Congratulations to the Firm’s client, car2go, who obtained Judgment on the Pleadings in the District Court for the Western District of Washington on its affirmative defense of “prior express consent” in a class action filed under the TCPA. Eric Troutman, who practices in the Firm’s Orange County Office but who also is a member of the Washington State Bar, represented car2go in the matter. In Aderhold v. Car2Go N.A., LLC, 2014 WL 794802 (U.S.D.C. W.D. Wash. 2014), a copy of which can be found here, Judge Jones granted judgment on the pleadings against a TCPA Class-Action Plaintiff on the Defendant’s affirmative defense of “prior express consent”. The facts were as follows:
Plaintiff complained that he should not be bound by the “Browswrap” disclosures contained in car2go’s Terms and Conditions and, even if he was, that they inadequately disclosed that he would receive a text message back from car2go to complete the registration process once he provided his contact information. Judge Jones rejected the contention under Satterfield:
Judge Jones held, however, that the defendant’s Rule 68 Offer of Judgment did not moot the Plaintiff’s case.
“[A]n unaccepted Rule 68 offer that would have fully satisfied a plaintiff’s claim does not render that claim moot.” Diaz v. First Am. Home Buyers Protection Corp., 732 F.3d 948, 954–55 (9th Cir.2013). The holding from Diaz, which the Ninth Circuit issued after the parties completed briefing on the motions before the court, is dispositive of car2go’s challenge to the court’s subject matter jurisdiction. As car2go has noted, courts of appeals and “the majority of courts and commentators” have come to a different conclusion than the Ninth Circuit reached in Diaz. 732 F.3d at 952–53 & n. 5 (citing Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir.1991), O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 574–75 (6th Cir.2009), as well as similar decisions of the Third, Fourth, Fifth and Tenth Circuits along with leading civil procedure treatises). The Supreme Court has expressly declined to resolve the question. Genesis Healthcare Corp. v. Symczyk, ––– U.S. ––––, –––– – ––––, 133 S.Ct. 1523, 1528–29, 185 L.Ed.2d 636 (2013) (“While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.”). Four dissenting justices in Genesis Healthcare, however, would have reached the question, and would have held that an unaccepted Rule 68 offer, even one that affords complete relief, moots nothing. Id. at 1534–35 (Kagan, J., dissenting). It was the reasoning of Justice Kagan’s dissent in Genesis Healthcare that the Ninth Circuit adopted in Diaz. 732 F.3d at 954 (“We are persuaded that Justice Kagan has articulated the correct approach.”). Justice Kagan’s dissent and the Diaz panel articulated one exception to the rule they articulated: a court “may have ‘discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant unconditionally surrenders and only the plaintiff’s obstinacy or madness prevents her from accepting total victory.’ ” Diaz, 732 F.3d at 955 (internal quotation to Genesis Healthcare, 133 S.Ct. at 1536. But in Diaz, where the plaintiff hoping to represent a class had rejected an offer more favorable than she could have obtained on her individual claim, the court found the plaintiff insufficiently obstinate or mad. 732 F.3d at 955. The court reaches the same conclusion as to Mr. Aderhold.FN1 The court notes, moreover, that although Mr. Aderhold filed a notice of supplemental authority identifying Diaz, car2go did not request leave to file supplemental briefing addressing that case.
Aderhold v. Car2go N.A., LLC, 2014 WL 794805 (W.D.Wash. 2014)