Allstate Petition For Interlocutory Appeal

CASE NO.
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLSTATE INSURANCE COMPANY,

Petitioner- Defendant,

v.

RICHARD CHEN, AND FLORENCIO PACLEB, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED

Respondents- Plaintiffs.
__________________________________________________________________
On Appeal from the United States District Court for the
Northern District of California
Civil Case No. 4:13-cv-00685-PJ H
__________________________________________________________________

DEFENDANT ALLSTATE INSURANCE COMPANYS PETITION FOR
PERMISSION TO APPEAL PURSUANT TO 28 U.S.C. 1292(b)
__________________________________________________________________

Daniel M. Benjamin
Ballard Spahr LLP
655 West Broadway, Suite 1600
San Diego, California 92101-8494
Telephone: (619) 696-9200
Facsimile: (619) 696-9269
Email: benjamind@ballardspahr.com

Case: 13-80177 08/08/2013 ID: 8736509 DktEntry: 1-2 Page: 1 of 48

i
CORPORATE DISCLOSURE

Pursuant to Rule 26.1(a) of the Federal Rules of Appellate Procedure,
Defendant Allstate Insurance Company states that it is a wholly-owned subsidiary
of Allstate Insurance Holdings, LLC, which is a Delaware limited liability
company. Allstate Insurance Holdings, LLC is a wholly-owned subsidiary of The
Allstate Corporation, which is a Delaware corporation. The stock of The Allstate
Corporation is publicly traded. No publicly-held entity owns 10% or more of the
stock of The Allstate Corporation.
Respectfully submitted,

Dated: August 8, 2013 By: /s/ Daniel M. Benjamin
DANIEL M. BENJ AMIN
Attorneys for Petitioner-Defendant

ii
TABLE OF CONTENTS
CORPORATE DISCLOSURE .................................................................................. i
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION ..................................................................................................... 1
FACTS NECESSARY TO UNDERSTAND THE QUESTION PRESENTED ...... 5
A. The Original and Amended Complaints ..................................... 5
B. The Fed. R. Civ. Proc. 68 Offer .................................................. 6
C. The J une 10 and J uly 31, 2013 Orders ........................................ 6
QUESTION ON APPEAL ......................................................................................... 7
RELIEF SOUGHT ..................................................................................................... 7
REASONS WHY THE APPEAL SHOULD BE ALLOWED ................................. 7
I. The Certified Question Is a Controlling Question of Law ..................... 8
II. There Are Substantial Grounds for Difference of Opinion .................. 10
III. An Immediate Appeal May Materially Advance the Litigation .......... 16
CONCLUSION ........................................................................................................ 17

iii
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Canada v. Meracord, LLC,
No. C12-5657, 2013 WL 2450631 (W.D. Wash. J une 6, 2013) ........................ 11
Couch v. Telescope Inc.,
611 F.3d 629 (9th Cir. 2010) .............................................................................. 10
Craftwood II, Inc. v. Tomy Intl, Inc.,
No. SA CV 12-1710, 2013 U.S. Dist. LEXIS 99350 (C.D. Cal. J uly 8,
2013) ................................................................................................................... 11
Deposit Guaranty Nat'l Bank v. Roper,
445 U.S. 326 (1980) .....................................................................................passim
Englert v. MacDonnell,
551 F.3d 1099 (9th Cir. 2009) ............................................................................ 16
Genesis HealthCare Corp. v. Symczyk,
__ U.S. __, 133 S. Ct. 1523 (2013) ..............................................................passim
Goldberg v. CPC Intl, Inc.,
678 F.2d 1365 (9th Cir. 1982) .............................................................................. 9
In re Cement Antitrust Litig.,
673 F.2d 1020 (9th Cir. 1982) ........................................................................ 8, 16
International Brotherhood of Teamsters v. Department of Transp.,
932 F.2d 1292 (9th Cir. 1991) .............................................................................. 9
Keim v. ADF Midatlantic, LLC,
No. 12-80577, 2013 U.S. Dist. LEXIS 98373 (S.D. Fla. J uly 15, 2013) ..... 10, 11
Klinghoffer v. S.N.C. Achille Lauro,
921 F.2d 21 (2d Cir. 1990) ................................................................................... 8
Marschall v. Recovery Solution Specialists, Inc.,
399 Fed. Appx. 186, 2010 U.S. App. LEXIS 20541 (9th Cir. Oct. 5,
2010) ..................................................................................................................... 2

iv
Masters v. Wells Fargo Bank South Central,
No. A-12-CA-376-SS, 2013 U.S. Dist. LEXIS 101171 (W.D. Tex. J uly
11, 2013) ............................................................................................................. 11
Miller v. Gammie,
335 F.3d 889 (9th Cir. 2003) (en banc) .............................................................. 12
Ministry of Defense of the Islamic Republic of Iran v. Gould, Inc.,
969 F.2d 764 (9th Cir. 1992) ................................................................................ 8
Owner-Operators Indep. Drivers Assoc. of Am., Inc. v. Skinner,
931 F.2d 582 (9th Cir. 1991) ................................................................................ 9
Pitts v. Terrible Herbst, Inc.,
653 F.3d 1081 (9th Cir. 2011) .....................................................................passim
Reese v. BP Exploration (Alaska) Inc.,
643 F.3d 681 (9th Cir. 2011) ........................................................................ 15, 16
Scott v. Westlake Services, LLC,
__ F. Supp. 2d __, 2013 WL 2468253 (N.D. Ill. J une 6, 2013) ......................... 11
Sosna v. Iowa,
419 U.S. 393 (1975) .......................................................................... 11, 12, 13, 15
U.S. Parole Comm'n v. Geraghty,
445 U.S. 388 (1980) ................................................................................ 11, 12, 13
United States v. Woodbury,
263 F.2d 784 (9th Cir. 1959) ................................................................................ 7
Valenzuela v. Kraft, Inc.,
801 F.2d 1170 (9th Cir. 1986) .............................................................................. 9
Weiss v. Regal,
385 F.3d 337 (3d Cir. 2004) ............................................................................... 15
FEDERAL STATUTES
28 U.S.C. 1292(b) ..........................................................................................passim
FEDERAL RULES
Fed. R. Civ. P. 23(e) ................................................................................................. 15

v
Rule 30(b)(6) ............................................................................................................ 17
OTHER AUTHORITIES
16 C.A. Wright, A.R. Miller & E.H. Cooper, Federal Practice & Procedure
3931, at 522 (2012) ............................................................................................ 9
19 J . Moore, Federal Practice 3d 203.31[2], at 203-87 (2013) ............................. 9

1

Pursuant to 28 U.S.C. 1292(b), Petitioner-Defendant Allstate Insurance
Company (Allstate) respectfully seeks leave to file an interlocutory appeal from
the Order of the District Court dated J une 10, 2013. That Order denied Allstates
motion to dismiss the only remaining claim of the only remaining named plaintiff
in this putative nationwide class action, Florencio Pacleb (Pacleb), for lack of
subject matter jurisdiction. On J uly 31, 2013, the District Court granted Allstates
motion to certify the J une 10, 2013 Order for interlocutory appeal and to stay the
action pending appeal.
1

This petition is timely filed within ten days of the District Courts Order
granting certification. See 28 U.S.C. 1292(b).
INTRODUCTION
The issue raised in this petition is whether this Court should continue to
follow the reasoning of Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir.
2011), in light of the Supreme Courts recent decision in Genesis HealthCare
Corp. v. Symczyk, __ U.S. __, 133 S. Ct. 1523 (2013). This novel and important
jurisdictional question is potentially dispositive of the instant case and numerous
other pending putative class actions.

1
Copies of the J une 10, 2013 and J uly 31, 2013 Orders are attached to this
petition as Exhibits 1 and 2, respectively.

2
Under Ninth Circuit law, a defendants offer of complete relief to a plaintiff
in an individual action moots the case and requires its dismissal for lack of subject
matter jurisdiction since there is no longer a live case or controversy.
2
However,
Pitts declined to extend that principle to Rule 23 class actions. See Pitts, 653 F.3d
at 1092-93 (we hold that an unaccepted Rule 68 offer of judgment -- for the full
amount of the named plaintiffs individual claim and made before the named
plaintiff files a motion for class certification -- does not moot a class action).
In Genesis HealthCare, the Supreme Court held that a Rule 68 offer made
before the plaintiff filed a conditional certification motion mooted the plaintiffs
Fair Labor Standards Act (FLSA) collective action and deprived the court of
subject matter jurisdiction. As a result of the offer, the plaintiff had no personal
interest in representing putative, unnamed claimants, nor any other continuing
interest that would preserve her suit from mootness. 133 S. Ct. at 1532; see also
id. at 1529 (the mere presence of collective-action allegations in the complaint
cannot save the suit from mootness once the individual claim is satisfied).
In so ruling, the Supreme Court expressly rejected much of the reasoning on
which Pitts relied in holding that a Rule 68 offer of judgment does not moot a Rule

2
E.g., Marschall v. Recovery Solution Specialists, Inc., 399 Fed. Appx. 186,
2010 U.S. App. LEXIS 20541, at *2 (9th Cir. Oct. 5, 2010) ([t]he district court
properly dismissed Marschalls individual claims against [the defendant] for lack
of subject matter jurisdiction because [the defendants] offer of judgment was for
more than Marschall was legally entitled to recover).

