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The U.S. Supreme Court issued its long awaited decision in PDR Network LLC v. Carlton, addressing the issue of whether the Hobbs Act requires the district court to accept the 2006 Federal Communication Commission (FCC) Order 2006 (“the Order”), which provides the legal interpretation for the Telephone Consumer Protection Act (TCPA). Unfortunately, the Court did not answer the question presented when it granted certiorari – whether the Hobbs Act required the district court to accept the FCC’s legal interpretation of the TCPA. Instead, the Court held that the extent to which the district court must defer to the FCC depends on two preliminary issues that the Court of Appeals failed to consider: 1) whether the Order is equivalent to a “legislative rule” which has the “force and effect of law” or an “interpretative rule” which does not have the “force and effect of law”, and 2) whether the defendant had the “prior” and “adequate” opportunity to seek judicial review of the Order. As a result, the Fourth Circuit Court of Appeals judgment was reversed, and remanded for the Court to address these issues.

The full length article discussing the Supreme Court’s decision in PDR Network LLC v. Carlton on the Jackson Lewis P.C. website, is available here.

When the Telephone Consumer Protection Act (TCPA) was enacted in 1991, most American consumers were using landline phones, and Congress could not begin to contemplate the evolution of the mobile phone. The TCPA defines Automatic Telephone Dialing System” (ATDS) as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C § 227(a)(1).  In 2015, the Federal Communications Commission (FCC) issued its 2015 Declaratory Ruling & Order (2015 Order), concerning clarifications on the TCPA for the mobile era, including the definition of “Automatic Telephone Dialing System” (ATDS) and what devices qualify. The 2015 Order only complicated matters further, providing an expansive interpretation for what constitutes an ATDS, and sparking a surge of TCPA lawsuits in recent years.

Consequently, several FCC-regulated entities appealed the 2015 FCC Order to the D.C. Circuit Court of Appeals, in ACA International v. FCC, No. 15-1211, Doc. No. 1722606 (D.C. Cir. Mar. 16, 2018). The D.C. Court concluded the FCC’s opinion that all equipment that has the potential capacity for autodialing is subject to the TCPA, is too broad. Although the FCC did say in its 2015 Order “there must be more than a theoretical potential that the equipment could be modified to satisfy the ‘autodialer’ definition”, the Court held that this “ostensible limitation affords no ground for distinguishing between a smartphone and a Firefox browser”. The Court determined that the FCC’s interpretation of ATDS was “an unreasonably expansive interpretation of the statute”.

Since the decision in ACA Int’l, courts have weighed in on the D.C. circuit court ruling and the status of the 2015 Order, sparking a circuit split over what constitutes an ATDS. The Second and Third Circuit have both narrowly interpreted the definition of an ATDS. In late June 2018, the Third Circuit held that, in light of ACA Intl’l, the TCPA should be interpreted as it was prior to the 2015 Order, limiting ATDS to a device with “present” capacity to function as an autodialer. The Third Circuit found that the plaintiff provided no evidence to show that an Email SMS Service had the present capacity to function as an autodialer.

Only a week later, the Second Circuit issued a similar opinion, narrowly interpreting the definition of ATDS, and rejecting a TCPA claim on grounds that the defendant could not point to any evidence that creates a genuine dispute of fact “as to whether the Email SMS Service had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.” It seemed like some consistency had begun to emerge in the courts post-ACA Int’l.

But then, in September, the Ninth Circuit stirred things up, with a sharp departure from the Second and Third Circuit decisions. The Ninth Circuit concluded that the “Textmunication System”, a “web-based” platform that sends text messages (a system of comparable nature to the Email SMS Service analyzed by the other circuit courts), created a “genuine issue of material fact” as to whether it qualified as an ATDS. The Court, thus, did not weigh in on whether the definition of ATDS was limited to devices with present capacity. Earlier this month a petition of writ of certiorari was filed with the U.S. Supreme Court, to the review the Ninth Circuit panel’s decision, but shortly after the parties reached a settlement agreement.

Given the circuit split over the definition of ATDS under the TCPA, the issue is ripe for the Supreme Court to address, but due to the recent settlement, we will have to wait a bit longer to hear from the Court. Just after, the Ninth Circuit ruling, the FCC sought comments from the public on the scope of the TCPA, including the ATDS definition. In the meantime organizations are advised to implement and update their telemarketing and/or automatic dialing practices to ensure TCPA compliance.

