“Welcome to the great new world of TCPA litigation – where a plaintiff turns up his nose at $10,000 in cash to compensate him for his receipt of a single targeted text message recruiting for the United States Navy, and where our courts stretch the limits of Article III to preserve his crusade for a would-be class of others similarly situated.”-Seamus Duffy
It’s becoming a strange, strange world when it comes to making offers of complete relief to named plaintiffs in class actions.
In the TCPA Blog’s latest Law360 column, Seamus Duffy examines the latest development in the Campbell-Ewald v. Gomez case, namely the trial judge’s rejection of the defendant’s motion to dismiss based on the delivery of a certified check to plaintiff’s counsel and its alternative motion to pay such funds into court. (Recall that earlier this year in the same case, the U.S. Supreme Court held that a Rule 68 offer of judgment, even if in the full amount of the plaintiff’s claim, did not moot the plaintiff’s case. The Court then remanded the action back to the trial court in California.) Seamus writes as follows about the recent trial court proceedings:
Campbell-Ewald did everything but drop a briefcase full of cash on the plaintiff’s doorstep, and the trial court nevertheless refused to dismiss on mootness grounds. In doing so, it appears to have adopted the view, foreshadowed in dicta in Campbell-Ewald and later voiced by the Ninth Circuit in Chen v. Allstate Insurance Co., No. 13-0685 (9th Cir. April 12, 2016), that a plaintiff in a purported class action “must be accorded a fair opportunity to show that certification is warranted” before a mootness claim is even entertained on the plaintiff’s individual claim based on an offer of complete relief. Chen, slip op. at 22 (quoting Campbell-Ewald, slip op. at 11). Judge Gee denied Campbell-Ewald’s motion to dismiss the case on the express ground that “Gomez has not yet had a fair opportunity to show whether or not class certification is warranted, and it would not be appropriate under the circumstances for the court to enter judgment for plaintiff against his wishes.” Gomez v. Campbell-Ewald Co., No. 10-2007 (C.D. Cal. June 3. 2016).
If the law indeed prohibits a defendant from mooting any would-be class representative’s individual claim before he or she has a “fair opportunity” to demonstrate the requirements for certification, then offers of judgment have been effectively barred in class actions except as a means of disposing of cases after a denial of certification.
The article goes on to pose many of the practical and theoretical questions resulting from the ruling and to contextualize offers of complete relief in putative class actions such as this one.