Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies,”1×1. U.S. Const. art. III, § 2, cl. 1. which the Supreme Court has understood as requiring a plaintiff to possess a live “personal stake”2×2. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013) (quoting Camreta v. Greene, 563 U.S. 692, 701 (2011)). in the outcome of the action at all points during the litigation. Otherwise, the case is moot.3×3. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). In the class action context, the Supreme Court has held that if a named plaintiff’s individual claim becomes moot after class certification, the class action remains justiciable. It has not, however, provided clear guidance when a named plaintiff’s claim becomes moot before class certification.4×4. See William B. Rubenstein, Newberg on Class Actions § 2:15, at 39 (5th ed. 2011 & Supp. 2016). Against this uncertainty, class action defendants had been making offers of complete relief to named plaintiffs prior to class certification decisions and argued that such offers, even if unaccepted, mooted the named plaintiff’s individual claim and, consequently, the putative class action.5×5. See David Hill Koysza, Note, Preventing Defendants from Mooting Class Actions by Picking Off Named Plaintiffs, 53 Duke L.J. 781, 789–92 (2003). In Campbell-Ewald Co. v. Gomez,6×6. 136 S. Ct. 663 (2016). the Court held that an unaccepted offer of complete relief does not moot a plaintiff’s individual claim. While Campbell-Ewald provided some immediate relief for class action plaintiffs, its narrow holding left the door open for defendants to craft new ways to moot class actions before they begin. Still, the majority expressed unease with these opportunistic tactics, an anxiety that could be a harbinger of potential innovations to class action mootness doctrine. Should they occur, such developments would accord with the more functional approach to mootness doctrine that the Court has taken generally and in the class action context particularly.
In 2000, the United States Navy hired Campbell-Ewald Company (Campbell), a national advertising and marketing consulting firm, “to develop and execute a multimedia recruiting campaign.”7×7. Id. at 667. Campbell contracted with Mindmatics LLC, which transmitted a text message to over 100,000 young adults between the ages of eighteen and twenty-four who had previously consented to receiving such material from the Navy.8×8. Id. The text message read: “Destined for something big? Do it in the Navy. Get a career. An education. And a chance to serve a greater cause. For a FREE Navy video call [phone number].” Id. (alteration in original). In May 2006, Jose Gomez received one of those messages.9×9. Id. Claiming that he had never consented to receiving the message — and that he was nearly forty years old — Gomez filed a class action complaint against Campbell pursuant to the Telephone Consumer Protection Act10×10. 47 U.S.C. § 227 (2012). (TCPA), which prohibits “mak[ing] any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a paging service [or] cellular telephone service” without “the prior express consent of the called party.”11×11. Id. § 227(b)(1)(A); Campbell-Ewald, 136 S. Ct. at 667. It was undisputed that a text message counts as a “call” for the purposes of the TCPA. Id. And § 227(b)(3) of the Act creates a private right of action, under which a successful plaintiff recovers the greater of $500 or the “actual monetary loss” of the violation. 47 U.S.C. § 227(b)(3). Gomez, on behalf of himself and a nationwide class of individuals, sought treble damages, costs, attorney’s fees, and an injunction prohibiting Campbell from sending future unsolicited text messages.12×12. Campbell-Ewald, 136 S. Ct. at 667.
But before Gomez filed a motion for class certification, Campbell filed an offer for judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure,13×13. Rule 68 creates a mechanism by which defendants can make offers of judgment. See Fed. R. Civ. P. 68. offering treble damages for each text message Gomez had received, as well as a stipulated injunction that would prohibit Campbell from sending any more messages that violated the TCPA.14×14. Campbell-Ewald, 136 S. Ct. at 667–68. Gomez, however, declined the offer by letting it lapse after fourteen days, per the terms of Rule 68.15×15. See id. at 668; Fed. R. Civ. P. 68(a)–(b) (“If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. . . . An unaccepted offer is considered withdrawn, but it does not preclude a later offer.”). In addition to the Rule 68 offer, Campbell offered Gomez a freestanding settlement offer along the same terms.16×16. See Gomez v. Campbell-Ewald Co., 805 F. Supp. 2d 923, 926 (C.D. Cal. 2011). Gomez refused to accept that as well.17×17. Campbell-Ewald, 136 S. Ct. at 668.
