The oral argument before the U.S. Supreme Court in Campbell-Ewald Co. v. Gomez left practitioners guessing as to the possible outcome in the case.
Considering the question of whether a settlement offer that fully satisfies a plaintiff’s claims can moot a Telephone Consumer Protection Act lawsuit, the justices appeared divided on the answer.
In this case, advertising agency Campbell-Ewald was hired by the U.S. Navy to develop and execute a recruiting campaign. The company outsourced texting responsibility to a third party but was named as a defendant in a TCPA lawsuit filed by Jose Gomez in California federal court. Campbell-Ewald offered Gomez $1,503 as compensation for the allegedly illegal text, but the plaintiff allowed the offer to lapse. A district court judge said the unaccepted offer alone was insufficient to moot Gomez’s claim and the Ninth Circuit affirmed.
The issue has split courts across the country.
At oral argument, Justices Elena Kagan and Sonia Sotomayor pressed Campbell-Ewald’s attorney about whether the company made a complete offer to Gomez. The statute doesn’t entitle Gomez to attorneys’ fees, declaratory relief, or class damages, the attorney argued, but Justice Kagan said the award of attorneys’ fees “has to be adjudicated.”
Justice Sotomayor agreed, stating that plaintiffs are “entitled to have the court say it, not you,” and expressed concern that defendants “get to moot the case on your terms.” The timing of the offer also concerned Justice Kagan, who said at that stage of the litigation, what constitutes complete relief remains a contested issue. “And the measure of complete relief has to be, at this stage, about what his complaint asks for,” Justice Kagan said.
Jumping in, Justice Antonin Scalia asked: “I suppose he could ask for the key to Fort Knox, right?” to which Campbell-Ewald’s counsel responded, “He could ask for a unicorn, Your Honor.”
The focus on whether the plaintiff’s claims were moot left little time to discuss the impact on class claims.
Chief Justice John Roberts wondered if Gomez could act as a class representative if his individual claims were declared moot. Gomez’s attorney answered in the affirmative, arguing that he would still have a financial interest in attorneys’ fees in the case, while an attorney from the Solicitor General’s office—advocating in favor of Gomez—said Rule 23 of the Federal Rules of Civil Procedure might have a solution.
To read a transcript of the oral argument, click here.
Why it matters: The oral argument provided a few clues about which direction some of the justices are leaning on the issue presented. Justice Sotomayor appeared to be in the same camp as Justice Kagan, who authored the dissent in a 2013 Fair Labor Standards Act case, Genesis Healthcare Corp. v. Symczyk, where she wrote that an unaccepted offer of judgment cannot moot a plaintiff’s individual claims. Justice Scalia’s reference to Fort Knox suggests that he is taking a dim view of the plaintiff’s position. A decision from the Court is expected later this term.