Decision denies defendants the opportunity to use Rule 68
By Gerald L. Maatman Jr., Pamela Q. Devata and Rebecca S. Bjork
The Daily Record Newswire
BOSTON, MA — The U.S. Supreme Court in January issued an important ruling that will affect the ability of employers to defend against a variety of lawsuits brought as class actions, including employment discrimination, Equal Pay Act, Worker Adjustment & Retraining Notification Act and Fair Credit Re porting Act cases.
In a 6-3 decision in Campbell-Ewald Co. v. Gomez, No. 14-857 (U.S. Jan. 20, 2016), the Supreme Court ruled that when a party defending against a claim in a federal lawsuit makes an offer to a named plaintiff under Rule 68 to pay money to completely cover the alleged damages he is seeking and his accumulated costs to that point, and the plaintiff does not accept it, the lawsuit nonetheless may proceed.
The decision is a game-changer because it denies defendants the opportunity to use Rule 68 to moot the claims of named plaintiffs, and therefore end the class action, by removing the basis for subject-matter jurisdiction under the “cases and controversies” clause of Article III of the U.S. Constitution.
What is Rule 68?
Rule 68 is a relatively obscure provision. Known as the “offer of judgment” rule, it shifts costs to a plaintiff who rejects an offer that is more favorable than the ultimate judgment.
Sub-section (a) of Rule 68 states that at least 14 days before a trial date, “a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.”
That portion of Rule 68 is straightforward, operating as a form of settlement to spare the courts the obligation to carry through with the trial.
Defendants’ increasing use of Rule 68 offers in employment-related class actions arose from the language of sub-section (d), which states: “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”
That provision serves to put pressure on the plaintiff to weigh the risks of proceeding to trial, given that he or she will be ultimately liable to pay the offeror the costs it incurred after the date the offer of judgment was rejected.
Thus, the purpose of Rule 68 is plainly to encourage settlement and avoid unnecessary trials. It essentially permits a defendant to make a settlement offer that raises the stakes for the plaintiff who continues to litigate. It accomplishes that goal by providing that if the plaintiff does not accept the offer within 14 days and the ultimate judgment obtained by the plaintiff is not greater than the offer, the plaintiff must pay the statutory costs incurred by the defendant after the date the offer is made.
Simply put, Rule 68 shifts to the plaintiff the cost of litigating a lawsuit that the defendant should not have been forced to defend.
The Supreme Court recently interpreted Rule 68 in a 2013 case involving a collective action (Genesis HealthCare Corp. v. Symczk, 133 S. Ct. 1523 (2013)) — the procedures that require individuals to opt-in to obtain relief in a lawsuit brought by a representative plaintiff, such as under the Equal Pay Act.
But due to a concession made by the plaintiff in that case, the Supreme Court did not reach the key question it decided in Campbell-Ewald. As Justice Ruth Bader Ginsburg, who wrote the majority opinion in Campbell-Ewald, put it: “Is an unaccepted offer to satisfy the named plaintiff’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated?”
Unaccepted offers of judgment
In the Supreme Court’s ruling, Justices Ginsburg, Elena Kagan, Sonia Sotomayor, Anthony M. Kennedy and Stephen G. Breyer, with Justice Clarence Thomas concurring, denied defendants the option of arguing that because the named plaintiff did not accept a full settlement offer under Rule 68 before filing the motion for class certification, he or she does not have a sufficient interest in the controversy to create jurisdiction under Article III of the U.S. Constitution, and both the individual and class claims must be dismissed for lack of subject-matter jurisdiction.
The U.S. Court of Appeals for the 3rd, 4th and 6th circuits had previously ruled that an unaccepted offer under Rule 68 can moot a named plaintiff’s claim in that way, while the 1st, 2nd, 5th, 7th and 11th circuits had held it could not. The Supreme Court entered the fray to resolve the split amongst the circuits.
Under Article III, only “cases” or “controversies” can create federal court jurisdiction, and if the named plaintiff no longer has a personal stake in the outcome of the lawsuit — as opposed to an interest in simply the class action aspects of it — the case must be dismissed as moot.