Late last year, the U.S. Supreme Court granted certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic (No. 17-1705), addressing the issue of whether the Hobbs Act requires the district court to accept the Federal Communication Commission’s (FCC’s) legal interpretation of the Telephone Consumer Protection Act (TCPA). In 1991, Congress passed the TCPA to restrict telephone solicitations and use of automated telephone equipment, charging the FCC with interpretation and rulemaking authority over the Act. In 2005, the TCPA was amended to include the Junk Fax Prevention Act (JFPA) that restricted the use of the fax machines to deliver unsolicited advertising. Shortly after, the FCC issued 2006 FCC Rule, which inter alia, provided guidance on the 2005JFPA amendment.   At issue before the Court, is the FCC’s interpretation of the definition of “unsolicited advertisements” in the context of the JFPA, found in the 2006 FCC Rule.

The Fourth Circuit, in PDR Network, held that the district court erred in refusing to defer to the FCC’s interpretation of the definition of “unsolicited advertisement” under the TCPA. Specifically, the district court ruled that a fax advertisement for free services did not qualify as an “unsolicited advertisement” under the law, despite the 2006 FCC Rule which stated that “even at no cost”, a fax message promoting good and services qualified as an unsolicited advertisement”.

Although PDR Network centers on a dispute over “junk faxes”, its implications extend far beyond. The Court will address a broad range of issues dealing with the scope of deference under the Hobbs Act and its interplay with the Chevron doctrine. The Hobbs Act provides exclusive jurisdiction to the Court of Appeals, in challenges to final orders issued by six federal agencies, including the FCC. To complicate matters, the Chevron doctrine, an administrative law principle derived from the Supreme Court case, compels federal courts, regardless of level, to adhere to agency interpretation of a statute it administers unless the court finds Congress’s language in the statute “clear and unambiguous”. Thus, a dilemma arises when a district court is adjudicating a case involving a final ordered issued by one of the six federal agencies regulated by the Hobbs Act. Does the Hobbs Act strip the district court of its ability to apply the Chevron deference?

Ultimately, the Court will conclude whether the district court is automatically bound by federal agency interpretation under the Hobbs Act, or has some leeway to ignore such interpretation, as allotted under Chevron when it deems statutory language “clear and unambiguous”. The Court’s ruling is timely, as the FCC is scheduled to issue rules regarding several significant TCPA issues in the coming year.

On a practical level, if the Court rules in favor of greater district court discretion, TCPA litigation will likely become much more unpredictable and costly. With regulatory, legislative, and judicial developments imminent, 2019 is shaping up to be an interesting year for the TCPA. We will continue to update as TCPA developments unfold. Stay tuned for our upcoming TCPA post on the circuit split over what constitutes an “Automatic Dialing Telephone System” (ATDS).

After two and a half years, the U.S. Court of Appeals for the District of Columbia issued a highly anticipated ruling reviewing the Federal Communications Commission’s (“FCC” or “Commission”) July 2015 Declaratory Ruling and Order (“2015 Order”) in which the FCC issued interpretative guidance on several aspects of the Telephone Consumer Protection Act (”TCPA”). Over a dozen organizations sought review of the FCC’s 2015 Order. The D.C. Court, on appeal, reviewed four key aspects of the 2015 Order: 1) which sorts of automated telephone dialing system (“ATDS”) equipment are subject to the TCPA’s restrictions, 2) if a party consents to a call, whether the caller is still in violation if the consenting party’s wireless number is, unbeknownst to the caller, reassigned to a different party, 3) how may a consenting party revoke consent, and 4) whether the FCC too narrowly interpreted an exemption for certain healthcare-related calls.

The D.C. ruling, by a unanimous three judge appellate panel, set aside the FCC’s expansive interpretation of what constitutes an ATDS and its approach to consent of reassigned wireless numbers. The Court, however upheld the FCC’s approach to revocation of consent by “reasonable means” expressing a desire to receive no further messages from the caller and the scope of the FCC’s exemption for certain healthcare calls.

