TCPA Offers of Judgment: Using Rule 68 and Section 998 to End a Suit
A Rule 68 offer of judgment won’t end a TCPA lawsuit by itself. The Supreme Court held in 2016 that an ignored offer leaves the case alive, and because the TCPA doesn’t shift attorney’s fees, a rejected federal offer moves only modest court costs. Offers still matter. Paid in full, not just offered, or made under California’s Code of Civil Procedure § 998 in state court, they can bring an individual TCPA suit to an early close and change the plaintiff’s settlement math.
How does a Rule 68 offer of judgment work in a TCPA case?
It’s a formal offer to let the plaintiff take a judgment on stated terms, and its only built-in teeth are costs. Under Federal Rule of Civil Procedure 68, “a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” The plaintiff has 14 days to accept in writing. If it does, the clerk enters judgment. If it doesn’t, the consequence comes at the end of the case: “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made,” per Rule 68(d).
In most federal cases, “costs” is a short list. The Supreme Court held in Marek v. Chesny that when the underlying statute defines costs to include attorney’s fees, “such fees are to be included as costs for purposes of Rule 68.” Fees don’t come along otherwise. The TCPA’s private damages provisions in 47 U.S.C. § 227(b)(3) and (c)(5) don’t award fees at all, which is why the defendant in Campbell-Ewald left fees out of its offer “because the TCPA does not provide for an attorney’s-fee award.” So what shifts is the taxable-cost list in 28 U.S.C. § 1920, which starts with “Fees of the clerk and marshal” and also covers transcripts and docket fees. In an individual TCPA case, that’s usually modest next to the damages claimed, and it never includes the plaintiff’s lawyer’s time.
The rule also doesn’t help a company that wins outright. In Delta Air Lines, Inc. v. August, the Court read its text to mean “it applies only to offers made by the defendant and only to judgments obtained by the plaintiff.” A defense win gets ordinary costs under other rules.
I think the real value of a Rule 68 offer in a TCPA case is the number it puts on the record. A plaintiff who turns down an offer covering every call at the statutory maximum has to explain what the case is still about.
Why doesn’t an unaccepted offer end the case?
Because the Supreme Court said so in a TCPA case. In Campbell-Ewald Co. v. Gomez, an advertising and marketing agency offered the named plaintiff trebled damages for each text and an injunction before he moved to certify a class. He let the offer lapse. The Court held that “an unaccepted settlement offer or offer of judgment does not moot” the plaintiff’s case, adopting the view that an unaccepted offer “is a legal nullity, with no operative effect.”
Before that decision, federal appeals courts had disagreed about whether an offer of full relief ended the case. That tactic is gone, and I don’t recommend making an offer on the theory that it alone will force a dismissal. What Campbell-Ewald left open is the next step. The Court said it would not decide the case where a defendant “deposits the full amount” of the individual claim “in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”
Can paying the plaintiff in full end the case?
Sometimes. The Ninth Circuit draws the line between money offered and money actually received. In Chen v. Allstate Insurance Co., a TCPA defendant put $20,000 into escrow, to be released only if the court dismissed the case. The court held that “a claim becomes moot when a plaintiff actually receives complete relief on that claim, not merely when that relief is offered or tendered.” Escrow wasn’t enough. Chen also says a judge shouldn’t enter judgment on a named plaintiff’s claims, over the plaintiff’s objection, “before the plaintiff has had a fair opportunity to move for class certification.”
In June 2026, a federal court in San Francisco applied that line to a cash delivery. In Clark v. Via Renewables, Inc., No. 24-cv-00568-JSC (N.D. Cal. June 23, 2026), the court denied class certification twice before any payment arrived. The order states that defense counsel “delivered $45,001.00 in cash to” the plaintiff’s lawyers, and that the courier left the money at their reception desk after they refused it. The court concluded that the “cash delivery of $45,001.00 moots Plaintiff’s individual claims,” noting the plaintiff didn’t dispute that the amount exceeded his maximum possible recovery. It’s one district court’s order, not settled law, and other judges may draw the line differently.
