### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 3829

X AVIER L AURENS and K HADIJA L AURENS

, Plaintiffs

‐ Appellants

,

v.

V OLVO C ARS OF N ORTH A MERICA

, LLC,

and V OLVO C AR USA, LLC,

Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 4507

— Harry D. Leinenweber

, Judge

.

____________________

A RGUED A PRIL 4, 2017

— D ECIDED A UGUST 22, 2017

____________________

Before W OOD

, Chief Judge

, and K ANNE and R OVNER

, Circuit

Judges

.

W OOD

, Chief Judge

. The idea of a theme and variations is a

common one in music. It should be in law, too. Here we return

to the familiar theme of a defense effort to pretermit a pro

‐ posed class action by picking off the named plaintiff’s claim.

Several variations on that theme have been tried and have

failed. See Campbell

‐ Ewald Co. v. Gomez

, 136 S. Ct. 663 (2016)2 No. 16

‐ 3829

(Rule 68 offers of judgment); Fulton Dental, LLC v. Bisco, Inc.

,

860 F.3d 541 (7th Cir. 2017) (Rule 67 payments to court regis

‐ try).

Undeterred, the defendant in the case now before us as

‐

serts that an unaccepted offer of relief before a putative plain

‐

tiff files a lawsuit deprives that plaintiff of standing. We see

no reason why the timing of the offer has such a powerful ef

‐

fect. Black

‐ letter contract law states that offers do not bind re

‐ cipients until they are accepted. See, e.g.

, ALI Restatement

(Second) of Contracts § 17 (1981). Hence while the legal effect

of every variation on the strategic

‐ mooting theme has not yet

been explored, we are satisfied that an unaccepted pre

‐ litiga

‐

tion offer does not deprive a plaintiff of her day in court.

I

This case, at base, is about a car purchaser’s disappointed

expectations. The cars are Volvos, and the dispute centers on

the difference between the model XC90 and the XC90 T8

(“the T8”). Both are luxury SUVs, but the XC90 runs on gas,

whereas the T8 is a plug

‐ in hybrid. The latter feature comes at

a premium; the 2016 T8 retailed for around $20,000 more than

its gas

‐ only sibling. Plaintiffs Xavier and Khadija Laurens

overcame the sticker shock and paid $83,475 for a new T8.

They also purchased, for an additional $2,700, a charging sta

‐

tion that was installed in their garage.

The Laurenses quickly realized that the car they bought

fell short of the car the ads had promised. Volvo’s advertise

‐

ments had claimed that the T8’s battery range was 25 miles,

and the Laurenses had relied on this representation when de

‐ ciding to purchase that model for a premium price. In practice

their T8 averaged a puny eight to ten miles of battery

‐ onlyNo. 16

‐ 3829 3

driving, far below the promised distance. On April 21, 2016,

Xavier filed this action, both on his own behalf and for a class

of others similarly situated. He relied on the Class Action Fair

‐

ness Act (CAFA), 28 U.S.C. § 1332(d), for subject

‐ matter juris

‐

diction, because he was a citizen of Illinois, whereas Volvo

Cars USA is a Delaware limited liability company controlled

by Volvo Cars of North America (another Delaware LLC),

which is itself wholly owned by its Swedish parent (a publicly

traded, share

‐ based limited liability company, or AB, with its

principal place of business in Gothenburg, Sweden), and the

aggregate amount in controversy exceeds (he asserted)

$5,000,000. For himself, Xavier sought damages equal to the

premium he paid for the hybrid model ($20,000), the cost of

the charging station ($2,700), injunctive relief, punitive dam

‐

ages, and attorney’s fees.

The complaint’s core theory was that Volvo’s misleading

advertising caused Xavier to pay the extra money for the

hybrid version of the car. A wrinkle arose when it turned out

that Xavier was not listed on either the car’s purchase

agreement or the title; only Khadija was. On June 8, 2016, the

Laurenses received a letter from Volvo that offered

“immediately” to give Khadija (but not Xavier) “a full refund

upon return of the vehicle if you are not satisfied with it for

any reason” and to “arrange to pick up your vehicle at your

home.” The next day Volvo moved to dismiss Xavier’s suit on

the theory that he lacked standing; it argued that Khadija, the

titleholder, was the only person with any possible injury, and

she was not at that moment a party. Before the district court

ruled on the motion, the Laurenses added Khadija to the

complaint. Volvo responded with a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(1); its motion contended

that Khadija also lacked standing because its letter had4 No. 16

‐ 3829

offered complete relief for her before she filed suit. The district

judge agreed with Volvo, finding that Xavier had never

suffered an Article III injury and that Volvo’s offer had

redressed Khadija’s injury before she became a party. The

court dismissed the action, and this appeal followed.