3
23 class action. However, the Supreme Court also stated that FLSA collective
actions are fundamentally different than Rule 23 class actions. 133 S. Ct. at
1529. Consequently, there is a significant unsettled question concerning the
impact of Genesis HealthCare on Pitts.
In this Rule 23 putative class action, Allstate served Pacleb with a Rule 68
offer of judgment that fully satisfied his claim under the Telephone Consumer
Protection Act (TCPA), and Pacleb has not filed a class certification motion.
Allstate moved to dismiss this case for lack of subject matter jurisdiction, arguing
that Genesis HealthCare abrogated or overruled the Pitts case sub silentio. The
District Court denied the motion, concluding that Pitts was the applicable law
because the Supreme Court in Genesis HealthCare emphasized that class actions
are different than collective actions. (Ex. 1 at 14:1-2).
Nevertheless, the District Court acknowledged that Genesis HealthCare did
reject the reasoning that the Ninth Circuit in Pitts used in the class action
context (Ex. 1 at 13:28-14:1) and that other courts disagreed with Pitts. (Id. at
8:10-20 (noting split between Seventh and Ninth Circuits, among others)). The
District Court further acknowledged that Genesis HealthCare may presage a
change in the governing law. (Ex. 1 at 14:2-5 ([W]hile the Supreme Court might
at some future date actually overrule Pitts and decisions from other Circuits
holding that the rule articulated in Genesis also applies in class actions, as of now

4
that has not happened and Pitts remains good law as far as the court can
ascertain.)).
In granting Allstates motion to certify, the District Court explained that
[w]hile the Supreme Court did not clearly overrule Pitts, it did take issue with the
precedent on which Pitts relies. Thus, resolution of the issue raised by Allstate on
appeal could materially affect the outcome of the litigation in this court even to
the point of materially speeding the outcome of the litigation. (Ex. 2 at 5:5-9).
The Court stated that it would welcome the Ninth Circuits view as to whether its
Pitts decision remains good law in light of Genesis Healthcare. (Id. at 5:13-14).
As the District Court concluded, the requirements for certification under
1292(b) are satisfied in this case. First, the J une 10, 2013 Order involves a
controlling question of law because, if this Court holds that Paclebs case was
rendered moot by Allstates Rule 68 offer, this action will be dismissed for lack of
subject matter jurisdiction.
Second, there is substantial ground for difference of opinion. Before
Genesis HealthCare, circuit courts were divided on whether a Rule 68 offer
providing complete relief to a named plaintiff and made prior to the filing of a
class certification motion moots a Rule 23 putative class action. After Genesis
HealthCare, district courts have reached different conclusions concerning the
applicability of the Supreme Courts decision to Rule 23 putative class actions. No

5
circuit court has yet addressed that issue because Genesis HealthCare was only
recently decided on April 16, 2013.
Third, an immediate appeal may materially advance the ultimate termination
of this litigation. If this Court determines that Paclebs case is moot, there will be
no subject matter jurisdiction over this action and it will be dismissed, avoiding
years of protracted and expensive class action litigation.
FACTS NECESSARY TO UNDERSTAND THE QUESTION PRESENTED
A. The Original and Amended Complaints
This putative nationwide class action was initially filed against Allstate by
Plaintiff Richard Chen (Chen) on February 14, 2013. On March 8, 2013, an
amended complaint was filed adding Pacleb as a named plaintiff.
Plaintiffs alleged that Allstate violated the TCPA by placing unauthorized
calls to their cellular phones using an automatic dialing system. They sought
statutory damages under the TCPA of $500 per call for a negligent violation of the
TCPA, and $1500 per call for a willful violation. They did not seek any actual
damages.
Plaintiffs sued on behalf of themselves and all persons in the United States
who received telephone calls from Allstate that violated the TCPA within the four
years prior to the filing of the complaint. The putative class allegedly contains at
least tens of thousands of members.

6
B. The Fed. R. Civ. Proc. 68 Offer
On April 10, 2013, without admitting liability, Allstate made a Rule 68
offer of judgment to Plaintiffs on their individual claims. On May 8, 2013, Chen
accepted Allstates Rule 68 offer and is no longer a party. Pacleb has yet to accept
the offer, which remains open.
3
It is undisputed that Allstates offer afforded
Pacleb complete relief on his individual claim.
4

C. The June 10 and July 31, 2013 Orders
When Pacleb did not accept the Rule 68 offer, Allstate filed its motion to
dismiss for lack of subject matter jurisdiction. On J une 10, 2013, the District Court
denied the motion, concluding that Pitts continued to be the applicable law in the
Ninth Circuit notwithstanding Genesis HealthCare, but acknowledging that the
jurisdictional issue remains somewhat unsettled. (See Ex. 1 at 6:7-8).
On J uly 2, 2013, Allstate filed its motion to certify the J une 10, 2013 Order
for interlocutory appeal and stay the action pending appeal. The District Court
granted that motion and amended the J une 10, 2013 Order by Order dated J uly 31,
2013. This petition followed.

3
On April 24, 2013, Allstate extended its offer of judgment until such time
as it is accepted by Plaintiffs or Allstate withdraws the offer in writing. (Ex. 1 at
2:21-23).
4
Allstates Rule 68 offer was based on Plaintiffs original request for treble
damages (i.e., $1,500 per call). Plaintiffs subsequent withdrawal of that claim
and its dismissal by the District Court (Ex. 1 at 15:24-26) made Allstates offer all-
the-more generous.

7
QUESTION ON APPEAL
In light of Genesis HealthCare Corp. v. Symczyk, __ U.S. __, 133 S.
Ct. 1523 (2013), did Allstates Rule 68 offer of judgment, which
afforded the named plaintiff in this Rule 23 putative class action
complete relief on his individual claims and was made before the
filing of a class certification motion, moot the entire action and thus
deprive the court of federal subject matter jurisdiction?
RELIEF SOUGHT
Allstate asks that the Court grant this petition and permit an interlocutory
appeal under 1292(b). If this petition is granted, Allstate will ask the Court to re-
evaluate Pitts in light of Genesis HealthCare and hold that Allstates Rule 68 offer
of judgment, which fully satisfied Paclebs individual claim, mooted this lawsuit
and thus deprived the District Court of subject matter jurisdiction. Allstate will
further ask to have the case remanded with instructions that it be dismissed for lack
of subject matter jurisdiction, terminating the litigation.
REASONS WHY THE APPEAL SHOULD BE ALLOWED
Certification of an interlocutory appeal under 28 U.S.C. 1292(b) is a
means of expediting litigation by permitting appellate consideration during the
early stages of legal questions, which, if decided in favor of the appellant, would
end the lawsuit. United States v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959).
Examples of such questions are those relating to jurisdiction ... which the district
court has decided in a manner which keeps the litigation alive but which, if
answered differently on appeal, would terminate the case. Id.

8
A court may certify an order for interlocutory review pursuant to 28 U.S.C.
1292(b) in exceptional situations in which allowing an interlocutory appeal
would avoid protracted and expensive litigation. In re Cement Antitrust Litig.,
673 F.2d 1020, 1026 (9th Cir. 1982). Certification is warranted if the Court
determines that: (1) the issue to be appealed involves a controlling question of law;
(2) there are substantial grounds for difference of opinion; and (3) an immediate
appeal of the issue may materially advance the ultimate termination of the
litigation. See 28 U.S.C. 1292(b); In re Cement Antitrust Litig., 673 F.2d at
1026. Each of these requirements is satisfied in this case.
I. The Certified Question Is a Controlling Question of Law
An issue is controlling if resolution of the issue on appeal could materially
affect the outcome of litigation in the district court. In re Cement Antitrust Litig.,
673 F.2d at 1026. Although resolution of the issue need not necessarily terminate
an action in order to be controlling, it is clear that a question of law is controlling if
reversal of the district courts order would terminate the action. Klinghoffer v.
S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990).
Here, the question of law is whether the Court has subject matter
jurisdiction. This Court has repeatedly recognized that cases involving questions
of subject matter jurisdiction can be appropriate for interlocutory appeal. See, e.g.,
Ministry of Defense of the Islamic Republic of Iran v. Gould, Inc., 969 F.2d 764,

9
768 (9th Cir. 1992) ([t]he district court certified the question of jurisdiction for
interlocutory appeal, and we agreed to hear such appeal pursuant to 28 U.S.C.
1292(b)); International Brotherhood of Teamsters v. Department of Transp., 932
F.2d 1292, 1297 (9th Cir. 1991) (The court did, however, certify its jurisdictional
ruling for interlocutory appeal. On October 17, 1989, we granted the petition for
interlocutory appeal.); Owner-Operators Indep. Drivers Assoc. of Am., Inc. v.
Skinner, 931 F.2d 582, 584 (9th Cir. 1991) (exercising 1292(b) appellate
jurisdiction over order denying motion for judgment on the pleadings contending
that the court of appeals had exclusive subject matter jurisdiction); Valenzuela v.
Kraft, Inc., 801 F.2d 1170, 1171-72 (9th Cir. 1986), amended by 815 F.2d 570 (9th
Cir. 1987) (exercising 1292(b) appellate jurisdiction over order denying motion
for judgment on the pleadings contending that district court lacked jurisdiction);
Goldberg v. CPC Intl, Inc., 678 F.2d 1365, 1366 (9th Cir. 1982) (exercising
1292(b) appellate jurisdiction over order denying motion to remand for lack of
subject matter jurisdiction); see also 19 J . Moore, Federal Practice 3d 203.31[2],
at 203-87 (2013) ([c]ontrolling questions of law include questions as to
subject matter jurisdiction); 16 C.A. Wright, A.R. Miller & E.H. Cooper, Federal
Practice & Procedure 3931, at 522 (2012) (challenges to subject matter
jurisdiction are obviously suited for interlocutory appeal under 1292(b)).
Therefore, the issue of law presented for review in this case is controlling.