Campbell then moved to dismiss for lack of subject matter jurisdiction, arguing that because it had offered Gomez “complete relief,”18×18. Id. Although Campbell’s Rule 68 offer would not have provided the attorney’s fees demanded in Gomez’s complaint, Campbell argued that the TCPA did not provide for attorney’s fees and thus Campbell’s offer to pay Gomez’s personal treble damages claim constituted “complete relief.” Id. Gomez’s individual claim was moot, and since Gomez’s claim had become moot before he had moved for class certification, the putative class action was moot as well.19×19. Id. The district court denied Campbell’s motion, holding that Campbell’s Rule 68 and settlement offers did not moot Gomez’s putative class claim.20×20. Gomez, 805 F. Supp. 2d at 930–31 (arguing that a defendant should not be able to “make an end-run around a class action simply by virtue of a facile procedural ‘gotcha,’ i.e., the conveyance of a Rule 68 offer of judgment to ‘pick off’ the named plaintiff prior to the filing of a class certification motion,” id. at 930). But on summary judgment, the court held that, as a government contractor, Campbell had “derivative sovereign immunity” from liability under the TCPA.21×21. Gomez v. Campbell-Ewald Co., No. CV 10-02007, 2013 WL 655237, at *4–6 (C.D. Cal. Feb. 22, 2013) (citing Yearsley v. W.A. Ross Constr., 309 U.S. 18, 21–22 (1940)). On appeal, the Ninth Circuit likewise rejected Campbell’s motion to dismiss for lack of subject matter jurisdiction and vacated and remanded the summary judgment order.22×22. Gomez v. Campbell-Ewald Co., 768 F.3d 871, 874, 882 (9th Cir. 2014). In vacating and remanding the summary judgment order, the Ninth Circuit held that Yearsley was inapplicable and Campbell possessed no derivative sovereign immunity here. Id. at 879–80. The Ninth Circuit also rejected Campbell’s arguments that (1) the TCPA violates the First Amendment, id. at 876–77, and that (2) it shouldn’t be held liable for the acts of the third party Mindmatics, id. at 877–79. The court held that neither Gomez’s individual claim nor the putative class claims had been mooted by the unaccepted Rule 68 offer.23×23. Id. at 874–75. To support this holding, the Ninth Circuit cited its recent decisions in Diaz v. First American Home Buyers Protection Corp., 732 F.3d 948, 950 (9th Cir. 2013) (holding that an unaccepted Rule 68 offer of complete relief does not moot a plaintiff’s claim) and Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091–92 (9th Cir. 2011) (holding that an unaccepted Rule 68 offer of complete relief made prior to a motion for class certification does not moot the putative class action). See Gomez, 768 F.3d at 875.
The Supreme Court affirmed.24×24. Campbell-Ewald, 136 S. Ct. at 674. Writing for the Court, Justice Ginsburg25×25. Justice Ginsburg was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. began with the justiciability of Gomez’s individual claim, holding that “an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case.”26×26. Campbell-Ewald, 136 S. Ct. at 672. In doing so, Justice Ginsburg quoted and adopted Justice Kagan’s Genesis Healthcare v. Symczyk27×27. 133 S. Ct. 1523 (2013). dissent, which stated: “An unaccepted settlement offer — like any unaccepted contract offer — is a legal nullity, with no operative effect,” and “[a]s every first-year law student learns,” a rejected offer simply returns the parties to their pre-offer positions.28×28. Campbell-Ewald, 136 S. Ct. at 670 (quoting Genesis Healthcare, 133 S. Ct. at 1533 (Kagan, J., dissenting)). Applying these “basic principles of contract law,”29×29. Id. Justice Ginsburg explained that Campbell’s unaccepted offers did not bind either party.30×30. Id. at 670–71. Thus, the parties maintained a personal stake in the outcome of the litigation, and the controversy was not moot.31×31. Id. Justice Ginsburg also turned to the text of Rule 68, which provides that a settlement offer not accepted within fourteen days of service “is considered withdrawn,” and the Rule’s only penalty for not accepting the offer is that “[i]f the ultimate judgment . . . is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Id. at 671 (quoting Fed. R. Civ. P. 68). This text, she argued, “hardly supports the argument that an unaccepted settlement offer can moot a complaint.” Id.
