Clark v. Via Renewables: A $45,001 Cash Delivery Moots an Individual Telephone Consumer Protection Act Claim

Background

The plaintiff alleged that his residential number had been on the National Do Not Call Registry since 2007, and that in March 2023 the defendant made ten calls leaving identical prerecorded messages. He asserted two TCPA claims seeking $500 per violation, $1,500 per willful violation, and injunctive relief. The court twice denied class certification, and the plaintiff took an interlocutory appeal to the Ninth Circuit.

On March 23, 2026, defense counsel delivered $45,001.00 in cash to plaintiff's counsel's office, calculated as 15 calls at $1,500 for each of two claims, plus one dollar. The accompanying letter stated the money was "tendered unconditionally." Plaintiff's counsel refused it, but the courier left the bank bag at the reception desk. Counsel deposited the cash in a trust account and requested instructions concerning its return.

The Legal Framework

In Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016), the Supreme Court held that an unaccepted Rule 68 offer does not moot a case, but reserved whether the result would differ if a defendant deposits the full amount in an account payable to the plaintiff and the court enters judgment. The Ninth Circuit took up that hypothetical in Chen v. Allstate Insurance Co., 819 F.3d 1136 (9th Cir. 2016), holding that an individual claim becomes moot when the plaintiff actually receives all the relief he could obtain through litigation. Funds held in escrow pending a court order did not qualify, because the defendant retained an interest in them.

The Court's Analysis

Unlike a Rule 68 offer or the Chen escrow, the delivery was unconditional, and plaintiff's side now possessed money exceeding the maximum recovery. The plaintiff did not dispute that $45,001 exceeded his maximum damages. Nor did he dispute that injunctive relief was unnecessary, because his number had been placed on the defendant's internal do not call list in May 2024. The court therefore could grant no further effectual relief.

The court rejected the argument that dismissal rewarded an attempt to "pick off" a class representative. Class certification had already been denied, so no class claims were at risk, and the defendant did not argue the class claims or the appeal were moot. Under Supreme Court precedent, mooting a named plaintiff's personal claims does not necessarily end his right to appeal the class certification denial. The court deferred final judgment until the Ninth Circuit rules.

Practical Implications

For defendants, the order suggests that an actual, unconditional payment of full relief, rather than an offer or a conditional escrow, may end individual TCPA litigation in the Ninth Circuit once class certification is denied. The tender should cover every claim at the willful rate and address injunctive relief, for example by documenting placement on an internal do not call list.

For plaintiffs, refusing delivery may not prevent mootness when the money is physically left behind. The timing also matters: before certification is resolved, pick off concerns carry more weight. In other jurisdictions, unaccepted tenders may be viewed differently.

Read the Northern District of California's order in Clark v. Via Renewables.