Consumer Protection – TCPA — mootness

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United States Court of Appeals For the Seventh Circuit

Civil

Consumer Protection – TCPA — mootness

Even though the defendant offered to pay the plaintiff the full statutory damages under the Telephone Consumer Protection Act for any calls that violated the TCPA, the district court erred in dismissing the case as moot.

“Westlake did not offer to satisfy Scott’s entire demand. Westlake offered to pay only for dialer-generated calls and acknowledged only six such calls, significantly fewer than the twenty or more calls Scott identified in her complaint, translating to a difference of at least $21,000 in damages due. That is not an unconditional offer to pay the plaintiff the entirety of her demand. Whether a call is ‘dialer-generated’ within the meaning of the TCPA is a hotly contested issue on the merits. See, e.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 950 (9th Cir. 2009) (reversing grant of summary judgment because of factual dispute on whether defendants had used automated dialer in violation of TCPA). Westlake’s offer amounted to telling Scott it was willing to pay for all calls that in its estimation (or perhaps that of a court) violated the TCPA. Under the sound reasoning of Gates v. Towery, such an offer could not render Scott’s case moot.”

Reversed and Remanded.

13-2699 Scott v. Westlake Services, LLC

Appeal from the United States District Court for the Northern District of Illinois, Castillo, J., Hamilton, J.