The U.S. Courts of Appeals (or the “Circuit Courts”) are the intermediate federal courts that handle appeals from the lower district courts within each jurisdiction. While the Supreme Court has ultimate authority over the Circuit Courts, it cannot hear every appeal and often limits the cases it chooses to situations where the Circuit Courts disagree on the same issue. This is referred to as a “split” among the Circuit Courts.
One current split is whether an individual plaintiff’s claims can be made moot by a defendant’s settlement offer that fully satisfies the plaintiff’s claims. This is known as a Rule 68 offer of judgment. If the individual’s claim is moot, the argument goes, then that individual can no longer act as the representative of a class of similar plaintiffs (e.g. a class of people who allege illegal calls under the Telephone Consumer Protection Act (“TCPA”)), and the class must be dismissed. This is relevant not just to TCPA claims, but many types of class actions, so a future Supreme Court case on this issue seems inevitable.
The Eleventh Circuit recently reversed a lower court’s dismissal and held that unaccepted offers of judgment did not make plaintiffs’ individual claims for damages in violation of the TCPA moot. Furthermore, the Court held that even if an offer made a named plaintiff’s individual claim moot, it did not moot a class action even if the offer came before the plaintiff moved to certify the class. See Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698 (11th Cir. 2014).
In Stein, six plaintiffs filed a class action against the Buccaneers Limited Partnership (“BLP”), the Tampa Bay Buccaneers’ corporate entity, for allegedly sending unsolicited faxes advertising game tickets to more than 100,000 recipients in violation of the TCPA. BLP served all six plaintiffs Rule 68 offers of judgment that fully satisfied their individual claims for relief and moved to dismiss the class action for lack of jurisdiction. It argued that the unaccepted offers of judgment made the plaintiffs’ claims moot. On appeal, the Eleventh Circuit rejected this argument.
Stein further adds to the split among the Circuit Courts of whether an offer of judgment makes a named plaintiff’s claim moot and whether that offer also makes the class action claim moot. However, Stein is in the minority of Circuit Courts adopting this argument. Currently, an unaccepted offer of judgment makes a plaintiff’s individual claim moot in the Second, Third, Fourth, Fifth, Sixth, and Seventh Circuits (with varying requirements). The Ninth and Eleventh Circuits have held that an offer of judgment does not moot a plaintiff’s individual claim, while the First, Eighth, and Tenth Circuits have not definitively addressed the issue.
If you get sued in a purported TCPA class action, one of the first things your attorney should do is review this issue to determine the applicable law, and maybe make a Rule 68 offer of judgment to the individual anyway in expectation of a coming Supreme Court decision.