Antitrust Law Daily Wrap Up, PRIVACY—3rd Cir.: TCPA suit not mooted by unaccepted offer of judgment, (Apr 7, 2016)

By Greg Hammond, J.D.

The federal district court in Wilkes-Barre, Pennsylvania, did not err in denying dismissal of an action alleging violations of the Telephone Consumer Protection Act (TCPA), despite the defendants’ unaccepted offer of judgment under Federal Rule of Civil Procedure 68. The U.S. Court of Appeals in Philadelphia affirmed the lower court’s order, giving weight to the U.S. Supreme Court’s recent holding in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), that an unaccepted offer does not make such a case moot (Weitzner v. Sanofi Pasteur, Inc., April 6, 2016, Scirica, A.).

A New York physician and his company, Ari Weitzner, M.D., P.C., filed a putative class action against Sanofi Pasteur Inc. and Vaxserve Inc., alleging that the defendants violated the TCPA when they transmitted more than 10,000 facsimiles to Weitzner and other members of the class without prior express invitation or permission. The defendants made offers of judgment under Rule 68, agreeing to pay costs and to stop sending any facsimile ads in violation of the TCPA. The offer, which the defendants claimed would “satisfy the claims” of the named plaintiffs and provide the named plaintiffs with the maximum relief available under the law, went unaccepted.

The trial court denied the defendants’ motion to dismiss, holding that the plaintiffs’ action could proceed because they had not engaged in “undue delay” in failing to file their motion for class certification and a successful class certification motion would relate back to the filing of the class complaint. In addition, the trial court concluded that by relating class certification back to the filing of a class complaint, the class representative would retain standing to litigate class certification, even though his individual claim was moot.

The appellate court affirmed the lower court’s decision, noting that the Supreme Court recently held in Campbell-Ewald that an unaccepted offer to satisfy a named plaintiff’s individual claim was not sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situation. The Court also stated that in accord with Rule 68, an unaccepted settlement offer has no force. The appellate court consequently determined that because an unaccepted settlement offer “has no force,” it mooted neither plaintiffs’ individual claims nor the case as a whole.

The case is No. 14-3423.

Attorneys: Carl J. Greco (Carl J. Greco, P.C.) for Sanofi Pasteur, Inc. and Vaxserve, Inc. Daniel A. Osborn (Osborn Law PC) and Todd C. Bank for Ari Weitzner and Ari Weitzner, M.D., P.C.

Companies: Ari Weitzner, M.D., P.C.; Sanofi Pasteur, Inc.; Vaxserve, Inc.

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