10
II. There Are Substantial Grounds for Difference of Opinion
To determine if a substantial ground for difference of opinion exists under
1292(b), courts must examine to what extent the controlling law is unclear.
Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). Here, whether this
case should be dismissed for lack of subject matter jurisdiction given the Supreme
Courts recently issued ruling in Genesis HealthCare is a difficult and pivotal
question not settled by controlling authority.
As the District Court recognized in its J une 10, 2013 Order, even before
Genesis HealthCare, there was a split in the circuit courts as to whether a Rule 68
offer that completely satisfied the named plaintiff's individual claims could moot a
Rule 23 putative class action. (See Ex. 1 at 6-8 (collecting cases)).
That split has widened after Genesis HealthCare, with conflicting opinions
issuing from several district courts in the last few months alone. Compare Keim v.
ADF Midatlantic, LLC, No. 12-80577, 2013 U.S. Dist. LEXIS 98373 (S.D. Fla.
J uly 15, 2013) (in a TCPA action, rejecting the argument that Genesis HealthCare
is limited to FLSA cases,
5
and ruling that filing a class action complaint does

5
The Keim court stated: That Genesis dealt with an FLSA collective action
and its corollary conditional class certification does not support an attempt to
distinguish it materially from the facts of this case, which deals with traditional
Rule 23 class certification in a TCPA case: both cases present a situation where a
lone plaintiff was offered full relief before a class acquired independent legal
status. 2013 U.S. Dist. LEXIS 98373, at *19-20.

11
not prevent a claim from being rendered moot where the sole plaintiff is offered
full relief before he moves for class certification); Masters v. Wells Fargo Bank
South Central, No. A-12-CA-376-SS, 2013 U.S. Dist. LEXIS 101171 (W.D. Tex.
J uly 11, 2013) (dismissing a TCPA class action after concluding that the
defendants Rule 68 offer of judgment mooted the plaintiffs individual and class
action claims based on the reasoning of Genesis HealthCare
6
); Scott v. Westlake
Services, LLC, __ F. Supp. 2d __, 2013 WL 2468253 (N.D. Ill. J une 6, 2013)
(holding after Genesis HealthCare that a putative TCPA class action was mooted
by a Rule 68 offer of judgment) with Canada v. Meracord, LLC, No. C12-5657,
2013 WL 2450631 (W.D. Wash. J une 6, 2013) (holding that Genesis Healthcare
does not apply to a Rule 23 class action); Craftwood II, Inc. v. Tomy Intl, Inc., No.
SA CV 12-1710, 2013 U.S. Dist. LEXIS 99350 (C.D. Cal. J uly 8, 2013) (same).
These decisions demonstrate a substantial difference of opinion and
underscore that Allstates position concerning the application of Genesis
HealthCare to Rule 23 class actions has considerable judicial support. This is not

6
The Masters court observed: Although the [Genesis HealthCare] Court
recognized Rule 23 class actions are fundamentally different from collective
actions under the FLSA, it went on to review (and distinguish) the precise Rule 23
cases [plaintiff] relies on in support of his argument. See id. at 1529-32
(discussing U.S. Parole Comm'n v. Geraghty, 445 U.S. 388 (1980); Deposit
Guaranty Nat'l Bank v. Roper, 445 U.S. 326 (1980); and Sosna v. Iowa, 419 U.S.
393 (1975)). 2013 U.S. Dist. LEXIS 101171, at *14-15.

12
a case of Allstate merely disagreeing with the District Courts J une 10, 2013
Order.
If this appeal proceeds, the Ninth Circuit panel assigned to the matter will
have considerable latitude in determining the effect of Genesis HealthCare on
Pitts. The Ninth Circuit has held that its panels can re-examine existing precedent
if the Supreme Court has undercut the theory or reasoning underlying the prior
circuit precedent in such a way that the cases are clearly irreconcilable. Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
There are substantial grounds for the Ninth Circuit to undertake a re-
examination of Pitts pursuant to this standard. As support for its conclusion that a
Rule 68 offer that completely satisfies a named plaintiff's individual claims does
not moot a Rule 23 putative class action, Pitts relied heavily on three earlier
Supreme Court cases. Those cases were United States Parole Commn v.
Geraghty, 445 U.S. 388 (1980); Deposit Guaranty Nat. Bank v. Roper, 445 U.S.
326 (1980); and Sosna v. Iowa, 419 U.S. 393 (1975). See Pitts, 653 F.3d at 1090.
Specifically, Pitts, relying on Geraghty, Roper and Sosna, formulated a
relation back theory premised on the assumption that small monetary claims of
putative class members are transitory in the sense that they would evade judicial
review unless they were pooled in a class action. According to Pitts, keeping a
putative class action alive after the named plaintiff had received a Rule 68 offer of

13
judgment by permitting a later-filed class certification motion to relate back to the
filing of the complaint was justified because [a] rule allowing a class action to
become moot simply because the defendant has sought to buy off the individual
private claims of the named plaintiffs before the named plaintiffs have a chance to
file a motion for class certification would contravene Rule 23s core concern: the
aggregation of similar, small, but otherwise doomed claims. 653 F.3d at 1091
(citation omitted).
The plaintiff in Genesis HealthCare also relied heavily upon Geraghty,
Roper and Sosna in opposing dismissal. But the Supreme Court expressly
distinguished those cases because they dealt with situations in which class
certification had been granted or improperly denied. Because those cases were
ones in which class certification proceedings had already occurred, the Court found
that they were, by their own terms, inapplicable to these facts. 133 S. Ct. at
1529. The Court noted that, in the case before it, the respondent had not yet
moved for conditional certification when her claim became moot, nor had the
District Court anticipatorily ruled on any such request. Her claim instead became
moot prior to these events. Id. at 1530.
The Supreme Court specifically rejected the plaintiffs core argument (the
same argument that Pitts found persuasive) that the purposes served by the
FLSAs collective-action provisions -- for example, efficient resolution of common

14
claims and lower individual costs associated with litigation -- would be frustrated
by defendants use of Rule 68 to pick off named plaintiffs before the collective-
action process has run its course. Id. at 1531. The Court rejected that argument
because the Rule 68 offer mooted the plaintiffs individual claim before a
conditional certification motion was even filed, as it afforded her complete relief.
Id. Moreover, the Court characterized the language in Roper that was the basis for
the pick-off argument as mere dicta and even questioned Ropers continuing
validity. 133 S. Ct. at 1532 & n. 5.
Accordingly, a substantial argument can be made that even though Genesis
HealthCare stated that FLSA collective actions are fundamentally different than
Rule 23 class actions, those differences primarily affect the certification process
itself and thus are irrelevant where (as in Pitts and the instant action) the named
plaintiffs individual claims are mooted by a Rule 68 offer before a certification
motion is filed. Therefore, one can reasonably argue that in the pre-certification
context, the logic of Genesis HealthCare does apply to Rule 23 class actions.
Because Genesis HealthCare took issue with the precedent on which Pitts
relied, there is a compelling reason for this Court to re-evaluate Pitts. Indeed, in
her Supreme Court brief in Genesis HealthCare, the plaintiff urged the Court to
follow Pitts, but the Court did not do so. Instead, it dismissed the case as moot for

15
lack of subject matter jurisdiction.
7
Substantial arguments can also be made that
the histories of both Rule 23
8
and Rule 68
9
support the application of Genesis
HealthCare to Rule 23 putative class actions in the pre-certification context.
Lastly, Pacleb opposed certification below on the ground that district courts
within the Ninth Circuit thus far have followed Pitts after Genesis HealthCare.
However, as the District Court recognized in granting certification, the Ninth
Circuit has yet to rule on the effect of Genesis HealthCare, making the question
novel in this Court. In Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688
(9th Cir. 2011), this Court held that a novel issue may be certified for
interlocutory appeal without first awaiting development of contradictory
precedent. As this Court explained, [a]dopting the formalistic requirement ...

7
See No. 11-1059, Brief for Respondent, at 37-38 (U.S., filed Oct. 19, 2012)
(emphasizing that Pitts held that a timely motion for class certification made after
the individual plaintiffs received a Rule 68 offer of judgment would relate back to
the time the action was filed) (and citing Roper and Sosna).
8
Rule 23 was amended in 2003 to clarify that prior to class certification,
there is no class to protect insofar as settlement of the named plaintiffs individual
claim is concerned. See Fed. R. Civ. P. 23(e). The Genesis HealthCare Court
reached the same conclusion regarding FLSA actions, instructing that nothing in
the nature of FLSA actions precludes satisfaction and thus the mooting of the
individuals claim before the collective-action component of the suit has run its
course. 133 S. Ct. at 1529 n. 4.
9
In 1983 and 1984, proposed amendments to Rule 68 that would have
excluded Rule 23 class actions from its scope were rejected. See Weiss v. Regal,
385 F.3d 337, 344 n. 12 (3d Cir. 2004). The rejection of the proposed amendments
shows that Rule 68 was intended to apply to Rule 23 class actions.

