I. Introduction

On January 20, 2016, the U.S. Supreme Court issued its highly anticipated opinion in Campbell-Ewald Co. v. Gomez, ruling that an unaccepted settlement offer, or offer of judgment, without actual payment and/or entry of judgment does not moot a named plaintiff’s class action claims.  In essence, the ruling prevents defendants from offering (but not paying) complete individual relief and then arguing for dismissal of a putative class action based on satisfaction of the class representative’s individual claim.  Although this ruling was a loss for class action defendant Campbell-Ewald Co. (“Campbell”), the opinion potentially validates a powerful tool for class action defendants going forward because it suggests that actual payment of complete individual relief and/or entry of judgment for that individual relief, rather than a mere offer, is sufficient to fully satisfy a class representative’s individual claim, resulting in the entry of judgment based on the absence of Article III standing and in dismissal of the class claims without prejudice.
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The U.S. Supreme Court today granted certiorari to an advertising partner of the U.S. Navy in a case involving “mooting” and the Telephone Consumer Protection Act (TCPA).  See Campbell-Ewald Company v. Gomez, 14-857. As we indicated in a previous Media Privacy and Risk Report post, this appeal could resolve a circuit split on whether, and so, under what circumstances, a putative class action defendant may offer full and complete relief to a class representative and eliminate the case or controversy as to that individual plaintiff.
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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.
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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.


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By now, most attorneys who handle class action litigation are familiar with the defense strategy commonly known as “mooting.”(This terminology is, frankly, imprecise, but we will save the semantics discussion for another day.) The cautious plaintiffs’ attorney will file a cursory motion for class certification with the complaint to minimize the likelihood of mooting.The defense attorney will serve an offer of judgment for full relief as soon as possible and immediately move to dismiss. But in light of conflicting circuit court decisions, the legal landscape is unclear on the ultimate effect of these maneuvers. Luckily, we’re here to help.
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In a decision subject to surprisingly little commentary by TCPA pundits, the Illinois Court of Appeals handed a significant victory to TCPA defense lawyers in November 2014 on the issue of “mooting” a putative class representative’s individual claim. See Ballard RN Ctr., Inc. v. Kohll’s Pharm. & Homecare, Inc., 2014 IL App. (1st) 131543 (2014). Despite the fact that the plaintiff had filed a motion for class certification before an offer of full and complete individual relief by the defendant, the court found that the plaintiff’s individual TCPA claim was still “mooted” because the motion for class certification that the plaintiff had filed was cursory and devoid of facts.  Id. at P59.

According to the court, “[I]f a putative class action plaintiff could circumvent the holding of Barber merely by filing a contentless ‘shell’ motion for class certification contemporaneously with its complaint, then it would effectively eviscerate the Barber decision.” Id. (referring to Barber v. American Airlines, Inc., 241 Ill. 2d 450, 455 (2011) (holding that class representative’s claim is moot when defendant offers full and complete relief before filing of motion for class certification)).
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