The new year is off to a busy start, and it appears 2015 will bring additional Circuit-level clarity to an issue the Supreme Court left open in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013): whether an offer of complete relief to a named plaintiff in a putative class action moots the named plaintiff’s claim. The resolution of that issue, and the related question whether named plaintiffs can continue to pursue claims on behalf of a putative class after their individual claims become moot, will have a major impact on class action litigation, particularly in cases that seek statutory damages such as those available under the TCPA.

District courts remain split on the issue; indeed, disagreement continues even among courts within the same Circuit. Compare Lary v. Rexall Sundown, Inc., Civil No. 13-5769, 2015 WL 590301 (E.D.N.Y. Feb. 10, 2015) (dismissing putative class claims as moot and entering judgment in favor of named plaintiff individually in accordance with unaccepted offer of judgment that provided named plaintinff with complete relief) with Mey v. Frontier Communications Corp., Civil No. 13-1191, 2014 WL 6977746 (D. Conn. Dec. 9, 2014) (declining to dismiss case as moot where unaccepted offer of judgment provided named plaintiff all the relief she sought on her own behalf and finding that putative class claims still present live controversy).

Near the end of 2014, the Eleventh Circuit adopted Justice Kagan’s dissent in Genesis Healthcare, and concluded that an unaccepted offer of judgment to a named plaintiff in a putative class action is a legal nullity that did not moot the named plaintiff’s claim. Stein v. Buccaneers, L.P., No. 13-15417 (11th Cir. Dec. 1, 2014). A copy of the decision is available here. Although it could have stopped there, the court went further and suggested that, even if the named plaintiff’s individual claim was moot, he still could pursue claims on behalf of the putative class, including claims for statutory damages under the TCPA, pursuant to the “relation back” exception to the mootness doctrine. Under that exception, an “inherently transitory” class action claim that is “capable of repetition, yet evading review” is not necessarily moot upon the expiration of the named plaintiff’s claim, and the court suggested that a defendant’s ability to moot a named plaintiff’s claim for damages through an offer of complete relief is sufficient to render a case inherently transitory. Interestingly, the court acknowledged the “tension” between its analysis on this point and the Supreme Court’s decision in Genesis Healthcare.

In late January 2015, the Fifth Circuit rejected an attempt to expand the “relation back” exception to mootness, and in so doing called into question the Eleventh Circuit’s analysis. In Fontenot v. McCraw, No. 13-20611, 2015 WL 304151 (5th Cir. Jan. 23, 2015), the plaintiffs sued government officials in a putative class action, seeking injunctive relief to correct their driving records. While the case was pending the defendants corrected the named plaintiffs’ records, which the court held rendered their individual claims moot. In analyzing whether the plaintiffs could continue pursuing claims on behalf of the putative class, the court observed that, in Genesis Healthcare, the Supreme Court clarified that the basis for the relation back exception “is focused not on the defendant’s litigation strategy, but on the substance of the plaintiff’s claim,” and undermined the argument that the strategy of “picking off” a named plaintiff in a class action seeking money damages could render a case inherently transitory. Ultimately, the court concluded that because class certification had not been granted and plaintiffs had not even filed a motion for class certification at the time their claims became moot, none of the pre-existing exceptions to the mootness doctrine applied, and held that once the named plaintiffs’ “individual records correction claims became moot, so did the class action case.” A copy of the decision is available here.

Other appeals involving these issues currently are pending in other Circuits and likely will be decided in 2015. See, e.g., Bais Yaakov of Spring Valley v. ACT, Inc., No. 14-1789 (1st Cir.); Tanasi v. New Alliance Bank, 14-1389 (2d Cir.).

Of course, only the Supreme Court can put any doubt to rest once and for all. Notably, a petition for certiorari was filed on January 16, 2015, squarely raising these issues in a TCPA class action. Petition for Writ of Certiorari, Campbell-Ewald v. Gomez, No. 14-857 (U.S.). A copy of the petition is available here. Whether the Court will accept the case remains to be seen. One thing is for certain though: both the plaintiff’s and defense bar will be watching closely.