Full opinion text
OPINION & ORDER KENNETH M. KARAS, District Judge: Plaintiff Bais Yaakov (“Plaintiff’) brings this class action suit against Defendant Educational Testing Service (“ETS” or “Defendant”), alleging that ETS caused to be sent out over 17,000 unsolicited- and solicited fax advertisements for goods and services without the proper opt-out notices in violation of the Telephone Consumer. Protection Act (the “TCPA”), 47 U.S.C. § 227, and N.Y. General Business Law (“GBL”) § 396-aa. (See Second Am. Compl. (Dkt. No. 79).) There are three Motions pending before the Court: a motion by ETS to allow ETS to deposit $10,500 with the Court in full satisfaction of Plaintiffs individual claims pursuant to Federal Rule of Civil Procedure 67, have the Court enter judgment against ETS, and dismiss the case as moot; a motion by ETS to dismiss the Second Amended Complaint under Rules 8(a) and 12(b)(6); and a motion.by Plaintiff to certify a class. This Opinion & Order addresses only the first twó Motions. For the reasons to follow, Defendant’s Motions are denied. I. Background A. Factual Background For purposes of these Motions, the Court takes as true all factual allegations in the Second Amended Complaint. Plaintiff is,a New York corporation with its principal place, of business in Monsey, New York, and ETS is a,New York corporation. with its principal place of business in Princeton, New Jersey. (See id. ¶¶ 6, 9.) At its place of business in Monsey, Plaintiff receives facsimile transmissions (i.e., faxes) at a number it owns. (See id. ¶ 11.) On or about November 15, 2012, ETS and the other named Defendants, without Plaintiffs express invitation or permission, caused an unsolicited fax advertisement to be sent to Plaintiffs fax machine. (See id. ¶ 12; see also id. Ex. A.) The fax contained an opt-out notice that provided: If you do not wish to receive faxes from Houghton Mifflin Harcourt in the future, and/or if you would prefer to receive communication via email, please contact your representative. Upon your request, we will remove you' from our fax transmissions within 30 days. (Id. ¶ 14; see also id. Ex. A.) According to Plaintiff, this opt-out notice violated the TCPA in six ways: (1) it failed to provide a fax number to which the recipient could transmit an opt-out request; (2) it failed to provide a domestic telephone number to which the recipient could transmit an opt-out request; (3) it failed to provide a cost-free mechanism through which the recipient could transmit an opt-out request; (4) it failed to state that a recipient’s opt-out request would be effective only if the request identified the fax number to which the request related; (5) it failed to state- that the' sender’s failure to comply with an opt-out "request within 30 days is unlawful; and (6) it failed to state that an opt-out request would be effective so long as" the person opting out did not later' provide express invitation or permission to the sender to send further faxes. (See id. ¶ 15.) The Second Amended Complaint also- alleges that "the opt-out notice violated GBL § 396-aa for similar reasons. (See id. ¶ 16.) Plaintiff alleges that ETS and others negligently, willfully, or knowingly arranged to be sent over 17,000 unsolicited or solicited faxes containing the same defective opt-out notice. (See id. ¶¶ 18-20.) Plaintiff brings this Action on behalf of three classes of individuals: -Class A—all persons who, from July 2, 2009, through the date of the filing of the Second Amended Complaint," received a solicited or unsolicited fax advertisement from ETS and others that contained the defective opt-out notice; -Class B—all persons who, from July 2, 2009, through' the date of the filing of the Second -Amended Complaint, received an unsolicited fax advertisement from ETS and others that contained the defective opt-out notice; and -Class C—all persons who, from July 2, 2010, through the date of the filing of the Second Amended Complaint, received a fax advertisement from ETS and others that contained the defective opt-out notice without having given ETS or others express invitation or permission to do so. (See id. ¶ 22.) For relief, Plaintiff seeks an order certifying the proposed -classes, a statutory award under the TCPA and GBL § 396-aa for the alleged violations, and an injunction prohibiting Defendants from committing further violations of the TCPA. (See id. at 14-15.) B. Procedural History The procedural history of this case is extensive. The original Complaint was filed on July 2, 2013, naming as Defendants Houghton Mifflin Harcourt Publishers, Inc. and Laurel Kaczor. (See Compl. (Dkt. No. 1).) The substance of the allegations in the original Complaint was materially identical to that detailed above. Shortly thereafter, on July 11, 2013, Plaintiff filed a motion to certify the class, and stay decision on the motion until discovery was completed. (See Dkt. Nos. 5-9.) Those motions' were terminated by the Court. for failure to follow the Court’s individual practices. (See Dkt. No, 10.) At a subsequent conference, the motions were reinstated, but briefing was stayed' pending the Second Circuit’s decision in Bank v. Independence Energy Group LLC, 736 F.3d 660 (2d Cir. 2013), which concerned whether state law or federal law controlled when a TCPA class action suit may proceed in federal court; (See Dkt. No. 20.) Plaintiff was permitted to obtain limited discovery, and a number of discovery disputes followed. On August 13, 2014,. Plaintiff, sought leave to file a motion to amend the Complaint to add ETS as a Defendant. (See Dkt. No. 44.) Shortly after the Court scheduled a conference to address ’ Plaintiff’s proposed Motion, Defendants Hough-ton Mifflin Harcourt Publishers, Inc. and Laurel Kaczor wrote a letter to the Court seeking leave to file a motion to dismiss the case and to compel-arbitration. (See Dkt. No. 47.) After a conference was held, Plaintiff filed an Amended Complaint, with the consent of Houghton Mifflin Harcourt Publishers, Inc. and Laurel Kaczor, to add Houghton Mifflin Harcourt Publishing Company as a Defendant. (See Dkt. No. 55.) At the same time, Houghton Mifflin Harcourt Publishers, Inc., Houghton Mifflin Harcourt Publishing Company, and Kaczor filed a motion to compel arbitration. (See Dkt. No. 56;) The same day, Plaintiff filed a motion to amend its Amended Complaint to add ETS as a Defendant. (See Dkt. No. 59.) Oral argument on the pending motions was held on July 14, 2015, after which the Court granted Plaintiffs motion to amend and granted Defendants’ motion to compel arbitration. (See Dkt. No. 78.) On August 5, 2015, Plaintiff filed the Second Amended Complaint, adding ETS as a Defendant, which remains the operative complaint in this Action. (See Dkt. No. 79.) At the same time it filed a Second Amended Complaint, Plaintiff filed another motion for class certification. (See Dkt. No. 81.) On October 2, 2015, after receiving an extension of its time to respond to the Second Amended Complaint, ETS filed a letter motion seeking leave to file a motion to dismiss the case and also a motion to stay-the case pending the Supreme Court’s decisions in Campbell-Ewald Co. v. Gomez, — U.S. -, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), and Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). (See