The order rests on the payment being unconditional and covering more than the plaintiff could win at trial. It also notes the plaintiff didn’t dispute the company’s showing that more calls weren’t a risk, since his number had been on its internal do-not-call list since 2024. Those are the design rules for any tender. A payment held back until dismissal, or one that falls short of the willful maximum, fails the Chen test. And none of it works against a live class claim before the plaintiff has had a fair shot at certification. I’d treat a full payment as an option for an individual case, or for one where certification has been denied, not as a way around a class.
How does a § 998 offer work in a California state-court TCPA case?
It works much like Rule 68, but it reaches further and either side can use it. The Supreme Court held in Mims v. Arrow Financial Services, LLC that “federal and state courts have concurrent jurisdiction over private suits arising under the TCPA,” so many California plaintiffs file in superior court.
There, California’s offer statute governs. Under Code of Civil Procedure § 998, “any party may serve an offer in writing upon any other party to the action to allow judgment to be taken.” If a defendant’s offer is refused and the plaintiff doesn’t do better, “the plaintiff shall not recover their postoffer costs and shall pay the defendant’s costs from the time of the offer.” The court may also order the plaintiff to pay the reasonable cost of the defense’s expert witnesses after the offer. Those costs come out of any damages the plaintiff wins.
That expert-fee piece is why I prefer a § 998 offer to a Rule 68 offer when a company has the choice. TCPA defenses often lean on experts, such as a dialer engineer or a data analyst working through consent and opt-out records. Rule 68 can’t shift those fees. Section 998 can.
California courts add a condition. An offer has to be made in good faith, which Elrod v. Oregon Cummins Diesel, Inc. described as an offer that “must carry with it some reasonable prospect of acceptance.” I wouldn’t expect a $500 offer on a ten-call complaint to qualify. The statute also cuts both ways. A plaintiff can serve its own § 998 demand, and a defendant that refuses it and then does worse at trial may be ordered to pay the plaintiff’s expert costs. And it carries a benefit some companies care about: under § 998(f), “Any judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.”
| Tool | Who can use it | What shifts if the plaintiff doesn’t beat it | Ends the case if refused? |
|---|---|---|---|
| Rule 68 offer (federal court) | Defendant only | Plaintiff pays post-offer taxable costs, but no attorney’s fees under the TCPA | No, under Campbell-Ewald |
| § 998 offer (California court) | Either side | Plaintiff loses post-offer costs, pays the defense’s costs, and may pay its expert fees | No, but cost exposure grows |
| Unconditional full payment | Defendant | Aims at mootness, not costs | Possibly, if received and complete, but contested before class certification |
How do you value an offer against per-call damages?
Start with the ceiling, because an offer below it won’t moot anything and an offer at it makes refusal hard to defend. Under 47 U.S.C. § 227(b)(3), a plaintiff can “receive $500 in damages for each such violation” of the robocall provisions, which cover calls made with an autodialer (equipment that generates numbers randomly or sequentially) or a prerecorded or artificial voice (a recorded or synthetic message instead of a live person). A court may raise that to “not more than 3 times” that amount if the company acted willfully or knowingly. The Do Not Call claim under § 227(c)(5), for repeated telemarketing calls to numbers on the National Do Not Call Registry (the federal list of people who have opted out of telemarketing), works the same way. So the ceiling for ten calls on one theory is $5,000 at the base rate and up to $15,000 if a court finds the conduct willful or knowing. If the complaint pleads two theories for the same calls, expect the plaintiff to argue that the ceiling doubles, and price the offer with that argument in mind.
