit of funds it didn't say that this hypothetical would result in a move claim it was just saying that question's not before us so we're not going to decide it and it warned against the seventh circuit in fulton dental warned against reading too much into hypothetical questions that the supreme court leaves undecided because that's all they are they're just undecided questions that were present on the facts before the court judge stanton seem to assume that  presence that hypothetical means that you know the supreme court was encouraging district courts to do that but it but it didn't do anything of the sort so we have two main points that we comment on th basis for doing so must not be inconsistent with this opinion now the basis for the district court's deposit orders at page sixty of the appendix the only rationale that mr gables that the deposit of full relief renders the action moot that was the district court's basis for allowing the deposit but one had just held that a deposit of funds does not render the action moot so the basis for the deposit was inconsistent with this court's decision i remained  in the district court by a late in the mandate the mandy rule it's not consistent with the law of the case it's also completely inconsistent with the fair opportunity requirement in camp we will use vs gomez the court the supreme court held in that case that a plaintiff with a live claim of her own must be afforded a fair opportunity to see class certification everyone agrees stock doc concedes that at the time they filed their motion to deposit my plane of had a life claim of her own concedes that after the deposit was made my client still had a live claim of her own and yet the only basis for the deposit order was to moot our claim even though that's a roman use and it doesn't go to claim but still the district court was dental versus those go the seven circuit decision where they said there's no meaningful distinction between trying to force a settlement offer on a plaintiff a punitive class plaintiff using rule sixty eight or trying to force a settlement offer on a plaintiff using r sixty seven in either case all you have is an unexpected offer which we have we have been clear thank you but no think you are we're not interested in individual settlement we want to pursue this as a class case the law authorizes  every individual claim can not be mooted as long as the question of class certification is still out there is that is that your position at that short of them voluntarily accepting the what that's what based on well that's what happened in the lease versus lifetime entertainment services is an unreported decision from this court in the past year but the plaintiff got discovery got to move for classification class or it was denied but what i'm saying is you would have the deposit of the money the district court entering the judgment in favor of the plaintiffs individually and the adverse ruling on the motion for class certification you're saying you need all three of those to be moot the plaintiffs claim in a class in a class action correct if class certification is denied and the individual plaintiff out of sheer obstinacy or madness is the language and justice k dissent in genesis healthcare decides that they don't want to settle they want to go to trial over a five hundred dollars to five hundred dollars claim in federal court then yes the district court would that have to order the money paid out to the plank it could just sit in the court and the court three in this situation i know that's not the issue before us but pointed out what what's going to happen then is the judge is not going to be able to take into account the fact that the money has been deposited over the to relieve has been agreed to i think the court should take it into account and i think it makes my plaintiff more adequate because it shows that she is not going to sell out the class so advance her own interest she's going to turn down a twenty thousand dollar offer in order to look out for everybody else now i don't have a decision right on point with that that there's language in rope for the supreme court's decision talking about that question you know the court said the plaintiffs claim is still alive there might be any impact on adequacy in the seventh circuit talked about chapman versus first index as well that there might be an affirmative defense of accord and satisfaction available to the defendant i'd like to get to that point i'd like to get some discovery into how many faxes uk docs sent where they got their list of fa numbers whether they used a fax broadcaster and i want to get the electronic transmission records that show what they did here we'll get to class certification zakk that can make whatever arguments it has against classification of that time and will respond and here we're dealing with a fundamentally different procedural posture with some of your questions as to a touchdown for the following three primary reasons this court should affirm the judgment of judge stan number one this is very interesting in mr harris argument there was no mention of article three or constitutional standing that's the core issue before the court number one  like in rule sixty eight cases just stand and turd judgement after a deposit order in this case so this case is fundamentally distinguishable from the procedural posture that came before this court previously and does precisely invoke the campbell hypothetical number two in light of more than complete relief having been granted there is no or tickle three standing here there is no case or controversy there is no injury in fact that all goes to whether or not one can force a person who accept a settlement in a class case whether the class requests for class certification is part of the dispute right your honor and seems to me that what we have to deal here