Wilder Chiropractic, Inc. v. Pizza Hut of Southern Wisconsin, Inc.
754 F. Supp. 2d 1009
| W.D. Wis. | 2010Background
- Wilder Chiropractic, Inc. sues Pizza Hut of Southern Wisconsin, Inc. in WD Wis under the TCPA for two March 2006 faxes to plaintiff and over 3,000 others.
- Pizza Hut offered judgment post-filing; an August 4, 2010 offer was withdrawn and an August 17, 2010 offer proposed $1,500 per fax, costs, fees, and injunctive relief for up to 10 named recipients.
- Plaintiff refused the offer and moved to strike or, in the alternative, to certify the class; defendant moved to dismiss as moot.
- Court held the case is not moot so long as class certification is sought, but unresolved questions require supplemental briefing before deciding on class certification.
- Judge directed supplemental materials on ascertainability, inclusion of April 2006 faxes, impact of recipients’ consent, and adequacy of proposed class counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of proposed class after Rule 68 offer before certification | Wilder argues class claims survive; certification keeps alive claims for absent class members | Offer moots the case; no further relief available | Not moot; live controversy if certification motion is pending |
| Appropriateness of class certification under Rule 23 | Common questions predominate; TCPA damages are small and uniform | Defendant has not challenged basic prerequisites; gaps exist in definitions and manageability | Await supplemental briefing before ruling on certification |
| Impact of including April 2006 faxes and ascertainability/consent issues | Class definition should cover relevant faxes; ascertainability required | Consent issues may preclude predominance; needs analysis | Need briefing on ascertainability and consent to determine predominance and class scope |
| Class counsel adequacy under Rule 23(g) | Proposed counsel should be adequate for class representation | No specific flaws raised; needs formal evaluation | To be addressed in supplemental submissions |
Key Cases Cited
- United States v. Roper, 445 U.S. 326 (1980) (offerings under Rule 68 and mootness in class actions context; mootness depends on certification status)
- Susman v. Lincoln American Corp., 587 F.2d 866 (7th Cir.1978) (class action concerns; need to protect absent class members)
- Greisz v. Household Bank (Illinois), N.A., 176 F.3d 1012 (7th Cir.1999) (mootness and class action considerations; context of offers before certification)
- Holstein v. City of Chicago, 29 F.3d 1145 (7th Cir.1994) (mootness in class actions; pick-off concern; certification timing matters)
- Wiesmueller v. Kosobucki, 513 F.3d 784 (7th Cir.2008) (recognizes concerns about buy-off of named plaintiffs in class actions)
- Primax Recoveries, Inc. v. Sevilla, 324 F.3d 544 (7th Cir.2003) (class certification pending prevents mootness from a partial settlement)
- Asch v. Teller, Levit & Silvertrust, P.C., 200 F.R.D. 399 (N.D.Ill.2000) (discussion of class certification timing and offers before certification)