Campbell-Ewald Co. v. Gomez was argued yesterday in the U.S. Supreme Court. It is one of several major class action cases that will be decided by the Court this Term. It presents the question of whether a putative class action case becomes moot when the defendant offers complete relief to the named plaintiff (for more detail on the case, see my June 16 blog post). If the Court rules that an offer of complete relief renders a case moot (or otherwise dead), and that a named plaintiff cannot pursue a class action in that circumstance, that could potentially put an end to many small dollar value consumer class actions as we know them. Unless the plaintiffs’ lawyers could assemble a very large number of plaintiffs, the defendant could easily resolve the case for far less then it will pay to defend it, simply by paying the small claims of the named plaintiffs.  Plaintiffs might try for declaratory or injunctive relief, but those remedies also may not be viable where damages are an adequate remedy, the named plaintiffs have been fully paid, and the plaintiffs cannot show that they are likely to have another similar claim against the defendant in the future for which declaratory or injunctive relief would be an appropriate remedy.

Based on the transcript of yesterday’s oral argument, this is shaping up as a very interesting case.  There were a few questions about whether the offer in the case was really for complete relief, but the Court seemed to move past that issue fairly quickly. Most of the justices seemed to agree that when a defendant offers complete relief (the precise mechanism for which was debated), the case must end. Justice Ginsburg suggested that, even in that circumstance, the plaintiff should be entitled to pursue a judicial finding of liability, but based on other justices’ comments that position seemed unlikely to be adopted by a majority. There was a lot of debate about, when the defendant offers complete relief, precisely how the case should end – whether it should be a finding of mootness, or a judgment based on the offer, or whether such a ruling should be made at the summary judgment stage of a case (as Justice Sotomayor suggested). Chief Justice Roberts appeared to be strongly of the view that if the plaintiff is getting everything he or she wants, there can be no case or controversy, and the court system has an interest in not issuing a ruling in that circumstance. Justices Alito and Kennedy appeared to suggest that if the defendant simply delivers cash or a certified check, that should put an end to the case. Plaintiff’s counsel suggested that should be a merits issue or an affirmative defense, but not render a case moot. Justice Breyer suggested that the defendant could simply pay the money into court, “[a]nd, of course, if that person [i.e., the named plaintiff] now has all he wants, he can’t certify this is a class because he isn’t harmed.” Justice Breyer suggested that whether a judgment was entered for the named plaintiff would not make any difference. (Transcript, at 48.) Other than these comments from Justice Breyer, and some from Chief Justice Roberts, there was not a lot of discussion about the issue of whether a class action can continue when the named plaintiff’s claim has been fully paid.

Attempting to read the tea leaves from the justices’ comments and questions (and that is always an effort at guesswork at which I could be wrong), I’m seeing a distinct possibility that a majority of the Court might recognize an avenue through which a defendant can defeat a class action, at least by tendering a certified check to the named plaintiff or paying that money into court. If Justices Kennedy and Breyer are thinking along those lines, there might be five votes on the Court for that position, although it’s not squarely presented by the facts of the Campbell-Ewald case. And that proposition would certainly change class actions as we know them.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.