16
that adverse authority develop around an issue before we review it on interlocutory
appeal could lead to unnecessary, protracted litigation and a considerable waste of
judicial resources. Id. at 688 n. 5.
Here, as the District Court observed in its certification Order, the absence of
conflicting opinions within the Ninth Circuit is no doubt attributable to the fact
that the decision in Genesis HealthCare was issued only three and a half months
ago. (Ex. 2 at 5:11-12). Indeed, a determination on the novel issue of subject
matter jurisdiction presented here, in addition to potentially resolving the instant
litigation, could greatly aid the many district courts within and outside this Circuit
that are examining the impact of Genesis HealthCare on Rule 23 class actions.
Thus, substantial grounds for difference of opinion exist.
III. An Immediate Appeal May Materially Advance the Litigation
An order is reviewable under 1292(b) if its immediate review may
materially advance the litigation. See 28 U.S.C. 1292(b); see also Englert v.
MacDonnell, 551 F.3d 1099, 1103 (9th Cir. 2009). This criterion is satisfied when
allowing an interlocutory appeal would avoid protracted and expensive
litigation. In re Cement Antitrust Litig., 673 F.2d at 1026.
In the present case, immediate review of the Courts J une 10, 2013 Order
could resolve this case entirely. Alternatively, without such review, the parties will
spend years litigating a costly putative nationwide class action. Prior to the stay of

17
this action, Pacleb already had served Allstate with a voluminous round of initial
discovery that consisted of 51 document requests, 25 interrogatories, 23 requests
for admissions, and a Rule 30(b)(6) deposition notice identifying 21 areas of
inquiry and containing 3 additional document requests. A ruling by the Ninth
Circuit that this case is moot would result in the dismissal of this action and
termination of the litigation without the parties and the judicial system bearing the
burdens caused by this potentially lengthy and protracted litigation.
The third requirement for permitting this appeal under 1292(b) is met.
CONCLUSION
Allstate respectfully requests that the Court grant this petition and permit
this interlocutory appeal of the District Courts J une 10, 2013 Order, as amended
by the District Courts J uly 31, 2013 Order, to proceed under 28 U.S.C. 1292(b).

Respectfully submitted,

DANIEL M. BENJ AMIN


1
PROOF OF SERVICE
I hereby certify that on August 8, 2013, I served the foregoing on the
interested parties in this action by sending true and correct copies via U.S. Mail
and Electronic Mail pursuant to Fed. R. App. P. 25(c)(1) as follows:
J oshua B. Swigart
HYDE & SWIGART
411 Camino Del Rio South
Suite 301
San Diego, CA 92108
Tel: (619) 233-7770
Fax: (619) 297-1022
josh@westcoastlitigation.com

Seyed Abbas Kazerounian
Matthew Loker
KAZEROURI LAW GROUP
2700 N. Main Street
Suite 1000
Santa Ana, CA 92705
Tel: (800) 400-6808
Fax: (800) 520-5523
ak@kazlg.com
ml@kazlg.com

Todd M. Friedman
Nicholas J . Bontrager
LAW OFFICES OF TODD M.
FRIEDMAN
369 S. Doheny Drive, #415
Beverly Hills, CA 90211
Tel: (877) 206-4741
Fax: (866) 633-0228
tfriedman@attorneysforconsumers.com
nbontrager@attorneysforconsumers.com

Counsel for Plaintiff Richard Chen,
and Florencio Pacleb, individually
and on behalf of all others similarly
situated