Dkt. No. 96.) A few days later, on October 13, 2015, the Parties submitted, and the Court endorsed, a stipulation dismissing the Action against Houghton Mifflin Harcourt Publishers, Inc., Houghton Mifflin Harcourt Publishing Company, and Laurel Kaczor. (See Dkt. No. 99.). On November 13, 2015, the Parties executed a stipulation, endorsed by the Court, staying the case until the Supreme Court’s decision in Campbell-Eivald. (Dkt. No. 101.) On January 25, 2016, the Parties alerted the Court that the Supreme Court had decided Campbell-Ewald. (Dkt. No. 103.) On February 1, 2016, ETS filed its Motion To Dismiss .the Second Amended Complaint pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6). (See Dkt. No. 106.) Two days later, ETS filed a letter motion requesting leave to file a Motion to allow it to deposit an amount with the Court in full satisfaction of Plaintiffs individual claim, have the Court enter judgment against ETS, and dismiss the case for lack of subject matter jurisdiction. (See Dkt. No. 110.) After a conference was held on March 8, 2016, ETS filed its Motion To Dismiss for lack of jurisdiction on March 18, 2016. (See Dkt. No. 127.) Since briefing on the pending Motions was completed, discovery has continued and the Parties have provided numerous letters with supplemental authority. II. Discussion A. Motion To Deposit $10,500, Enter Judgment, and Dismiss for Lack of Jurisdiction Before the Court is permitted to indulge Defendant’s Motion To Dismiss for failure to state a claim, it is obliged, with only limited exception, to determine whether it has jurisdiction over the dispute. See Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (“Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” (internal quotation marks omitted)), affd. 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010); cf. In re Facebook, Inc., Initial Public Offering Derivative Litig., 797 F.3d 148, 155 (2d Cir. 2015) (“When a determination as to subject matter jurisdiction raises a difficult or novel question, the district court has discretion to decide certain threshold bases for dismissal without deciding whether it has subject matter jurisdiction.”). 1. Rule 12(b)(1) and Mootness “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Brady v. Int’l Bhd. of Teamsters Local 817, 741 F.3d 387, 389 (2d Cir. 2014) (internal quotation marks omitted). Dismissal under Rule 12(b)(1) is therefore proper when a case becomes moot. See Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (“Under Article III of the U.S. Constitution, when a case becomes moot, the federal courts lack subject matter'jurisdiction over the action.” (alteration and internal quotation marks omitted)). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). “Where there is no unresolved case or controversy, ‘mootness occurs’ and ‘the court—whether trial, appellate, or Supreme—loses jurisdiction over the suit, which therefore must be dismissed.’ ” Radha Geismann, M.D., P.C. v. ZocDoc, Inc., 850 F.3d 507, 511 (2d Cir. 2017) (quoting Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 118-19 (2d Cir. 2001)). 2. Analysis Defendant asks the Court to allow it to deposit $10,500 with the Court, which would offer Plaintiff the full individual monetary relief available to Plaintiff under the TCPA; enter judgment against Defendant in the amount of $10,500, along with an injunction prohibiting Defendant from violating the TCPA; and dismiss the case as moot under Rule 12(b)(1). (See Def. Educational Testing Service’s Mem. of Law in Supp. of Its Mot. To Deposit Payment, Enter J.. and Dismiss for Lack of Subject Matter Jurisdiction (“Def.’s 12(b)(1) Mem.”) 5 (Dkt. No. 128).) Prior to filing this Motion, Defendant hand delivered a cashier’s check in the amount of $10,000 to Plaintiff and its counsel, and agreed by letter to the entry of an injunction barring Defendant from committing future violations of the TCPA. (See Decl. of Andrew S. Kleinfeld in Supp. of Def. Educational Testing Service’s Mot. To Deposit Payment, Enter J, and Dismiss for Lack of Subject Matter Jurisdiction ¶ 8 (Dkt. No. 129).) That check was returned to Defendant by Plaintiff, (see id. ¶ 9), prompting Defendant to file the Motion. a. Existing Precedent ’ The Second Circuit endorsed a similar method of disposing of a case in McCauley v. Trans Union, LLC, 402 F.3d 340 (2d Cir. 2005). There, the court held that after a defendant made an offer of judgment pursuant to Federal Rule of Civil Procedure 68 that was rejected by the plaintiff, the district court erred in holding, based on the plaintiffs rejection of an offer of complete relief, that the case was moot and in entering judgment in favor of the defendant. See id. at 341-42. The court reasoned that because the entry of judgment in favor of the defendant did not create “an obligation to pay [the plaintiff] the $240 in claimed damages, the controversy between [the parties] [was] still alive.” Id. at 342. The court went on to hold that it could not “conclude that the rejected settlement offer, by itself, moot[ed] the ease so as to warrant entry of judgment in favor of [the defendant].” Id. But in so holding, the Second Circuit cited a “way to a better resolution” offered by the Seventh Circuit in Chathas v. Local 134 IBEW, 233 F.3d 508 (7th Cir. 2000): “entry of a default judgment against [the defendant].” McCauley, 402 F.3d at 342 (internal quotation marks omitted). “Such a judgment,” the court reasoned, “would remove any live controversy from [the] case and render it moot,” and “would serve [the defendant’s] desire to end the case, would award [the plaintiff] his damages and, like the Rule 68 settlement offer, would have no preclusive effect in other litigation.” Id. The Second Circuit revisited this procedure in Cabala v. Crowley, 736 F.3d 226 (2d Cir. 2013). There, the court held, consistent with McCauley, that the defendant’s unaccepted offer of settlement for the full amount of damages claimed did not serve to moot the case on its own. See id. at 228-29. The court pointed out that the settlement offer at issue “specifically sought to avoid entry of judgment,” and the defendant “neither offered a Rule 68 entry of judgment ... nor sought entry of judgment as authorized by McCauley, which under the terms of that case would have ended the litigation.” See id. at 229. The Second Circuit thus reaffirmed its holding in McCauley that the only way to compel a plaintiff to accept an offer of complete relief is to request that the court enter judgment in the full amount requested by the plaintiff and then request that the court dismiss the case as moot. See id. (“Indeed, although [the defendant] contends that his offer rendered the case moot, he never moved for dismissal of the case on that ground .... ”). In Tanasi v. New Alliance Bank, 786 F.3d 195 (2d Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 979, 194 L.Ed.2d 3 (2016), the Second Circuit offered more analysis of the issue. There, the court clarified that “it remains the established law of [the Second Circuit] that a rejected settlement offer under Rule 68, by itself, cannot render moot a case.” Id. at 200 (alterations and internal quotation marks omitted)). “If the parties agree that a judgment should be