Telephone Consumer Protection Act

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Civil

7^th Circuit Court of Appeals

Officials: OSNER, EASTERBROOK, and MANION, Circuit Judges

Telephone Consumer Protection Act

No. 14-2775; 14-2773 Arnold Chapman v. First Index, Incorporated

Defendant full compensatory offer does not render litigation moot when offer is pulled. Damasco v. Clearwire Corp., 662 F.3d 891, 895 (7^th Cir. 2011); Thorogood v. Sears, Roebuck & Co., 595 F.3d 750, 752 (7th Cir. 2010); Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991) overruled on issue of mootness.

“Rule 68(d) provides the consequence of a decision not to accept: “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Failure to accept a fully compensatory offer also may suggest that the plaintiff is a bad representative of the class, for he has nothing to gain (implying poor incentives to monitor counsel) and may have given up something the class values (here, an injunction that would have stopped any further improper faxing). But all of these upshots differ from outright dismissal on the basis of mootness. We overrule Damasco, Thorogood, Rand, and similar decisions to the extent they hold that a defendant’s offer of full compensation moots the litigation or otherwise ends the Article III case or controversy. As Circuit Rule 40(e) requires, this opinion has been circulated to all judges in active service. None favored a hearing en banc.”

Affirmed in part. Vacated in part.

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