Antitrust Law Daily Wrap Up, PRIVACY—11th Cir.: TCPA class action not mooted by rejection of offer of judgment in favor of the individual plaintiff only, (Jan 30, 2015)

By Edward L. Puzzo, J.D.

A Telephone Consumer Protection Act class action was not mooted by an unaccepted offer of complete relief made prior to class certification to named the plaintiff but not to class members, the U.S. Court of Appeals in Atlanta has ruled (Barr v. The Harvard Drug Group, LLC, January 29, 2015, Per Curiam).

Scott Barr, DDS filed a putative class action, alleging that The Harvard Drug Group, LLC, doing business as Expert-Med, had violated the Telephone Consumer Protection Act (TCPA). Before Barr moved for class certification, Harvard Drug made an offer of judgment for the maximum monetary damages for Barr’s individual cause of action, an injunction to prevent future violations of the Act, and an entry of a judgment. Barr, however, did not accept the offer and instead moved for class certification. Harvard Drug then moved to dismiss the putative class action as moot, and the lower court granted the dismissal. Barr appealed.

The appellate court ruled that, due to the intervening precedent of its December 1, 2014 decision in Jeffrey Stein, D.D.S., M.S.D., P.A. v. Buccaneers Limited Partnership, another TCPA putative class action, it must reverse and remand.

That case answered the question of whether a defendant may moot a class action through an unaccepted Fed. R. Civ. Proc. 68 offer of complete relief to the named plaintiffs, but not to class members, before the named plaintiffs moved to certify the class. The appellate court noted that the effect of the unaccepted offer was not a judgment for the named plaintiffs, nor an injunction, nor a change in the legal relationship between the parties. The named plaintiffs still had claims under the TCPA, and no ruling had been made on those claims. Thus, the claims were not moot, the Stein court ruled.

Based on the Stein ruling, the court stated, the offer of judgment in favor of Barr did not render his complaint moot. Thus, the court reversed the lower court’s order of dismissal for lack of subject-matter jurisdiction and remanded the matter for further proceedings.

The case is Civil Action No. 14-13138.

Attorneys: Scott David Owens (Law Office of Scott D. Owens, PA) for Scott Barr. Erica L. Fitzgerald (Barris, Scott, Denn & Driker, PLLC) for The Harvard Drug Group, LLC.

Companies: The Harvard Drug Group, LLC

Cases: Advertising Privacy AlabamaNews FloridaNews GeorgiaNews