II

While the Constitution does not define the precise extent

of “[t]he judicial Power of the United States,” it does say that

this power is limited to “Cases” and “Controversies,”

U.S. C ONST

. art. III §§ 1, 2. This requires federal courts to po

‐

lice their own authority, so that they do not entertain matters

outside the scope of these terms. Of the several doctrines that

perform the policing task, the one with which we are con

‐

cerned is standing. The Supreme Court has said that “the ir

‐

reducible constitutional minimum of standing contains three

elements.” Lujan v. Defs. of Wildlife

, 504 U.S. 555, 560 (1992). In

the Court’s words, “[t]he plaintiff must have (1) suffered an

injury in fact, (2) that is fairly traceable to the challenged con

‐

duct of the defendant, and (3) that is likely to be redressed by

a favorable judicial decision.” Spokeo, Inc. v. Robins

, 136 S. Ct.

1540, 1547 (2016).

At the pleading stage, it is normally not difficult to pass

the standing bar. Plaintiffs need only “‘clearly

... allege facts

demonstrating’ each element.” Id. (quoting Warth v. Seldin

,

422 U.S. 490, 518 (1975)). Things get more complicated when

the defendant challenges a plaintiff’s standing in a motion to

dismiss for want of Article III jurisdiction, pursuant to

Rule 12(b)(1). District courts deciding such motions “must ac

‐

cept as true all material allegations of the complaint, drawing

all reasonable inferences therefrom in the plaintiff’s favor, un

‐

less standing is challenged as a factual matter.” Remijas v.No. 16

‐ 3829 5

Neiman Marcus Grp., LLC

, 794 F.3d 688, 691 (7th Cir. 2015) (em

‐ phasis added) (quoting Reid L. v. Ill. State Bd. of Educ.

, 358 F.3d

511, 515 (7th Cir. 2004)). If a defendant raises a factual chal

‐ lenge to standing, the plaintiff bears the burden of proving

standing by a preponderance of the evidence. Kathrein v. City

of Evanston, Ill.

, 636 F.3d 906, 914 (7th Cir. 2011). We review the

district court’s standing decision de novo

, accepting any un

‐ derlying factual findings unless they are clearly erroneous.

Winkler v. Gates

, 481 F.3d 977, 982 (7th Cir. 2007).

Causation and redressability are not in question here. The

Laurenses maintain that Volvo caused their injury by mis

‐ leading them, and they seek damages that would redress the

financial harms that flowed from the misrepresentation. Their

complaint also includes a request for injunctive relief, but it is

premature for us to say whether they do or do not have stand

‐ ing for this part of the case. On the one hand, even an individ

‐

ual plaintiff “bears the burden of showing that he has stand

‐ ing for each type of relief sought.” Summers v. Earth Island

Inst.

, 555 U.S. 488, 493 (2009). That means that either Xavier or

Khadija had to demonstrate a stake in injunctive relief in par

‐

ticular. In Summers

, the plaintiffs failed to meet that burden,

because the parties had settled their dispute with respect to

the only national forest in which they had a personal stake,

and Volvo suggests that the Laurenses’ claim for injunctive

relief should fail for similar reasons. Once burned, twice shy,

it argues: how will either Xavier or Khadija ever be fooled

again by its advertising? But there is another side to this ar

‐

gument. First, unlike the plaintiffs in Summers

, as we discuss

below, the question whether the underlying dispute has been

settled is a live one. Second, the fact that the Laurenses are

seeking to serve as class representatives complicates matters.

