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Rule 68 Offers

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District Court (Cal.) Certifies TCPA Class in Single-Source Context; Finds Rule 68 Offer Did Not Moot Class Action under 9th Circuit’s Pitts Decision

by Scott J. Hyman |

In Knutson v. Schwan's Home Service, Inc., 2013 WL 4774763 (S.D.Cal. 2013), Judge Curiel certified a TCPA class action in what appears to be the first TCPA class certified within the 9th Circuit outside of the “single source” context. Schwan's is in the business of delivering frozen foods to residential customers. From November 2008 through November 13, 2011, Schwan's contracted… Read More

District Court (Cal.) Finds that Genesis did not Overrule 9th Circuit’s Pitts Decision; Rule 68 Offer to TCPA Class Plaintiff Did Not Moot the Action

by Scott J. Hyman |

In Craftwood II, Inc. v. v. Tomy Intern., Inc., 2013 WL 3756485 (C.D.Cal. 2013), Judge Carter rejected the use of the FRCP 68 device made to the individual class-representative to moot a TCPA class action after Genesis.  Defendant’s counsel sent Plaintiff a settlement offer. “In order to end this litigation now,” Tomy offered Plaintiff $1,500 for each faxed advertisement that… Read More

District Court (Fla.) Allows Rule 68 Offer to Moot TCPA Class Action under Genesis

by Scott J. Hyman |

In Keim v. ADF MidAtlantic, LLC, 2013 WL 3717737 (S.D.Fla. 2013), Judge Marra allowed a rule an FRCP 68 Offer to moot a Plaintiff's TCPA class action. Plaintiff seeks statutory damages at $500.00 per text message for negligent violations of the Act, statutory damages of up to $1,500.00 per text message for each willful violation of the Act, an injunction requiring Defendants… Read More

District Court (Tex.) Finds Rule 68 Offer — Later Revised in a Motion to Dismiss to Accommodate for Additional Calls — Mooted Plaintiff’s Individual TCPA Claim, Requiring Dismissal of Class Action under Genesis; Finds TCPA Does Not Allow Dual Recover Under Both TCPA and Texas Statute

by Scott J. Hyman |

In Masters v. Wells Fargo, 2013 WL 3713492 (W.D. Tex. 2013), here, Judge Sparks found that a Rule 68 Offer in a TCPA Class Action – that was amended in a reply brief to accommodate additional calls alleged by the named Plaintiff – mooted a Plaintiff’s individual claim and requiring dismissal of the Plaintiff’s class action. Masters's Response makes much… Read More

District Court (Cal) Finds FRCP 68 Offer Does Not Moot TCPA Class Plaintiff’s Claim after Genesis Healthcare; Finds Unintended Recipient Can Still Pursue TCPA Claim

by Scott J. Hyman |

In Chen v. Allstate Ins. Co., 2013 WL 2558012 (N.D.Cal. 2013), Judge Hamilton found a Rule 68 offer insufficient to moot a TCPA plaintiff’s federal law suit, and found an ‘unintended recipient’ of calls to her cellular telephone pleaded sufficient facts to state a claim under the TCPA.  The facts were as follows: Plaintiff Richard Chen (“Chen”) filed the original… Read More

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