April 4, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13 C 7903 -
William T. Hart, Judge.
WOOD, Chief Judge, and Kanne and ROVNER, Circuit Judges.
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
makes homeopathic products, including an over-the-counter
remedy called Oscillococcinum ("Oscillo") that
retails for between $12 and $20, depending on whether one
buys a six, twelve, or thirty-dose package. Bohn v.
Boiron, Inc., 2013 WL 3975126, at *1 (N.D. Ill. Aug. 1,
2013). Oscillo is made by mixing one percent Anas
Barbariae Hepatis et Cordis Extractum-that is, duck
hearts and livers-with 99 percent water, repeating the
dilution process 200 times, and then selling the result in
pill form. The repeated dilutions render the finished product
nothing more than a placebo. Boiron's claim that Oscillo
has a therapeutic effect on flu symptoms is thus highly
doubtful. Aggrieved customers caught on at some point, and in
2011 they filed a class action against the company in the
Southern District of California over its deceptive marketing.
In October 2012, Boiron and the class agreed to a broad
settlement that covered over 200 of the company's
products (including Oscillo) purchased between January 1,
2000 and July 27, 2012. Gallucci v. Boiron, Inc.,
2012 WL 5359485 (S.D. Cal. Oct. 31, 2012), aff'd sub
nom. Gallucci v. Gonzales, 603 F.App'x 533 (9th Cir.
2015). In relevant part, the settlement required Boiron to
(1) pay refunds to past buyers, (2) revise its labels to make
them accurate, and (3) let future unhappy customers request
refunds within 14 days of purchase (the company calls this
the "Boiron Promise"). Boiron went one step
further; it now informs customers that they have 30 days from
purchase to request a refund. See Boiron Promise, BOIRON,
http://www.boironusa.com/promise/ (last visited Aug.
22, 2017) ("Boiron Promise Webpage").
the class members were not satisfied with this outcome, and
so they opted out of the Gallucci settlement.
Attorneys representing the opt-outs filed new class actions,
raising essentially the same claims against Boiron, in
California and Illinois. When the district courts found the
class representatives inadequate, counsel tried to swap in
replacements. In the Illinois case, the prospective
representative was the current plaintiff, Chad Conrad.
(Boiron eventually prevailed in the California case, and so
it does not concern us further.) Yet before the Illinois
substitution could occur, the then-lead plaintiff accepted
Boiron's offer of judgment, prompting the district court
to terminate the case. Boiron also offered Conrad $25 (more
than he had paid for the Oscillo) plus attorney's fees
and costs to settle his claim, but he rejected the offer and
filed the complaint that kicked off the current suit on
November 4, 2013. Eight months of preliminary proceedings
followed, at which point the district court stayed the case
pending the Ninth Circuit's resolution of the appeal of
the October 2012 settlement. That court ultimately upheld the
settlement, and the district court lifted its stay on August
weeks later, Boiron filed a motion to dismiss, which for the
most part the district court granted. The court found that
Conrad was an inadequate class representative because his
suit would provide little benefit beyond Boiron's
existing refund guarantee; it also found that Conrad lacked
standing to pursue injunctive relief (a ban on marketing
Oscillo as a flu remedy) under the Illinois Consumer Fraud
Act since Conrad himself would not be duped by Boiron's
misleading claims again. We denied Conrad's request to
appeal the denial of class certification in February 2016,
leaving him with only his individual damages claim. After
still more proceedings, the district judge granted
Boiron's motion under Federal Rule of Civil Procedure 67
to deposit $5, 025 with the court-above the maximum Conrad
could recover-in order to moot his claim. Boiron deposited
the funds, and the district court dismissed the case as moot
on September 20, 2016. This appeal followed.
main arguments are straightforward: he attacks both the
court's refusal to certify the class and its rejection of
his individual claim based on Boiron's use of Rule 67 to
try to moot the case. We review the denial of class
certification for abuse of discretion, and we consider the
mootness ruling de novo. Messner v. Northshore Univ.
HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012);
Stevens v. Hous. Auth. of S. Bend, Ind., 663 F.3d
300, 306 (7th Cir. 2011).
begin with Conrad's effort to represent what remains of
the class of Oscillo purchasers after the Gallucci
settlement. Federal Rule of Civil Procedure 23(a) conditions
class certification on "four requirements-numerosity,
commonality, typicality, and adequate representation."
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349
(2011). This case turns on adequacy, for an aspiring lead
plaintiff such as Conrad is entitled to represent a class
only if he "will fairly and adequately protect the
interests of the class." Fed.R.Civ.P. 23(a)(4). In order
to be an adequate representative, the named plaintiff must
"be part of the class and possess the same interest and
suffer the same injury as the class members."
Amchem Prod., Inc. v. Windsor, 521 U.S.
591, 625-26 (1997) (internal quotation marks and citation
omitted). In addition, the court must be satisfied that the
plaintiff will keep the interests of the entire class at the
forefront. Conrad's case brings to mind our comment in
In re Aqua Dots Products Liability Litigation, 654
F.3d 748, 752 (7th Cir. 2011) ("Aqua
Dots"), that "[a] representative who proposes
that high transaction costs (notice and attorneys' fees)
be incurred at the class members' expense to obtain a
refund that already is on offer is not adequately protecting
the class members' interests."
Aqua Dots, the manufacturer of the eponymous toys
recalled them because they were potentially toxic. The recall
notice told buyers that they could exchange the Aqua Dots for
a non-defective replacement or a different, comparably priced
toy. Notably, it did not mention any refunds, though they
were provided upon request. A group of buyers challenged the
recall program through a class action, alleging that the
relief the company offered was inadequate. The district court
refused to ...