The Supreme Court held in United States Parole Comm’n v.6 No. 16

‐ 3829

Geraghty

, 445 U.S. 388 (1980), that “an action brought on be

‐

half of a class does not become moot upon expiration of the

named plaintiff’s substantive claim, even though class certifi

‐

cation has been denied.” Id. at 404. “When the claim on the

merits is ‘capable of repetition, yet evading review,’ the

named plaintiff may litigate the class certification issue de

‐ spite loss of his personal stake in the outcome of the litiga

‐

tion.” Id. at 398. This may be one of those situations: at some

point each class member will discover that the performance

of the T8 falls far short of what was promised. But that is a

different form of pick

‐ off. Moreover, if the Laurenses’ real dis

‐

pute is that Volvo engages in misleading advertising more

generally, then the fact that one lie has been uncovered may

not, in fact, resolve the full dispute.

These matters were not explored in any detail in the dis

‐

trict court, because of its conclusions that Xavier has no claim

and the offer of relief to Khadija killed the case before it began.

The question whether those conclusions are correct is

squarely before us. If either named plaintiff has a live dam

‐

ages claim that will support injury

‐ in

‐ fact, further proceed

‐ ings will be necessary, and that would be the best time to ex

‐ plore whether either one also has standing to pursue any type

of injunctive relief. Since Volvo has not raised a factual chal

‐ lenge to causation or redressability, and the latter allegations

appear sufficient to us, we consider these requirements to be

satisfied.

III

The outcome of this case thus turns on injury

‐ in

‐ fact—in

particular, on who was injured and whether any such injury

had already been fully redressed by the time the injured party

was involved in the litigation. We begin with the “who,” andNo. 16

‐ 3829 7

we discuss Xavier first. Volvo’s motion to dismiss asserted

that Xavier suffered no injury

‐ in

‐ fact because his name does

not appear on either the purchase agreement for the T8 or the

title. The Laurenses respond that those documents reflect only

who owned the vehicle, not who purchased it. But that is not

accurate. Hypothetically, Xavier could have bought the car

and given it to Khadija, but that is not what the documents

show. Instead, it is Khadija’s name that appears on the pur

‐

chase agreement. This indicates that she not only owns the T8,

but also that she bought it. It does not matter that Volvo’s ev

‐

idence does not definitively indicate who furnished the funds.

That was not its burden. All Volvo needed to do was to chal

‐ lenge Xavier’s standing as a factual matter, and the documen

‐

tation it provided was enough to do so. That put the ball in

the Laurenses’ court; it became their burden to “com[e] for

‐

ward with competent proof that standing exists.” Apex Digi

‐

tal, Inc. v. Sears, Roebuck & Co.

, 572 F.3d 440, 444 (7th Cir. 2009)

(internal quotation marks omitted). With respect to Xavier,

they did not provide any such evidence. Their failure to do so

means that Xavier has not alleged the personal injury

‐ in

‐ fact

that must exist for him to have standing to sue over the T8

purchase.

The Laurenses have one more theory with respect to

Xavier: they argue that he has standing based on his purchase

and installation of the $2,700 charging station for the T8. Here

again the Laurenses rely solely on the allegations in their

complaint. As far as it goes, that is enough, because Volvo

points to no facts contradicting the complaint’s allegations,

which we thus take as true. Remijas

, 794 F.3d at 691. But if all

he has is the charging station, Xavier has a different

jurisdictional problem. There is no indication that CAFA

jurisdiction would lie for this part of the case, and on an8 No. 16

‐ 3829

individual basis a $2,700 claim is so far below the $75,000

amount

‐ in

‐ controversy requirement that we can say that it

appears to a legal certainty that his claim falls below the

necessary amount. See 28 U.S.C. § 1332(a); St. Paul Mercury

Indem. Co. v. Red Cab Co.

, 303 U.S. 283, 289 (1938).

By now, however, Xavier is not the only plaintiff. Khadija

was added as a plaintiff on June 29, 2016, after Volvo sent its

offer of settlement but long before the district court’s October

13, 2016 order of dismissal. If Khadija has standing, her case

can move forward. At that point, if the court concludes that

CAFA jurisdiction is proper (a question on which we make no

comment), then supplemental jurisdiction would likely

extend to Xavier’s related claim. See Exxon Mobil Corp. v.

Allapattah Servs., Inc.

, 545 U.S. 546, 558 (2005) (citing 28 U.S.C.

§ 1367(a)). With that in mind, we turn to Khadija’s standing.

Khadija undoubtedly would have an injury

‐ in

‐ fact if

Volvo had not offered a refund, and we will assume for the

sake of argument that she would not have an injury if she had

accepted its offer. But neither of those things happened. In

‐

stead, we must decide what happens if an offer is made before

the person sues (or, as here, joins an existing action), but that

offer is not accepted.