entered against the defendant, then the district court should enter such a judgment. Then, after judgment is entered, the plaintiffs individual claims will become moot for purposes of Article III.” Id. (citation omitted). However, “[a]bsent such agreement,” a “district court, should not enter judgment against the defendant if it does not provide complete relief.” Id. The Second Circuit synthesized and summarized these cases in a nonprecedential summary order, Hepler v. Abercrombie & Fitch Co., 607 Fed.Appx. 91 (2d Cir. 2015). There, the court, citing McCauley, Cabala, and Tanasi, held that if an offer “tenders complete relief, the court should (absent additional procedural complications) enter judgment pursuant to the terms of that offer, with or without the plaintiffs consent,” Hepler, 607 Fed.Appx. at 92. The Second Circuit went on to say that ‘“[j]ust as a defendant may end the litigation by allowing default judgment, a defendant may always end the litigation by offering judgment for all the relief that is sought.” Id. There is no dispute that Defendant has generally followed the procedure outlined in the cases above. But, in light of the Supreme Court’s intervening decision in Campbell-Ewald Co. v. Gomez, — U.S. -, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), Plaintiff argues that this procedure is inadequate, at least in the context of a class action suit. In Campbell-Ewald, a plaintiff had brought a class action suit alleging that the defendant, had violated the TCPA by sending Navy-recruiting text messages to individuals who had not consented to receipt of such messages. 136 S.Ct. at 667. Prior to the deadline for the plaintiff to fíje a motion for class certification, the defendant filed an offer of judgment pursuant to Rule 68, offering to pay the plaintiff the full statutory damages to which he was individually entitled. Id. at 667-68. The plaintiff rejected the offer, and the defendant thereafter moved to dismiss the case for lack of subject matter jurisdiction, arguing that the offer of complete relief mooted the plaintiff’s individual claim and therefore the entire case. See id. at 668. The district court denied the motion, and the court of appeals affirmed'that ruling.'See id. The Supreme Court held that the plaintiffs complaint “was not effaced by [the defendant's] unaccepted offer to satisfy his individual claim.” Id. at 670. In so holding, the Court adopted Justice Kagan’s dissent in Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013), wherein she reasoned that a plaintiff who rejects an offer of judgment retains an interest in the lawsuit, because “[a]n unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity, with no operative effect.” Campbell-Ewald, 136 S.Ct. at 670 (internal quotation marks omitted). Thus, “[u]nder basic principles of contract law, [the defendant’s] settlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy.” Id. The Court distinguished a number of “19th-century railroad tax cases” cited by the defendant, saying that “[i]n all three cases, the railroad’s payments had fully satisfied the asserted tax claims, and .so extinguished them.”. Id. at 671. The Supreme Court further emphasized that in contrast to other cases, “when the settlement offer [the defendant] extended to [the plaintiff] expired, [the plaintiff] remained emptyhanded; his TCPA complaint, which [the defendant] opposed on the merits, stood wholly unsatisfied.” Id. at 672. The Court additionally noted that its holding was in alignment with the Second Circuit’s ruling in Tanasi. See id. at 670 n.4. One additional passage is particularly relevant to this' case. In holding that “[b]e-cause [the plaintiffs] individual claim was not made moot by the expired settlement offer, that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class,” the Court emphasized that “[w]hile a class lacks independent status until certified, a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” Id. at 672. The Supreme Court added, however, that it “need not, and [did] not, ... decide whether the result would be different if a defen-, dant deposits the full amount of the plaintiffs individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.” Id. The Court does not view Campbell-Ewald as dispositive here. As the Supreme Court explicitly recognized, see id. at 670 n.4, its- holding was in line with existing Second Circuit precedent, which held and' continues to hold that “only a judgment and not an unaccepted Rule 68 offer of complete relief renders moot a plaintiffs individual claim,” and that- judgment may be entered against a defendant without the plaintiffs consent only if the judgment provides complete relief, Tanasi, 786 F.3d at 200. Campbell-Ewald did not involve a judgment against the- defendant—indeed, one of the Court’s concerns was that -dismissing the case as moot, without judgment having been entered against the defendant, could result in the plaintiff remaining “emptyhanded,” as the defendant would have no obligation to make good on its offer. 136 S.Ct. at 672. The dissent’s suggestion, which the majority expressly declined to weigh in on, was to require the defendant to-“hand the plaintiff a' certified check or deposit the requisite funds in a bank account in the plaintiffs name,” or to “deposit the money with the district court (or another trusted intermediary) on the condition that the money be released to the plaintiff when the court dismisses the case as moot.” Id. at 684 (Alitó, J., dissenting). Here, Defendant has not only attempted to tender the offer -of judgment to Plaintiff, it has also requested both that it be allowed to deposit the offer of judgment with the Court, consistent with Campbell-Ewald, and that the Court enter judgment against it, consistent with the Second Circuit’s pre-Campbell-Ewald case law, pushing this case far outside the bounds of Campbell-Ewald. Plaintiff also points to the language in-Campbell-Ewald that “a. would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” Id. at 672. This language must be put in context—the full passage is as follows: In contrast to the cases [the defendant] highlights, when the settlement offer [the defendant] extended to [the plaintiff] expired, [the plaintiff] remained emptyhanded; his TCPA complaint, which [the defendant] opposed on the merits, stood wholly unsatisfied. Because [the plaintiffs] individual claim was not made moot by the expired settlement offer, that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class. While a class lacks independent status until certified, see Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted. Id. The statement cited by Plaintiff is, on its own, insufficient to resolve the present case. As Defendant points out, the Supreme Court stated that a “would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” Id. (emphasis added). The Court thus held merely that where an individual plaintiff has a live claim, the court must afford that plaintiff an opportunity to move for certification. But that statement begs the question of whether Plaintiff here still has a live claim of its own. That reading is supported by the Court’s explanation, in the same passage, that “[bjecause [the plaintiffs] individual claim was not made moot by the expired