Yesterday the Supreme Court decided the case of Campbel-Ewald Co. vs. Gomez.  This is a case that consumer advocates were anticipating with some trepidation. At issue in the case was a tactic that corporate defendants regularly practice to “pick off” class actions and avoid class action liability. Corporations regularly make “Rule 68 Offers of Judgment” to the named plaintiffs in class actions giving the named plaintiff the full relief the named plaintiff can receive, and then argue that there is no further controversy as to the named plaintiff, so the case is “moot” and must be dismissed.  We weren’t looking forward to this decision because this same Supreme Court upheld boiler plate arbitration clauses that mandate arbitration and prohibit class actions.  The Supreme Court did the right thing though, and its decision yesterday makes it harder for defendants to pick off class actions through Rule 68 offers.

Mr. Gomez received unwanted text messages from Campbell Ewald, a contractor for the navy. The messages touted Navy careers. Mr. Gomez asserted that at age 40, he was understandably not interested in Navy careers (and the Navy probably wasn’t interested in him), and he sued under the Telephone Consumer Privacy Act, a statute which tries to discourage unsolicited text messages by imposing liability against the sender of up to $1,500 per message if it is sent willfully. Mr. Gomez also sued on behalf of the class of other people who got the unsolicited messages. Campbell Ewald defended by offering $1,500 for each message Mr. Gomez received, then claimed the case was moot because Gomez could not obtain any more relief than what was offered.   There was a split in the federal circuits on whether such an offer moots a case, so the Supreme Court accepted the case to settle the issue.

Much to our surprise, the Supreme Court ruled for Mr. Gomez, the plaintiff.  The opinion, written by Justice Ginsburg adopted reasoning by Justice Kagan in an earlier dissenting opinion written by Justice Kagan when she was a court of appeals judge.  The court ruled that an offer of judgment not accepted simply lapses.  It only becomes relevant again on the issue of costs at the end of the case. (That is what a the plain text of the rule says.) The liberal-moderate wing was surprisingly joined by Justice Thomas in a concurring opinion making the ultimate decision 6-3. 

The Campbell-Ewald case once again shows that the make-up of the Supreme Court is important, and who we elect as President makes a difference in who is on the court.  Clinton-appointed Justice Ginsburg wrote the opinion, and Obama-appointee Kagan provided the persuasive reasoning.