A divided Supreme Court ruled today in Campbell-Ewald Co. v. Gomez, No. 14-857, that an unaccepted Rule 68 offer of judgment by a defendant cannot moot a putative class action. The decision settles a reserved question from Genesis HealthCare Corp. v. Symczyk and resolves a circuit split on the issue. Justice Ginsburg’s majority opinion holds that an unaccepted Rule 68 settlement offer “has no force” and like other unaccepted contract offers, “creates no lasting right or ... Keep Reading »
Telecommunications Class Action Articles
The latest class action developments and trends in the telecommunications industry, including news, key cases, and strategies.
Supreme Court Confirms Enforceability of Class Action Waivers
For the second time in four years, the U.S. Supreme Court has overruled a California decision that refused to enforce an arbitration agreement with a class action waiver, holding that the Federal Arbitration Act (FAA) trumps California’s attempts to restrict arbitration and class action waivers in consumer and employment lawsuits. In DirecTV, Inc. v. Imburgia, Case No. 14-462, the Supreme Court, in a 6-3 decision authored by Justice Stephen Breyer, upheld an ... Keep Reading »
Arbitration Awards Prove an Obstacle to Class Claims
Two recent decisions illustrate the impact arbitration provisions can have on the availability of classwide relief. In Kaspers v. Comcast Corp., plaintiff, a Comcast customer, refused to pay for certain billed services and had his debt referred to a collection agency. Plaintiff submitted the dispute to the American Arbitration Association (AAA) pursuant to a contractual arbitration provision. When the AAA refused to arbitrate due to an alleged defect in the ... Keep Reading »
How to Handle Claims Brought by a Class Representative Under Laws of a Different State: Lessons from the Northern District of California
Arroyo v. TP-Link USA Corporation (N.D. Cal.) presents a varied opinion on the viability of class claims under California law, particularly as brought by a non-California class representative. Plaintiff, a Florida resident, alleged that defendants made false and misleading statements about the speed and capabilities of their network adapters. Plaintiff brought claims on behalf of a putative class under California’s Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et ... Keep Reading »
Third Circuit Reverses Denial of Class Certification in Complete Sham Telemarketing RICO Case
The United States Court of Appeals for the Third Circuit reversed the denial of class certification in a case brought against a bank and its payment processors that allegedly engaged in a fraudulent scheme to cause unauthorized debits from consumer bank accounts. Reynaldo Reyes, as class representative, filed suit in the Eastern District of Pennsylvania under the Racketeer Influenced and Corrupt Organizations Act (RICO) against Zions First National Bank (“Zions Bank”) ... Keep Reading »
First Circuit Holds an Unaccepted Rule 68 Offer Made Prior to Class Certification Won’t Moot Plaintiff’s Claims. Will Supreme Court Agree?
The First Circuit recently joined the Second, Fifth, Seventh, Ninth, and Eleventh Circuits in holding that a Rule 68 offer made prior to class certification and rejected by plaintiff does not moot the plaintiff’s claim. The plaintiff, a private high school, brought the action against the corporate developer of a college-entrance exam, alleging violations of the Telephone Consumer Protection Act and an analogous state statute related to unsolicited faxes it received. ... Keep Reading »
Seventh Circuit Cleans Up the Law; Holds Rule 68 Offer of Complete Relief Does Not Render Litigation Moot
In a case that began as a putative class action, the Seventh Circuit held that a Rule 68 offer of complete relief does not render litigation moot. Plaintiff in Chapman v. First Index filed a "junk-fax" suit pursuant to the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., after allegedly receiving two unsolicited and unauthorized faxes from First Index. He demanded $3,000 plus an injunction under § 227(b)(3)(A). Plaintiff proposed to represent a class ... Keep Reading »
Eleventh Circuit Doubles Down on “No Class Tolling” Rule
The Eleventh Circuit has doubled down on its prior holding that a pending class action will not toll the statute of limitations for a later class action seeking to represent the same class. Plaintiff brought a class action alleging violations of the Telephone Consumer Protection Act, which carries a four-year statute of limitations. The state court granted summary judgment against plaintiff for lack of standing. A new plaintiff then sought to represent the class in ... Keep Reading »
Party Waived Right to Compel Arbitration by Waiting to Raise the Defense Until After Class Certification and Shortly Before Trial
After two years of litigation and extensive pretrial discovery, the Tenth Circuit held that cable company Cox Enterprises had waived its right to compel arbitration in an antitrust class action. The opinion is a cautionary tale for defendants not to delay in invoking their arbitration rights, warning against efforts by parties to "game the federal courts and abuse the judicial process" by waiting to raise the arbitration defense until after class certification and ... Keep Reading »
A Message From the Eighth Circuit Regarding the TCPA
The purpose of a telephone solicitation, rather than its content, determines whether it is prohibited telemarketing under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq. That is what the Eighth Circuit determined in a case arising from unsolicited telephone calls with prerecorded messages initiated for the purpose of promoting the motion picture, Last Ounce of Courage. The Golan family, who were registered on federal and state "do not call" ... Keep Reading »