settlement offer, that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class.” Id. In other words, because the individual claim was not mooted by the offer—as it was unaccepted, untendered, without a corresponding judgment, and could thus potentially leave the plaintiff “emptyhanded”— the offer had no effect on the class either. This unremarkable conclusion—that an offer of settlement that is insufficient to moot an individual plaintiffs claim is similarly insufficient to moot the class claim— gets the Court no closer to resolving whether, as here, a tender or deposit of judgment and a request for the Court to enter judgment against the defendant, which would ordinarily have the effect of requiring dismissal of a case by an individual plaintiff following entry of judgment, has the same effect where the plaintiff seeks to represent a class. Second Circuit case law postdating Campbell-Ewald is largely inconclusive. In Bank v. Alliance Health Networks, LLC, 669 Fed.Appx. 584 (2d Cir. 2016), an unpublished summary order, the Second Circuit acknowledged the Supreme Court’s holding that “an unaccepted Rule 68 offer of judgment, on its own, will not moot a plaintiffs claims,” but went on to state that “where judgment has been entered and where the plaintiffs claims have been satisfied, ... any individual claims are rendered moot.” Id. at 585. The court noted, however, that it had “not previously addressed whether, in all cases, the rendering moot of a plaintiffs individual claims undermines that plaintiffs standing to pursue claims on behalf of a putative class.” Id. The court held, nonetheless, that because the plaintiff “lack[ed] any connection to a ‘live claim of his own,’ or any cognizable interest in pursuing the class claims,” it did not need to reach the issue. Id. (alteration omitted) (quoting Campbell-Ewald, 136 S.Ct. at 672). In so holding, the court noted that “where the individual claims of the putative class representative are rendered moot prior to certification, in general the entire action becomes moot,” and therefore, because the plaintiff “was the sole individual representative for the putative class, once his claim was no longer live, no plaintiff remained in a position to pursue the class claims.” Id. at 586 (internal quotation marks omitted). The court recognized that there are some circumstances in which a class claim may proceed even if the named plaintiffs claim has been mooted, but held that no such circumstances existed there. See id. While Bank is helpful to the extent it synthesizes some of the case law, it does not answer the question here. The court left much ambiguity in its decision, saying at one point that it need not answer whether “the rendering moot of a plaintiffs individual claims undermines that plaintiffs standing to pursue claims on behalf of a putative class,” but then affirming the dismissal of the case on the ground that because the plaintiff, as the sole named plaintiff on behalf of the class, no longer had a live claim, the class action was moot. Id. at 585. The court apparently intended to draw a distinction between the circumstances in Bank and the typical circumstances, like those here, where a plaintiff has moved for certification, but the class has not yet been certified and the defendánt seeks to moot the individual plaintiffs claim by tendering complete relief and consenting to an entry of judgment. But the Court cannot discern what that distinction might have been. Plaintiff suggests that Bank is distinguishable because there, “the district court entered judgment against the putative class plaintiff, and the putative class plaintiff deposited in his bank account the check that the defendant payed him in satisfaction of that judgment.” (Letter from Aytan Y. Bellin, Esq., to Court (Oct. 23, 2016) 1 (Dkt. No. 179).) See also Brief for Defendants-Appellees at 6, Bank v. Alliance Health Networks, LLC, No. 15-4037-CV (2d Cir. July 15, 2016), ECF No. 57. Plaintiff may be correct that this is the distinction the Second Circuit sought to draw, though the Court notes that the plaintiff did not deposit the check until after judgment had already been entered in his favor, see Brief for Defendants-Appellees at 6, Bank v. Alliance Health Networks, LLC, No. 15-4037-CV (2d Cir. July 15, 2016), ECF No. 57; see also Mem. of Points and Authorities at 4, Bank v. Alliance Health Networks, LLC, No. 15-CV-213 (E.D.N.Y. Sept. 11, 2015), ECF No. 28-1, and Defendant makes a compelling argument that the Bank plaintiffs deposit of the check is merely “a distinction without a difference,” (see Letter from Robert W. Gaffey, Esq., to Court (Oct. 25, 2016) 1 (Dkt. No. 180)). Another possibility is that the Second Circuit found , Bank distinguishable because the plaintiff had never moved for class certification. See Bank, 669 Fed.Appx. at 586. But whatever the Second Circuit intended to base its holding on, it suffices to say that Bank is a summary order, and therefore nonprecedential. See 2d Cir. R. 32.1.1(a). The Second Circuit in Bank did no.t and could not have altered the legal landscape of offers and entries of judgment. Defendant points also to Leyse v. Lifetime Entertainment Services, LLC, 679 Fed.Appx. 44, 2017 WL 659894 (2d Cir. Feb. 15, 2017), another summary order from the Second Circuit. There, the district court granted the defendant’s motion to enter judgment in the plaintiffs favor and dismiss the complaint after the defendant offered the plaintiff, an individual seeking to bring a class action claim under the TCPA, the full amount to which the plaintiff could have been individually entitled under the statute. See Leyse v. Lifetime Entm’t Servs., LLC, 171 F.Supp.3d 153, 154-55 (S.D.N.Y. 2016). The district court noted that “Campbell-Ewald expressly did not reach the question of whether the district court had authority to enter a judgment for the plaintiff over the plaintiffs objections and dismiss the action, if the full amount in controversy were actually paid,” and held that Campbell-Ewald did not '“disrupt the Second Circuit’s precedent allowing for the entry of judgment for the plaintiff over [the] plaintiffs objections.” Id. at 155. There was little discussion of the plaintiffs status as a proposed .class representative, perhaps because the plaintiffs motion for class certification had already been denied, as had his motion for reconsideration of that ruling. See id. at 154. On appeal, the Second Circuit affirmed, first addressing the district court’s rulings on* standing and on class certification, then discussing the district court’s entry of judgment. See 679 Fed.Appx. at 45-48, 2017 WL 659894, at *1-3. The Second Circuit held that Campbell-Ewald did not -disturb existing Second Circuit precedent regarding entry of judgment and that the district court’s actions fell squarely within that precedent. See id. at 47-48, 2017 WL 659894 at *3. As Plaintiff points out, Leyse did not discuss a situation where deposit and entry of judgment is sought prior to the district court’s determination on a class certification motion, (see Letter from Aytan Y. Bellin, Esq., to Court (Feb. 20, 2017) 1 (Dkt. No. 216)), and indeed, the Second Circuit made special note that the plaintiffs “class-certifícation ’ motion was litigated