NELA Files Amicus Brief In U.S. Supreme Court

By Roberta L. Steele posted 09-11-2015 12:49 PM

On August 31, 2015, NELA, joined by the National Employment Law Project (NELP), filed an amicus brief, in support of the respondent in Campbell-Ewald Co. v. Gomez, No. 14-857, pending in the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Ninth Circuit. This case concerns whether a rejected offer of judgment made under Federal Rule of Civil Procedure 68 moots plaintiff’s individual and class claims before class certification. Although this is a consumer action, the Court’s ruling will apply to cases brought to enforce employment rights. The amicus brief was drafted by NELA member Adam W. Hansen, Nichols Kaster, PLLP, Minneapolis, MN.

Plaintiff Jose Gomez filed a class action under the Telephone Consumer Protection Act (TCPA) against a national marketing company retained by the U.S. Navy to send recruiting text messages. Text messages were sent to plaintiff and 100,000 others. The TCPA provides statutory damages for unauthorized messages in the amount of $500 per violation. Defendant tendered a Rule 68 offer of judgment to plaintiff to fully satisfy his individual claims prior to certification of a class, which Plaintiff did not accept. Defendant then moved to dismiss for lack of jurisdiction, arguing that the offer of complete relief mooted both the individual and class claims under Article III. The Ninth Circuit disagreed, holding that an unaccepted offer of judgment cannot moot a plaintiff’s individual claims because it does not make it impossible for a court to grant effectual relief under Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948 (9th Cir. 2013). Alternatively, the court held that even if the individual claims were moot, the class claims would remain justiciable under the court’s ruling in Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011). The court rejected the contention that Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) implicitly overruled Pitts and similar decisions of other circuits.

Amici argued in the brief that an offer of relief does not place a valid “case” or “controversy” beyond the reach of an Article III court. As the U.S. Supreme Court has repeatedly cautioned, “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Service Employees Int’l Union, 132 S. Ct. 2277, 2287 (2012). An offer does not render a court powerless to enter a judgment on liability and damages. Petitioner’s “mootness-by-offer theory” finds no support in the historical record. Instead, the theory is rooted in now discredited circuit case law going back only one generation. More recently, courts have concluded the mootness-by-offer theory rests on a series of mistaken assumptions about the nature of federal jurisdiction.

In the context of a class action, an offer of relief to the named plaintiff fails to defeat standing because she asserts the common interests of many. The historical record shows that representative litigation—where a person stands in the shoes of a group and pursues the group’s interests—was well-established and understood at the time of the framing of the Constitution. In such cases, an offer to the named plaintiff does not meet validly asserted class interests. Petitioner’s theory would create a host of problems for courts, parties, and citizens. Allowing defendants to “pick off” class action plaintiffs and shut down class claims would place many kinds of illegal conduct beyond the reach of the law with damaging consequences for those subjected to common harm.

View NELA's amicus brief.

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