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.
That no longer is the case. Last week, Judge Merryday granted the Bucs’ motion to dismiss, concluding the “Rule 68 offers of judgment preceded the motion to certify the class” and thus there was a lack of a “jurisdictionally necessary case or controversy.” From the get-go, Judge Merryday was suspicious of the motives behind the lawsuit; he candidly stated “something else must be going on here.” That “something else,” he explained, is the attorneys’ fees that “will soar astronomically” if the case advanced as a class action:
The prospect of lawyers losing an opportunity to parlay a party’s right to an exiguous statutory fine into a chance to recover an enormous fee is not a consideration worth considering. The fact that a fine, intended to remind a person not to send an unsolicited or unwelcome facsimile, will not expand (at least in this action) into a punitive penalty into the tens of millions is, also, not a consideration worth considering.
Ouch! Judge Merryday also struggled with why, in a case where the “sole injury is receipt of a facsimile advertising football tickets,” the plaintiffs desired to proceed notwithstanding the Bucs offer of complete relief.
The Stein decision does, however, provide plaintiffs with a defense to the so-called “pick off.” The Court largely adopted the Seventh Circuit’s analysis in Damasco v. Clearwire Corp., 662 F.3d 891(7th Cir. 2011). In Damasco, a TCPA case, the Seventh Circuit held that an offer of complete relief made before a plaintiff moves for class certification moots a putative class action, but an offer made after a plaintiff moves for class certification does not. Acknowledging that the result would be class certification motions filed without a factual record—which was the very concern that had animated his prior ruling—Judge Merryday noted that litigants can “ask the district court to delay its ruling to provide time for additional discovery or investigation.”
Perhaps not surprisingly, the lawyers who filed the original suit against the Bucs filed a nearly identical one a week later and filed a contemporaneous motion for class certification along with the new complaint. It will be interesting to see how the Bucs defend this rematch. Stay tuned.
A copy of the Stein decision can be found here.
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