Then build in margin. The payment letter quoted in the Clark order priced the tender at the trebled rate, the most a court can award for willful or knowing violations, as “(15 calls x $1,500) x 2 claims” plus a dollar. The complaint described ten calls. A cushion like that leaves the plaintiff little to argue about. A Rule 68 offer should also expressly include accrued costs and an agreement to stop calling the number, since a plaintiff who asked for an injunction can argue that money alone isn’t complete relief.
Last, compare the ceiling with what defending the case will cost. For a single plaintiff with a handful of calls, the willful maximum is often less than the defense will spend getting to summary judgment. In my view that’s frequently the cheapest exit, and paying it isn’t an admission. The offer in Campbell-Ewald “did not admit liability.” The harder call comes when the plaintiff has pleaded a class. Paying one plaintiff then may invite the next one, a pattern our post on serial TCPA plaintiffs looks at from the defense side.
Before the company makes an offer or sends payment
- Put a litigation hold on the call and text logs, dialer or platform data, and consent records for the plaintiff’s number, since those records set the call count your offer has to cover.
- Pull the internal do-not-call and opt-out logs, including the date the number was added, which answers the injunction question.
- Pull the National Do Not Call Registry scrub records and the version dates used for the campaign.
- Gather vendor and lead-source contracts, call scripts, and any prerecorded or AI-voice message files.
- Talk to a lawyer before making an offer, sending payment, or contacting the plaintiff, and check whether your insurer must consent to any offer first.
The firm’s TCPA defense lawyers page summarizes how claims involving prerecorded calls and Do Not Call Registry complaints are defended.
What defendants ask about TCPA offers of judgment
Can a TCPA plaintiff make a Rule 68 offer to the company?
No. Rule 68 belongs to the party defending a claim, so in federal court only the company can use it. California is different. Under § 998, either side can serve an offer, and a plaintiff’s well-priced demand can expose a company that refuses it, and then fails to beat it, to the plaintiff’s post-offer expert costs. A company litigating in state court should treat a plaintiff’s § 998 demand as a real number, not an opening bid.
Does accepting a Rule 68 offer mean a judgment against the company?
Yes. Once the plaintiff files a written acceptance, the clerk enters judgment on the offer’s terms. Some companies prefer a private settlement with a release and confidentiality terms, which a Rule 68 judgment doesn’t provide. In California, a judgment entered under § 998 is treated by statute as a compromise settlement. Which form fits depends on the company’s other exposure and how much a public judgment matters to it.
Can we make a second, higher offer later?
Yes. Rule 68(b) says an unaccepted offer “does not preclude a later offer.” One sequence I like is an early offer at the base-rate exposure and a later one near the willful maximum once discovery firms up the call count. Cost-shifting under both Rule 68 and § 998 runs from when an offer was made, so the timing of the stronger offer matters.
Does paying the named plaintiff end a TCPA class action?
Not while the class claims are live. Under Campbell-Ewald, an unaccepted offer doesn’t moot the case, and the Ninth Circuit in Chen said a named plaintiff must get a fair opportunity to seek class certification before a court enters judgment on that plaintiff’s claims. The Clark order mooted individual claims only after certification had been denied.
Weighing an early offer in a TCPA suit?
If your company has been sued over a handful of calls or texts, the call records and opt-out logs usually decide whether an early offer or a full payment can end the case. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving prerecorded calls and Do Not Call Registry complaints. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.
Sources
The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The offer rules are Federal Rule of Civil Procedure 68 and California Code of Civil Procedure § 998, as amended effective January 1, 2025. Federal taxable costs are listed at 28 U.S.C. § 1920.
The court decisions are Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016); Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012); Marek v. Chesny, 473 U.S. 1 (1985); Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981); Chen v. Allstate Insurance Co., 819 F.3d 1136 (9th Cir. 2016); Elrod v. Oregon Cummins Diesel, Inc., 195 Cal. App. 3d 692 (1987); and Clark v. Via Renewables, Inc., No. 24-cv-00568-JSC (N.D. Cal. June 23, 2026).
This post is general information about the Telephone Consumer Protection Act and related laws as of July 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.