As we have written about in this space before, the ultimate result of the circuit split on the issue commonly known as “mooting” will be critical to the future of class actions under statutes such as the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In Genesis Healthcare v. Symczyk, 133 S. Ct. 1523 (2013), the Supreme Court gave a glimpse of how it could rule on this issue, holding that “[i]f an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Id. at 1528. But some lower courts (relying in part on Justice Kagan’s dissent) have held that this standard does not necessarily apply in the class action context because the Genesis case was a collective action under the Fair Labor Standards Act, 29 U.S.C. § 216, not a class action under Rule 23. Setting aside whether this is a meaningful distinction—we have argued in various courts that it is not—it appears the Supreme Court will have an opportunity this term to directly address the issue of mooting in the class action context.

In Gomez v. Campbell-Ewald, 768 F.3d 871, 874 (9th Cir. 2014), the plaintiff brought a putative class action under the TCPA, based on the alleged transmission of unsolicited text messages. Before the plaintiff moved for class certification, the defendant offered the individual plaintiff “$1,503.00 per violation, plus reasonable costs,” but the plaintiff rejected the offer by allowing it to lapse on its own terms. Id. The defendant then moved to dismiss on the basis of mootness, but the motion was denied. Id. The defendant then moved for summary judgment on the basis of derivative immunity (the texts were sent on behalf of the United States Navy), and the district court granted the motion. Id. The plaintiff appealed, but defendant reintroduced the mootness issue by challenging the court’s jurisdiction. Id. at 875. The Ninth Circuit held that the plaintiff’s individual claim was not moot, holding that “an unaccepted Rule 68 offer that would fully satisfy a plaintiff’s claim is insufficient to render the claim moot.” Id. (citing Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 950 (9th Cir. 2013)). The court discussed the issues raised by Genesis, but ultimately rejected the notion that Genesis is irreconcilable with the Ninth Circuit standard. Id. at 876.

The Ninth Circuit also reversed the summary judgment on behalf of the defendant, so the defendant has filed a writ of certiorari on both the summary judgment issue and the threshold jurisdictional issue related to mootness. If the Supreme Court takes the case, it will have to start by addressing the jurisdictional issue, so we will be watching this case carefully. A ruling on the mootness issue could resolve the circuit split and have a significant impact on pending litigation nationwide. Be sure to keep checking this space for updates.