ATDS Equipment

In setting aside the FCC’s expansive interpretation of what constitutes ATDS equipment, the appellate panel concluded that the FCC’s opinion that all equipment that has the theoretical “capacity” for autodialing is subject to the TCPA, is too broad. Although the FCC did say in its 2015 Order “there must be more than a theoretical potential that the equipment could be modified to satisfy the ‘autodialer’ definition”, the panel held that this “ostensible limitation affords no ground for distinguishing between a smartphone and a Firefox browser”. The panel determined that the FCC’s interpretation of ATDS was “an unreasonably expansive interpretation of the statute”.

Wireless Number Reassignment

The appellate panel also rejected the FCC’s approach to calls made to a person who previously have consent but whose number has since been reassigned to another nonconsenting person. The FCC concluded that calls in that situation are a violation of the TCPA, but did allow for a “one-call safe harbor” (i.e. one call post-reassignment, regardless of whether the caller has any awareness of the reassignment).  The Court set aside this interpretation as a whole on grounds that the FCC’s “one-call safe harbor” was “arbitrary and capricious”.

Revoking Consent

In contrast to the first two aspects of the FCC’s 2015 Order, the Court upheld the FCC’s guidance allowing consumers to revoke consent through any “reasonable means clearly expressing a desire to receive no further messages from the caller”. The FCC was originally petitioned to clarify whether callers could unilaterally prescribe exclusive means for consumers to revoke consent. The Commission explicitly declined this request, on the belief that allowing, “callers to designate exclusive means of revocation” could “materially impair” the “right to revocation”. The Court agreed with the FCC’s conclusion.  Notably, the Court did state “[t]he Commission’s ruling absolves callers of any responsibility to adopt systems that would entail ‘undue burdens’ or would be ‘overly burdensome to implement” and that “callers will have every incentive to avoid TCPA liability by making available clearly-defined and easy-to-use opt-out methods.”  Seeming to address a recent wave of lawsuits based on alleged unreasonable revocation attempts by call or text message recipients, the Court further stated, “[i]f recipients are afforded [clearly-defined and easy-to-use opt-out methods], any efforts to sidestep available methods in favor of idiosyncratic or imaginative revocation requests might well be seen as unreasonable.  The selection of an unconventionally method of seeking revocation might also betray the absence of any ‘reasonable expectation’ by the consumer that she could ‘effectively communicate’ a renovation request in the chosen fashion.”

Healthcare Exemption

The FCC was originally petitioned to exempt from the TCPA consent requirement “certain non-telemarketing, healthcare calls” alleged to “provide vital, time-sensitive information patients welcome, expect, and often rely on to make informed decisions.” Although the Commission acknowledged the “exigency and public interest” in certain healthcare related calls, it was concerned that this policy argument failed with other types of healthcare calls such as “account communications and payment notifications” that could still potentially qualify as “vital, time-sensitive”.

As a result, the FCC’s 2015 Order limited the healthcare exemption to calls for which there is “exigency and that have a healthcare treatment purpose, specifically: appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions”. The exemption would not cover calls that include telemarketing, solicitation, or advertising content, or which include accounting, billing, debt-collection, or other financial content.”

The Court concluded that the FCC was “empowered to draw the distinction it did, and it adequately explained its reason for doing so”, and therefore did not act “arbitrary and capricious”, as petitioners argued.

FCC Response

Shortly after the Court’s decision was announced, the FCC Commissioners issued statements in response. Chairman Pai, Commissioner Carr, and Commissioner O’Reilly all viewed the decision favorably.  Commissioner Rosenworcel’s statement reflected her view that the Court’s decision would allow robocalls to continue unless the FCC does something to address them.  Importantly, it appears an appeal of the Court’s decision is unlikely as Chairman Pai stated, “I’m pleased today’s ruling does not impact the current FCC’s efforts to combat illegal robocalls and spoofing.  We will continue to pursue consumer-friendly policies” and “we’ll maintain our strong approach to enforcement.”

Takeaway

The D.C. Court’s ruling both clarifies key aspects of the FCC’s 2015 Order and provides the FCC with direction on how to address rulemaking in this area going forward. However, numerous issues of the TCPA’s breadth and scope remain.  Organizations  are advised to consider the D.C. Court ruling together with FCC Chairman Pai’s position on the TCPA, when implementing and updating telemarketing and/or automatic dialing practices going forward.