and- resolved before-[the defendant’s] Fed. R. Civ. P. 68 offer,” Leyse, 679 Fed.Appx. at 48, 2017 WL 659894, at *3 n.2. But as that has .not happened here, and as the Court may not even consider the pending motion for class certification without first addressing Defendant’s motion for entry of judgment and dismissal, Leyse , is largely inapposite. And, like Bank, Leyse is a summary order, and therefore of limited value. Finally, the Parties cite to Radha Geismann, M.D., P.C. v. ZocDoc, Inc., 850 F.3d 507 (2d Cir. 2017), a published Second Circuit opinion. There, the Second Circuit held that it was error for-the district court to enter judgment against a defendant after the plaintiff had rejected an offer of complete relief. Id. at 512-13. The court saw no difference between the situation in Campbell-Ewald, where the defendant sought outright dismissal of the suit, and the circumstance in Geismann, where the district court had entered judgment in favor of the plaintiff in reliance on the unaccepted offer, saying that, the. distinction was immaterial “because the judgment should not have been entered in the first place.” Id. at 513. While the Supreme Court did not purport to overrule Tanasi, and in fact cited that case with, approval, the Second Circuit nonetheless held that ,“[t]he result in Campbell-Ewald cannot be avoided simply by entering.a judgment effectuating an otherwise precluded dismissal.” Id. The court held that the defendant’s deposit of a check in satisfaction of the judgment after judgment had been entered did not cure the deficiencies, holding that the deposit “was made pursuant to and in furtherance of a judgment that should not have been entered in the first place.” Id. at 514. Moreover, the court noted, the deposit “alone [did] nothing to satisfy the demand for injunctive relief.” Id. In concluding, the court observed .that the case did not “match[ ] the hypothetical posed by- Campbell-Ewald, where the Supreme Court declined to consider whether the outcome would be different had the defendant deposited the full amount of the plaintiffs individual claim in an account payable to the plaintiff, and the court then entered judgment for the plaintiff in that amount.” Id. (alterations and internal quotation marks omitted). Instead, “thé district court entered a judgment that should not have been entered in the first place, and [the defendant] then more than one year later deposited an amount in satisfaction of that errant judgment in an account payable, to [the plaintiff].” Id. at 514-15. The Second Circuit added, however, in a footnote, that “an attempt by the defendant to use the tactic described in the Campbell-Ewald hypothetical to place it in the driver’s seat, might not work. The Supreme Court’s criticism of similar tactics suggests that Rule 68 should be harmonized with Rule 23.” Id. at 515 n.8 (citation, alteration, and internal quotation marks omitted). The court also noted that the Supreme Court has “acknowledged that ‘requiring multiple plaintiffs to bring separate actions, which effectively could be “picked off’ by a defendant’s tender of judgment before an affirmative ruling on class certification could be obtained obviously would frustrate the objectives of class actions.’” Id. (alteration omitted) (quoting Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980)). Geismann thus, except in dicta, does not aid the Court in deciding the issue in this case—whether a defendant may moot a elass action claim by tendering to the plaintiff or offering to deposit into an account with the’ court the full amount the individual plaintiff could receive under the statute and then requesting the court to enter judgment against the defendant in that amount, the hypothetical posed by Campbell-Ewald. As Plaintiff recognizes, however, some courts in the Second Circuit have confronted this precise question. In Brady v. Basic Research, LLC, 312 P.R.D. 304 (E.D.N.Y. 2016), the court noted that the decision whether to allow a defendant to deposit an amount in full satisfaction of an individual claim pursuant to Rule 67 was “within a court’s discretion,” and held that in light of Campbell-Ewald, granting the defendants’ Rule 67(a) motion was “not warranted.” Id. at 306. In Bais Yaakov of Spring Valley v. Graduation Source, LLC, 167 F.Supp.3d 582 (S.D.N.Y. 2016), the court cited Campbell-Ewald and concluded that because the individual plaintiff had not yet had a , fair opportunity to certify a class, the motion to deposit payment and enter judgment against the defendants was premature. Id. at 583-84. Third, the court in Bell v. Survey Sampling International, LLC, No. 15-CV-1666, 2017 WL 1013294 (D. Conn. Mar. 15, 2017), held that it retained discretion, under Rule 67, to decline to allow the defendants to deposit the funds with the court, and that it would exercise that discretion. Id. at *5. The only circuit court opinion published since Campbell-Ewald directly on point is Chen v. Allstate Insurance Co., 819 F.3d 1136 (9th Cir. 2016). There, the Ninth Circuit held that “even if [the defendant] could moot the entire action by getting the district court to enter judgment in favor of [the plaintiff] on his individual claims before he has had a fair opportunity to move for certification,” the court “would decline [the defendant’s] invitation to direct the district court to take that action.” Id. at 1144. The court first reasoned that the mere tender of the funds, and a request to allow those funds to be deposited with the court, did not itself render the plaintiffs individual claims moot. Id. at 1145. Even though the defendant had deposited the tendered funds into an escrow account, with instructions to the bank to pay the tendered funds to the plaintiff upon entry of judgment, the court nonetheless held that because the plaintiff had not “yet received any relief on his individual claims for damages or injunctive relief,” the defendant’s “actions plainly [had] not mooted [the plaintiffs] individual claims.” Id. at 1145-46. That conclusion naturally led to the question of whether the court should direct the district court to enter judgment over the plaintiffs objection. Citing Caw/pbell-Ewald, the court held that “when a defendant consents to judgment affording complete relief on a named plaintiffs individual claims before certification, but fails to offer complete relief on the plaintiffs class claims, a court should not enter judgment on the individual claims, over the plaintiffs objection, before the plaintiff has had a fair opportunity to move for class certification.” Id. at 1147. The court noted that its decision was consistent not only with Campbell-Ewald, but also with earlier Supreme Court cases that disapproved of the “ ‘picking off of named plaintiffs to deny a would-be class representative a fair opportunity to seek class relief.” Id. (citing Roper, 445 U.S. at 339, 100 S.Ct. 1166). The court thus concluded that “a district court should decline to enter a judgment affording complete relief on a named plaintiffs individual claims, over the plaintiffs objection, before the plaintiff has had a fair opportunity to move for class certification.” Id. at 1148. b. Rule 67 With this background in mind, the Court turns now to the specific mechanism offered by