In Campbell-Ewald Company v. Gomez, No. 14-857, currently before the U.S. Supreme Court, the Court is faced head-on with deciding whether defendants should be allowed to resolve class actions by satisfying the claims of the named plaintiff through a Rule 68 offer of judgment (or some other settlement mechanism) and thus defeat the class claims before class certification.
We have an inkling of the deep divide on the Court on this issue from the Court’s 2013 decision in Genesis Healthcare Corp. v. Symczyck, No. 11-1059, in the Fair Labor Standards Act (“FLSA”) collective action setting. In the majority decision, authored by Justice Thomas, and joined by Justices Roberts, Scalia, Kennedy and Alito, the Court found that it was undisputed below that the respondent’s individual claim had been mooted following petitioner’s offer of complete relief to her under Rule 68. With that presumption in mind, the Court held that “respondent ha[d] no personal interest in representing putative, unnamed claimants” from that point forward. In dissent, Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor, took the position that there is some sort of substantive right to proceed as a class: “a judgment satisfying an individual claim does not give a plaintiff like Smith, exercising her right to sue on behalf of other employees, “all that [she] has requested in the complaint (i.e., relief for the class.)”
Of course, the issue of the validity of offers of judgment in the class context was not clearly presented in the Genesis case as the Supreme Court did not decide whether the full offer of relief under Rule 68 mooted the respondent’s individual claim and the case arose in the collective action rather than the class action context. This time, the issue presents itself in the context of the Telephone Consumer Protection Act (“TCPA”). The Court is now well-positioned to decide whether there is a substantive right to proceed with a class action if a named plaintiff’s claim is mooted through an offer of judgment. We just filed an amicus brief in Campbell-Ewald addressing, among other things, why there can be no substantive right for a named plaintiff to proceed as a class representative when her own claim has become moot. Read the amicus brief we filed — 14-857 National Black Chamber of Commerce Amicus Brief.