Justice Ginsburg also distinguished the “trio of 19th-century railroad tax cases” upon which Campbell relied.32×32. Id. Campbell had relied on California v. San Pablo & Tulare Railroad Co., 149 U.S. 308 (1893); Little v. Bowers, 134 U.S. 547 (1890); and San Mateo County v. Southern Pacific Railroad Co., 116 U.S. 138 (1885). See Campbell-Ewald, 136 S. Ct. at 671. Those cases, she stressed, all involved the “actual payment” of taxes, in contrast to Campbell’s mere unaccepted offer to pay.33×33. Campbell-Ewald, 136 S. Ct. at 671. Justice Ginsburg, however, refused to address “whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount,” leaving that hypothetical question for another day.34×34. Id. at 672. Finally, Justice Ginsburg rejected Campbell’s derivative immunity argument. Like the Ninth Circuit, she held that derivative immunity does not apply when the government agent, like Campbell here, had “‘exceeded his authority’ or the authority ‘was not validly conferred.’”35×35. Id. at 673 (quoting Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21 (1940)).
Justice Thomas concurred in the judgment. Unlike the majority, Justice Thomas would not rely on “modern contract law principles and a recent dissent concerning Federal Rule of Civil Procedure 68,”36×36. Id. at 674. because the issue here was not whether there was a binding contract but whether the claim was still live for the purposes of Article III.37×37. Id. at 676 (Thomas, J., concurring in the judgment). Justice Thomas explained that to “resolve the meaning of ‘case’ and ‘controversy’ in Article III,” the Court must consult “‘the traditional, fundamental limitations upon the powers of common-law courts’ because ‘cases’ and ‘controversies’ ‘have virtually no meaning except by reference to that tradition.’” Id. at 676–77 (quoting Honig v. Doe, 484 U.S. 305, 340 (1988) (Scalia, J., dissenting)). He argued that “the common-law history of tenders,” which led to Rule 68, teaches that “courts at common law would not have understood a mere offer to strip them of jurisdiction.”38×38. Id. at 674–75. Campbell’s offers, which did not go beyond the mere offering to pay, thus did not strip the court of jurisdiction to decide the case.39×39. Id. at 676.
Chief Justice Roberts dissented,40×40. The Chief Justice was joined by Justices Scalia and Alito. arguing that there no longer was a dispute between Campbell and Gomez sufficient to sustain an Article III case or controversy.41×41. Campbell-Ewald, 136 S. Ct. at 677–79 (Roberts, C.J., dissenting). Calling the case “straightforward,”42×42. Id. at 679. Chief Justice Roberts explained that when a defendant agrees to fully redress the plaintiff’s injury by making an offer of complete relief, the plaintiff can no longer “demonstrate an injury in need of redress by the court” and the case is, therefore, moot.43×43. Id. For Chief Justice Roberts, that Campbell only offered complete relief didn’t affect the mootness inquiry because “it would be mere pettifoggery to argue that Campbell might not make good on [its] promise.”44×44. Id. at 680. Chief Justice Roberts added that “to the extent there is a question whether Campbell is willing and able to pay, there is an easy answer: have the firm deposit a certified check with the trial court.” Id. Moreover, Chief Justice Roberts argued that the “Court has long held that when a defendant unilaterally remedies the injuries of the plaintiff, the case is moot — even if the plaintiff disagrees and refuses to settle the dispute, and even if the defendant continues to deny liability.”45×45. Id. To support this assertion, Chief Justice Roberts examined California v. San Pablo & Tulare Railroad Co., 149 U.S. 308 (1893); Alvarez v. Smith, 558 U.S. 87 (2009); and Already, LLC v. Nike, Inc., 133 S. Ct. 721 (2013). Campbell-Ewald, 136 S. Ct. at 680–81 (Roberts, C.J., dissenting). Though he agreed that an unaccepted offer is a “legal nullity” under contract law, he maintained that the question “is not whether there is a contract; it is whether there is a case or controversy under Article III.”46×46. Campbell-Ewald, 136 S. Ct. at 682 (Roberts, C.J., dissenting). Despite his disagreement with the holding, Chief Justice Roberts nevertheless found some “good news”: that the majority limited its holding to an “offer of complete relief” without deciding whether “payment of complete relief leads to the same result.”47×47. Id. at 683.
