Antitrust Law Daily Wrap Up, PRIVACY NEWS: Supreme Court asked whether TCPA suit became moot after judgment offer rejected, (Apr 2, 2015)

By Greg Hammond, J.D.

The Harvard Drug Group, LLC—a wholesale distributor of prescription and over-the-counter drugs—has petitioned the Supreme Court to review a decision by the U.S. Court of Appeals in Atlanta, finding that the effect of an unaccepted offer of complete relief was not a judgment, nor an injunction or change in the legal relationship between the parties (The Harvard Drug Group, LLC v. Barr, Dkt. 14-1194)

Scott Barr, DDS filed a putative class action, alleging that Harvard Drug (doing business as Expert-Med) violated the Telephone Consumer Protection Act (TCPA). Barr purportedly received a single page fax from Harvard Drug, containing what Barr argues is an insufficient opt-out notice. The fax specifically stated, “If you’d like to be removed from our fax blast list, call toll free 800.875.0123 ext. 2000, or fax 734.743.7000.”

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 TCPA, and an entry of 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. The U.S. Court of Appeals in Atlanta reversed, however, finding that the effect of the unaccepted offer was not a judgment for the named plaintiffs, nor an injunction or change in the legal relationship between the parties. Further, the court found that the named plaintiffs still had claims under the TCPA, and no ruling had been made on those claims.

Harvard Drug is now seeking the Supreme Court’s review of the Eleventh Circuit’s decision, asking the same questions that are the subject of the Campbell-Ewald Co. v. Gomez petition (Dkt. 14-857): (1) Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim; and (2) Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23 and receives an offer of complete relief before any class is certified.

Specifically, Harvard Drug argues that the decisions of the Ninth and Eleventh Circuits conflict with the decisions in other circuits, and that the Eleventh Circuit wrongly held that the district court retains subject matter jurisdiction, even after a named plaintiff in a class action receives an offer of complete relief. The decision should be reversed, Harvard Drug asserts, because it contravenes basic Article III principles, directly conflicts with well-reasoned decisions in other circuits, and results in protracted, complicated litigation after a plaintiff has been offered full relief.

Attorneys: Stephen E. Glazek (Barris, Sott, Denn & Driker, PLLC) for The Harvard Drug Group, LLC.

Companies: The Harvard Drug Group, LLC

News: Privacy