The new year is off to a busy start, and it appears 2015 will bring additional Circuit-level clarity to an issue the Supreme Court left open in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013): whether an offer of complete relief to a named plaintiff in a putative class action moots the named plaintiff’s claim. The resolution of that issue, and the related question whether named plaintiffs can continue to pursue claims on behalf of a putative class after their individual claims become moot, will have a major impact on class action litigation, particularly in cases that seek statutory damages such as those available under the TCPA.
A federal district court in California recently ruled that a consumer who voluntarily provided a cellphone number in order to complete an online purchase gave “prior express consent” to receive a text message from the business’s vendors under the TCPA. See Baird v. Sabre, Inc., No. CV 13-999 SVW, 2014 WL 320205 (C.D. Cal. Jan. 28, 2014).
The Second Circuit recently held that Federal Rule of Civil Procedure 23 governs whether TCPA class actions can proceed in New York federal courts, and concluded that a prior Second Circuit ruling to the contrary no longer was good law. Bank v. Independence Energy Group LLC, No. 13-1746-cv (2d Cir. Dec. 3, 2013).
Previously, in Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir. 2008), the Second Circuit had held that state procedural rules governed whether a TCPA action could proceed as a class action in federal court, instead of Rule 23. Because N.Y. C.P.L.R. § 901(b) bars class actions seeking statutory damages unless the statute at issue expressly authorizes recovery in a class action (which the TCPA does not), the Bonime court ruled that a TCPA plaintiff could not pursue a class action for statutory damages in New York federal courts. This effectively sounded the death knell for TCPA class actions in New York.