The Supreme Court’s most recent foray into this general

area is Campbell

‐ Ewald

. Even though it dealt with mootness

rather than standing, the opinion is nonetheless instructive.

Volvo’s position is that Khadija lacked standing at the mo

‐

ment she was added as a plaintiff. Since “mootness [is] the

doctrine of standing set in a time frame,” Geraghty

, 445 U.S. at

397, we begin with a closer look at Campbell

‐ Ewald

.No. 16

‐ 3829 9

In that case, putative class representative José Gomez sued

the Campbell

‐ Ewald Company for allegedly violating the Tel

‐ ephone Consumer Protection Act. Before Gomez moved for

class certification, Campbell

‐ Ewald submitted an offer of

judgment under Federal Rule of Civil Procedure 68 that

would have provided Gomez complete relief on his individ

‐

ual claim. When he did not accept, the company argued that

its offer alone was enough to moot the case.

The Supreme Court saw things otherwise. It held that “an

unaccepted offer to satisfy [a] named plaintiff’s individual

claim [is not] sufficient to render a case moot when the com

‐ plaint seeks relief on behalf of the plaintiff and a class of per

‐

sons similarly situated.” Campbell

‐ Ewald

, 136 S. Ct. at 666. The

key analogy, repeated throughout the opinion, was to contract

law: “An unaccepted settlement offer—like any unaccepted

contract offer—is a legal nullity, with no operative effect.” Id.

at 670 (quoting Genesis Healthcare Corp. v. Symczyk

, 133 S. Ct.

1523, 1533 (2013) (Kagan, J., dissenting)); see id. at 666, 670,

672 (other comparisons to contract law). The contract frame

‐

work was not confined to the majority opinion. Justice

Thomas concurred because his examination of the common

law history “demonstrate[d] that 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 (Thomas, J., concur

‐ ring) (emphasis added). In the end, six Justices agreed that an

unaccepted offer of relief, like “other unaccepted contract of

‐

fers

... creates no lasting right or obligation.” Id. at 666 (ma

‐ jority opinion).

The only salient differences between this case and

Campbell

‐ Ewald are that Volvo made its offer before Khadija

sued, and it communicated the offer through a generic letter10 No. 16

‐ 3829

instead of Rule 68’s more formal process. Neither distinction

matters. Nothing about Campbell

‐ Ewald ’s reasoning is

confined to Rule 68, which is precisely why we extended its

holding to Rule 67 in Fulton Dental, 860 F.3d 541. As we noted

in that opinion, there is

no principled distinction between attempting to force

a settlement on an unwilling party through Rule 68, as

in Campbell

‐ Ewald

, and attempting to force a settlement

on an unwilling party through Rule 67. In either case,

all that exists is an unaccepted contract offer, and as the

Supreme Court recognized, an unaccepted offer is not

binding on the offeree.

Id. at 545. If forcing a contract on an unwilling party is

unacceptable under the judicially supervised procedures of

Rule 68 and Rule 67, we see no reason why an impersonal note

offering a refund should have such a powerful effect. Nor

does it matter that Volvo’s offer preceded Khadija’s lawsuit.

Campbell

‐ Ewald ’s core lesson is that unaccepted contract offers

are nullities; settlement proposals are contract offers; and

therefore unaccepted settlement proposals are nullities.

Nothing about that logic turns on whether a suit has been

filed.

Campbell

‐ Ewald ’s contractual approach is, if anything, a

better fit for claims that have not reached the courthouse. The

Supreme Court has long held “that a cause of action is a spe

‐

cies of property protected by the Fourteenth Amendment’s

Due Process Clause.” Logan v. Zimmerman Brush Co.

, 455 U.S.

422, 428 (1982) (citing Mullane v. Central Hanover Bank & Trust

Co.

, 339 U.S. 306 (1950)); see also id at. 429 (approaching Fifth

Amendment’s Due Process Clause the same way). The CourtNo. 16

‐ 3829 11

has applied this rule expansively, in contexts ranging from in

‐

ternational relations to banking to employment law. E.g.

Dames & Moore v. Regan

, 453 U.S. 654 (1981); Mullane

, 339 U.S.

