Does a case become moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim?  The Supreme Court is set to answer this constitutional question after hearing oral arguments in Campbell-Ewald Company v. Gomez on October 14.  

As we previously reported, Gomez involves a class action under the Telephone Consumer Protection Act against Campbell-Ewald, a national marketing firm, over a text message that Campbell-Ewald sent on behalf of the U.S. Navy to recruit sailors.  Plaintiff, who was one of the approximately 100,000 recipients of the text message, asserts that he did not consent to receive the text message. 

Campbell-Ewald attempted to moot the putative class action by tendering an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure, but Plaintiff refused the offer.  The case was dismissed by the district court but was later remanded by the Ninth Circuit on the basis that an offer of complete relief is insufficient to render either Plaintiff’s individual claim or his class claim moot.   

At oral argument, the four conservative justices supported Campbell-Ewald, and the four liberal justices championed Gomez, while Justice Kennedy was situated somewhere in the middle.  

Justice Ginsburg focused on the language of Rule 68, which “says an offer of judgment expires automatically after 14 days if it’s not accepted … .  So we have a Federal Rule directly on point, and that instructs litigants what an offer of judgment means.  Why do we look any further than that?” 

On the other side of the spectrum, Chief Justice Roberts challenged Gomez’s counsel, stating, “If you’re getting everything you want, what is the case or controversy?  What is the live dispute in which you have a personal stake?  …  You won’t take ‘yes’ for an answer!” 

Justice Scalia questioned, “So even though the parties have no adverseness at all and they all agree on what the outcome should be … we want a court to go into this matter which we’ve all agreed on because we want a judgment?  Is that the Article III adverseness requirement?  I think it’s remarkable.” 

Justice Kennedy, agreeing with the Chief Justice and Justice Scalia, added, “[T]here has to be adversity … .   And if $10,000 is in the bank and he’s been injured in the sum of $10,000, there’s no adversity.  Other than the stigma of a judgment.” 

A decision in Gomez is expected in the first half of 2016.  Troutman Sanders LLP will continue to monitor this case to see how the deeply divided Supreme Court ultimately resolves the constitutional question of mootness.