We’ve discussed several times (see for instance here and here) an issue that’s been percolating in the courts of appeals the last few years and which has been taken up by the Supreme Court for the coming Term in the case of Campbell-Ewald Co. v. Gomez: whether a defendant’s offer of judgment for complete relief under Rule 68 renders a case moot even if the plaintiff doesn’t accept the offer. In 2013, Justice Kagan wrote a powerful dissent on the issue in Genesis HealthCare Corp. v. Symczyk (where the majority did not reach the question). Since Genesis, several circuits have relied on Justice Kagan’s reasoning to reject the view that an unaccepted Rule 68 offer renders a case moot.
Yesterday, in Hooks v. Landmark Industries, litigated on appeal by Public Citizen, the Fifth Circuit adopted Justice Kagan’s view that an unaccepted Rule 68 offer does not moot a case, providing another strong opinion that could influence the Supreme Court’s consideration of the issue this fall. Justice Kagan has common sense and three other justices on her side. Hopefully the steady stream of appellate opinions explaining that an unaccepted offer does not moot a case will help her attract a fifth vote on the Court now that it is squarely confronting the issue in Campbell-Ewald.
Read yesterday's decision here.