306; Logan

, 455 U.S. 422. The bankruptcy code also counts le

‐ gal rights among the types of property that can support bank

‐

ruptcy claims. See In re Airadigm Commc’ns, Inc.

, 616 F.3d 642,

659 (7th Cir. 2010). Everyday litigation confirms that under

‐ standing. The reason parties settle cases is because both sides

understand that legal claims have monetary value, just like

any other form of property. Volvo’s offer to trade Khadija’s

claim for $83,475 illustrates the point: it sought to trade one

form of property (claim) for another (currency).

Any first

‐ year law student knows that contract formation

requires offer, acceptance, and consideration. Whether we

characterize the deal Volvo was proposing as a swap of a car

for money (as we suggested earlier) or a swap of a claim for

money (dropping the claim in exchange for $83,475), until

there is an acceptance there is no contract. (We take no posi

‐

tion on which is the better description.) Khadija considered

the trade and found it wanting. Whether she did so because

of the cost of the charging station, or because she wanted ad

‐

ditional damages for Volvo’s betrayal, or she wanted to be re

‐

imbursed for the nuisance of a short

‐ range electric car, or she

wanted a bonus for serving as a class representative, is beside

the point. Volvo has no right preemptively to force her to ac

‐

cept a contract offer. Indeed, an offeror is almost never per

‐

mitted to force acceptance on an unwilling offeree. ALI Re

‐

statement (Second) of Contracts §§ 17, 50–70, 159–77; see also

Campbell

‐ Ewald

, 136 S. Ct. at 672 (“In sum, an unaccepted set

‐

tlement offer or offer of judgment does not moot a plaintiff ʹ s

case.”). Consider what this case would look like if the parties’

roles were reversed. Khadija could not argue that she had the12 No. 16

‐ 3829

right unilaterally to compel an unwilling Volvo to trade a full

refund in exchange for her claim. Our legal system places a

premium on property rights, and protecting them is among

the judiciary’s most important functions.

Volvo’s position is also at odds with the traditional rule

that “a mere offer” does not strip the court of jurisdiction.

Campbell

‐ Ewald

, 136 S. Ct. at 675 (Thomas, J., concurring).

Plaintiffs may opt for trial in the face of offers far more con

‐

crete than Volvo’s letter; they could even reject “tender,”

which was “an offer to pay the entire claim before a suit was

filed, accompanied by ‘actually produc[ing]’ the sum ‘at the

time of tender’ in an ‘unconditional’ manner.” Id. at 675 (quot

‐ ing M. B ACON

, A N EW A BRIDGMENT OF THE L AW

, 314–15, 321

(1856)).

While Campbell

‐ Ewald dictates the outcome here, we note

that pragmatic considerations point in the same direction.

Both of the Campbell

‐ Ewald dissents argued that some Rule 68

offers could moot claims, but only if the defendant makes “ab

‐ solutely clear” that it will pay the relief it has offered. Id. at

683 (Alito, J., dissenting); id. at 680 (Roberts, C.J., dissenting).

This was not a passing concern—Justice Alito stressed that the

inevitability of payment was “the linchpin for finding moot

‐

ness in this case.” Id. at 683 (Alito, J., dissenting). Certainty

may be in the eye of the beholder, and so some plaintiffs may

contend that it is not clear enough that a defendant will make

good on an offer of relief. Nonetheless, when offers are made

during litigation, judicial oversight should mitigate the uncer

‐ tainty: a defendant’s failure to follow through would incur the

wrath of the supervising court, and egregious misconduct

might lead to sanctions. Those safeguards do not apply to of

‐No. 16

‐ 3829 13

fers made before the lawsuit begins. Here, if Khadija had ac

‐ cepted Volvo’s offer and then Volvo had failed to pay, she

would be right back where she started, with a new breach of

contract claim.

IV

Since Khadija did not accept Volvo’s offer, her injury

‐ in

‐

fact from Volvo’s alleged misrepresentations remains unre

‐

dressed. We therefore R EVERSE the judgment of the district

court dismissing this case for lack of standing and remand for

further proceedings consistent with this opinion.14 No. 16

‐ 3829

K ANNE

, Circuit Judge

, concurring. I join in the majority’s

opinion reversing and remanding the district court’s deci

‐

sion for further consideration. I write separately to further

emphasize that on remand the district court is free to draw,

or not to draw, the conclusion that Khadija has not met her

burden to show standing for injunctive relief.