situated

situated

2

DANIEL M. BENJ AMIN

EXHIBIT 1
Exhibit 1
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Case4:13-cv-00685-PJH Document25 Filed06/10/13 Pagel of 16
1
2
3
4
5
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
..
6 RICHARD CHEN, et al.,
7 Plaintiffs,
8 v.
9 ALLSTATE INSURANCE COMPANY,
10
11
Defendant.
____________________________ /
No. C 13-0685 PJH
ORDER GRANTING MOTION TO
DISMISS IN PART AND DENYING
IT IN PART
12 The motion of defendant Allstate Insurance Company ("Allstate") for an order
13 dismissing the above-entitled action for lack of subject matter jurisdiction and failure to
14 state a claim came on for hearing before this court on June 5, 2013. Plaintiff appeared by
15 his counsel Matthew Loker, and Allstate appeared by its counsel Mark Levin. Having read
16 the parties'. papers and carefully considered their arguments and the relevant legal
17 authority, court hereby GRANTS the motion in part and DENIES it in part as follows .
18 BACKGROUND
19 This is a case filed as a proposed class action, asserting violations of the Telephone
20 Consumer Protection Act, 47 U.S.C. 227, et seq. ("TCPA"). The complaint alleges that
!
;,
21 defendant Allstate engaged in unlawful activities by contacting plaintiff and the members of '
22 the proposed class on their cell phones without their consent.
23 Plaintiff Richard Chen ("Chen") filed the original complaint on February 14, 2013, as
24 a proposed class action seeking statutory damages ($500 per unlawful call, or up to $1,500
25 per unlawful call for knowing/willful viol;:ltions) and injunctive relief against Allstate. Chen
26 alleged that in January 2013, Allstate called him on his cell phone in an attempt to solicit his
27 purchase of an insurance policy. He asserted that Allstate placed "no less than eight (8)
28 calls" to his cell phone through the use of an "automatic telephone dialing system;" that he
Exhibit 1
Page 2
Case4:13-cv-00685-PJH Document25 Filed06/10/13 Page2 of 16
1 had never been a customer of Allstate; and that he had never given Allstate his prior
. 2 consent to call his cell phone using an automatic telephone dialing system.
3 On March 3, 2013, Chen filed a first amended complaint ("FAG"), adding an
4 additional plaintiff- Florencio Pacleb ("Pacleb"). The FAG alleges that Allstate called
5 Pacleb "no less than five (5)" times on his cell phone in February and March 2013, using an
6 automatic telephone dialing system; that he had never been a customer pf Allstate, and
7 had not given Allstate prior consent to make the calls; and that the calls were not for
8 emergency purposes. The FAG also alleges that Pacleb was never able to talk to a "live
9 human representative" from Allstate, and that each time he answered the call he was
10 greeted with "dead air" followed by a recorded message asking for an individual named
11 "Frank Arnold."
12 The FAG asserts two causes of action- (1) negligent violations of the TCPA ($500
13 per unlawful call); and (2) knowing and/or willful violations of the TCPA ($1 ,500 per
14 unlawful call).
15 On April 10, 2013, Allstate made an offer of judgment to Chen and Pacleb pursuant
16 to Federal Rule of Civil Procedure 68. Allstate offered Chen $15,000, and Pacleb $10,000,
17 plus "reasonable attorney's fees and costs that have been accrued to date." Allstate also ,
: 18 offered to stop sending plaintiffs non-emergency telephone calls and short message
19 service messages, and to have a reasonable amount of attorney's fees and costs
20 determined by the court if the parties could not agree on the amount.
: _l ...
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21 On April 24, 2013, for Allstate sent plaintiffs' counsel a letter stating,
22 "Allstate hereby extends its April 1 0, 2013 offer of judgment until such time as it is accepted
23 by plaintiffs or Allstate withdraws the offer in writing." On April 25, 2013, Allstate filed the
24 present motion to dismiss.
25 On May 8, 2013, Chen filed a notice of acceptance of Allstate's offer of judgment,
26 and was effectively dismissed from the case (though no request for judgment has yet been
27 filed by Allstate). To date, Pacleb has not accepted Allstate's offer. Allstate asserts that
28 the offer to Pacleb is still "open."
2
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1 Allstate now seeks an order dismissing the FAC pursuant to Federal Rule of Civil
2 Procedure 12(b)(1) for lack of subject matter jurisdiction; and also argues that the court
3 should "dismiss or strike" plaintiffs demand for treble damages (available under the TCPA
4 for willing or knowing violation of the statute).
5
6 A.
7
DISCUSSION
Telephone Consumer Protection Act
In relevant part, the TCPA provides as follows with regard to "[r]estrictions on the
8 use of automated telephone equipment" -
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(1) Prohibitions
It shall be unlawful for any person within the United States, or
any person outside the United States if the recipient is within the
United States -
(A) to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an
artificial or prerecorded voice -
(iii) to any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio service, or
other radio common carrier service, or any service for which the
called party is charged for the call;
(B) to initiate any telephone call to any residential telephone line
using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party, unless the
call is initiated for emergency purposes or is exempted by rule
or order by the Commission under paragraph (2)(B);
(D) to use an automatic telephone dialing system in such a way
that two or more telephone lines of a multi-line business are
engaged simultaneously.
(3) Private right of action
A person or entity may, if otherwise permitted by the laws or rules of court of
a State, bring in an appropriate court of that State -
(A) an action based on a violation of this subsection or the
regulations prescribed under this subsection to enjoin such
violation,
3
Exhibit 1
Page 4
1
2
3
4
5
6
(B) an action to recover for actual monetary loss from such a
violation, or to receive $500 in damages for each such violation,
whichever is greater, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly violated
this subsection or the regulations prescribed under this
subsection, the court may, in its discretion, increase the amount
of the award to an amount equal to not more than 3 times the
amount available under subparagraph (B) of this paragraph.
7 47 U.S.C. 227(b)(1 ), (3).
8 B. Legal Standards
9 1. Motions to Dismiss for Lack of Subject Matter Jurisdiction
10 Federal courts are courts of limited jurisdiction, possessing only that power
11 authorized by Article Ill of the United States Constitution and statutes enacted by Congress
12 pursuant thereto. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).
13 Thus, federal courts have no power to consider claims for which they lack subject-matter
14 jurisdiction. See Chen-Cheng Wang ex rei. United States v. FMC Corp., 975 F.2d 1412,
15 1415(9thCir.1992).
I
16 Under Federal Rule of Civil Procedure 12(b)(1), a defendant may seek dismissal of a
17 claim or action for lack of subject matter jurisdiction. Although the defendant is the moving
18 party in a motion to dismiss brought under Rule 12(b)(1), the plaintiff is the party invoking
19 the court's jurisdiction. As a result, the plaintiff bears the burden of proving that the case is
20 properly in federal court. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001)
21 (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
22 Nevertheless, the plaintiff must do more than merely allege that a violation of federal
23 law has occurred; the plaintiff must have standing to invoke the power of the federal court.
24 Valley Forge Christian Coli. v. Americans United for Separation of Church and State. Inc.,
25 454 U.S. 464, 471-72 (1982). Standing is a jurisdictional limitation. It is "an essential and
26 unchanging part of the case-or-controversy requirement of Article Ill." Lujan v. Defenders
27 ofWildlife, 504 U.S. 555,560 (1992).
28 To establish a "case or controversy" within the meaning of Article Ill, a plaintiff must, : :
4
Exhibit 1
Page 5
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1 at an "irreducible minimum," show an "injury in fact" which is concrete and not conjectural,
2 a causal causation between the injury and defendant's conduct or omissions, and a
3 likelihood that the injury will be redressed by a favorable decision. kL. at 560-61; see also
4 Allen v. Wright, 468 U.S. 737, 751 (1984). Standing is not subject to waiver, and must be
5 considered by the court even if the parties fail to raise it. See United States v. Hays, 515
6 U.S. 737, 742 (1995). The burden is on the party who seeks the exercise of jurisdiction in
7 his or her favor to "clearly ... allege facts demonstrating that he is a proper party to invoke
8 judicial resolution of the dispute." kL. at 7 43.
9 Also embedded in Article Ill's case-or-controversy requirement is the doctrine of
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10 mootness, which requires that an actual, ongoing controversy exist at all stages of federal !!
;.;
11 court proceedings. See Burke v. Barnes, 479 U.S. 361, 363 (1987). A case becomes
12 moot when the issues presented are no longer "live" or the parties lack a legally cognizable
13 interest in the outcome of the litigation. Powell v. McCormack, 395 U.S. 486, 496 (1969).
14 That is, if events subsequent to the filing of the case can solve the parties' dispute, the
15 court must dismiss the case as moot, because the court does not have constitutional .
16 authority to decide moot cases. Pitts v. Terrible Herbst. Inc., 653 F.3d 1081, 1 086-8T(9th '
17 Cir. 2011).
18 2. Offers of Judgment under Federal Rule of Civil Procedure 68
19
20
21
22
23
24
25
26
27
28
At any time up to 14 days before the date set for trial, a defendant may serve a
plaintiff with an offer to allow judgment to be taken against the defendant for a specified
amount of money or property with costs then accrued. If the plaintiff accepts, and the offer
and acceptance are filed with the court, the clerk must enter judgment accordingly. Fed. R.
Civ. P. 68(a). If the offer is not accepted within 14 days after service, it is deemed
withdrawn, "but it does not preclude a later offer." Fed. R. Civ. P. 68(b). If the judgment
recovered by the plaintiff at trial is "not more favorable" than the defendant's offer, the
plaintiff must pay the defendant's costs incurred after the offer was made. Fed. R. Civ. P.
68(d); see also Marek v. Chesney, 473 U.S. 1, 5 (1985).
If a defendant offers judgment in complete satisfaction of a plaintiff's claims, the
5
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Case4:13-cv-00685-PJH Document25 Filed06/10/13 Page6 of 16.
plaintiff's claims generally are rendered moot because the plaintiff lacks any remaining
interest in the outcome of the case. See Schwarzer, Tashima and Wagstaffe, Federal Civil ;;
"
Procedure Before Trial (2013 ed.) 15:156.5. In cases filed as class actions, however, the
rule has long been that once a class is certified, the claims of the unnamed class members
are not mooted by the named plaintiff's acceptance of an offer of judgment. See Wright &
Miller, 13C Federal Practice and Procedure. Jurisdiction (3d ed. 2013) 3533.9.1. The
question whether that same rule applies where a class has not yet been certified remains
somewhat unsettled. See id.; see also Schwarzer, et al., 15:156.5.
In Pitts, the plaintiff filed suit in the District of Nevada in April 2009, alleging failure to .
pay overtime and minimum wages, and asserting a collective action under the federal Fair
Labor Standards Act, a class action for violation of Nevada labor laws, and a class action
for breach of contract. The defendant served the plaintiff with a Rule 68 offer of judgment,
for an amount well over the amount the plaintiff was seeking on his own behalf. The
plaintiff refused the offer, and the defendant filed a motion to dismiss for lack of subject

