As we have written about in this space before, the ultimate result of the circuit split on the issue commonly known as “mooting” will be critical to the future of class actions under statutes such as the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In Genesis Healthcare v. Symczyk, 133 S. Ct. 1523 (2013), the Supreme Court gave a glimpse of how it could rule on this issue, holding that “[i]f an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Id. at 1528. But some lower courts (relying in part on Justice Kagan’s dissent) have held that this standard does not necessarily apply in the class action context because the Genesis case was a collective action under the Fair Labor Standards Act, 29 U.S.C. § 216, not a class action under Rule 23. Setting aside whether this is a meaningful distinction—we have argued in various courts that it is not—it appears the Supreme Court will have an opportunity this term to directly address the issue of mooting in the class action context.

In Gomez v. Campbell-Ewald, 768 F.3d 871, 874 (9th Cir. 2014), the plaintiff brought a putative class action under the TCPA, based on the alleged transmission of unsolicited text messages. Before the plaintiff moved for class certification, the defendant offered the individual plaintiff “$1,503.00 per violation, plus reasonable costs,” but the plaintiff rejected the offer by allowing it to lapse on its own terms. Id. The defendant then moved to dismiss on the basis of mootness, but the motion was denied. Id. The defendant then moved for summary judgment on the basis of derivative immunity (the texts were sent on behalf of the United States Navy), and the district court granted the motion. Id. The plaintiff appealed, but defendant reintroduced the mootness issue by challenging the court’s jurisdiction. Id. at 875. The Ninth Circuit held that the plaintiff’s individual claim was not moot, holding that “an unaccepted Rule 68 offer that would fully satisfy a plaintiff’s claim is insufficient to render the claim moot.” Id. (citing Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 950 (9th Cir. 2013)). The court discussed the issues raised by Genesis, but ultimately rejected the notion that Genesis is irreconcilable with the Ninth Circuit standard. Id. at 876.

The Ninth Circuit also reversed the summary judgment on behalf of the defendant, so the defendant has filed a writ of certiorari on both the summary judgment issue and the threshold jurisdictional issue related to mootness. If the Supreme Court takes the case, it will have to start by addressing the jurisdictional issue, so we will be watching this case carefully. A ruling on the mootness issue could resolve the circuit split and have a significant impact on pending litigation nationwide. Be sure to keep checking this space for updates.

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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.

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.