Lewis & Lin Defeats Class Action Asserting TCPA Violation

In a major victory for our client, Lewis & Lin LLC obtained a dismissal of a proposed class action lawsuit alleging violation of the federal Telephone Consumer Protection Act (“TCPA”). The TCPA, enacted in 1991, restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment. It also limits the use of automatic dialing systems, prerecorded voice messages, text messages, and faxes in consumer marketing.The plaintiff’s complaint, filed in federal court in Florida, alleged that defendant violated the TCPA by faxing him an unsolicited advertisement without the required “opt-out” notice. Plaintiff sought statutory damages, plus attorney’s fees, costs, and injunctive relief, on behalf of himself and all others similarly situated.Immediately upon notice of the case, Lewis & Lin made an offer of judgment in accordance with Rule 68 of the Federal Rules of Civil Procedure. We then filed a motion to dismiss the case based on the mootness of the named plaintiff’s claim. Plaintiff argued that the attempt to “pick off” the named plaintiff in a class action suit was inappropriate.In its decision, the district court judge recognized the existence of a split of authority, both across federal circuits and within the 11th Circuit, about whether a defendant can moot a putative class action claim by making an offer that satisfies only the individual plaintiff’s entire claim. However, the court agreed with Lewis & Lin’s position, that “allowing a case, not certified as a class action and with no motion for class certification even pending, to continue in federal court when the sole plaintiff no longer maintains a personal stake defies the limits on federal jurisdiction.” Thus, the court concluded, Lewis & Lin’s offer of judgment mooted plaintiff’s claims “notwithstanding the fact that [plaintiff] has alleged a class action claim in his complaint. Accordingly, the complaint was dismissed with prejudice. The case is Barr v. International Dental Supply Co., No. 13-CIV-61981 (S.D. Fla.).