TCPA ‘Pick Off’ Defense Strategy Still Debated Nationwide

TCPA 'Pick Off' Strategy on Thin Ice After High Court Ruling
– Law360

Law360 interviewed Manatt’s Christine Reilly, co-chair of the firm’s TCPA compliance and class action defense practice, for an article about implications of the Supreme Court’s ruling in Campbell-Ewald v. Gomez.

The court ruled that an unaccepted offer of full relief to individual litigants cannot be used to pick off sweeping class actions. Since then, some businesses attempting to dispose of TCPA disputes have tried to leverage the court's refusal to determine what should happen if a defendant actually pays what it has offered, rather than merely offering to pay up.

Reilly pointed to the potential opening left by a footnote in a recent Second Circuit decision, in which the panel wrote that while it was skeptical that the Campbell-Ewald hypothetical would work, "we need not, and therefore do not, weigh in on whether further maneuvers by the defendant might render a motion to dismiss viable."

"By basically saying that they don't like the strategy but are not willing to say you cannot do it, the Second Circuit panel has left a little slither of hope for the defense bar," Reilly added. "It's like a never ending merry-go-round, and at the end of the day, there's still some confusion in the Second Circuit as to whether the Gomez strategy will succeed."

Read the article here

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