Supreme Court Grants Cert. to Consider Whether Offer of Complete Relief Moots TCPA Class Action

By: Andrew C. Glass, Joseph C. Wylie II, Gregory N. Blase, Jennifer J. Nagle, Eric W. Lee

The United States Supreme Court recently granted certiorari in a Telephone Consumer Protection Act class action challenging text messages which a U.S. Navy vendor sent to recruit new sailors. In Campbell-Ewald Company v. Gomez, No. 14-857, the Supreme Court will review (1) whether a defendant’s offer to provide complete relief as to individual claims deprives the plaintiff of Article III standing, and (2) whether such an offer can also prevent a putative class plaintiff from proceeding where no class has yet been certified.

In Campbell-Ewald, the plaintiff brought suit under the TCPA for himself and a putative class of individuals who the plaintiff claimed had not provided consent to receive a recruiting text message from the Navy. Before the plaintiff moved for class certification, the defendant made a Rule 68 “offer of judgment” offering the plaintiff complete monetary and non-monetary relief. When the plaintiff rejected the offer, the defendant moved to dismiss on the basis that its offer of complete relief mooted both the plaintiff’s individual and class claims under Article III.

The district court denied the motion to dismiss. On appeal, the Ninth Circuit agreed with that aspect of the district court’s ruling. The Supreme Court’s review should resolve a split among the circuits as to the effect of a Rule 68 offer in the class action context. A decision, however, is not likely until June 2016. Our recent client alert by Irene C. Freidel and Jennifer J. Nagle, To Offer or Not to Offer: Post Genesis, Uncertainty Continues Regarding the Impact of Rule 68 Offers of Judgment in the Class Action Context, provides additional discussion of Rule 68 and offers of judgment in class actions, more generally.

Campbell-Ewald is the second case in which the Supreme Court recently granted cert., which could have potential impacts on TCPA class action litigation. In addition, in Spokeo, Inc. v. Robins, No. 13-1339, which will also be heard next term, the Supreme Court will consider whether a plaintiff must have suffered actual harm in order to have standing to sue for statutory damages under the Fair Credit Reporting Act. That statute, like the TCPA, appears to permit recovery of statutory damages upon the showing of a violation, and the federal circuit courts of appeal are currently split over whether a plaintiff may state a claim for statutory damages without separately showing injury-in-fact as a necessary prerequisite for standing. The Supreme Court’s resolution of this issue in the FCRA context may have significant implications for class action and individual litigation under a wide range of federal statutes, including the TCPA. For more information on the Spokeo case, please see our recent post in K&L Gates Consumer Financial Services Watch blog.