Abuse of Discretion

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7^th Circuit Court of Appeals

Case Name: Chad Conrad v. Boiron, Inc., et al.

Case No.: 16-3656

Officials: WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges.

Focus: Abuse of Discretion

Chad Conrad filed a class action against Boiron for deceptive marketing, but he was left with only his individual claim after the district court refused to certify his proposed class. About a year later Boiron offered Conrad $5,025, more than he could hope to win at trial. Conrad does not want to accept the money because it will moot his claim; Boiron wants to force him to take it for the same reason.

The district court refused to certify Conrad’s proposed class and found his individual claim moot. We conclude, in keeping with our decision in Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017), that the latter decision was in error, because an unaccepted offer cannot moot a case. There are other measures available to address the problem (if it exists here) of “unreasonably and vexatiously” persisting in litigation, see, e.g., 28 U.S.C. § 1927, but the district court has yet to decide whether they should be used. We therefore remand this case to the district court for further proceedings.

The district court did not abuse its discretion in denying class certification, and it correctly rejected Conrad’s individ‐ ual claim for injunctive relief. It erred, however, insofar as it concluded that the passage of time meant that Conrad no longer had the legal right to reject Boiron’s offer of settlement. We therefore AFFIRM in part and REMAND for further proceed‐ ings consistent with this opinion. Each party will bear its own costs on appeal.

Affirmed in part. Remanded in part.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.