Defendant to effect its objective: Rule 67. Rule 67provides, in full: (a) Depositing Property. If any part of the relief sought is a money judgment or the disposition of a sum of money or some other deliverable thing, a party— on notice to every other party and by leave of court—may deposit with the court all or part of the money or thing, whether or not that party claims any of it. The depositing party must deliver to the clerk a copy of the order permitting deposit. (b) Investing and Withdrawing Funds. Money paid into court under this rule must be deposited and withdrawn in accordance with 28 U.S.C. §§ 2041 and 2042 and any like statute. The money must be deposited in an interest-bearing account or invested in a court-approved, interest-bearing instrument. The decision to allow a party to deposit funds pursuant to Rule 67 is left to the discretion of the Court. See Ray Legal Consulting Grp. v. DiJoseph, 37 F.Supp.3d 704, 729 (S.D.N.Y. 2014) (“It is within the court’s discretion to permit or deny such a deposit.” (internal quotation marks omitted)); N.Y. Life Ins. Co. v. Aleandre, No. 13-CV-2384, 2014 WL 30508, at *4 (S.D.N.Y. Jan. 2, 2014) (“The [c]ourt ... has discretion to permit such a deposit under Rule 67.”). Plaintiff objects to Defendant’s use of Rule 67, arguing that Rule 67 is not designed “to provide a means of altering the contractual relationships and legal duties of each party,” as “Rule 67 may not be used to effect a legal transfer of property between the litigants.” Prudential Ins. Co. of Am. v. BMC Indus., Inc., 630 F.Supp. 1298, 1300 (S.D.N.Y. 1986). (See also Pl.’s Mem. of Law in Opp’n to Def.’s Mot. To Deposit Payment, Enter J., and Dismiss for Lack of Subject Matter Jurisdiction 7 (Dkt. No. 138).) But Defendant does not seek to alter the “contractual relationships” or “legal duties” of any Party. There is no contractual relationship here, and deposit of the proposed amount would not alter Defendant’s legal duties; the deposit merely seeks to afford Plaintiff the individual relief to which it claims it is entitled. Indeed, Plaintiff cites no case suggesting that use of the Rule 67 mechanism for this purpose is impermissible, and instead cites only to those cases where the court declined to exercise its discretion under Rule 67, see, e.g., Brady, 312 F.R.D. at 306, and those cases where the court interpreted Campbell-Ewald to prohibit the entry of judgment against a class plaintiff prior to certification, irrespective of the mechanics of Rule 67, see, e.g., Graduation Source, LLC, 167 F.Supp.3d at 584; Bais Yaakov of Spring Valley v. Varitronics, LLC, No. 14-CV-5008, 2016 WL 806703, at *1 (D. Minn. Mar. 1, 2016), aff'd, 2016 WL 1735815 (D. Minn. May 2, 2016). But although the Court does not read Rule 67 and the cases interpreting it as prohibiting Defendant’s effort to offer complete relief here, the Court will exercise its discretion and not allow Defendant to deposit with the Court the $10,500 that represents the full statutory damages Plaintiff may be entitled to. First, the Second Circuit strongly suggested in Geis-mann that allowing the defendant to deposit the relief sought would be an abuse of Rule 67, saying that “[although the district court may, in its discretion, permit [the 'defendant] to deposit with the court any part of the relief sought, the basis for so granting the defendant- leave to deposit must not be inconsistent with this opinion.” 850 F.3d at 515. Second, assuming that the tender of the check to Plaintiff or the offer to deposit do not themselves moot Plaintiffs claim (an issue discussed below), Plaintiff still has a “live” claim, and thus the Supreme Court’s direction in Campbell-Ewald that “a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted,” 136 S.Ct. at 672, must inform the Court’s discretion. Indeed, that was the reasoning adopted by the court in Graduation Source. See 167 F.Supp.3d at 584 (“Although [the] [defendants sought to avail themselves of the hypothetical proposed in Campbell-Ewald by depositing the full amount of statutory damages into the Court’s Finance Unit and assenting to the injunctive relief requested by [the] [p]laintiff in its [c]omplaint, [the] [plaintiffs individual claims remain live— this [c]ourt has not entered judgment in favor of [the] [p]laintiff and has not, by express, written order released the funds to [the] [p]laintiff.” (internal quotation marks omitted)). In light of the Supreme Court’s directive, so long as a class plaintiff has a live claim, the Court should not exercise its discretion in such a way as to deprive that plaintiff of an opportunity to seek certification. c. Tender Offer and Offer to Deposit Jurisdiction, however, is not a matter of discretion, and so while the Court is not required to permit the deposit pursuant to Rule 67, if the tender of the $10,000 cashier’s check or the offer to deposit $10,500 with the Court themselves, along with a judgment in Defendant’s favor, moot Plaintiffs claim, the Court must dismiss the case. After all, the Second Circuit has made clear, albeit in a nonprecedential summary order, that “a defendant may always end the litigation by offering judgment for all the relief that is sought,” and that “[i]f the offer tenders complete relief, the court should (absent additional procedural complications) enter judgment pursuant to the terms of that offer, with or without the plaintiffs consent.” Hepler, 607 Fed.Appx. at 92 (first emphasis added). And the dissents in Campbell-Ewald gave no indication that a district court would have discretion, in their view, to retain jurisdiction notwithstanding a tender of complete individual relief. See Campbell-Ewald, 136 S.Ct. at 682 (Roberts, C.J., dissenting) (“As the [district [cjourt found, [the defendant] offered [the plaintiff] full relief. Although [the plaintiff] nonetheless wants to continue litigating, the issue is not what the plaintiff wants, but what the federal courts may do.”); id. at 685 (Alito, J., dissenting) (“While I disagree with [the] result on these facts, I am heartened that the Court appears to en-' dorse the proposition that a plaintiffs claim is moot once he has ‘received full redress’ from the defendant for the injuries he has asserted.”). As an initial matter, Defendant runs into a problem in that while it has offered to deposit $10,500 with the Court pursuant to Rule 67, it tendered only $10,000 to the plaintiff in the form of an irrevocable payment, i.e., a cashier’s check.. The Second Circuit has held that where, the parties dispute the amount a plaintiff could possibly be entitled to, even if the court makes, a legal determination as to-the amount the plaintiff could recover, the court may enter judgment against the defendant in the amount specified over the plaintiffs objection, but may not dismiss the case as moot. See ABN Amro Verzekeringen BV v. Geologistics Ams., Inc., 485 F.3d 85, 95 (2d Cir. 2007) (“So long as the district court’s ruling limiting the liability to $50 remained in force, all litigable issues pertaining to the defendants’ liability ceased to have, practical .importance, because of. the defendants’ tender of that amount. The case, however, was not moot, and the court did not lose subject matter jurisdiction.”). Thus, the Court could not