matter jurisdiction, arguing that the offer of judgment had rendered the entire action moot. L
The district court ruled that a Rule 68 offer of judgment does not moot a putative
class action so long as the class representative can file a timely mot,ion for class
certification; but nevertheless found that the defendant's offer did moot the action because
the plaintiff had failed to seek class certification before the initial deadline for completion of
I ,
discovery (which had subsequently been extended)- and had thus failed to act in a "timely"
21 manner. The court dismissed both the FLSA cause of action and the state law labor code
22 cause of action on that basis.
23 The court also ruled that a Rule 23 class action alleging violations of state law is
24 incompatible with an FLSA collective action, and that where both are brought together, only
25 the FLSA action may proceed - notwithstanding that in the case before the court, the
26 plaintiff had sought to dismiss the FLSA claim and proceed under only the state law class
27 action.
28 On appeal, the Ninth Circuit considered a number of issues, including whether a
6
Exhibit 1
Page 7
.:'
Case4:13-cv-00685-PJH Document25 Filed06/10/13 Page? of 16
1 rejected offer of judgment for the full amount of a putative class representative's individual
2 claim moots a class action complaint where the offer precedes the filing of a motion for
3 class certification. The court held that it does not in all cases. Pitts, 653 F.3d at 1090.
4 Relying on United States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980); Deposit :\
5 Guaranty Nat. Bank v. Roper, 445 U.S. 326 (1980); and Sosna v. Iowa, 419 U.S. 393 ,j
6 (1975), the court as an initial matter noted that if the district court has certified a class,
7 mooting the putative class representative's claim will not moot the class action, because
8 upon certification the class acquires a legal status apart from the interest asserted by the
9 class representative. Pitts, 653 at 1090. Further, if the district court has denied class
10 certification, mooting the class representative's claim will not necessarily moot the class
11 action, because the putative class representative retains an interest in obtaining a final
12 decision on the class certification. kl.
13 Finally, the court held that "even if the district court has not yet addressed the Class
14 certification issue, mooting the putative class representative's claims will not necessarily
15 moot the class action." kl. The court advised that the mootness doctrine be applied
16 "flexibly"- "particularly where the issues remain alive" even if the named plaintiff's stake in;-
17 the outcome has become moot. kl. at 1087. The court noted that some claims are so
'I
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:::l 18 "inherently transitory" that the court would not have enough time to rule on a motion for
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19 class certification before the proposed representative's individual interest will expire. kl. at
20 1090.
21 An "inherently transitory" claim is one that will certainly repeat as to the class, either
22
23
24
25
because the individual could suffer repeated harm, or because it is certain that others
similarly situated will have the same complaint. kl. In such cases, the court opined, the
named plaintiff's claim is "capable of repetition, yet evading review," and the "relation back"
doctrine would apply to preserve the merits of the case for judicial resolution. kl. (citations
26 and quotations omitted).
27 The court conceded that the plaintiff's claim in the case before it was not inherently
28 transitory, but asserted that where a defendant is seeking to "buy off' the individual claims
7
Exhibit 1
Page 8
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Case4:13-cv-00685-PJH Document25 Filed06/10/13 PageS of 16
1 of the named plaintiffs, the analogous claims of the class "become no less transitory than
2 inherently transitory claims." kL. at 1091. The court concluded that application of the
3 "relation back" doctrine in the case before it would "avoid the spectre of plaintiffs filing
4 lawsuit after lawsuit, only to see their claims mooted before they can be resolved." 1Q,_ at
5 1090.
6 Thus, the court determined that the defendant's unaccepted offer of judgment did
7 not moot the named plaintiff's case because his class action claim was "transitory" in nature:
8 because it was subject to the potential "buy-off," and might otherwise evade review- and
9 that if the district court were to certify a class, the certification would relate back to the filing
10 of the complaint. kL. at 1091-92. This decision was in accord with decisions reached by
11
i'
the Tenth, Fifth, and Third Circuits. See Damasco v. Clearwire Corp., 662 F.3d 891, 895-
12 96 (7th Cir. 2011 ).
13 In the Seventh Circuit, by contrast, the court in Damasco held that the action (also
14 brought under the TCPA) was mooted by the defendant's offer of the named plaintiff's full
15 request for relief that preceded a motion for class certification. k!_,_, 662 F .3d at 895-96.
1
16 (The offer was an offer of settlement, not a Rule 68 offer of judgment, but the court
17 concluded that the difference between the two was not significant.) The Damasco court .
18 was critical of the approach taken by the Ninth, Tenth, Fifth, and Third Circuits, which was
19 that absent undue delay, a plaintiff may move to certify a class and avoid mootness even ..
20 after being offered complete relief. See id. Pitts, 653 F.3d at 1091-92).
:
21 Here, Allstate argues that Pitts is no longer good law in light of the Supreme Court's
ii
22 recent decision in Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013), but the
23 court does not agree. Genesis was an FLSA case, in which the district court dismissed the
24
25
26
27
28
1
The Seventh Circuit also held, however, that class action plaintiffs can move to certify
the class at the same time they file their complaint, and that the pendency of that class cert
motion will protect a putative class from attempts to "buy off' the named plaintiffs. The court
also asserted that even if the plaintiffs do not have sufficient facts to move for class
certification, they can "ask the district court to delay its ruling to provide time for additional
discovery or investigation." kL., 662 F.3d at 896-97. The court characterized this as a "simple J
solution to the buy-off problem."
8
Exhibit 1
Page 9
,_
1 complaint for lack of subject matter jurisdiction after the employer extended an offer of
2 judgment in full satisfaction of the plaintiff-employee's claimed damages, fees, and costs.
3 The Third Circuit reversed, finding that while the individual claim was moot, the collective
4 action was not, and that allowing defendants to "pick off' named plaintiffs before
5 certification with calculated Rule 68 offers would frustrate the goals of collective actions.
6 The court remanded the case to the district court to allow the plaintiff to seek "conditional
7 certification" which, if successful, would relate back to the date the complaint was filed.
.. ; ~
!
8 See Genesis, 133 S.Ct. at 1524-25.
9 The Supreme Court granted cert, and reversed the order remanding the case so that
10 plaintiff could move for a conditional certification. The court found that the question
11 whether the plaintiffs failure to respond to the offer of judgment had the effect of mooting
12 her claims was not before it, because both the district court and the Third Circuit had ruled
13 that the plaintiffs individual claim was moot because of the unaccepted offer of judgment,
;;
14 and because plaintiff herself had "conceded" (while the case was pending before the district:
15 court) that an offer of complete relief will generally moot the plaintiffs claim.
16 Instead, the Court turned to the question whether the action remained justiciable
17 based on the collective-action allegations in the complaint. The Court held that the
18 individual plaintiffs suit became moot when her FLSA claim became moot, because from
19 that point on she lacked any personal interest in representing others in the FLSA collective : :
20 action . .19..:. at 1529. The Court also found that the cases on which the plaintiff relied-
21 which all had arisen in the context of Rule 23 class actions- were inapposite, both
' '
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22 because Rule 23 actions are fundamentally different from FLSA collective actions, and
23 because the cases on their own terms were inapplicable to the facts of the case. These
24 cases include the three cases cited by the Ninth Circuit in Pitts- Geraghty, Roper, and
25 Sosna. See Genesis, 133 S.Ct. at 1530-32.
.:.:
26 The Court cited these cases for the proposition that while a live controversy might
, - 27 continue to exist after class certification has been denied, because a corrected ruling on
28 appeal would relate back to the time of the erroneous denial of the class cert motion, the
9
-,
1
Exhibit 1
Page 10
Case4:13-cv-00685-PJH Document25 Filed06/10/13 PagelO of 16
1 situation in the Genesis case was that the claim became moot before the plaintiff had
2 moved for certification, arid also because under the FLSA, a "conditional certification" does
3 not confer independent legal status (as a Rule 23 certification does). See Genesis, 133
4 S.Ct. at 1530.
5 The court also addressed the argument that an "inherently transitory" class action
6 claim is not necessarily moot upon the termination of the named plaintiffs claim. The court'
7 indicated that this might be true if the plaintiff was challenging the constitutionality of
8 temporary pretrial detentions, but noted that unlike claims for injunctive relief challenging
9 ongoing conduct, claims for damages cannot evade review, and remain live until settled,
10 judicially resolved, or barred by a statute of limitations. Moreover, the Court noted, while
11 settlement of the named plaintiffs claim prior to certification may have the effect of
12 foreclosing unjoined plaintiffs from having their rights vindicated in the original plaintiffs
13 suit, nothing precludes them from filing their own suits. 1.9.:. at 1530-31.
14 Finally, the Court addressed the argument that the purposes served by the FLSA's.
15 collective action provisions would be frustrated by defendants' use of Rule 68 to "pick off'
16 named plaintiffs before the collective action process has run its course. The Court noted
17 that in Roper, the district court had denied the motion for class cert, and had found that the
::5 18 named plaintiffs retained an ongoing personal economic interest in the case - to shift the
19 attorney's fees and expenses to successful class litigants. The Court characterized the
20 language about "pick[ing] off' named plaintiffs as "dicta," and noted that the essence of the
21 ruling was that the plaintiffs retained a continuing personal economic stake in the litigation
22 even after the defendants' offer of judgment (but also noted that later cases have held that
23 an interest in attorney's fees is not sufficient to create an Article Ill case or controversy
24 where none exists on the merits of the underlying claim). kL. .at 1531-32.
25 In short, the Court assumed (without deciding) that the individual named plaintiffs
26 claim had become moot as a result of the offer of judgment in an amount sufficient to make
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27 her whole, and then, based on that, determined that the collective action brought by that t
~
28 single employee on behalf of herself and all others similarly situated for alleged violations of t
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10
Exhibit 1
Page 11
Case4:13-cv-00685-PJH Document25 Filed06/10/13 Pagell of 16
11 C. Defendant's Motion
12 Allstate makes three main arguments in support of its motion -that Pacleb's claims
13 are moot and must be dismissed; that Pacleb lacks standing to assert a. violation of the
