The U.S. Supreme Court has agreed to decide one of the many contentious issues in Telephone Consumer Protection Act litigation: whether an offer of complete relief in a putative class action made before a class is certified moots the individual and/or the class claims.
The question has occupied courts across the country handling the influx of TCPA litigation, and they have split on the answer. A panel of the Eleventh Circuit Court of Appeals held in January that an offer did not moot a lawsuit while the Second Circuit Court of Appeals and a Minnesota federal court judge reached the opposite conclusion.
Recognizing the split, the Justices granted certiorari in a case from the Ninth Circuit Court of Appeals. The suit involves Campbell-Ewald, an advertising agency hired by the U.S. Navy to develop and execute a recruiting campaign targeted to young males. Campbell-Ewald outsourced the texting responsibility to a third party and was named as a defendant in a lawsuit filed by Jose Gomez, who alleged he received a single text message in May 2006.
Campbell-Ewald offered Gomez $1,503 per violation, plus reasonable costs, but the plaintiff allowed the offer to lapse. The company moved to dismiss the case as moot. A trial court judge said the unaccepted offer alone was insufficient to moot Gomez’s claim. The Ninth Circuit affirmed that the case remained a live controversy, and Campbell-Ewald filed a writ of certiorari.
In its petition, the company told the Court that the TCPA has “become an extortionist weapon in the hands of class action attorneys seeking to extract lucrative attorneys’ fees for class-wide settlements” and that “[i]n response, many defendants, including Campbell-Ewald here, have offered plaintiffs complete relief on their individual claims at the outset—before any class is certified—agreeing to make plaintiffs whole for any TCPA violations, while sparing all the costs of protracted litigation.”
Also before the Justices: the issue of whether Campbell-Ewald is entitled to derivative sovereign immunity as a government contractor.
To read the petition for writ of certiorari in Campbell-Ewald v. Gomez, click here.
Why it matters: At the very least, a decision from the U.S. Supreme Court will provide much-needed clarity to courts across the country in TCPA class action lawsuits. A reversal of the Ninth Circuit’s opinion and a ruling that a complete offer can moot either individual and/or class claims would benefit TCPA defendants facing class action lawsuits, and could prove beneficial to defendants in other types of class action litigation.