Justice Alito also dissented. While he agreed with the Chief Justice that a defendant’s offer of complete relief does not require the plaintiff’s acceptance, he wrote separately to highlight what he saw as “the linchpin for finding mootness in this case”48×48. Id. at 683 (Alito, J., dissenting). : the near certainty that Campbell would make good on its promise. Drawing an analogy to the Court’s “voluntary cessation” cases — in which a defendant’s willing cessation of the unlawful conduct will not moot the case unless the defendant meets the heavy burden of showing that the conduct could not reasonably be expected to recur — he argued that such an offer should moot a case if, and only if, it is undoubtedly clear that the defendant will provide the promised relief.49×49. Id.
In Campbell-Ewald, the Court narrowly held that an unaccepted offer of complete relief does not moot a plaintiff’s claim, declining to address the hypothetical case of a defendant who “deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”50×50. Id. at 672 (majority opinion). Given the behavior of class action defendants post-Campbell-Ewald,51×51. Following the Supreme Court’s ruling, Campbell itself sent Gomez’s attorney a certified check for $10,000 and asked the court to accept a payment for the same amount. Order Re Defendant’s Motions to Dismiss and for Leave to Deposit Funds with the Court at 2, Gomez v. Campbell-Ewald Co., No. CV 10-2007 (C.D. Cal. June 3, 2016). The district court rejected Campbell’s new strategy, citing Ninth Circuit precedent that “makes explicit that funds deposited in an escrow account have not been ‘actually received’ for purposes of mooting an individual plaintiff’s claims,” and concluding that “[n]othing in the Supreme Court’s Campbell-Ewald opinion precludes this holding.” Id. at 3 (quoting Chen v. Allstate Ins. Co., 819 F.3d 1136, 1138 (9th Cir. 2016)). this hypothetical may soon materialize before the Court. If, at some point, a defendant actually delivers a payment constituting complete relief to a named plaintiff, it would be difficult to avoid the conclusion that the named plaintiff’s claim has been mooted. Tossing a putative class action from court on such a basis, however, would be in tension with a core concern underlying the Campbell-Ewald majority opinion: that defendants will opportunistically use mootness doctrine to undermine the class action device. Ultimately addressing this concern could, in time, lead to potential innovations to class action mootness doctrine, developments that would fit with the Court’s more functional approach to mootness doctrine generally and in the class action context particularly.
