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.
In Mey v. Frontier Communs. Corp., No. 3:13-1191-MPS, 2014 U.S. Dist. LEXIS 161675 (D. Conn. Nov. 18, 2014), Plaintiff Diana Mey alleged that she received two calls to her cell phone from Frontier’s automatic telephone dialing system. Id. at *2-3. Mey filed a complaint against Frontier and simultaneously moved for class certification. Id. at *4-5. Two months later, Frontier wrote to Mey and offered to settle her claims with a payment of $6,400 plus taxable costs and entry of prospective injunctive relief. Mey declined. Id. Frontier then moved to dismiss, arguing that the court lacked subject matter jurisdiction because Frontier’s offer had “mooted Ms. Mey’s individual claim and all potential class claims.” Id.
We have discussed several TCPA mootness decisions, mainly those coming out of the federal courts in Florida. Those cases hold that plaintiffs should not file “placeholder” class certification motions solely for the purpose of thwarting an attempted Rule 68 offer of judgment “pick-off.” We now turn our attention to the Southern District of New York, which recently found a TCPA plaintiff’s claim mooted by an offer of judgment made after the plaintiff’s “placeholder” motion for class certification was filed and before that motion was ruled upon.
As we have previously noted, several courts in the Middle District of Florida have made it abundantly clear that plaintiffs should not file “placeholder” class certification motions solely for the purpose of thwarting an attempt to “pick-off” a named plaintiff. See Stein, et al. v. Buccaneers LP, No. 13-2136 (M.D. Fla.) (J., Merryday); Haight v. Bluestem Brands, Inc., No. 13-1400 (M.D. Fla.) (M.J., Spaulding). Last week, the court reiterated this stance yet again. See Dickerson v. Lab. Corp. of Am., 2014 U.S. Dist. LEXIS 100323 (M.D. Fla. July 23, 2014) (J. Moody).
The Eastern District of New York recently denied a motion to dismiss and found that the plaintiff’s claims were not precluded by a different court’s ruling that the same claims against the same defendants had been mooted by an offer of judgment. See Bank v. Spark Energy Holdings, No. 13-6130, 2014 U.S. Dist. LEXIS 84493 (E.D.N.Y. June 20, 2014); Bank v. Spark Energy Holdings, No. 11-4082, 2013 U.S. Dist. LEXIS 150733 (S.D. Tex. Oct. 18, 2013).
In Barr v. The Harvard Drug Grp., LLC, 13-62019, 2014 U.S. Dist. LEXIS 79422 (S.D. Fla. June 11, 2014), the court found that an offer of judgment served via email mooted the plaintiff’s claim despite the filing of a motion for class certification later that same day.
The class action complaint alleged that the defendant sent faxes in violation of the TCPA. The defendant served an offer of judgment on the plaintiff’s attorneys via email on November 27, 2013, at 11:12 am and also via UPS. The defendant offered to pay $1,500 for each alleged violation of the TCPA, to pay any costs and reasonable attorneys’ fees, and to stipulate to an injunction and the entry of a judgment against it. At 3:25 pm that same day, the plaintiff moved for class certification.
We previously discussed some recent mootness decisions coming out of the federal courts in Florida. Within the context of those cases, we explained that the offer must be “complete” and its language must be carefully considered. We also noted that the Supreme Court in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) analyzed but did not reach the mootness issue, leaving lower courts to their own devices. Quite conveniently, a recent decision out of the District of Maryland touched upon both of these topics. See Kensington Physical Therapy, Inc. v. Jackson Therapy Partners, LLC, 8:11-cv-02467, 2013 U.S. Dist. LEXIS 142527 (D. Md. Oct. 2, 2013). A copy is available here.
As we recently discussed, in Stein, et al. v. Buccaneers LP, No. 13-2136 (M.D. Fla.), the Bucs filed a motion to dismiss a putative TCPA class action on the ground that its pre-certification offer of judgment mooted the named plaintiffs’ claims. In response to the motion to dismiss—indeed, one day later—plaintiffs filed a motion for class certification. Although Judge Merryday immediately denied plaintiffs’ class certification motion as “premature” and lacking “evidentiary support,” he did not rule on the underlying motion to dismiss.
We previously discussed the growing trend of moving for TCPA class certification at the outset of litigation in order to prevent a defendant from trying to moot a named plaintiff’s claims by making a Rule 68 offer of judgment.
In Haight v. Bluestem Brands, Inc., No. 13-1400 (M.D. Fla.), the Middle District of Florida recently denied the plaintiff’s motion to certify a class of individuals who allegedly received “automated calls” to cell phones in violation of the TCPA. Plaintiff conceded that the motion was filed “solely to prevent any individual ‘buy off’ of the putative class representative.” The court did not take kindly to the preemptive motion. Indeed, it stated that the motion was motivated by the self-interest of counsel, and raised “serious public policy concerns about whether class action litigation should be driven by the interests of counsel rather than the issues of the client.” The Court ultimately denied the motion because the plaintiff had failed to perfect service of the complaint. But in doing so, it cautioned plaintiff’s counsel not to file another motion for class certification until he has “adequate facts and legal authority” to do so.
It is clear that the court was less than pleased with the preemptive class certification motion. Whether that plays a role in the outcome of the case remains to be seen.
A copy of the decision is available here.