In Wasvary v. WB Holdings, LLC, 2015 WL 5161370, at *6-7 (E.D.Mich., 2015) , Judge Cox found that a TCPA class action plaintiff could not avoid a Rule 68 “pick-off” offer by filing a premature, pre-emptive Motion for Class Certification.
In cases involving statutory damages that are small in amount, like TCPA cases, Defendants often attempt to “pick off” the named plaintiff in a putative class action by making a Rule 68 offer of judgment that gives the named plaintiff all the relief that he or she would be able to obtain on their individual claim. Some courts have ruled that you cannot “pick off” a named plaintiff in a putative class action if there is a motion for class certification pending. The Sixth Circuit has not ruled on this particular issue. Nevertheless, in order to try to stop the defendant from picking off the named plaintiff in a TCPA case, plaintiff’s counsel sometimes file premature “placeholder” motions when they file a putative class action under the TCPA, or other statutes with small statutory damages. That is what Plaintiff’s Counsel have done here. Plaintiff’s Counsel in this case have been quite candid that they are not fully complying with the local rules and that they are filing a premature motion to try to stop Defendants from picking off the named plaintiff and getting this case dismissed. (See, e.g. Pl.’s Br. at 12, acknowledging that the Sixth Circuit has not resolved the question of whether pick-offs are appropriate or how a Plaintiff may shield itself from being picked off). Defendants ask the Court to strike or deny Plaintiff’s placeholder Motion for Class Certification as premature. Defendants direct the Court to three district court cases wherein a district has dismissed such motions as premature. Mey v. N. Am. Bancard, LLC, 2014 WL 6686773 at * 2 (E.D.Mich.2014); Beaudry v. Telecheck Svs., Inc., 2010 WL 2901781 at *2 (M.D.Tenn.2010); and Minniti v. Eilers, 302 F.R.D. 655 (S.D.Fla.2014). In Mey, the district court dismissed a Motion for Class Certification that, like the one in this case, was filed simultaneously with the complaint, explaining: “In this case, Plaintiff filed a motion for class certification simultaneously with her Complaint, but prior to serving Defendant and prior to any scheduling conference with the Court. Courts have held that the court need not hold in abeyance a class certification motion which the plaintiff intentionally filed prematurely. Courts typically dismiss premature motions. See, Beaudry v. Telecheck Serv., Inc., 2010 WL 2901781, at *2 (W.D.Tenn. July 20, 2010). Plaintiff argues that without a pending class certification motion on the docket, the defendant, as in this case, would be able to frustrate the class-action process by settling with the named-plaintiff or by making a Rule 68 offer of judgment which would moot the individual claim. Id. Courts, however, have rejected a “placeholder” motion for class certification. Id. Id. at *2.” This Court shall deny Plaintiff’s Motion for Class Certification without prejudice because the motion is premature and there is neither a procedural rule nor any Sixth Circuit authority that allows for the filing of such premature, “placeholder motions.”
Judge Cox then found that the Rule 68 offer mooted the case.
In O’Brien, the Sixth Circuit has held that an unaccepted offer of judgment, such as the offer of judgment here, can moot a case. O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d at 574 (6th Cir.2009). In that case, the Sixth Circuit held that “a Rule 68 Offer can be used to show that the court lacks subject-matter jurisdiction. See Greisz v. Household Bank (Ill.), N.A., 176 F.3d 1012, 1015 (7th Cir.1999) (an offer of judgment that encompasses the relief claimed ‘eliminates a legal dispute upon which federal jurisdiction can be based,’ because ‘[y]ou cannot persist in suing after you’ve won’).” Id. at 574. The Sixth Circuit explained “[w]e agree with the Seventh Circuit’s view that an offer of judgment that satisfies a plaintiff’s entire demand moots the case.” O’Brien, 575 F.3d at 574. It “disagree[d], however with the Seventh Circuit’s view that a plaintiff loses outright when he refuses an offer of judgment that would satisfy his entire demand.” Id. at 575. “Instead, we believe the better approach is to enter judgment in favor of the plaintiffs in accordance with the defendants’ Rule 68 offer of judgment, as the district court did in this case.” Id. Accordingly, under O’Brien, where the defendant has offered a Rule 68 offer of judgment that satisfies a plaintiff’s entire demand, the district court should enter judgment in favor of the plaintiff in accordance with the Rule 68 offer of judgment and dismiss the case as moot. Thus, this Court must consider whether Defendants’ Offer of Judgment satisfies Wasvary’s entire demand. The TCPA provides for statutory damages of $500 per violation, or $1,500 per violation if the Court determines the conduct was willful or intentional. Because Wasvary alleges that he received four different texts from Defendants, Wasvary’s maximum damages are $2,000 or, if the Court determines the conduct was willful or intentional, $6,000. Defendants’ Offer of Judgment offers Wasvary $6,010.00 in statutory damages. (Defs.’ Offer of Judgment at 2). Thus, it offers $10.00 more than Wasvary could obtain in statutory damages. Defendants’ Offer of Judgment also offered to “submit to an injunction prohibiting them from taking part in any activity that violates” the TCPA. Thus, Defendants offer to submit to any injunctive relief that Wasvary could obtain in this action. Defendants’ Offer of Judgment also states that Defendants agree to pay Plaintiff’s costs. Finally, although it does not appear that attorney fees are authorized under the TCPA (see 47 U.S.C. § 227 et seq.; Klein v. Vision Lab Telecom., Inc., 399 F.Supp.2d 528, 542 (S.D.N.Y.2005) (noting absent explicit congressional authorization, attorney fees are generally not recoverable and noting that the TCPA makes no provision for an award of attorneys’ fees), Defendants’ Offer of Judgment offers to pay Wasvary’s reasonable attorneys’ fees. Specifically, the Offer of Judgment states that Defendants agree to pay Plaintiff’s “reasonable” “attorneys’ fees accrued through the date of acceptance, in an amount to be determined by the Court …” (Defs.’ Offer of Judgment at 2). This Court concludes that Defendants’ Rule 68 Offer of Judgment in this case provides Wasvary with all relief that he sought as an individual plaintiff, and all the relief that he could potentially obtain in this action (or more) with respect to his individual claim. Accordingly, under O’Brien, this Court will enter judgment in his favor, in accordance with the monetary damages, injunctive relief, and attorney fees/costs provisions of the Rule 68 offer of judgment and dismiss this case as moot.