In practice, Campbell-Ewald’s tantalizing hypothetical has incentivized class action defendants to move to deposit checks, in an amount constituting complete relief, with the court and to have the court enter judgments against them,52×52. See, e.g., Tegtmeier v. PJ Iowa, L.C., No. 3:15-CV-00110, 2016 WL 3265711, at *3 (S.D. Iowa May 18, 2016). or, even more directly, to tender cashier’s checks to named plaintiffs.53×53. See, e.g., Mey v. N. Am. Bancard, LLC, No. 14-2574, 2016 WL 3613395, at *3 (6th Cir. July 6, 2016). Lower courts post-Campbell-Ewald have split over whether such tactics successfully moot a named plaintiff’s individual claim.54×54. Compare Gray v. Kern, 143 F. Supp. 3d 363, 367 (D. Md. 2016) (“[I]f [d]efendant . . . deposits the full amount recoverable with the Clerk of the Court, and the Court then enters judgment in that amount, the case is moot.”), and S. Orange Chiropractic Ctr., LLC v. Cayan LLC, No. 15-13069, 2016 WL 1441791, at *4–5 (D. Mass. Apr. 12, 2016) (holding that defendant’s tender of a bank check to plaintiff moots the latter’s claim), with Chen, 819 F.3d at 1144 (holding that depositing money in escrow does not provide plaintiff with “actual relief” and does not moot plaintiff’s individual claim), and Ung v. Universal Acceptance Corp., No.15-127, 2016 WL 3136858, at *5 (D. Minn. June 3, 2016) (holding that tendering a certified check does not moot plaintiff’s individual claim). But if a defendant ultimately took the step of depositing the full amount of a named plaintiff’s claim in a bank account to that plaintiff’s name, it’s hard to see how such a plaintiff has not “received full redress for the injuries asserted in their complaints.”55×55. Campbell-Ewald, 136 S. Ct. at 671 n.5. Distinguishing such a plaintiff from those in “the trio of 19th-century railroad tax cases,” whose claims were all mooted by receiving payments fully satisfying their claims,56×56. Id. at 671. would be increasingly difficult.
And yet, a finding of mootness in such a case would lie in tension with a significant concern underlying the Campbell-Ewald majority opinion: a discomfort with defendants opportunistically using mootness doctrine to undermine class actions. The majority explicitly characterized Campbell’s offers as a “strategy” — a “gambit” by which Campbell “sought to avoid a potential adverse decision, one that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept.”57×57. Id. at 672. Whether a defendant tries to moot larger class damages by offering or by actually giving complete relief to the named plaintiff, the gambit remains the same: moot the named plaintiff’s claim before the potentially more-damaging class action becomes viable.
The Campbell-Ewald majority’s anxiety about such opportunistic use of mootness doctrine could presage at least two areas of doctrinal innovations. First, the majority hinted that a named plaintiff might have a “personal stake” in receiving a decision on the certifiability of the putative class action. Under current doctrine, the right to bring a class action is purely procedural and cannot, absent substantive individual claims alongside it, prevent a case from becoming moot.58×58. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 332 (1980). While this has long been the standard view, Justice Kagan’s Genesis Healthcare dissent cast doubt on its long-term validity, suggesting that a judgment providing relief to a plaintiff’s individual claim is not complete when that plaintiff has also requested — and is now being denied — the “right to sue on behalf of other[s].”59×59. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1536 (2013) (Kagan, J., dissenting). To be sure, Genesis Healthcare involved a collective action under the Fair Labor Standards Act, not a class action, but Justice Kagan explained that “[n]o more in a collective action brought under the FLSA than in any other class action may a court, prior to certification, eliminate the entire suit by acceding to a defendant’s proposal to make only the named plaintiff whole.” Id. The Campbell-Ewald majority largely avoided this part of Justice Kagan’s Genesis Healthcare dissent,60×60. See Alexander H. Schmidt, Why the Supreme Court’s Next Mootness Decision Could Doom Rule 23’s Private Attorney General Paradigm, Antitrust, Spring 2016, at 74, 77–78. focusing instead on her contracts point.61×61. See Campbell-Ewald, 136 S. Ct. at 670–71. Nonetheless, in explaining its holding, the majority went out of its way to state that “Gomez sought treble statutory damages and an injunction on behalf of a nationwide class, but Campbell’s settlement offer proposed relief for Gomez alone,”62×62. Id. at 670 (emphasis added). insinuating that providing full relief to the named plaintiff’s personal claim might not be truly “complete” relief when it precludes the plaintiff from obtaining at least a verdict on the certification of the putative class.
