As you probably know, on Wednesday, the Supreme Court finally issued its long-awaited opinion in Campbell-Ewald Co. v. Gomez.  Tammy Adkins & Helen Arnold of McGuireWoods’s Chicago office wrote up an excellent summary, which I’m quoting below:

On January 20th, 2016, in Campbell-Ewald Co. v. Gomez, a case closely watched by both sides of the class action bar, the U.S. Supreme Court ruled in an opinion authored by Justice Ruth Bader Ginsberg that an unaccepted Rule 68 offer of judgment did not moot the Telephone Consumer Protection Act (TCPA) putative class action brought by plaintiff Jose Gomez.

Defendant

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It’s rapidly becoming conventional wisdom that Campbell-Ewald Co. v. Gomez (argued yesterday) is going to be a win for the plaintiffs.  Respected academics like Robert Klonoff have stated it, and respected reporters like Perry Cooper have quoted respected plaintiffs’ counsel like Deepak Gupta to the same effect.  But, dig a little deeper into the arguments they’re all using to justify their predictions, and it’s not quite as clear that Gomez will be decided in favor of the plaintiff.  Those arguments are:
The Court has no way to counter Justice Kagan’s dissent.  In a blunt dissent in Genesis Healthcare Continue Reading

 Ellen Delgado sued collection agency Collecto, Inc., accusing it of violating the Fair Debt Collection Practices Act by sending her an improper debt collection letter. After she filed suit (but before she moved for class certification), Collecto made an offer of judgment for Ms. Delgado’s full damages, as well as attorneys’ fees and costs. It then, some minor procedural maneuvering aside, moved to dismiss the case as moot.

These facts should sound familiar to readers of this blog; they’re part of the ongoing battle over whether a defendant can moot a named plaintiff’s claims in a class action by offering Continue Reading

This term, the Supreme Court will review several class action cases. In one of those, Genesis HealthCare Corp. v. Symczyk (technically, an FLSA collective action, but a ruling either way will likely have wider significance) it will decide whether a defendant can moot a class action by offering full relief to a class representative. The case has received a lot of attention, in no small part because plaintiffs are worried about the practice of "picking off" named plaintiffs. On the other side, defendants would like to preserve one of the best tools they have for avoiding nuisance suits.

Last … Continue Reading

 Last week, there were two appellate opinions, one from the Seventh Circuit and one from the Tenth, that are worth some attention. They’re worth discussing together as well, because while only one is really helpful for defendants, both discuss different conceptions of how to argue comity in class actions.

The first is Smentek v. Dart (7th Cir. 2012). Smentek was a class action filed on behalf of Illinois prisoners who had been denied dental care in violation of the due process clause. It was the third of its kind. How did that happen? In the first two class actions, various … Continue Reading

Like many cell-phone users, Jerome Damasco received an an unsolicited text message on his phone. Unlike many cell-phone users, he decided to make a federal case of it. So he filed a class action in federal court, alleging that Clearwire (the advertiser) had violated the Telephone Consumer Protection Act.

Faced with the complaint, Clearwire offered Damasco the full damages he sought as an individual. (It also offered to make the same payment to ten other unnamed individuals, suggesting that this may have been a technical glitch rather than a knowing TCPA violation.) It warned Damasco that it considered this … Continue Reading