Arnold Chapman v. First Index, Incorporated, 796 F.3d 783

Chapman sued First Index under the TCPA (47 U.S.C. §227) for unsolicited commercial faxes and alleged missing/deficient opt-out notices.
Original class claim (non-consenting recipients since Aug 2005) denied because many recipients may have given oral consent, making class membership individualized.
Chapman later sought certification of a class defined by faxes with missing or defective opt-out notices; the district court rejected this as untimely (filed >4 years into the case and 18 months after discovery closed).
The district court dismissed Chapman’s individual claim as moot after First Index made a Rule 68 offer of judgment ($3,002, injunction, costs) that Chapman did not accept and which later expired.
The Seventh Circuit held the district court did not abuse discretion in denying the late notice-based class and denied intervention by All American Painting; but it vacated the dismissal of Chapman’s individual claim and remanded for merits because an unaccepted, expired offer does not render the case moot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a class of non-consenting fax recipients could be certified	Chapman: many recipients did not consent; class ascertainable	First Index: many recipients gave oral consent (trade shows/phone), making class membership individualized	District court correctly denied certification of consent-based class for predominance/ascertainability reasons; affirmed
Whether a late-shifted class defined by opt-out notice defects could be certified	Chapman: alternative class (missing/defective opt-out notices) is proper	First Index: motion is untimely and prejudicial after discovery and resolution of consent issues	District court did not abuse discretion in denying the late-notice class; affirmed
Whether All American Painting could intervene as replacement class representative	All American: may intervene to pursue notice-based class if Chapman dismissed	First Index: intervention unnecessary because notice class not certifiable; untimely	Denial of intervention affirmed
Whether an unaccepted Rule 68 offer that would fully satisfy plaintiff’s demand renders the case moot	Chapman: offer does not moot the case because relief remains possible	First Index: offer mooted claim (district court conclusion)	Seventh Circuit: an unaccepted, expired offer does not moot the case; district-court dismissal for mootness vacated and remanded for merits

Knox v. Service Employees Int’l Union, 132 S. Ct. 2277 (2012) (mootness requires impossibility of granting any effectual relief)
Kasalo v. Harris & Harris, Ltd., 656 F.3d 557 (7th Cir. 2011) (Rule 23 judge defines class; complaint need not be amended to propose class)
Greisz v. Household Bank, 176 F.3d 1012 (7th Cir. 1999) (rejecting continued litigation after full compensation; Rule 68 consequences)
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) (Supreme Court decision on offer-of-judgment/mootness; majority did not resolve issue presented)
Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011) (prior Seventh Circuit view that full-offer may moot litigation—overruled to the extent inconsistent)
Thorogood v. Sears, Roebuck & Co., 595 F.3d 750 (7th Cir. 2010) (similar prior position on offer-induced mootness)
Rand v. Monsanto Co., 926 F.2d 596 (7th Cir. 1991) (earlier Seventh Circuit decision applying offer-as-moot reasoning)
Smith v. Greystone Alliance, LLC, 772 F.3d 448 (7th Cir. 2014) (an offer moots only if it covers everything the plaintiff wants)
Tanasasi v. New Alliance Bank, 786 F.3d 195 (2d Cir. 2015) (post-Genesis authority agreeing that an unaccepted offer does not moot the case)
Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) (same; Supreme Court review granted)