Impact of Campbell-Ewald on Class Action Litigation

In January the Supreme Court, in a split decision, held that defendant Campbell-Ewald did not do enough to moot plaintiff Jose Gomez’s case by offering him $1503 compensation for sending him an unsolicited text message, and his failure to accept the offer created neither a contract nor a Federal Rule of Civil Procedure 68 judgment.

According to the majority, Mr. Gomez still stood to gain from litigating his claim, including his claim to represent a putative class.

The Court’s decision shouldn’t be read as a permanent obstacle to defendants in Campbell-Ewald’s position. The opinion reserved judgment on the question of “whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.” Under those facts, the Court would likely hold that the plaintiff’s claim is moot.

The tender-of-complete-relief strategy may not always be an option. It probably does not make sense in class actions where plaintiffs have substantial losses or where the plaintiffs’ losses may be undeterminable at the outset. In these types of cases, it may be more cost-effective to fight class certification.

The impact of the Campbell-Ewald decision will not be felt immediately. Businesses named often as class action defendants should monitor developments in this area of the law to ensure that they employ the best strategies for defending against class actions.