everyone has been talking about the offer and then the entry of judgment as making the plaintiff's claim moot and i'm wondering if that's really accurate or whether it's more aptly described i think the seventh circuit may even have said this more like a chord in satisfaction which are affirmative defenses not  they don't necessarily moot the case they're affirmative defenses to it help me out i don't think that we should get hung up on the word moot because the word moot from a lay perspective has a certain meaning and it can also be a term  think that if it's an affirmative defense you don't have a lack of article three standing you may you may get the case dismissed based on a defense but you don't have a lack of standing to make the client it's not an affirmative all right so i'm not sure that talking about article three jurisdiction is very helpful here i'm more concerned with the language the supreme court used about needing to give  the class representative a fair opportunity to litigate this class of class standing once the class representative says i don't want the settlement why isn't it the court's obligation to look as the supreme court says accorded a fair opportunity to show that certification is warranted why does that have to be the next step well first of all this plaintiff the opponent has had more than a fair opportunity this case has been pending for four years so let's back up the court has been defined so there's the fair opportunity language in campbell which i knowledge the court is not defined what fair opportunity means now here i believe that the plaintiff has gotten more than a fair opportunity because the plaintiff has been litigating this case for four years and not a single other class representative has come forward ok but what was the plaintiffs supposed to do to get the class certification question before the jet the judge that he didn't do so this is this was actually raised in one of i think your prior cases where the issue of an opt in was a ddressed by the court under the f l s a blanket can't be heard i'm asking you to assume the plaintiff can be heard where where do you say it didn't take the veil itself of the opportunity to secure class certification the plaintiff has been heard the plaintiff has been heard on the plaintiff's individual claim and the plaintiff lacks standing to proceed on behalf of the class until a class certification decision that's consistent with roper it's happened the claim is result if so this isn't conclusive in this is this is something that has been raised with me before what is the distinction between standing that exists after a class certification decision and standing before a class certification decision and the difference here is that if plaintiffs counsel had wanted to proceed on a class action plaintiffs counsel needed to a another class representative this particular class representatives claim has been fully satisfied it's been extinguished not your word well i can only speak for myself and i'm there with you yet this we're trying to understand what th frank court controlling language is here it says the individual claim was not made moot by the expired settlement offer so that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class now you're saying ok it wasn't made moot by the expired settlement offer but is your argument it was made moved by the district court's entry of judgment so i again i don't want to get hung minutely is confusing there's this fair opportunity language but there's also language in the majority opinion about the court not ruling on the precise procedural posture that is before this court and then there  descendants by justice roberts and alito that say yeah we're really happy that the court made clear that it wasn't ruling on that because if this particular situation the hypothetical came before us we at least roberts and alito would rule differently and i do that ties into a comment the sec made about footnote eight in the prior guy's been opinion this court said if you try to invoke that hypothetical it may not work but this court did not say if you try to invoke that hypothetical it won't work and so basically what we were  was wrong to have it would it would have been an advisory opinion but that doesn't mean judges don't give advisory opinion sometimes but yeah i agree as a matter of the law and how it should be applied that would be an improper advisory opinion however and it may be your honor that you have some skepticism about this you know vehicle however i don't think justice roberts shares  discuss it is moot so i'm trying to figure out on what grounds do we find that the entry of judgment means that the plaintiff's claim is not no longer viable the plaintiff said i don't want that because it's not complete but the relief i am seeking is not simply relief for myself it is relief for the clients the claim is extinguished upon the deposit and then the entry of judgment not sure that's true by the way asked the class if there were another plaintiff with that fell within the spirit of class that plaintive could proceed it just it just means that the class claims with respect to this now fully satisfied inadequate class rep in your hon the issue of adequacy which by the way you could decide this appeal on the adequacy issue because you can affirm on any basis so if you affirm based on adequacy as opposed to you know the lack of article three standing that w you because this particular class rep and senators claim has been fully satisfied and extinguished this class representative now faces a defense that is completely unique to this class representative and no not necessarily your honor so this is and this is the thing so they argue that we're going to destroy class actions generally right that's ridiculous this is limited to the situation where you have a statutory damages mount and