decide that Plaintiff-is entitled to only $10,000, enter judgment against Defendant for $10,000, and dismiss the case as moot, though it could arguably do the first two. See id. at 94 (“While the court properly granted final judgment to. the plaintiff for $60-and denied the plaintiffs claims insofar, as they, sought a greater recovery, 'the court was mistaken in believing that the case had become moot and that the court lacked jurisdiction.”), Moreover, it is unclear how'far a defendant must go to fall within'the hypothetical posed by Campbell-Ewald, While Defendant has tendered payment to Plaintiff in the form of an irrevocable cashier’s check, that check has been returned, and thus it might be. said that, at least ,as .of this moment, Plaintiff remains “emptyhanded.” Campbell-Ewald, 136 S.Ct. at 672; see also Chen, 819 F.3d at 1145 (“[The plaintiff] has not yet received-any relief on. his individual claims for damages or injunctive relief. His claims are wholly unsatisfied, and it remains entirely possible for a court to grant him effectual relief.”). On the other hand, both the dissent in Campbells Ewald and Justice Kagan’s dissent in Genesis Healthcare .recognized that a plaintiff cannot avoid having her case. mooted merely by refusing to take complete relief when it is tendered. See Campbell-Ewald, 136 S.Ct. at 683 n.1 (Alito, J., dissenting) (“A plaintiff canno.t-thwart mootness by refusing complete relief presented on a silver platter.”); Genesis Healthcare, 133 S.Ct. at 1536 (Kagan, J., dissenting) (“To be sure, a court has discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant unconditionally surrenders and only the plaintiffs obstinacy or madness prevents her from accepting, total victory.”). Although entry of judgment against a defendant would appear to alleviate any concern that a plaintiff could be left emptyhanded, the Second Circuit rejected such an approach in Geismann, see 850 F.3d at 514 (“[The plaintiff] thus remains emptyhanded, distinguishing this case from the trio of 19th-century tax cases that [the defendant] cites for the proposition that [the plaintiffs] claim is extinguished; in each of those cases, the claimant accepted tender.” (internal quotation marks omitted)), and the Court is thus left with little guidance as to whether the proposed method of tender here is what the Supreme Court had in mind in Campbell-Ewald. Accordingly, if Defendant was required to tender to Plaintiff (and not merely offer to deposit with the Court) complete relief, its tender of $10,000 is insufficient under existing Second Circuit law to moot the case, and it may be insufficient to the extent it was rejected by Plaintiff and therefore is no longer tendered to Plaintiff. But the -Court sees little efficacy in denying Defendant’s Motion solely on these grounds. After all, if the Court held merely that the tender was insufficient to moot the case because it offered only $10,000, as opposed to $10,500, or because it came in the form of a cashier’s check that has since been returned, instead of in the form of an escrow account to be paid to the benefit of Plaintiff following entry of judgment, there is little question that Defendant could correct those deficiencies and’ refile this same Motion. So while the Court cannot likely grant, at this moment, Defendant’s Motion without Defendant first having corrected these issues (or without the Court examining the effect of these potential deficiencies), it may demy the Motion on other grounds as well or in the alternative. That is, the Court may decide whether, assuming Defendant’s tender is otherwise sufficient under Campbell-Ewald and Geis-mann, entry of judgment and dismissal of the case as moot is nevertheless improper. Given the stage of this case and the likelihood that Defendant could and would correct any procedural deficiencies and bring this same Motion again, the Court finds it both efficient and in the interest of justice to determine whether the Motion may be denied on the ground that even an unconditional and irrevocable tender‘ of judgment, combined with a consent to injunc-tive relief, does not permit the Cóurt to enter judgment against Defendant in the amount tendered and dismiss thé case as moot. The answer to this question, as the discussion above shows, is not simple. Although Plaintiff does not yield the point, the Court will assume, without deciding, that Campbell-Ewald did not disturb the Second Circuit precedent providing that a claim for individual relief may be mooted by tender and entry of judgment. See Leyse, 2017 WL 659894, at *3 (“[W]e conclude that Campbell-Ewald Co. does not undermine the controlling effect of Tanasi and similar precedents permitting the entry of, judgment under these circumstances.”). The more difficult question is whether the ordinary mechanisms of tendering complete relief and requesting entry of judgment are available to moot a class action claim. On this point, the. Court finds helpful two Supreme Court cases issued the same day—United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), and Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427. In Roper, the Supreme Court considered whether it had appellate jurisdiction to review the lower court’s denial of class certification after the defendant had tendered complete individual relief to the plaintiffs following denial of class certification. 445 U.S. at 327, 100 S.Ct. 1166. The Court held that it did possess such jurisdiction and reasoned that “[n]either the rejected tender nor the dismissal of the action .over [the] plaintiffs’ objections mooted the plaintiffs’ claim on the merits so long as they retained an economic interest in class certification.” Id. at 332-33, 100 S.Ct. 1166. In determining whether the individual plaintiffs did, in fact, retain an “economic interest in class certification,” the Court pointed to the plaintiffs’ “individual interest in the resolution of the class certification question in their desire to shift part of the costs of litigation to those who will share in its benefits if the class is certified and ultimately prevails.” Id. at 336, 100 S.Ct. 1166. The Court noted that “[t]o deny the right to appeal simply because the defendant has sought to ‘buy off the individual private claims of the named plaintiffs would be contrary to sound judicial administration,” and that “[requiring multiple plaintiffs to bring separate actions, which effectively could be ‘picked off by a defendant’s tender of judgment before an affirmative ruling on class certification could be' obtained, obviously would frustrate the objective of class actions.” Id. at 339, 100 S.Ct. 1166. The Supreme Court therefore concluded that the district court’s “entry of judgment in favor of [the] named plaintiffs over their objections did not moot their private case or controversy,” and that the plaintiffs’ “individual interest in the litigation—as distinguished from whatever may be their representative responsibilities to the putative class—[was] sufficient to permit their appeal of the adverse certification ruling.” Id. at 340, 100 S.Ct. 1166 (footnote omitted). In a concurrence, then-justice Rehnquist posited that the critical fact was that the defendant had “made an unaccepted offer of tender in settlement of the individual putative representative’s claim,” that the action was “moot in the [Article] III sense only if [the] Court adopt[ed] a rule that an individual seeking to proceed as a class representative is required to accept a tender of only his individual claims,” and that “[s]o long as the [C]ourt does not require such acceptance, the. individual is required to prove his case and the requisite [Article] III adversity continues.” Id. at 341, 100 S.Ct. 1166 (Rehnquist, J., concurring). In Justice Rehnquist’s view, “[acceptance need not be mandated under [the Court’s] precedents since the defendant has not offered all that has been requested in the complaint (i.e., relief for the class) and any other rule would give the defendant the practical power to make the denial of class certification questions unreviewable.” Id. (italics omitted). Geraghty involved only slightly different facts—the individual plaintiffs claims had been mooted as a consequence- of his claim expiring, and not by way of a tender of judgment or some other conduct by the defendant. 