Second, the majority’s concern with mootness doctrine being used to undermine the class action device suggests that, in the face of defendants trying to avoid large class action damages by “picking off” named plaintiffs, the majority might be inclined to reject a finding of mootness even before a decision on class certification. Under Sosna v. Iowa,63×63. 419 U.S. 393 (1975). a class action may still proceed if the named plaintiff’s claims become moot after the class has been certified.64×64. See id. at 399–402 (holding that, after certification, “the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by appellant,” id. at 399). The Court extended the logic of Sosna in two later cases decided on the same day. In U.S. Parole Commission v. Geraghty,65×65. 445 U.S. 388 (1980). the Court held that a named plaintiff whose claim had been mooted by an external circumstance after the denial of class certification could still appeal that decision.66×66. Id. at 402–04. And in Deposit Guaranty National Bank v. Roper,67×67. 445 U.S. 326 (1980). the Court reached the same conclusion when, also after the trial court had denied the plaintiffs’ motion for class certification, the defendant mooted the named plaintiffs’ individual claims by tendering the maximum amount they could have recovered.68×68. Id. at 329. But the Court has remained silent on whether putative class claims are rendered moot when named plaintiffs’ individual claims are mooted before a decision on class certification.69×69. See Rubenstein, supra note 4, § 2:15, at 39. Several lower courts have weighed in on the issue, with some holding that the class action survives if the alleged mooting occurs after the plaintiff files a motion for class certification,70×70. See id. at 39 n.22 (collecting cases). and others going as far as holding that the class action survives even if the alleged mooting occurs before then, assuming the plaintiff does not unduly delay filing the motion.71×71. See id. at 39 n.23 (collecting cases). The latter approach, adopted by several circuits,72×72. See id. (citing cases from the First, Second, Third, Eighth, Ninth, Tenth, and Eleventh Circuits). is premised on the idea that to hold otherwise would “undercut the viability of the class action procedure, and frustrate the objectives of this procedural mechanism for aggregating small claims”73×73. Weiss v. Regal Collections, 385 F.3d 337, 344 (3d Cir. 2004). — a concern echoed in Campbell-Ewald.74×74. Campbell-Ewald, 136 S. Ct. at 672 (“[A] would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.”).
Should the Court eventually adopt the aforementioned doctrinal innovations, it would be acting consistently with the Court’s historically functional approach to mootness. As a general matter, the Court tends to take a more functional approach to mootness than to other doctrines of justiciability,75×75. In qualifying Professor Henry Monaghan’s classic formulation of mootness doctrine as “the doctrine of standing set in a time frame,” Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973), the Court in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000), explained that the costs of dismissing a case differ from those of barring a case upfront, id. at 190–92. Of course, as the Court admitted, “[t]his argument from sunk costs does not license courts to retain jurisdiction over cases in which one or both of the parties plainly lack a continuing interest.” Id. at 192 (footnote omitted). Nevertheless, the Court averred, “the argument surely highlights an important difference between the two doctrines.” Id.; see also Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal System 200–01 (7th ed. 2015) (suggesting four additional reasons to treat “mootness doctrine differently from standing,” id. at 200, and querying whether “mootness doctrine [should] bar adjudication only when the functional requisites of effective adjudication, such as effective adversarial presentation of sharply framed issues, are absent,” id. at 201). and the Court often will not dismiss a seemingly moot case “where strong prudential reasons” caution against such dismissal.76×76. Matthew I. Hall, The Partially Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev. 562, 563 (2009). Some common examples are cases involving the “voluntary cessation of challenged conduct,” e.g., Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012), and those involving short-lived conduct that is “capable of repetition, yet evading review,” e.g., FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463 (2007) (quoting Storer v. Brown, 415 