461 F.Supp.3d 3
D. Mass.2020Background
- Bais Yaakov of Spring Valley sued ACT, Inc. alleging TCPA violations (and a similar New York state claim) based on unsolicited fax transmissions.
- ACT moved to dismiss for lack of subject-matter jurisdiction, arguing the case is moot.
- ACT has not sent the disputed faxes since 2012, removed Bais Yaakov from its databases, and expressly agreed not to send TCPA-violative faxes to Bais Yaakov.
- ACT tendered to Bais Yaakov all individual statutory damages sought and agreed to pay $1,500 for any future fax to Bais Yaakov that fails to include TCPA-required information.
- Bais Yaakov argued the voluntary-cessation exception and questioned the covenant’s enforceability; the court found ACT’s actions and assurances adequate to show the risk of recurrence was not reasonable.
- The court concluded it could not grant meaningful injunctive or monetary relief and granted ACT’s motion to dismiss as moot (Mem. & Order, May 21, 2020, Hillman, D.J.).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Injunctive relief mootness | Voluntary cessation exception: ACT might resume sending unlawful faxes in future | ACT stopped sending faxes since 2012, removed Bais Yaakov from databases, and promised not to send TCPA-violative faxes | Court: No meaningful injunctive relief; voluntary cessation exception inapplicable because recurrence is not reasonably expected |
| Monetary relief mootness | Covenant and tender may be unenforceable; relief still needed | ACT unconditionally tendered all individual statutory damages and provided a contractual promise covering future violations | Court: Tender and covenant make any further award meaningless; monetary claims moot |
Key Cases Cited
- Town of Portsmouth, R.I. v. Lewis, 813 F.3d 54 (1st Cir. 2016) (mootness occurs when issues are no longer live or parties lack a legally cognizable interest)
- American Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44 (1st Cir. 2013) (mootness and the voluntary-cessation standard)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (voluntary cessation exception requires a showing that wrongful behavior could reasonably recur)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (a party that successfully represents absence of a future harm is estopped from later asserting the opposite)
- New Hampshire v. Maine, 532 U.S. 742 (2001) (party may be precluded from contradicting a position previously maintained in litigation)
- Davis v. Wakelee, 156 U.S. 680 (1895) (classic articulation that a party who assumes a position in litigation cannot later contradict it to the prejudice of another)