Telephone Consumer Protection Act

Brian Clark v. Via Renewables, Inc., No. 24-cv-00568-JSC, 2026 WL 1805735 (N.D. Cal. June 23, 2026)

Background

Plaintiff filed a putative class action alleging two violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) based on 10 artificial pre-recorded voice calls to his residential telephone line. He filed a motion for class certification, which was denied, then a renewed motion, which was also denied and Plaintiff appealed.

Thereafter, Defendant caused a courier to deliver $45,001 in cash to Plaintiff’s counsel’s office accompanied by a letter stating “[e]nclosed is cash in the amount of $45,001.00 which is tendered unconditionally on behalf of [Defendant]. We believe this fully satisfies any alleged damage Plaintiff may have suffered and all statutory damages he is entitled to; however, if Plaintiff believes he has suffered other damage, please let me know.”  After some “back-and forth discussions, the courier ‘tossed the bank bag with the money on [counsel’s firm’s] reception desk—over the objection of [Plaintiff’s counsel]—and left.’” Plaintiff’s counsel then placed the money in a trust account and emailed Defendant’s counsel stating that the money was rejected and telling counsel to send instructions on how to return it.

Plaintiff did not dispute that the cash payment exceeded the maximum possible damages recoverable on his claims. Defendant moved to dismiss Plaintiff’s individual claims, arguing that its unconditional cash delivery mooted his claims because the Parties no longer had an active case or controversy under Article III.

The Court's Analysis

The Court began by noting the United States Supreme Court’s recognition in Campbell-Ewald v. Gomez, that an unaccepted settlement offer under Federal Rule of Civil Procedure 68 does not moot a plaintiff’s case because an unaccepted offer is considered withdrawn if not accepted within 14 days.  But Campbell-Ewald did not decide whether the result would be different under a hypothetical scenario where a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment in the plaintiff’s favor. The Court also recognized that the Ninth Circuit subsequently addressed that hypothetical scenario, when a defendant sent the plaintiff a letter extending a settlement offer until such time as it was accepted by the plaintiff and deposited the money in a bank escrow account pending entry of a final District Court order or judgment directing the escrow agent to pay the tendered funds to the plaintiff. But in that case, like in Campbell-Ewald, the deposit did not moot the plaintiff’s claims because the plaintiff had “‘not yet received any of the relief on his individual claims [. . .] His claims [were] wholly unsatisfied, and it remain[ed] entirely possible for the court to grant him effectual relief.’”

The Court's Conclusion

What made this case different was that, unlike an unaccepted Rule 68 offer or the deposit pending a judgment:

Plaintiff’s counsel attests they are essentially in possession of $45,001.01, which exceeds the maximum available recovery on Plaintiff’s individual claims, even though counsel refused the money. So, Plaintiff has “actually received all of the relief he [...] could receive on the claim through further litigation,” meaning Plaintiff’s claims are mooted. Now that Plaintiff possesses the money, which Defendant delivered unconditionally, the Court cannot grant any “effectual relief” on Plaintiff’s TCPA claims.

As a result, the Court dismissed Plaintiff’s individual claims as moot.