District Court (Mass.) Says TCPA Class-Action Defendant’s Tender of Maximum TCPA Liability Moots Plaintiff’s Individual Claim, But Class Action Can Proceed

There’s something about all these chiropractors suing under the TCPA  Anyway, In South Orange Chiropractic Center, LLC v. Cayan, LLC d/b/a/ Capital Bankcard, 2016 WL 1441791, at *4-5 (D.Mass., 2016), Judge Saris

The parties do not dispute that Defendant has offered to fully provide all requested relief for Plaintiff’s individual claims under the TCPA. . . .Defendant has already fallen on its sword in unconditional surrender with respect to Plaintiff’s individual claims. It has tendered a bank check to Plaintiff in the amount of $7,500, which covers treble damages and costs, and it stipulated to the injunctive relief that Plaintiff requested. It has agreed to a protective order that directs the agent that sent the fax to preserve all information concerning the fax advertisements in question. Defendant has also offered to deposit a $7,500 check with the Court and have judgment entered against it. In its proposed judgment, Defendant has offered to be “enjoined from using any telephone facsimile machine, computer or other device to send unsolicited fax advertisements in violation” of the TCPA. Docket No. 42. Defendant does not limit its proposed injunction to advertisements sent to Plaintiff. At hearing, Defendant’s counsel confirmed that they were “agreeing to an injunction not just with respect to this plaintiff but with respect to the whole class, purported class.” Hearing Transcript, Docket No. 37 at 14.  Having rejected the twin offers, Plaintiff disputes that tendering a check or depositing one with the Court can moot a plaintiff’s individual claims. Plaintiff asserts that “[b]acking up an ‘offer’ with a check does not make it any more than [an] offer, which the Plaintiff has rejected, and which Campbell-Ewald unequivocally holds does not moot a Plaintiff’s standing as a possible Class Representative.” Docket No. 21 at 9-10.  In the few decisions to be issued since Campbell-Ewald on this question, district courts are split. Compare Price v. Berman’s Auto., Inc., No. 14-763-JMC, 2016 WL 1089417, at *3 (D. Md. Mar. 21, 2016) (stating that it will dismiss the plaintiff’s claim as moot if the defendant “reissues an unconditional cashier’s check equal to the [requested relief]”), and Leyse v. Lifetime Entm’t Servs., LLC, No. 13 CIV. 5794 (AKH), 2016 WL 1253607, at *2 (S.D.N.Y. Mar. 17, 2016) (“[O]nce the defendant has furnished full relief, there is no basis for the plaintiff to object to the entry of judgment in its favor.”), with Bais Yaakov of Spring Valley v. Graduation Source, LLC, No. 14-cv-3232, 2016 WL 872914, at *1 (S.D.N.Y. Mar. 7, 2016) (concluding that a plaintiff’s TCPA class claims remained live even after the defendant deposited a check with the court and assented to the requested injunctive relief because the plaintiff was entitled to “a fair opportunity to show that class certification is warranted”), and Brady v. Basic Research, LLC, 312 F.R.D. 304, 306 (E.D.N.Y. 2016) (“[G]iven the Supreme Court’s directive that a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted,” the court did not allow the defendants to deposit a check with the court consistent with the defendants’ offer of judgment).  While the Supreme Court did hold that a named plaintiff “with a live claim of her own” must be given the opportunity to make its case for class certification, Campbell-Ewald, 136 S. Ct. at 672, it did not determine the legal effect of providing a plaintiff with the full amount of statutory damages and the full scope of equitable relief. On this record, I conclude that this named plaintiff no longer has the requisite “live claim” because Defendant has offered to deposit a check with the court, to satisfy all of Plaintiff’s individual claims (and more), and to have the district court enter judgment in Plaintiff’s favor.

The District Court, nevertheless, held that the class action could still proceed.

The Supreme Court has enumerated instances in which a class action may continue even if the named plaintiff’s individual claims are mooted. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980); Sosna v. Iowa, 419 U.S. 393 (1975); Gerstein v. Pugh, 420 U.S. 103 (1975). . .The Court concludes that Defendant’s attempt to moot the request for classwide statutory damages falls within the “inherently transitory” exception discussed by the First Circuit in Cruz because the class issues will likely evade review. As the First Circuit stated in Bais Yaakov, “if substance is to prevail over form, and consumer class actions are not to be largely eviscerated, the Supreme Court will need to decide that a plaintiff’s request to proceed as a class representative pressing the real claims of those to be represented is a claim for relief that precludes a finding of mootness.” 798 F.3d at 54. Unable to read the tea leaves of the multiple opinions of the Supreme Court, I hold that even though Plaintiff’s individual claims have become moot, the class action may proceed as a case or controversy under Article III. U.S. Const. art. III, § 2. However, the Court requests that the parties consider whether immediate appeal under 28 U.S.C. § 1292(b) is appropriate before engaging in expensive class and merits discovery.