A federal judge in Massachusetts on Monday issued the latest ruling on whether an offer of judgment can be used to moot a class representative’s claim in a TCPA case. As courts continue to reach different conclusions, this pivotal issue seems primed for eventual resolution by the Supreme Court, and it is critical for anyone defending TCPA class action claims to keep up with the latest developments in this area.
In Bais Yaakov of Spring Valley v. ACT, Inc., the plaintiff filed suit under the TCPA’s fax provision and asserted class allegations. 2013 WL 6596720 (D. Mass. Dec. 16, 2013). But before the plaintiff could move for class certification, the defendant made an offer of judgment for full relief. When the plaintiff did not accept the offer, the defendant moved to dismiss the case, arguing that offer of judgment had mooted the plaintiff’s individual claim. The defendant had ample authority to support its position. See, e.g., Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011); Warren v. Sessoms & Rogers, P.A., 675 F.3d 365, 371 (4th Cir. 2012); O’Brien v. Ed Donnelly Enters., Inc., 575 F.3Dd 574-75 (6th Cir. 2009) (holding that the unaccepted offer moots the case, but that judgment should be entered for plaintiff in accordance with the offer); McCauley v. Trans Union, LLC., 402 F.3d 340, 342 (2d Cir.2005) (same). But the court in this case followed what it believed to be the example set by the Third, Fifth and Tenth Circuits in holding that “an offer of judgment in a class action suit does not moot the action when the offer is made so early that the representative could not have filed a class certification motion yet, though it does moot the individual claim(s).” 2013 WL 6596720 at *3.
The court also relied on Justice Kagan’s dissent in Genesis Healthcare v. Symczyk, 133 S. Ct. 1523, 1528-29 (2013), for the proposition that “an unaccepted offer of judgment cannot moot a case.” Of course, it is by no means clear that Justice Kagan’s dissent reflects the law of the land or expresses the views of a Supreme Court majority. But as decisions continue to come in on both sides of this issue, it is becoming more apparent that the Supreme Court may ultimately be called upon to address this issue.