On March 9, 2017, in Geismann v. ZocDoc, Inc., the US Court of Appeals for the Second Circuit held an unaccepted Rule 68 offer of judgment is a legal nullity, regardless of that offer's terms ( (2d Cir. Mar. 9, 2017)).

Radha Geismann, M.D., P.C. (Geismann) brought a putative class action against ZocDoc, Inc. (ZocDoc), alleging violations of the Telephone Consumer Protection Act (TCPA) related to unsolicited faxes. ZocDoc made a settlement offer to Geismann as to its individual claims under FRCP 68 which Geismann subsequently rejected. ZocDoc then moved to dismiss the action for lack of subject matter jurisdiction on the ground that its offer afforded Geismann complete relief, thereby mooting the action. The district court granted the motion and entered a judgment in Geismannʹs favor under the terms offered by ZocDoc and dismissed the action. Geismann appealed.

The Second Circuit reversed, holding that an unaccepted Rule 68 offer of judgment is a legal nullity, regardless of its terms. Therefore the defendant's settlement offer did not make the action moot and that judgment should not have been entered or the action dismissed on that basis. The Second Circuit relied on the recent US Supreme Court decision in Campbell‐Ewald Co. v. Gomez, in which the court made clear that an unaccepted FRCP 68 offer of judgment does not render an action moot (136 S. Ct. 663 (2016)).

The Second Circuit distinguished the facts of this case from a hypothetical in Campbell-Ewald that the Supreme Court left unaddressed. In that hypothetical, a defendant deposited the full amount of the plaintiffʹs individual claim in an account payable to the plaintiff, and the court then entered judgment for the plaintiff in that amount. In ZocDoc, however, the district court entered a judgment without a deposit of the funds, and then more than one year later, ZocDoc deposited an amount in satisfaction of that errant judgment in an account payable to Geismann. Accordingly, the Second Circuit saw no need to determine whether a different outcome would have resulted if the facts matched the hypothetical.