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 In a blunt dissent in Genesis Healthcare v. Symczyk, Justice Kagan argued that the majority had gotten it wrong: a withdrawn Rule 68 offer would not moot a class action because a withdrawn offer can’t moot anything. It was a good argument, but there are two reasons it won’t apply in this case. First, it didn’t convince five Justices last time. Second, Campbell-Ewald also made a non-Rule 68 settlement offer for full individual relief. So yes, one of the five Justices in the majority might buy into the dissent’s logic, but that logic would not apply to the (non-withdrawn) settlement offer. The Court will still have to confront the question of what happens when full relief is offered to an individual plaintiff. (And, indeed, at argument, this question came up.)
The Seventh Circuit has reversed itself. It’s assumed that the Court granted certiorari because of the apparent circuit split between the Seventh Circuit and the remainder of the appellate courts to rule on the issue. The Seventh Circuit’s recent reversal might be a reason not to grant cert, but unless you believe that the Court is solely looking at whether the appellate courts are in consensus, it’s not a persuasive reason to overrule previous precedent. Moreover, Justice Easterbrook’s opinion uses Justice Kagan’s logic, meaning that it doesn’t apply to the non-Rule 68 offer.
Rule 68 is a class action killer. This is the argument that gets trotted out most often. Professor Klonoff puts it best:
Acceptance of Campbell-Ewald’s position would enable defendants in putative class actions to engage in gamesmanship by relying on unaccepted offers of judgment to derail putative class actions.
This is, of course, plaintiff’s argument in Gomez. But claiming that the Court will buy the argument because the argument is self-evident is simply begging the question. Five Justices rejected this argument in Genesis Healthcare. There is no reliable evidence that any of them have changed their minds. (Nor is there persuasive evidence that the four justices in the minority believe it. At argument, Justice Kagan in particular was very intent on putting the policy arguments to the side.) And the Court has, in the last five years, proven remarkably resistant to the argument that any particular ruling will kill the class action.
This hardly means that Gomez will be a slam-dunk for the defendants. Predicting Supreme Court opinions ahead of time is like reading tea leaves in a cup of coffee. But let’s be rigorous here.