That was the Supreme Court’s holding in 2013 when it last interpreted Rule 68 in the context of representative lawsuits. In Genesis HealthCare Corp. v. Symczyk, the plaintiff had conceded that the unaccepted offer of judgment made by the defendant in that case served to moot her individual claim, and the Supreme Court considered only whether the lawsuit was justiciable based solely on her interest in pursuing collective action allegations against the defendant.
The answer in that case was “no,” but Justice Kagan in dissent argued that the Supreme Court should have reached the issue that the plaintiff conceded — and should have ruled that an unaccepted offer does not moot the plaintiff’s individual claim in the first place.
The court now has adopted Justice Kagan’s view in that dissent, and reached the issue explicitly, because Mr. Gomez did not make the same concession Ms. Symczyk made — namely, that his failure to respond to Campbell-Ewald’s offer made his individual claim moot.
Gomez had alleged that Campbell-Ewald, a marketing communications company hired by the U.S. Navy to assist in recruiting volunteers, had violated the Telephone Consumer Protection Act, or TCPA, by retaining a subcontractor who sent text messages to his telephone encouraging him to serve in the Navy, messages he did not consent to receive.
He filed a class action lawsuit under the TCPA seeking to represent a nationwide class and obtain treble statutory damages plus costs and attorneys’ fees. Before his motion for class certification was due, Campbell-Ewald proposed to settle his individual claim by paying him the amount of money he could receive in statutory damages under the TCPA, plus costs, by serving on him a Rule 68 offer of judgment.
The 14-day time period for Gomez to respond elapsed, and Campbell-Ewald then moved to dismiss the case under Rule 12(b)(1) for lack of subject-matter jurisdiction, arguing his claim had become moot because the offer provided him with complete relief, and therefore the class claims were moot as well.
Both the District Court and the 9th U.S. Circuit Court of Appeals denied the motion to dismiss (but made differing rulings regarding the doctrine of “derivative sovereign immunity” that are not relevant here).
The majority at the Supreme Court affirmed the 9th Circuit and held that “Gomez’s complaint was not effaced by Campbell’s unaccepted offer to satisfy his individual claim.”
The Supreme Court did so by applying “basic principles of contract law” that an offer made but not accepted has no force and is “only a proposal, binding neither Campbell nor Gomez.”
It also noted that by not responding to the offer, Gomez was left “emptyhanded,” so his individual claim was not made moot by the unaccepted offer, so that claim “retains its vitality during the time involved in determining whether the case could proceed on behalf of a class.”
The dissenting justices argued that Campbell-Ewald presents a classic case of mootness because Campbell-Ewald offered to give Gomez the maximum amount that he could recover, “but it turns out he wants more. He wants a federal court to say he is right. The problem for Gomez is that the federal courts exist to resolve real disputes, not to rule on a plaintiff’s entitlement to relief already there for the taking.” Because the plaintiff filed suit “seeking redress for an alleged injury, and the defendant agrees to fully redress that injury, there is no longer a case or controversy for purposes of Article III.”
Essentially, according to the dissenters, once an offer to completely redress the plaintiff’s injury has been made, there is no need for a court to redress that injury, and the adversity necessary to confer subject matter jurisdiction no longer exists.
What should employers do?
Although employers and other defendants facing class action lawsuits lost an important strategy with Campbell-Ewald, due to the expense of defending against class certification motions, they still may use Rule 68 to attempt to create settlement leverage, and may even be able to re-invent the Rule 68 procedure to try to moot plaintiff’s claims.
Importantly, the majority limited the holding to situations in which there is merely an “offer” to settle the claims. It expressly reserved and did not decide the question of whether the outcome would be different if a defendant invokes Rule 68 and “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.”
Further, the majority did not eviscerate the requirement of Rule 68(d), which shifts costs of an unaccepted offer of judgment to the plaintiff going forward. The majority noted that the “built-in sanction” for a plaintiff who rejects an offer remains: “the offeree must pay the costs incurred after the offer was made.”
So, in the end, it is likely that parties defending against claims will continue to use Rule 68, and will do so in the two specific ways that ironically were explicitly suggested by Justice Ginsburg’s majority opinion.
And one prediction we will make here is that, as a result, it is likely that litigation over Rule 68 will turn on disputes over whether creating an “account payable” to a plaintiff satisfies the rule’s requirement that an “offer” be made to the plaintiff.
