On the heels of a victory in Florida federal court – the dismissal of a putative class action under the Telephone Consumer Protection Act (“TCPA”) – the company that operates the Tampa Bay Buccaneers was sued again for allegedly sending unsolicited “fax blasts” to market tickets to their football games.
The class action complaint was filed by a Florida company that allegedly received one unsolicited fax advertisement in violation of the TCPA. The complaint alleges that the opt-out notice contained in the subject fax did not satisfy the opt-out notice requirements of the TCPA.
This is essentially the same case as the one that was dismissed last month against the Tampa Bay Buccaneers. Unsurprisingly, both cases were filed by the same attorney. However, it appears that the attorney learned his lesson this time around – the complaint was filed simultaneously with the plaintiff’s motion for class certification. As we previously have reported, class action plaintiffs generally file this motion early in the action to prevent the defendant from attempting a “buy off” to moot their claims. In fact, the judge dismissed the prior case as moot because the plaintiffs there did not file the motion for class certification until after the defendant provided offers of judgment to each plaintiff. The offers of judgment essentially offered the complete relief (money damages and an injunction) available to each plaintiff under the TCPA before the motion for class certification was filed. The judge there commented that in general, a defendant’s tactic of “picking off” a class representative is prohibited as predatory. However, the judge looked kindly at the timing of the offers of judgment, which were filed over two weeks after the complaint was served on the defendant. The motion for class certification was filed two days later: too little, too late.
While the Tampa Bay Buccaneers may no longer have the ability to moot the plaintiff’s claims in this action, it will be interesting to see how the organization will respond to this complaint.
If you are interested in learning more about this topic or need to review your marketing practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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