Supreme Court Set to Weigh in on Whether Offer of Judgment for Complete Relief to Named Plaintiff in Putative Class Action Moots TCPA Claims

The Supreme Court of the United States has granted certiorari in Campbell-Ewald v. Gomez, which is positioned to resolve the circuit split as to whether an offer of judgment to the named plaintiff in a class action for the full amount of the plaintiff’s individual claim can moot claims brought under the Telephone Consumer Protection Act (“TCPA”) for that named plaintiff only and prevent the matter from proceeding to the class certification stage.

In Gomez, Campbell-Ewald was charged with violating the TCPA by transmitting unsolicited marketing text messages. Campbell-Ewald served on Gomez a Rule 68 offer of judgment to pay three dollars above the maximum allowable statutory recovery, plus reasonable costs. Gomez rejected the offer by allowing it to lapse. Campbell-Ewald moved to dismiss, alleging Gomez’s rejection of the offer mooted the personal and putative class claims. The District Court denied the motion to dismiss but later granted summary judgment for Campbell-Ewald on other grounds.

Gomez appealed to the Ninth Circuit, which vacated the summary judgment. Regarding Campbell-Ewald’s mootness argument, the court found that “an unaccepted Rule 68 offer of judgment—for the full amount of the named plaintiff’s individual claim and made before the named plaintiff files a motion for class certification—does not moot a class action.” In vacating the summary judgment the Ninth Circuit also confirmed the potential for vicarious liability in the TCPA context where the defendant did not actually make the calls in question. On this point, the Ninth Circuit stated that “the Court must presume that Congress intended to apply the traditional standards of vicarious liability” in the absence of a “clear expression of Congressional intent to apply another standard.”

Campbell-Ewald’s petition for certiorari seeks the Court’s guidance on, among other issues, whether a case becomes moot “when the plaintiff receives an offer of complete relief on his claim” and whether the answer to the mootness question differs “when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.”

The Supreme Court’s decision likely will have a far-reaching impact on class action litigation brought under the TCPA, although it is possible that the Supreme Court could avoid the class-action issues by resolving the matter on other grounds. Should the Supreme Court reverse the Ninth Circuit, a defendant facing TCPA class claims may be able to make an offer of judgment over the maximum statutory recovery to resolve the named plaintiff’s claims and prevent class certification proceedings. Should the Court affirm the Ninth Circuit, however, TCPA class actions may become more difficult to defend and even more attractive to prosecute. The decision also may impact other types of class action litigation claims that afford litigants statutory damages. Stay tuned to this blog for relevant updates.

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