the plaintiff concedes what his or her cap is of recovery this is a very unique case in which the plane it has conceded over and over and over and over again that it's maximum recovery is twelve thousand dollars ok nobody else after this case is going to do that they're going to obvious they're going to multiply in greater do this anymore and that's why there hasn't been any claims related to my client and that that actually ties into the transitory issue capable of repetition but you know baiting review no that's not the case here this is a situation where the you know the activity that was engaged in is no longer at issue in oh by the way if we ever got into the underlying facts well that's out before the scope from competent my client would do very well before judge stan but he's rule that this case as to this particular class represented representative is over and that is consistent with this court's precedents in cases like makali and with campbell  i'll start with the claim that this is a unique kind of case the case with statutory damages it's actually very common i mean not just in the t c p a but there's the fair credit reporting act truth in lending act i mean there are there are all kinds of statutes that have where congress has created a statutory damages amount because it's difficult or impossible to determine what actual damages are and because congress wants to determine that kind of behavior both with the specific defendant and generally so it's  allowing class action pick ups in small value consumer class actions like this will basically eliminate them from federal courts that you won't be able to enforce these statutes on a class action so to it will just be free reign for defendants to do client received the back says i'd like to know when when else they were sending faxes i'd like to know who had zoc doc designed these facts advertisements was there an outside marketing company involved was there a fax broadcaster involved where did they get the list of fax numbers did they make any attempt judge and judge sac asked what else we should have done the plaintiffs should have done in order to try to see class certification zoc doc says that we had a fair opportunity a classification because the case is four years old but all we've done in four years is litigate stock docs pick up attempts we've done literally nothing else and we have implored judge stanton let us do discovery let's do a twenty six f conference let's have the parties exchange the rule twenty six a one disclosure so we can get the ball rolling on discovery and direct case management order not every order to decide if you can get class or ok yes you're not in a position now to move for a class or hey we need some limited discovery to do that we need to know the number of faxes sent primarily where did they get the list of fax numbers did they hire a fax broadcaster that's a company that specializes in sending faxes they have a special equipment and multiple phone lines they can send tens of thousands of faxes at one time if you if you're standing at a stand alone fax machine your office trying to send twenty thousand faxes you're going to be there for two weeks pressing in each number ask you this your adversary suggested that with an offer of that puts it in a different posture than if you are ready to make the motion and you don't need to do anything more than make the motion so why why should we not consider that question of how adequate client is as a represent first of all the judgment in the deposit we want all that on done we want it reversed and vacated doc would have you say what would say look at the status quo as of today right the judgments been entered the deposits been made  back in a review what the district court did step by step and go back and put yourself in the district court use and say should i allow this deposit of funds what's the purpose of it why am i doing this and i really giving the plaintiff a fair opportunity classification and then go to when the judgment was entered and review what the district court did that's what appellate courts do they don't say well as the status quo stands for today judgments be has been entered in the plaintiffs favor and so there's some problem with his adequacy you go back and look at whether the judgment was appropriate review that's what a reviewing court does it goes back and reviews what was done in the district court and we contend that the deposit orders were an abuse of discretion and that the judgment was erroneous because it was based on the proposition that a positive fund a deposit of funds moots the case i'd also like to point out one other thing that isn't abusive i mean they can deposit the money and and make it clear to the plaintiffs that they're ready to pay and then the question becomes whether the plank if the individual wishes to take the money or not but there's nothing improper about them then it depends on what the purposes here zoc doc said our purpose for depositing these funds is to render the plainest individual claim moot not to put it somewhere for safe keeping in case the plaintiff wants to take it later that was not the purpose it was a off pensive litigation tactic and rule sixty seven is not supposed to be used to alter the legal relationship between the parties or as an offensive tactic to mo other parties claim it's supposed to be for safe keeping of an asset so that the party who's depositing it doesn't have the burden of safe keeping it anymore it's a pretty neutral procedural device it's not a weapon to be used against class action plaintiffs there's one last thing that the one last point quickly the fair opportunity standard we argued that's part of the holding in camp lee wald zoc doc did not dispute that in their brief they can't they agreed that the fair opportunity standard is part of the holding it's not dicta to