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.

Continue reading “TCPA Class Action Against The Buccaneers Is Mooted … Rematch Already Underway”

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.

Fairly or unfairly, plaintiffs are disproportionately leveraged at the outset of a consumer class action case.  The threat of aggregate damages and the power to inflict non-reciprocating discovery costs on a defendant is unsettling enough.  Lately, some defendants have fought back by making offers of judgment under Federal Rule of Civil Procedure 68 at the inception of the case.  In some courts, a prompt offer of judgment can moot the named plaintiff’s claims, leaving him or her without a “personal stake” in the litigation and thus no basis on which to pursue claims on behalf of a putative class.  Cf. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528-29 (2013) (noting but not resolving circuit split).  For what may be a relatively small payment to the named plaintiff, a defendant in those courts can avoid engaging in protracted litigation and the risk of class-wide statutory damages awards.

Continue reading “Offer of Judgment Prompts Motion for Class Certification, Which Is Immediately Denied”