One of the issues at stake in Campbell-Ewald v. Gomez, argued yesterday, is whether a defendant can moot a case (and thereby "pick off" a plaintiff who hopes to represent a class before the class has been certified) by offering the plaintiff complete relief even if the offer is not accepted. The issue, which is obviously of importance to class action practice, has been percolating in the courts of appeals with renewed vigor after Justice Kagan's dissent in Genesis Healthcare v. Symczyk suggested that the answer to the question was obviously "no" based on ordinary contract principles (an unaccepted offer is not a contract) and ordinary mootness principles (if the plaintiff has rejected the offer, there is still relief a court can provide and so the case is still live.)
The Washington Post summarized the proceedings thus:
The usually conservative justices wondered why courts should waste their time refereeing a fight in which one side has thrown in the towel.
The usually liberal justices were on guard about a case that could limit a plaintiff’s ability to get into court and that could potentially hinder class-action suits.
Read the whole Post story here. For other coverage (and catchy headlines), check out Huffington Post ("Big Business Could Shut Down Class-Action Suits With One Weird Trick"), Forbes ("Supreme Court Mulls Potentially Devastating Defense Against Class Actions: Surrender"), and Wall St. Journal Law Blog ("Supreme Court Asks if Class-Action Lawyers Can Lose by Winning").
Disclosure: Public Citizen is co-counsel for respondents.