14 TCPA because he was not the intended recipient of the calls; and that Pacleb fails to allege
15 facts sufficient to support the demand for treble damages.
16 1. Whether Pacleb's claims are moot
17 First, Allstate argues that the unaccepted Rule 68 offer of judgment renders Pacleb's .
18 claims moot, and that the court therefore lacks subject matter jurisdiction. Allstate
19 contends that the $10,000 offer of judgment was in an amount that was more than
!
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20 sufficient to satisfy all of Pacleb's alleged damages on his claims, plus costs and attorney's. j
21 fees, and that it also included provisions that satisfy the claim for injunctive relief. Allstate
22 argues that because Pacleb can obtain complete relief without further litigation, his claims
23 are moot, and because the offer of judgment was made prior to any motion for class
24 certification, there is no longer any controversy between the parties and the FAC must be
25 dismissed for lack of subject matter jurisdiction.
26 Allstate asserts further that prior to the Supreme Court's April 16, 2013 decision in
27 Genesis, the courts were divided on whether a Rule 68 offer of judgment made prior to the
: ~ 28 filing of a class certification motion also mooted the claims of the putative class members
11
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1 (citing Damasco, on the one hand, and Pitts and cases from the Third, Fifth, and Tenth
2 Circuits on the other). Allstate claims, however, that Genesis resolved that Circuit split, in
3 holding that a collective action filed under the FLSA is rendered moot if the defendant
4 makes a Rule 68 offer of judgment in the full amount of the named plaintiff's individual
5 claim before a class certification motion is filed.
6 Allstate also contends that the Genesis Court rejected the reasoning that led the
7 Ninth Circuit in Pitts to conclude that putative class allegations were enough to keep the
8 case alive after the named plaintiff had received a Rule 68 offer of judgment. Allstate
J
9 argues that Genesis expressly distinguished all the cases on which Pitts relied, on the
10 basis that all those cases involved situations where class cert had been granted or
11 improperly denied. Here, Allstate argues, Pacleb is in the same procedural posture as the '.
: :;
12 plaintiff in Genesis because no class cert motion has been filed, and thus, his claims should i
13 be dismissed as moot.
14 As for the Genesis Court's emphasis on the fact that Rule 23 actions are
15 fundamentally different from collective actions under the FLSA, Allstate contends that the
16 Court made that observation when it was distinguishing Sosna, Geraghty, and Roper on
17 the basis that in those cases, class certification proceedings had already taken place,
18 whereas in Genesis, the plaintiff's claims became moot before a class cert motion was
19 filed. Allstate concedes that there are "procedural differences" between Rule 23 class
20 actions and FLSA collective actions, but argues that those differences "primarily affect the
21 certification process." Allstate claims that since in both Genesis and this case, the named
22 plaintiff's claims became moot before a class certification motion had been filed, the logic of
23 Genesis "applies equally to Rule 23 putative class actions as the mootness principles are
24 the same."
25 In opposition, plaintiff argues that Allstate has misconstrued the holding of Genesis
26 to support the proposition that since the unaccepted offer of judgment was in an amount
27 sufficient to satisfy all of Pacleb's claims, and was made prior to the filing of any motion for
28 class certification, Pacleb's claims are moot. Plaintiff asserts that this argument is flawed
12
Exhibit 1
Page 13
1 for two reasons.
2 First, plaintiff contends that Genesis explicitly refused to address whether an
3 unaccepted offer that fully satisfies a plaintiffs claim is sufficient to render the claim moot-
4 because that issue was not before the court, and the plaintiff had conceded that she . i
5 retained no personal interest in the outcome of the litigation. Here, plaintiff asserts, he has
6 made no concessions or waivers of any kind. He did not accept the offer of judgment and
7 does not anticipate accepting it in the future. Thus, he contends, Genesis is inapplicable.
8 Second, plaintiff argues that the Ninth Circuit in Pitts explicitly held that where a
9 defendant makes an unaccepted Rule 68 offer of judgment that fully satisfies a named
10 plaintiffs individual claims before the named plaintiff files a motion for class certification, the
11 offer does not moot the case. Plaintiff repeats the Pitts court's argument regarding
12 "inherently transitory" claims, and the application of the relation-back doctrine. Plaintiff
13 contends that the Pitts court extensively considered the exact situation at issue in the
14 present case, while the same scenario was not presented in Genesis.
15 Finally, plaintiff asserts that he retains a concrete interest in the outcome of this
16 litigation, on the basis that the Rules of Civil Procedure give the proposed class
17 representative the right to have a class certified if the requirements of the Rules are met,
s:::
::l. 18 and that the procedural right to represent a class suffices to satisfy Article Ill concerns
19 because the class cert question "remains as a concrete, sharply presented issue" even
20 after the named plaintiffs individual claim has expired. See Pitts, 653 F.3d at 1089 (citing
21 Geraghty, 445 U.S. at 403).
22 As indicated above, the court finds that Genesis does not control this case. The
23 Supreme Court in Genesis specifically did not decide that an unaccepted Rule 68 offer in
24 an FLSA collective action will moot the named plaintiffs claims, but rather simply assumed
25 it would based on what had transpired in the lower courts. The Court's ruling was that once
26 it had been determined that the named plaintiffs claims were moot, the case could not be
27 kept on for a conditional certification.
28 It is true that the Court did reject the reasoning that the Ninth Circuit in Pitts used
13
Exhibit 1
Page 14
1 (based on Sosna, Geraghty, and Roper) in the class action context, but it also emphasized
. . ~
2 that class actions are different than collective actions. So while the Supreme Court might
3 at some future date actually overrule Pitts and decisions from other Circuits holding that the
4 rule articulated in Genesis also applies in class actions, as of now that has not happened,
5 and Pitts remains good law as far as the court can ascertain.
6 2. Whether Pacleb has standing to allege violation of TCPA
7 In its second main argument, Allstate contends that Pacleb lacks standing to assert ; ::
8 a violation of the TCPA because he was not the inte"'ded recipient of the calls. Allstate
9 cites the portion of the TCPA that makes it unlawful to any person within the United States
10 to "initiate any telephone call to any residential telephone line using an artificial of
11 prerecorded voice to deliver a message without the prior express consent of the called
12 party" unless the call is for emergency purposes. 47 U.S.C. 227(b)(1)(B). Allstate
13 contends that the phrase "called party" has been interpreted as meaning "the party to
14 whom the call is directed," or "the intended recipient of the call," and that here, the
15 allegations in FAC show that Pacleb was not the intended recipient of the calls and was not
16 the "called party."
17 In opposition, plaintiff asserts that this part of the motion is incomprehensible, as the
18 FAC alleges violations of 47 U.S.C. 227(b)(1 )(A)(iii)- the provision regarding unsolicited
19 calls to cell phone numbers- not 47 U.S.C. 227(b)(1)(B)- the provision regarding
20 unsolicited calls to residential land lines. Plaintiff also argues that Allstate has failed to.dte
21 relevant authority holding that a call to ,a cell phone number that belongs to a particular
22 person is a call that is intended for that person -the regular user and carrier of the phone.
23 Plaintiff contends that he does not know Frank Arnold, had no relationship with Allstate,
24 and never consented to the calls that were made to his cell phone. He asserts that this is
25 sufficient to confer standing.
26 In its reply, Allstate asserts that Pacleb does not dispute that the phone calls he
27 claims to have received were placed to a man named Frank Arnold. Allstate then cites to .
28 the correct portion of the statute- 47 U.S.C. 227(b)(1 )(A)(iii)- which makes it unlawful.
14
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Exhibit 1
Page 15
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1 for anyone to "make any call (other than a call made for emergency purposes or made with <
2 the prior express consent of the called party) using any automatic telephone dialing system
3 ... to any telephone number assigned to ... a cellular telephone service ... or any service
4 for which the called party is charged for the call."
5 Allstate notes that whether the issue involves a residential phone or a cell phone, the
6 TCPA expressly refers to calls made to the "called party" in both contexts. Allstate argues
7 that courts interpreting this language have concluded that in order to have standing, the
8 plaintiff must have been the intended recipient of the call- the reasoning being that the
9 TCPA provides an exception for calls made with the prior express consent of the "called
10 party," and there is no way that an unintended recipient could provide express consent.
11 Thus, Allstate argues, the only logical interpretation of 227(b )(1 )(A)((iii) is one that ,
12 requires the party asserting the TCPA claim to be the party to whom the calls were
13 directed. Here, since the FAC alleges that the calls were intended for "Frank Arnold," ;
14 Pacleb cannot claim to have been the intended recipient of the calls and therefore lacks
15 standing to maintain an action under the TCPA.
16 The court finds that the question whether the calls were intended for Frank Arnold,
17 or for plaintiff as the account-holder of the cell phone appears to involve a factual dispute,
18 and is thus not appropriate for decision here.
19
20
21
22
23
24
25
26
27
28
3. Whether demand for treble damages should be dismissed/stricken
In its third main argument, Allstate asserts that the court should "dismiss or strike"
the "conclusory demand for treble damages," because the F AC does not plead sufficient
facts to "state a claim" for treble damages. Although Allstate refers to "striking" the
"demand': for treble damages, as well as "dismissing" it, it appears that Allstate's purpose is
to seek dismissal of the second cause of action. Pacleb does not oppose this part of the
motion. At the hearing, plaintiff's counsel stated that Pacleb did not oppose the motion,
and he was amenable to having the second cause of action dismissed.
4. Analysis
The court finds that the motion must be GRANTED in part and DENIED in part. The
15
Exhibit 1
Page 16
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motion to dismiss the second cause of action (alleging knowing and/or willful violations of
the TCPA), and the demand for treble damages is GRANTED, based on plaintiff's lack of
opposition and plaintiff's counsel's concession at the hearing.
With regard to whether Pacleb's .claims are moot- even if they are, under Pitts, the
entire case cannot be dismissed for lack of subject matter jurisdiction, and Pacleb will still.
be able to move for class certification. Thus, that part of the motion is DENIED. The
decision in Genesis does not compel a different conclusion, because it did not involve Rule
23 class certification. As the Genesis Court noted, class certification under Rule 23 is
"fundamentally different from collective actions under the FLSA" because "a putative class
acquires an independent legal status once it is certified under Rule 23" whereas under the
