Following an interlocutory appeal, in which the First Circuit ruled that a Rule 68 offer made prior to class certification did not moot the plaintiff’s claim (see here), defendant returned to the Massachusetts district court seeking dismissal on Rule 68 grounds. Defendant had done its homework: relying on the Supreme Court’s January Campbell Ewald decision (see here), defendant had sent plaintiff a certified check for $4,800 and moved to deposit the same amount with the court, arguing that this actual payment for the full statutory amount per fax to which plaintiff would be entitled under the TCPA mooted plaintiff’s claims.

This tactic failed, as it did in the Southern District of New York (see “No Resurgence of ‘Picking Off’ After Campbell-Ewald”). The court denied defendant’s motion because “the proper measure of damages” had not yet been decided, taking what it called a “clear message” from the First Circuit that “when the measure of damages is disputed, the mootness determination is not the proper place to settle the issue.” Consequently, the court treated its prior determination that the measure of damages in the case was settled (i.e., that damages were only available per fax, not per violation) as rejected by the First Circuit, and found that the $4,800 tendered was not necessarily the full amount to which plaintiff would be entitled.

The court’s final note may be of even greater import for this line of cases: even if defendant had tendered a check for the higher damages award – per violation rather than per fax – it would not have ended the class action because the class claims were “inherently transitory issues that would evade review.” This so-called “inherently transitory” exception to the rule requiring dismissal of class claims where the class representative’s claims have been resolved derives from a line of cases tracing back to the Supreme Court. If adopted, this reasoning could spell the end of “picking off” attempts in TCPA cases.

Bais Yaakov of Spring Valley v. ACT, Inc., Case No. 4:12-CV-40088-TSH (May 10, 2016).