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.

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.