FLSA, '"conditional certification' does not produce a class with an independent legal status,
or join additional parties to the action" (since the unnamed parties must still "opt in" before
they actually become parties). See Genesis, 133 S.Ct. at 1529.
With regard to whether Pacleb has standing, given that the calls appeared to be
addressed to someone other than him -this appears to be a factual dispute. It is unknown
at this point, for example, how long he had been assigned that cell phone number, or
whether someone named Frank Arnold had previously had the number or had at some
point used a cell phone with that number. Certainly Allstate has not provided a sufficient
basis for the court to determine that Pacleb lacks standing.
CONCLUSION
In accordance with the foregoing, the motion to dismiss the case for lack of subject
matter jurisdiction is DENIED. The motion to dismiss the second cause of action is
GRANTED, based on plaintiff's counsel's concession at the hearing.
IT IS SO ORDERED.
Dated: June 10, 2013
16
PHYLLIS J. HAMIL TON
United States District Judge
EXHIBIT 2
Exhibit 2
Page 1
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Case4:13-cv-00685-PJH Document31 Filed07/31/13 Pagel of 5
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
1
2
3
4
5
''l
6 RICHARD CHEN, et al.,
7
8 v.
Plaintiffs,
9 ALLSTATE INSURANCE COMPANY,
10
11
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - ~ '
No. C 13-0685 PJH
ORDER AMENDING JUNE 10, 2013
ORDER; ORDER STAYING ACTION'
12 Before the court is the motion of defendant Allstate Insurance Company ("Allstate"):.
I
'
13 for an order amending the June 10, 2013 order to certify it for interlocutory appeal under 28 -
14 U.S.C. 1292(b), and for an order staying this action pending the Ninth Circuit's decision : ~ .
15 on interlocutory appeal. Plaintiffs oppose the motion. Having read the parties' papers and
16 carefully considered their arguments, and the relevant legal authority, the court hereby
17 GRANTS the motion.
18 BACKGROUND
19 This is a case filed as a proposed class action, alleging violations of the Telephone .
20 Consumer Protection Act, 47 U.S.C. 227, et seq. ("TCPA"). The complaint asserts that - ~
21 defendant Allstate Insurance Company engaged in unlawful activities by contacting the two--
22 named plaintiffs and the members of the proposed class on their cell phones without their
23 consent.
24 Allstate made a Rule 68 offer of judgment to the two named plaintiffs, Richard Chen --
25 ("Chen") and Florencio Pacleb ("Pacleb"). Chen accepted the offer, but Pacleb did not.
26 Allstate then filed a motion to dismiss Pacleb's claims (and the entire case) for lack of
'. :!_'..
27 subject matter jurisdiction, arguing that because the offer made to Pacleb was in complete\
;, . 28 satisfaction of his claims, his claims had become moot as there was no longer a case or
~ - -
; .. ;
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Exhibit 2
Page 2
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1 controversy .
. 2 On June 10, 2013, the court issued an order denying the motion to dismiss for lack :
3 of subject matter jurisdiction. Relying on Pitts v. Terrible Herbst. Inc., 653 F.3d 1081 (9th , ..,,
i ,('!
4 Cir. 2011 ), the court held that even if Pacleb's claims were moot, the entire case could not
5 be dismissed because it was filed as a proposed class action, and Pacleb could still move :.
6 for class certification on behalf of the members of the proposed class.
7 In its motion, Allstate argued that Pitts had been qverruled "sub silentio" by the
8 Supreme Court's recent decision in Genesis Healthcare Corp. v. Symczyk, _U.S._, 133
9 S.Ct. 1523 (2013). In that case, the Court held that in a collective action under the Fair
10 Labor Standards Act ("FLSA"), where the employer extends a Rule 68 offer of judgment in
11 full satisfaction of the named plaintiff-employee's claimed damages and fees, the named
12 plaintiff's FLSA claim becomes moot and the collective action is no longer justiciable
13 because the named plaintiff no longer has any personal interest in representing others in .. :
14 the collective action.
15 On July 2, 2013, Allstate filed the present motion to amend the June 1 0, 2013 order
16 to certify it for interlocutory appeal under 28 U.S.C. 1292(b), and to stay this litigation
17 pending the interlocutory appeal.
18 DISCUSSION
19 A. Legal Standard
20
21
22
23
24
25
26
The rule allowing a party to seek certification to appeal an interlocutory order, 28
U.S.C. 1292(b), is a departure from the normal rule that only final judgments are
appealable, and therefore it must be construed narrowly. James v. Price Stern Sloan, Int., '
283 F.3d 1064, 1067-68 n.6 (9th Cir. 2002). A district court may certify an order for
interlocutory review pursuant to 1292(b), but "only in exceptional situations in which
allowing an interlocutory appeal would avoid protracted and expensive litigation." In re
Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982) (emphasis added).
27 To obtain interlocutory review under 1292(b), the party seeking relief must satisfy
28 certain requirements. Couch v. Telescope, 611 F.3d 629, 633 (9th Cir. 201 0). The district
2
Exhibit 2
Page 3
1 court must find that the party has established the existence of a controlling question of law, :!
2 and substantial grounds for difference of opinion, and that the party has shown that an
3 immediate appeal may materially advance the ultimate termination of the litigation. In re
4 Cement, 673 F.2d at 1026 (citing 28 U.S.C. 1292(b)).
5 An issue is "controlling" if "resolution of the issue on appeal could materially affect
:: .. 1
6 the outcome of litigation in the district court." llL. (citation and quotation omitted).
1"'
;:
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7 resolution of the issue need not necessarily terminate an action in order to be 'controlling,' . ;
8 .. it is clear that a question of law is 'controlling' if reversal of the district court's order would i
9 terminate the action." Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (1990).
10 A substantial ground for difference of opinion is not established by a party's strong
11 disagreement with the court's ruling; the party seeking an appeal must make some greater
12 showing. Mateo v. MIS Kiso, 805 F.Supp. 792,800 (N.D. Cal. 1992), abrogated on other
13 grounds by Brockmeyer v. May, 361 F.3d 1222, 1226-27 (9th Cir. 2004). Substantial
14 grounds for a difference of opinion required to certify an order for interlocutory review arise
15 when an issue involves one or more difficult and pivotal questions of law not settled by
16 controlling authority. See 28 U.S.C. 1292(b).
17 The third requirement- that the appeal be likely to materially speed the termination
."!
18 of the litigation- is linked to the question whether an issue of law is "controlling," in that the
19 . district court should consider the effect of a reversal on the management of the case.
20 Mateo, 805 F.Supp. at 800 (citing In re Cement, 673 F.2d at 1 026). If, on the other hand,
21 an interlocutory appeal would delay resolution of the litigation, it should not be certified.
22 See Shurance v. Planning Controllnt'l. Inc., 839 F.2d 1347, 1348 (9th Cir. 1988).
23 B.
24
Defendant's Motion
Allstate argues that the requirements for certification under 1292(b) are met. First,
25 Allstate contends that the June 10 order involves a controlling issue of law because if the
26 Ninth Circuit holds that this putative class action is rendered moot by Allstate's Rule 68
27 offer, this case will be dismissed for lack of subject matter of jurisdiction.
28 Second, Allstate asserts that there are substantial grounds for a difference of
3
Exhibit 2
Page 4
'
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1 opinion. Allstate contends that before Genesis Healthcare, the Circuits were divided on this
2 the Seventh Circuit differed from the Ninth Circuit. In addition, district court
3 opinions issued after Genesis Healthcare have reached different conclusions as to the
4 Genesis decision's applicability to Rule 23 putative class actions. Allstate notes that even
5 this court acknowledged that the question whether a Rule 68 offer moots a Rule 23 putative
6 class action where a class has not yet been certified "remains unsettled." Allstate argues
7 that certification will enable the Ninth Circuit to determine whether Pitts is good law in light
8 of Genesis Healthcare- an issue on which there is substantial difference of opinion, and
9 which is also an important jurisdictional issue that will affect other cases.
10 Third, Allstate contends that an immediate appeal may materially advance the
11 ultimate termination of this litigation because, if the Ninth Circuit determines that Pacleb's
12 claim is moot, there will be no subject matter jurisdiction over the case and it will be
13 dismissed.
. . :.
; ,l :
14 In opposition, plaintiffs assert that the Ninth Circuit has already determined (in Pitts) -fi
:;
15 that a Rule 68 offer of judgment that fully satisfies a named plaintffs individual claim before . ,
16 a class is certified does not moot the entire case." Plaintiff contends that because Genesis
17 did not address whether an unaccepted offer that fully satisfies a plaintiffs claim is
18 sufficient to render the claim moot- finding that that specific issue was not before it- it is
19 impossible for Genesis to have overruled Pitts.
20 Second, plaintiffs contend that there are no grounds for a difference of opinion '-that :'
21 neither the fact that Allstate disagrees with the court's June 10, 2013 order, nor the fact that;:
,,
;:
22 some other Circuits (such as the Seventh) have taken a different approach than the Ninth '
23 Circuit is sufficient to establish a substantial ground for difference of opinion, as the
24 standard requires. Plaintiffs also cite two district court decisions from within the Ninth
25 Circuit, in which the courts held that Genesis did not overrule Pitts, and that the Supreme
26 Court's ruling regarding FLSA collective actions is not clearly applicable in Rule 23 class
27 actions.
28 In reply, Allstate argues that the Ninth Circuit has not decided the exact issue posed
4
Exhibit 2
Page 5
.'.'
.) '
, .. '
1 by Allstate- whether Genesis overruled Pitts. Allstate also reiterates that there are
2 substantial grounds for a difference of opinion, primarily based on this court's comment that'1
3 the controlling law is unclear, but also based on the split in the Circuits. Allstate also notes
4 that plaintiffs have not opposed Allstate's request for a stay pending appeal.
5 The court finds that the motion must be GRANTED. While the Supreme Court did
6 not clearly overrule Pitts, it did take issue with the precedent on which Pitts relies. Thus,
7 resolution of the issue raised by Allstate on appeal could materially affect the outcome of
8 the litigation in this court- even to the point of materially speeding the outcome of the
9 litigation. Moreover, while it is not entirely clear that there is a substantial ground for
...
10 difference of opinion within the Ninth Circuit, the lack of decisions by other courts on this ,,
11 issue is no doubt attributable to the fact that the decision in Genesis Health care was issued 'i
12 only three and a half months ago.
13 The court would welcome the Ninth Circuit's view as to whether its Pitts decision
14 remains good law in light of Genesis Healthcare.
15 CONCLUSION
16 In accordance with the foregoing, the motion is GRANTED. Further, the case is
17 STA YEO pending a decision by the Ninth Circuit. Defendant shall advise the court
18 immediately regarding the Ninth Circuit's decision whether to permit the appeal.
19
20
21
22
23
24
25
26
27
28
IT IS SO ORDERED.
Dated: July 31, 2013
5
PHYLLIS J. HAMIL TON
United States District Judge
.. :.
. ;.

Allstate Petition For Interlocutory Appeal

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CASE NO.

UNITED STATES COURT OF APPEALS

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