In Keim v. ADF MidAtlantic, LLC, 2013 WL 3717737 (S.D.Fla. 2013), Judge Marra allowed a rule an FRCP 68 Offer to moot a Plaintiff’s TCPA class action.
Plaintiff seeks statutory damages at $500.00 per text message for negligent violations of the Act, statutory damages of up to $1,500.00 per text message for each willful violation of the Act, an injunction requiring Defendants to cease all communications in violation of the Act, reasonable attorney’s fees and costs, and such further relief as this Court may deem appropriate. The Rule 68 offer provides that Defendants offer to allow judgment to be entered against them for $1,500.00 “for each and every unsolicited commercial text message … allegedly received by Plaintiff … as alleged in his Class Action Complaint.” Defendants further agree to pay Plaintiff’s costs (including reasonable attorney’s fees), to the entry of a stipulated injunction, and to extend an identical offer (with the exception of taxable costs) to certain other persons. Finally, Defendants’ offer expresses the following: The offer extended herein is intended to fully satisfy the individual claims of [Plaintiff] made in this action or which could have been made in this action, and to satisfy any similar claims of any other person to whom this offer is extended, and to the extent the offer extended does not do so, [Defendants] hereby offer to provide [Plaintiff] or any other eligible person or entity to whom this offer was extended, with any other relief which is determined by the Court to be necessary to fully satisfy all of the individual claims of [Plaintiff] in the action or similar claims of any other person or entity to whom this offer is extended. In other words, Defendants want to settle this suit even if it means providing additional relief determined by the Court to be necessary to fully satisfy all of Plaintiff’s individual claims.