New Cert Grant: Mootness in Class Actions

The Supreme Court has just granted cert in Campbell-Ewald Company v. Gomez on the following questions, the first two being relevant to an important ongoing circuit split in class action law: 

(1) Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim; (2) whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., for government contractors is restricted to claims arising out of property damage caused by public works projects.

You can find more on SCOTUSBLOG.  It used to be that the courts understood that a person purporting to represent a class had a special duty to that class – an ethical duty – to pursue the claims with fidelity to the other class members.  This is why courts ask whether a class member is typical of other class members and adequate to represent them.  A class member who is offered a personal settlement and refuses it so that he can represent his fellows is following through on that duty to the rest of the class members.  It also used to be that the courts appreciated that some people bring suits for vindication or to change the law, even if they will only receive nominal damages.  An offer of settlement does not achieve these things – it cannot achieve them – because vindication and legal effect requires a judge to issue a judgment, which only a court can issue.  In other words, an offer of full compensation is not full relief, because it does not include a judgment.   Most people still prefer a guarantee of compensation to an uncertain outcome in a judgment, but that does not mean that they are required to accept something less than a court issued judgment about their case.  The question of mootness posed in Gomez does not require looking at Rule 23, but Rule 23’s requirements and the due process requirements of class action caution against a mootness ruling in Gomez that would vitiate the duty that a class representative owes his fellow class members.  This is because to find that the case can be mooted by a mere offer of settlement would require an inference that the class representative may accept that offer with impunity because he owes no duty to continue with the case on behalf of others after he has been offered full monetary relief.