In yet another victory for advocates of what is colloquially referred to as “mooting,” U.S. District Judge Sandra J. Feuerstein recently rejected the arguments of TCPA plaintiffs’ lawyers Aytan Bellin (based in New York), Brian Wanca (based in Illinois) and Max Margulis (based in Missouri) and dismissed a TCPA putative class action because the putative class representative had been offered full and complete relief and thus no longer had Article III standing under the U.S. Constitution. See Lary v. Rexall Sundown, Inc., 2015 U.S. Dist. LEXIS 16733 (E.D.N.Y. Feb. 10, 2015).   According to Judge Feuerstein:

This Court finds that the question is one which should be resolved in favor of defendants unless and until Congress provides legislation to clearly state a procedure which (a) denies the defendants the opportunity to make a Rule 68 offer for a stated period; or (b) requires plaintiffs to move for class certification within a specified period. Based upon the foregoing and the fact that plaintiff’s motion for class certification has not been determined, CCG’s pre-certification offer, which provides all the relief plaintiff could recover, moots plaintiff’s claim.

Id. at *40.

In light of the Lary decision, as well as the Franco and Geismann decisions in 2014, the Second Circuit has become one of the most favorable, if not the most favorable, circuits for mooting efforts in the United States. See Franco v. Allied Interstate LLC, 2014 U.S. Dist. LEXIS 47077 (S.D.N.Y. Apr. 2, 2014); Geismann v. ZocDoc, Inc., 2014 U.S. Dist. LEXIS 143272 (S.D.N.Y. Sept. 26, 2014)

As the Lary court held, “The Second Circuit has not definitively ruled on whether an unaccepted Rule 68 offer made prior to the filing of a Rule 23 or collective action certification motion or while one is pending, moots a case.” Lary, 2015 U.S. Dist. LEXIS 16733, at *11-12. We predict that in light of all of the recent district-level decisions on mooting in the Second Circuit, the court of appeals will provide clarity on this point before the close of 2015.

The Lary decision is particularly notable because the motion to dismiss was filed after the plaintiff had filed a motion for class certification, after a co-defendant had stipulated not to pursue mooting against the plaintiff and after the deadline for the moving party to seek dismissal under Federal Rule of Civil Procedure 12(b).  Id. at *2-5, 32.

Any U.S. lawyer evaluating the possibility of making an offer of full and complete relief to a putative class representative should review the Lary decision, which provides a fairly in-depth analysis of U.S. Supreme Court, Second Circuit and Second Circuit district court mooting case law.

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Photo of Blaine C. Kimrey Blaine C. Kimrey

Blaine C. Kimrey is a Shareholder at Vedder Price, Chair of the Media & Entertainment Litigation practice group, and a member of the Privacy, CyberSecurity, & Media practice group.  A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette

Blaine C. Kimrey is a Shareholder at Vedder Price, Chair of the Media & Entertainment Litigation practice group, and a member of the Privacy, CyberSecurity, & Media practice group.  A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property, entertainment, insurance, banking, real estate, civil rights, telecommunications, and mass catastrophes and torts.  Among other accolades, Mr. Kimrey is Chambers USA Band 2 rated for Media & Entertainment Litigation in the state of Illinois, is listed in Best Lawyers in America for Intellectual Property Litigation, and is AV-rated by Martindale-Hubbell.

Photo of Bryan K. Clark Bryan K. Clark

Bryan K. Clark is a Shareholder at Vedder Price and a member of the Privacy, CyberSecurity & Media practice group.  He has an extensive media and privacy practice that includes privacy class action defense, mobile-marketing litigation, class action TCPA litigation, copyright litigation, right…

Bryan K. Clark is a Shareholder at Vedder Price and a member of the Privacy, CyberSecurity & Media practice group.  He has an extensive media and privacy practice that includes privacy class action defense, mobile-marketing litigation, class action TCPA litigation, copyright litigation, right of publicity litigation, data breach response, FOIA issues, reporter’s privilege issues and prepublication review.