Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies,”1 which the Supreme Court has understood as requiring a plaintiff to possess a live “personal stake”2 in the outcome of the action at all points during the litigation. Otherwise, the case is moot.3 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 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 In Campbell-Ewald Co. v. Gomez,6 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 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 In May 2006, Jose Gomez received one of those messages.9 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 (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 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
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 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 Gomez, however, declined the offer by letting it lapse after fourteen days, per the terms of Rule 68.15 In addition to the Rule 68 offer, Campbell offered Gomez a freestanding settlement offer along the same terms.16 Gomez refused to accept that as well.17
Campbell then moved to dismiss for lack of subject matter jurisdiction, arguing that because it had offered Gomez “complete relief,”18 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 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 But on summary judgment, the court held that, as a government contractor, Campbell had “derivative sovereign immunity” from liability under the TCPA.21 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 The court held that neither Gomez’s individual claim nor the putative class claims had been mooted by the unaccepted Rule 68 offer.23
The Supreme Court affirmed.24 Writing for the Court, Justice Ginsburg25 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 In doing so, Justice Ginsburg quoted and adopted Justice Kagan’s Genesis Healthcare v. Symczyk27 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 Applying these “basic principles of contract law,”29 Justice Ginsburg explained that Campbell’s unaccepted offers did not bind either party.30 Thus, the parties maintained a personal stake in the outcome of the litigation, and the controversy was not moot.31
Justice Ginsburg also distinguished the “trio of 19th-century railroad tax cases” upon which Campbell relied.32 Those cases, she stressed, all involved the “actual payment” of taxes, in contrast to Campbell’s mere unaccepted offer to pay.33 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 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
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 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 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 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
Chief Justice Roberts dissented,40 arguing that there no longer was a dispute between Campbell and Gomez sufficient to sustain an Article III case or controversy.41 Calling the case “straightforward,”42 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 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 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 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 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
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: 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
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 Given the behavior of class action defendants post-Campbell-Ewald,51 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 or, even more directly, to tender cashier’s checks to named plaintiffs.53 Lower courts post-Campbell-Ewald have split over whether such tactics successfully moot a named plaintiff’s individual claim.54 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 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 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 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 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 The Campbell-Ewald majority largely avoided this part of Justice Kagan’s Genesis Healthcare dissent,60 focusing instead on her contracts point.61 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 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 a class action may still proceed if the named plaintiff’s claims become moot after the class has been certified.64 The Court extended the logic of Sosna in two later cases decided on the same day. In U.S. Parole Commission v. Geraghty,65 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 And in Deposit Guaranty National Bank v. Roper,67 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 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 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 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 The latter approach, adopted by several circuits,72 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 — a concern echoed in Campbell-Ewald.74
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 and the Court often will not dismiss a seemingly moot case “where strong prudential reasons” caution against such dismissal.76 And in the class action context specifically, the Court has pointed to “the flexible character of the [Article] III mootness doctrine.”77 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 Consequently, the Court’s class action mootness jurisprudence has focused on reaching “sensible results,”79 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
Given the flurry of class action defendants seeking to “exploit the back door left ajar by Campbell-Ewald”81 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 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 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.