Recently, the United States Court of Appeals was called upon to determine whether an unsolicited call that did not result in a charge to the consumer violated the Telephone Consumer Protection Act (“TCPA”) and, if it did, was the harm sufficiently concrete to provide plaintiff with standing to sue. Susinno v. Work Out World, Inc. (3rd Cir. July 10, 2017).

In this case, plaintiff alleged that she received an unsolicited call on her cell phone from a fitness company. She did not answer the call and the company left a prerecorded offer on her voicemail lasting one minute. Plaintiff’s complaint asserted that the phone call and message violated the TCPA’s prohibition of prerecorded calls to cell phones. The lower court dismissed the case on defendant’s motion, but the Third Circuit reversed.

On appeal, the defendant argued that the TCPA does not prohibit a single prerecorded call if the phone’s owner is not charged for the call. The appellate court disagreed with the defendant’s statutory interpretation. In addition, the court cited a provision of the TCPA that indicates calls to a cell phone “that are not charged to the called party” can implicate “privacy rights” that Congress “intended to protect” even if the phone’s owner is not charged. Thus, the court ruled, plaintiff established a violation of the TCPA.

With regard to the issue of concrete injury, the court relied upon the U.S. Supreme Court’s recent 2016 decision in Spokeo v. Robins finding that standing to pursue a violation of a federal law requires “concrete injury.” Here, the Third Circuit ruled that plaintiff alleged concrete injury because the injury alleged is the very injury the statute was intended to prevent.

Telemarketers and other businesses are cautioned to comply with applicable provisions of the TCPA and consider seeking counsel before embarking down a questionable path.

Earlier this month, the United States Court of Appeals for the Seventh Circuit in Blow v. Bijora upheld a lower court decision rejecting a plaintiff’s claim that she did not consent to receive text messages from the defendant retailer. Plaintiff brought this class action seeking $1.8 billion in damages by alleging that the company’s practice of sending promotional text messages violated the Telephone Consumer Protection Act (“TCPA”) and related state law.

The case involved a Chicago-based retailer, Akira, that engaged a separate company to offer text message marketing services. The text messages informed customers of promotions, discounts, and in-store events. Akira used a variety of methods to collect customers’ cell phone numbers – customers could opt in by providing their cell numbers in the store, by texting to an opt-in number posted in the store, or by filling out an opt-in card.

Plaintiff alleged that Akira violated the TCPA’s prohibition against using an automatic telephone dialing system to make calls without the express consent of the recipient. The court noted that it was undisputed that text messages to a cell phone constitute “calls” within the meaning of the TCPA. The lower court concluded that the system used did not involve an autodialer to send the promotional text messages. Following a detailed analysis of the TCPA and related regulations, the appellate court concluded there were unresolved issues as to whether the system used was in fact a prohibited autodialer. As such, the court concluded that it was premature to grant summary judgment to Akira on the issue of the autodialer.

Nevertheless, the Seventh Circuit granted summary judgment to Akira finding that Plaintiff had in fact consented to receive the text messages. The record demonstrated that she gave her cell phone number to Akira on several different occasions in addition to signing up for a “frequent buyer card” that included her phone number. In addition, upon receipt of her first text message, Plaintiff admitted that she had to confirm agreement by texting “AKIRA” to a short code number and that she received a message instructing that she could end her participation by texting “STOP.” Based on this evidence, the appeals court concluded that Plaintiff had provided express consent to receipt of the text messages.

Although the company prevailed, it is important for companies using this technology to be mindful of the significant regulations that are applicable. Text message (or SMS) promotional marketing is gaining steam as many consumers have migrated to mobile platforms. Any entity that seeks to avail itself of this service must be mindful of the legal and regulatory guidelines that govern text message communications. Similarly, if contracting out these services, companies should ensure that their vendors are compliant with all regulatory requirements.

For further information on the TCPA, click here.

Earlier this month, United States District Court Judge Peter Sheridan dismissed a class action brought against Work Out World (“WOW”) under the Telephone Consumer Protection Act (TCPA).  In doing so, Judge Sheridan relied on the recent decision by the United States Supreme Court in Spokeo, Inc. v. Robins.

