Defendant gamesmanship curtailed in employment, civil rights, and consumer protection cases
Contrary to its typical approach in recent years, the Supreme Court ruled in a way that enhances enforcement activity in employment, civil rights, and consumer protection cases. Until this Supreme Court decision, in Campbell-Ewald Co. v. Gomez, defendants had been increasingly attempting to defeat class actions by offering to pay off the named plaintiff(s). While offering the named plaintiffs purportedly all that they seek through a specific case, a given defendant would then argue that the case cannot go forward and must be dismissed as moot – even when the named plaintiffs reject the payoff offer.
Although Gomez was a consumer protection matter prosecuted under the Telephone Consumer Protection Act, that case illustrates the dynamics also occurring in litigation under employment law and civil rights statutes. In particular, the damages to which an individual named plaintiff is entitled – such as for wage claims – are small in comparison to the damages sustained by the entire class of affected people, especially when the class numbers in the thousands. Importantly, then, the Supreme Court in Gomez rejected the defendant’s mootness argument by reasoning that “[o]nce unaccepted, the offer is off the table.”
As a matter of basic logic, defendants’ tactical argument now foreclosed by the Supreme Court in Gomez is absurd because the harm to other class members does not somehow disappear even if the named plaintiffs were to receive full relief regarding their individual harm. Indeed, named plaintiffs seek relief for themselves as well as for all others who have been adversely affected by a defendant’s wrongdoing.
Although the decision in Gomez concerning defendants’ offers of judgment is good for plaintiffs and the rule of law generally, advocates should not be lulled into a sense of complacency. This case is merely one of several pending before the Supreme Court, each of which could restrict the ability of claimants to prosecute employment, civil rights, and consumer protection cases successfully. For example, the Supreme Court will soon be deciding whether class actions can be based on legal violations without concrete harm and whether harm can be proved through the use of statistical averages. Long-standing precedent supports the position of plaintiffs in these additional cases, but that does not mean the Supreme Court will follow the clearly established law.
