In what may be considered a blow to class action defense, this week the U.S. Court of Appeals for the Eleventh Circuit ruled that an offer of judgment to the named plaintiffs did not moot a proposed class action. This was a case of first impression before the Eleventh Circuit.
The putative class action, Stein v. Buccaneers LP, alleges that owners of the Tampa Bay Buccaneers sent unsolicited faxes advertising ticket sales to the plaintiff and more than 100,000 others nationwide in violation of the Telephone Consumer Protection Act (TCPA). After removing the matter to federal court, the defendant, Buccaneers LP, made offers of judgment under Fed. R. Civ. P. 68 to each of the six named plaintiffs based on the alleged number of faxes each received. In what courts have sometimes called a “pick-off,” two days after making the offers of judgment, Buccaneers LP moved to dismiss the case for lack of jurisdiction. Specifically, Buccaneers LP argued that the unaccepted offers of judgment, which provided each named plaintiff with the full relief they were entitled to under the TCPA, rendered the case moot. Thereafter, the plaintiffs filed a motion for class certification. The district court denied the motion for class certification and after the plaintiffs failed to accept the offers of judgment within the 14 day deadline, the district court held that the action was moot and dismissed the case.
In reversing the district’s court’s dismissal of the case, the Eleventh Circuit held that a defendant can’t moot a class action through an unaccepted offer of judgment made to the named plaintiffs before the plaintiffs have moved to certify the class. While the Seventh Circuit has held otherwise, the Eleventh Circuit stated that the Third, Fifth, Ninth and Tenth Circuits have reached the same conclusion: “a Rule 68 offer of full relief to the named plaintiff does not moot a class action, even if the offer precedes a class-certification motion, so long as the named plaintiff has not failed to diligently pursue class certification.”