The named plaintiff, Norreen Susinno, filed a class action complaint against WOW alleging WOW negligently, knowingly and/or willfully contacted the plaintiffs on their cellular telephones in violation of the TCPA and thereby invaded their privacy.  Ms. Susinno sought to certify a nationwide class of all persons who, in the preceding four years, had received telephone calls from WOW which were made with the use of an automatic telephone dialing system and/or used an artificial or prerecorded voice.

On June 10, 2016, WOW filed a motion to dismiss the complaint. Following a hearing on the motion to dismiss, Judge Sheridan granted WOW’s motion and dismissed the matter with prejudice.

Although Ms. Susinno filed an appeal of the district court’s decision, the decision may be very helpful to companies that are looking for various arguments to dispose of and otherwise defend against class claims, particularly where the alleged harm at issue is negligible, to the extent there is any harm at all.

For additional insight regarding this case, please see our related post on our Employment Class and Collective Action Update.

The U.S. District Court for the Southern District of California recently granted Wilshire Consumer Capital’s (WCC) motion to deny class certification in a putative class action filed under the Telephone Consumer Protection Act (TCPA).
The named plaintiff, Alu Banarji, filed suit after receiving numerous telephone calls on her cell phone.  According to the Court, Ms. Banarji’s father, Sami, took out a loan with WCC and on the loan application he listed his daughter’s cell phone number as his own.  Ms. Banarji is the primary caregiver for her father.  When Mr. Banarji failed to make payment, WCC began calling the cell phone number he had listed on his loan application to inquire about the debt.  Ms. Banarji claims she had no involvement with her father’s loan and she repeatedly asked WCC to stop calling her cell phone.
Following some limited discovery, including the depositions of both Mr. Banarji and Ms. Banarji, WCC filed a Motion to Deny Class Certification under Fed. R. Civ. P. 23.  WCC’s Motion to Strike, filed at the same time, was denied as untimely.  The Court found the timing of WCC’s Motion to Deny Class Certification appropriate despite Ms. Banarji’s argument that the motion was premature and she should be permitted to conduct discovery on the certification issue.
In its Motion to Deny Class Certification, WCC challenged Ms. Banarji’s ability to meet the typicality requirement in Rule 23(a)(3).  In the Ninth Circuit, the typicality requirement is construed permissibly and requires only that the representative’s claims be “reasonably coextensive with those of absent class members.”  However, the Court went on to clarify that if unique defenses exist that threaten to divert the focus of the litigation to the detriment of the class as a whole, the typicality requirement is not satisfied.
Judge Roger T. Benitez found that although Ms. Banarji was probably annoyed by the calls, her case is unique to herself and perhaps a small subset of the proposed class.  This is particularly true as Ms. Banarji’s phone number was given to WCC by her father; her father indicated that the phone number was in fact his own; and it is possible given the family relationship that Ms. Banarji’s father may be a non-subscriber customary user of the phone line, which would give him the authority to consent to receiving robocalls on that line.  Judge Benitez found the majority of the proposed class may suffer as Ms. Banarji will be engrossed with disputing WCC’s arguments regarding her individual case.
As such, the Court granted WCC’s Motion to Deny Class Certification, holding that Ms. Banarji’s claim is not typical of the proposed class’s claims.

Today, in a 6-3 decision, the Supreme Court of the United States held in Campbell-Ewald Co. v. Gomez that an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case. As previously discussed, the Supreme Court granted a petition for a writ of certiorari on May 18, 2015 and heard arguments in the case on October 14, 2015.