445 U.S. at 401, 100 S.Ct. 1202. Although judgment had not been entered in Geraghty, and class certification had already been denied, .the Court held that “the fact that a named plaintiffs substantive claims are mooted due to an occurrence other than a judgment on the merits does not mean that all the other issues in the case are mooted.” Id. at 402, 100 S.Ct. 1202. Accordingly, the Court reasoned, “an action brought on behalf of a class does not become moot upon.expiration of the named plaintiffs substantive claim, even though class certification has been denied,” id. at 404, 100 S.Ct. 1202, although the Court added that it had “no view as to whether a named plaintiff who settles the individual claim after denial of class certification may, consistent with [Article] III, appeal from the adverse ruling on class certification,” id. at 404, 100 S.Ct. 1202 n.10. These cases thus demonstrate that a plaintiff may have a concrete stake in a class action suit, even after her claims have been mooted and certification has been denied, sufficient to allow appellate review of the denial of class certification. While the Supreme Court did not explore all of the scenarios in which a representative plaintiff retains a live claim notwithstanding the extinguishment of her individual claim, it suffices for the purpose of this Motion that the Supreme Court held squarely in Roper that, there, the district court’s “entry of judgment in favor of [the] named plaintiffs over their objections did not moot their private case or controversy.” 445 U.S. at 340, 100 S.Ct. 1166 (emphasis added). That is the precise situation Defendant seeks to create here. , Defendant objects that Roper “concerned standing in an appeal of a denial of class certification, which is not the case here.” (Def. Educational Testing Service’s Reply Mem. of Law in Further Supp. of Its Mot. To Deposit Payment, Enter J. and Dismiss for Lack of Subject Matter Jurisdiction (“Def.’s' 12(b)(1) Reply”) 9 (Dkt. No. 141).) This is an accurate statement, and perhaps explains why courts consider the question in this case unsettled. But the Court is not permitted to ignore Supreme Court precedent merely because it addresses a different factual scenario, so long as the legal principles remain relevant. Although Roper involved a question of appellate jurisdiction, the Court’s holding was premised on its conclusion that the individual plaintiffs retained a stake in the litigation notwithstanding that judgment had been entered against them over their' objections. Were the Court to take Defendant’s invitation and limit Roper to its facts, that would lead to the anomalous conclusion where appellate courts would retain jurisdiction to review an order denying certification that, according to Defendant, the lower court did not have jurisdiction to enter in light of the tender of judgment. Because mootness deprives any court, “whether trial, appellate, or Supreme,” of jurisdiction, Russman, 260 F.3d at 118, there is no reason to infer from Roper that the Supreme Court- meant to limit its discussion of mootness to the question of appellate jurisdiction. To be sure, the district court in Roper denied the plaintiffs motion for class certification before the defendant tendered individual judgment. See Roper, 445 U.S. at 329-30, 100 S.Ct. 1166. But as the Supreme Court recognized in Geraghty, “timing is not crucial” when assessing the relationship between mootness and class certification. 445 U.S. at 398, 100 S.Ct. 1202. Had the defendant tendered judgment before the district court denied the class certification motion, that would not have altered the plaintiffs interest in obtaining class certification, an interest the Supreme Court deemed sufficient to confer jurisdiction on appeal. See Bais Yaakov of Spring Valley v. ACT, Inc., 798 F.3d 46, 49 n.2 (1st Cir. 2015) (“While the timing of the offer [of judgment] may make a difference in [the First C]ireuit on the question of when a class interest comes into existence, Roper gave no indication that it matters to the inquiry of whether an individual interest is preserved through a plaintiffs continuing economic interest in class certification and litigation.” (citation omitted)), cert. denied, — U.S. -, 136 S.Ct. 982, 194 L.Ed.2d 13 (2016). Defendant' also claims that- Roper “has been overruled by the Supreme Court, which has held expressly that, an ‘interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.’ ” (Def.’s 12(b)(1) Reply 9.) In support, Defendant cites Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). But the Supreme Court in Lems made no mention of Roper at all, and the Court is confident that if the Supreme Court meant to overrule Roper, it would have given some indication to that effect. And, in any event, Lewis did not address the question in Roper—whether a representative plaintiff maintains an interest in class certification sufficient to confer appellate jurisdiction even after his individual claim has been satisfied—and merely reaffirmed longstanding precedent, that an “interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis, 494 U.S. at 480, 110 S.Ct. 1249 (citing Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). A freestanding desire to obtain attorney’s fees, which the Supreme Court held in Lems is insufficient to create a case or controversy, is different from a class representative’s interest in defraying the costs of litigating its own claims and the class claims, which have substantive merit independent of the desire for attorney’s fees. Moreover, the fact that the Supreme Court noted in Genesis Healthcare that it “need not consider [Ropers] continuing validity in light of [its] subsequent decision in Lewis,” Genesis Healthcare, 133 S.Ct. at 1532 n.5, offers no clarity on the issue, as the Supreme Court expréssly did not comment on whether Lewis impacted Ropet*s holding, and as set forth above, the Court sees no reason to conclude that it did, see ACT, 798 F.3d at 50 (noting that while Genesis- Healthcare may have questioned the-viability of Roper, such commentary, did .“not grant [the court] the. prerogative of declaring Roper overruled”). Similar reasoning was adopted by the Tenth Circuit in Luc