U.S. 724, 737 n.8 (1974)). While these cases are often described as “exceptions” to mootness doctrine, they demonstrate that the doctrine must be understood, at least in part, in functional or prudential terms. See Hall, supra, at 563–64; see also Honig v. Doe, 484 U.S. 305, 330 (1988) (Rehnquist, C.J., concurring) (“If our mootness doctrine were forced upon us by the case or controversy requirement of [Article] III itself, we would have no more power to decide lawsuits which are ‘moot’ but which also raise questions which are capable of repetition but evading review than we would to decide cases which are ‘moot’ but raise no such questions.”); Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603, 625 (1992) (“[T]he solidity of the doctrine linking Article III and its personal stake requirement to mootness jurisprudence is dubious, at best.”). And in the class action context specifically, the Court has pointed to “the flexible character of the [Article] III mootness doctrine.”77×77. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 400 (1980). This flexibility is necessary because of the inherent tension between the class action form and mootness; as one scholar has put it, “if an individual litigant’s claims are moot yet she desires to keep litigating, what she essentially wants to do is litigate other people’s claims — that, of course, is the definition of a class action.”78×78. Rubenstein, supra note 4, § 2:9, at 92. Consequently, the Court’s class action mootness jurisprudence has focused on reaching “sensible results,”79×79. Richard K. Greenstein, Bridging the Mootness Gap in Federal Court Class Actions, 35 Stan. L. Rev. 897, 909 (1983). even if a few doctrinal somersaults have been required. For the Campbell-Ewald majority, such a “sensible result” could seemingly include precluding defendants from eviscerating Rule 23 through manipulation of mootness doctrine.80×80. See Campbell-Ewald, 136 S. Ct. at 672. Indeed, the majority’s citation to U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), is telling. The majority employed the case to argue that the use of mootness doctrine as an end run around a “potential adverse decision” has been and should be rejected. Campbell-Ewald, 136 S. Ct. at 672. As Chief Justice Roberts noted in dissent, Bancorp dealt with the “equitable powers of the courts to vacate judgments in moot cases,” not whether a case was moot to begin with. Id. at 682 n.2 (Roberts, C.J., dissenting). For Chief Justice Roberts, this difference demonstrated Bancorp’s inapplicability. Id. Yet the majority’s decision nevertheless to cite the case suggests that it thought Bancorp’s core rationale — that mootness doctrine ought not be used as a shield — should be applied broadly.
Given the flurry of class action defendants seeking to “exploit the back door left ajar by Campbell-Ewald”81×81. Family Med. Pharmacy, LLC v. Perfumania Holdings, Inc., No. 15-0563, 2016 WL 3676601, at *5 (S.D. Ala. July 5, 2016). and the lower courts’ varied responses, the Court will inevitably face the question it reserved for itself in this case. And the result will likely hinge on Justice Kennedy, who joined the Campbell-Ewald majority but also joined the Genesis Healthcare majority, which concluded, albeit in a Fair Labor Standards Act collective action case, that the plaintiff had “no personal interest in representing putative, unnamed claimants.”82×82. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1532 (2013). Justice Thomas, who authored the majority opinion in Genesis Healthcare, id. at 1526, and who concurred in Campbell-Ewald solely on the basis of “the common-law history of tenders,” Campbell-Ewald, 136 S. Ct. at 674 (Thomas, J., concurring in the judgment), would seemingly agree with Chief Justice Roberts and Justice Alito in the event the “company ma[d]e payment” and did not just “declar[e] its intent to pay,” id. at 676. Ultimately, the decision may come down to weighing the prudential concern of maintaining the viability of class actions against constraining the power of Article III courts, thus far a particular interest of the Roberts Court.83×83. See Linda Greenhouse, Judges Standing Upside-Down, N.Y. Times (Sept. 3, 2015), http://www.nytimes.com/2015/09/03/opinion/judges-standing-upside-down.html [https://perma.cc/E3M8-NNMZ]; cf. generally John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L.J. 1219 (1993). But if the Campbell-Ewald majority’s concerns are any indication, class action defendants may find it increasingly difficult to moot class actions before the class gets its day in court.