The United States Navy contracted with petitioner Campbell-Ewald Company (Campbell) to develop a multimedia recruiting campaign that included the sending of text messages to young adults, but only if those individuals had “opted in” to receipt of marketing solicitations on topics that included Navy service. Campbell’s subcontractor generated a list of cellular phone numbers for consenting users and then transmitted the Navy’s message to over 100,000 recipients, including respondent Jose Gomez, who alleges that he did not consent to receive text messages. Gomez filed a nationwide class action, alleging that Campbell violated the Telephone Consumer Protection Act (TCPA) which prohibits “using any automatic dialing system” to send a text message to a cellular telephone, absent the recipient’s prior express consent. Gomez sought treble statutory damages for a willful and knowing TCPA violation and an injunction against Campbell’s involvement in unsolicited messaging. Before the deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez’s individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68.  This strategy, often referred to as a “pick-off” is seen in many class actions throughout the country.  Gomez did not accept the offer and allowed the Rule 68 submission to lapse on expiration of the time (14 days) specified in the Rule. Campbell then moved to dismiss the case pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction. Campbell argued first that its offer mooted Gomez’s individual claim by providing him with complete relief. Next, Campbell urged that Gomez’s failure to move for class certification before his individual claim became moot caused the putative class claims to become moot as well.

In reaching its holding, the Supreme Court found that Gomez’s complaint was not mooted by Campbell’s unaccepted offer to satisfy his individual claim. Rather, the Court stated that under basic principles of contract law, Campbell’s settlement bid and Rule 68 offer of judgment, once rejected, had no continuing effectiveness. With no settlement offer operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset.

The Court looked to its prior holding in Genesis HealthCare which involved an offer of judgment to satisfy alleged damages under the Fair Labor Standards Act. Specifically, in that case, the Court assumed, without deciding, that an offer of judgment of complete relief, even if unaccepted, moots a plaintiff’s claim. In Campbell, the Court adopted Justice Kagan’s analysis as set forth in the Genesis HealthCare dissent. In dissent, Justice Kagan wrote, “When a plaintiff rejects such an offer – however good the terms – her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer – like any unaccepted contract offer – is a legal nullity, with no operative effect.”

Interestingly, the Court limited its holding by specifically not deciding whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. Instead, the Court reserved that question for a case in which it is not a hypothetical.

This case limits potential defense strategies when a company faces class claims, especially those under the TCPA. As such, it is imperative for organizations which utilize automated dialing systems to take steps to comply with the TCPA, its accompanying regulations, and related guidance. A great start to compliance, and to understanding the TCPA in general, would be a review of our Comprehensive TCPA FAQs.

For additional insight, including the broader implications the Campbell-Ewald decision may have for class actions, please see the excellent post from our colleagues in the Class and Collective Action group.

In a recent ruling, the Seventh Circuit abandoned its previous stance as to whether a complete offer of judgment prior to the filing of a class certification motion would moot a class action brought pursuant to the Telephone Consumer Protection Act (TCPA).

In 2009, the plaintiff, Arnold Chapman, brought a class action alleging First Index Inc. had violated the TCPA when it sent “junk faxes” without the consent of the recipients.  While Chapman’s class certification motion was pending, First Index made an offer of judgment under FRCP 68 for Chapman’s entire damages.  Thereafter, Chapman did not respond.  Following Chapman’s failure to respond, and on application from First Index, the district court dismissed Chapman’s claims as moot.

The Seventh Circuit reversed the district court’s decision, holding that Chapman’s case is only moot when it is impossible for a court to grant any effectual relief whatsoever to the prevailing party.  Using this analysis, the Circuit Court ruled Chapman’s case was not moot as the district court could award damages and/or enter an injunction.  In reaching its decision, the Circuit Court acknowledged, but refused to follow and in fact, overruled, its earlier decisions, including Damasco v. Clearwire Corp., which mooted claims when a plaintiff declines an offer that would satisfy his/her entire demand. In doing so, the Circuit Court relied on the dissent by U.S. Supreme Court Justice Elena Kagan in Genesis Healthcare Corp. v. Symczyk.

The Circuit Court’s ruling, which comes as the U.S. Supreme Court considers the impact of an offer of judgment on TCPA class actions, may provide insight into how SCOTUS will ultimately decide this issue.  In fact, the Circuit Court acknowledged this point and stated it is “best to clean up the law of this circuit promptly, rather than require Chapman and others in his position to wait another year for the Supreme Court’s decision.”

While we continue to await the decision from SCOTUS, this case provides insight into how the Seventh Circuit anticipates SCOTUS will rule.  At the same time, this decision is detrimental to TCPA defendants who sought to rely on the Seventh Circuit’s prior rulings to support a claim that a case is moot after an offer of judgment for full relief to the named plaintiff.