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By: Matt Foree
The U.S. Supreme Court recently heard oral argument on a case affecting the resolution of Telephone Consumer Protection Act (“TCPA”) cases in which a defendant has submitted a Rule 68 Offer of Judgment to a plaintiff. The transcript and audio of the oral argument are located here. In the Campbell-Ewald Company v. Gomez case, the Court considered whether a case becomes moot and therefore beyond the judicial power of Article III when the plaintiff receives an offer of complete relief on his claim. The Court also considered whether the answer to that first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.
Although recent Federal Court decisions have held that claims are not mooted by an unaccepted offer of judgment, the oral argument in the Campbell-Ewald case was divided. Justices Ginsberg, Kennedy and Sotomayor presented tough questions to the Petitioner, Campbell-Ewald Company, who is seeking to enforce its offer of judgment. The Justices seemed to struggle with Petitioner seeking to have a judgment entered based on an unaccepted offer of judgment and cited the language of Rule 68, which provides that the offer is deemed withdrawn if it is not accepted. Interestingly, Justice Sotomayor told Petitioner that the only way she saw a court entering judgment under the Federal Rules of Civil procedure is through a Rule 56 judgment. She stated that she did not know why the Court has to make a merit determination based solely on an unaccepted offer of judgment.
Respondent’s counsel argued that an offer of complete relief cannot render a case moot. He said that at most the offer might justify a forced entry of judgment, but not a jurisdictional dismissal. Chief Justice Roberts, Justice Alito and Justice Kennedy raised probing questions as to what else Respondent should receive if, hypothetically, he was given an offer of money for all of the damages he sought. Specifically, Justice Kennedy asked what concrete injury resulted in adversity. Respondent stated that the concrete injury is the past injury already suffered. He argued that the fact that the injury has already been remedied is a defense that goes to the merits and not to Article III. Chief Justice Roberts quipped that Respondent’s argument was that he does not want the money he is asking for; he wants a judgment that will give him the money. The Chief Justice also noted that Respondent put a lot of weight on the plaintiff’s interests, but there is another interest at stake – the interest of the court.
Much of the remainder of the argument devolved into a discussion of semantics concerning the term “mootness.” Justice Scalia stated that Respondent’s counsel was contrasting a forced entry of judgment on the one hand with mootness on the other, but that a forced entry of judgment is one of the remedies for mootness. Respondent’s counsel argued that those are mutually exclusive and that, if the case is moot, a court cannot enter a judgment ever under any circumstances. Respondent’s counsel further stated that if a court is entering a judgment by definition, the case is not moot. He argued that mootness requires a jurisdictional dismissal and forbids the entry of any type of judgment. When asked by Chief Justice Roberts if Petitioner offered to give Respondent everything he wanted, would the case be over, Respondent’s counsel replied that “it certainly would not be moot.” Additionally, Respondent argued that any individual plaintiff who has gotten everything that he has asked for is entitled to proceed with the litigation because he might get a bonus from a class action that he would like to lead.
In the meantime, TCPA and class action lawyers are anxiously awaiting the Court’s opinion on the effect of offers of judgment, including as it relates to individual claims and putative class actions. TCPA defense lawyers are hoping that the ruling could provide them with another arrow in a (currently) very small quiver for attacking TCPA claims.