In Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 163 (2016), as revised (Feb. 9, 2016), the Supreme Court held that an unaccepted offer of judgment cannot moot a plaintiff’s claims. While that decision left some questions unanswered, recent Court of Appeals decisions have applied its reasoning to broader situations, such as holding that an unaccepted refund offer made prior to litigation does not deprive a plaintiff of standing to sue.  Adam v. Barone, 41 F.4th 230, 234 (3d Cir. 2022).

Another court recently added a twist to the analysis, holding that offering a full refund may make dismissal appropriate under the prudential mootness doctrine.  See Sharp v. FCA US LLC, 2022 WL 14721245 (E.D. Mich. Oct. 25, 2022).

In Sharp, 15 plaintiffs—seeking to represent a putative class of individuals from 18 states—alleged that they purchased trucks with defective fuel injection pumps that could cause engine failure.  Id. at *2.  Investigation of those fuel injection pumps by defendants and the National Highway Traffic Safety Administration (NHTSA) resulted in a phased recall of the trucks that included promises to replace the fuel injection pump and other components if needed. Id. Although all of the plaintiffs had access to this recall program, and although only four plaintiffs experienced engine failure as a result of the defect, id. at *3, all of the plaintiffs alleged that the existence of the defect had deprived them of the “benefit of their bargain,” id. at *4.

The court held that almost all of the plaintiffs had, in fact, suffered an actual injury, giving rise to Article III standing.  According to the court, those plaintiffs plausibly alleged that the trucks they purchased had a defective fuel injection pump that had generated “metal shavings that contaminate the fuel system, eventually leading to catastrophic engine failure.”  Id. at *5. (internal marks omitted).  For that reason, all of those plaintiffs suffered some amount of engine damage—and thus Article III injury.  See id.

Nevertheless, the court still dismissed their claims under the doctrine of prudential mootness.  Id. at *7.  It held that in cases where a “coordinate branch of government steps in to promise the relief” that plaintiffs seek, the judiciary can exercise discretion to dismiss the suit in deference to the other branch, so as to avoid “needless inter-branch disputes over the execution of the remedial process.”  Id. at *6 (internal marks omitted).  Applying that standard to the facts before it, the court noted that because the NHTSA had been notified of the defect, the parties were in the middle of “the great grinding gears of a statutorily mandated and administratively overseen national recall process.”  Id. (internal marks omitted).  For that reason, even though the plaintiffs had Article III standing, the prudential mootness doctrine weighed in favor of deference to the NHTSA.  Id. at *6–7.  Notably, the court held that even the plaintiffs’ claims for monetary relief for their lost “benefit of the bargain” were subject to dismissal under the prudential mootness doctrine—even though the agency had not directed the vehicle manufacturer to provide such relief to plaintiffs.  Id. at *8. 

The Sharp decision is a good reminder that although Campbell-Ewald and its progeny have made it more difficult to argue that a refund offer deprives a plaintiff of Article III standing, the prudential mootness doctrine may still be available to defendants—such as where a refund is part of a statutory recall process that is overseen by an administrative agency. 

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Photo of Andrew Soukup Andrew Soukup

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims, with exposure ranging from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, gaming, and media and communications industries. He has consistently helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew has a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters and his deep understanding of their businesses.

Andrew’s recent successes include:

Leading the successful defense of several of the world’s leading companies and brands in class actions accusing them of engaging in deceptive marketing or selling defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivered wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including defending several financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
Represented several consumer product and life sciences companies from lawsuits seeking economic damages arising out of the sale of products that allegedly caused personal injuries.
Helping several of the world’s most prominent companies from ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes for clients in commercial and indemnification disputes involving contracts, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. Additionally, he provides guidance on arbitration agreements and has helped numerous clients avoid multi-district and class-action litigation by enforcing their arbitration agreements.

As a recognized thought leader on issues impacting class action litigation, Andrew regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in an interview with Litigation Daily on class-action litigation issues. In recognition of his achievements, he has been recognized by The American Lawyer as a Lawyer of the Week, and the Daily Journal recently included him on their list of Leading Commercial Litigators (2025).

Watch: Andrew shares insights on class action litigation, as part of our Navigating Class Actions video series.