Campbell-Ewald Co. v. Gomez ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CAMPBELL-EWALD CO. v. GOMEZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 14–857. Argued October 14, 2015—Decided January 20, 2016
The United States Navy contracted with petitioner Campbell-Ewald
Company (Campbell) to develop a multimedia recruiting campaign
that included the sending of text messages to young adults, but only
if those individuals had “opted in” to receipt of marketing solicita-
tions on topics that included Navy service. Campbell’s subcontractor
Mindmatics LLC generated a list of cellular phone numbers for con-
senting 18- to 24-year-old users and then transmitted the Navy’s
message to over 100,000 recipients, including respondent Jose
Gomez, who alleges that he did not consent to receive text messages
and, at age 40, was not in the Navy’s targeted age group. Gomez
filed a nationwide class action, alleging that Campbell violated the
Telephone Consumer Protection Act (TCPA), 47 U.S. C.
§227(b)(1)(A)(iii), which prohibits “using any automatic dialing sys-
tem” to send a text message to a cellular telephone, absent the recipi-
ent’s prior express consent. He sought treble statutory damages for a
willful and knowing TCPA violation and an injunction against
Campbell’s involvement in unsolicited messaging.
Before the deadline for Gomez to file a motion for class certifica-
tion, Campbell proposed to settle Gomez’s individual claim and filed
an offer of judgment pursuant to Federal Rule of Civil Procedure 68.
Gomez did not accept the offer and allowed the Rule 68 submission to
lapse on expiration of the time (14 days) specified in the Rule.
Campbell then moved to dismiss the case pursuant to Rule 12(b)(1)
for lack of subject-matter jurisdiction. Campbell argued first that its
offer mooted Gomez’s individual claim by providing him with com-
plete relief. Next, Campbell urged that Gomez’s failure to move for
class certification before his individual claim became moot caused the
putative class claims to become moot as well. The District Court de-
2 CAMPBELL-EWALD CO. v. GOMEZ
Syllabus
nied the motion. After limited discovery, the District Court granted
Campbell’s motion for summary judgment. Relying on Yearsley v. W.
A. Ross Constr. Co., 309 U.S. 18, the court held that Campbell, as a
contractor acting on the Navy’s behalf, acquired the Navy’s sovereign
immunity from suit under the TCPA. The Ninth Circuit reversed. It
agreed that Gomez’s case remained live but concluded that Campbell
was not entitled to “derivative sovereign immunity” under Yearsley or
on any other basis.
Held:
1. An unaccepted settlement offer or offer of judgment does not
moot a plaintiff’s case, so the District Court retained jurisdiction to
adjudicate Gomez’s complaint.
Article III’s “cases” and “controversies” limitation requires that “an
actual controversy . . . be extant at all stages of review, not merely at
the time the complaint is filed,” Arizonans for Official English v. Ari-
zona, 520 U.S. 43, 67 (internal quotation marks omitted), but a case
does not become moot as “long as the parties have a concrete interest,
however small,” in the litigation’s outcome, Chafin v. Chafin, 568
U. S. ___, ___ (internal quotation marks omitted).
Gomez’s complaint was not effaced by Campbell’s unaccepted offer
to satisfy his individual claim. Under basic principles of contract
law, Campbell’s settlement bid and Rule 68 offer of judgment, once
rejected, had no continuing efficacy. With no settlement offer opera-
tive, the parties remained adverse; both retained the same stake in
the litigation they had at the outset. Neither Rule 68 nor the 19th-
century railroad tax cases California v. San Pablo & Tulare R. Co.,
149 U.S. 308, Little v. Bowers, 134 U.S. 547, and San Mateo County
v. Southern Pacific R. Co., 116 U.S. 138, support the argument that
an unaccepted settlement offer can moot a complaint. Pp. 6–12.
2. Campbell’s status as a federal contractor does not entitle it to
immunity from suit for its violation of the TCPA. Unlike the United
States and its agencies, federal contractors do not enjoy absolute im-
munity. A federal contractor who simply performs as directed by the
Government may be shielded from liability for injuries caused by its
conduct. See Yearsley, 309 U.S., at 20–21. But no “derivative im-
munity” exists when the contractor has “exceeded [its] authority” or
its authority “was not validly conferred.” Id., at 21. The summary
judgment record includes evidence that the Navy authorized Camp-
bell to send text messages only to individuals who had “opted in” to
receive solicitations, as required by the TCPA. When a contractor vi-
olates both federal law and the Government’s explicit instructions, as
alleged here, no immunity shields the contractor from suit. Pp. 12–
14.
Cite as: 577 U. S. ____ (2016) 3
Syllabus
768 F.3d 871, affirmed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which KENNEDY,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opin-
ion concurring in the judgment. ROBERTS, C. J., filed a dissenting opin-
ion, in which SCALIA and ALITO, JJ., joined. ALITO, J., filed a dissenting
opinion.
Cite as: 577 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–857
_________________
CAMPBELL-EWALD COMPANY, PETITIONER
v. JOSE GOMEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 20, 2016]
JUSTICE GINSBURG delivered the opinion of the Court.
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? This question, on which
Courts of Appeals have divided, was reserved in Genesis
HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4
(2013) (slip op., at 5, 6, n. 4). We hold today, in accord
with Rule 68 of the Federal Rules of Civil Procedure, that
an unaccepted settlement offer has no force. Like other
unaccepted contract offers, it creates no lasting right or
obligation. With the offer off the table, and the defend-
ant’s continuing denial of liability, adversity between the
parties persists.
This case presents a second question. The claim in suit
concerns performance of the petitioner’s contract with the
Federal Government. Does the sovereign’s immunity from
suit shield the petitioner, a private enterprise, as well?
We hold that the petitioner’s status as a Government
contractor does not entitle it to “derivative sovereign
immunity,” i.e., the blanket immunity enjoyed by the
2 CAMPBELL-EWALD CO. v. GOMEZ
Opinion of the Court
sovereign.
I
The Telephone Consumer Protection Act (TCPA or Act)
48 Stat. 1064, 47 U.S. C. §227(b)(1)(A)(iii), prohibits any
person, absent the prior express consent of a telephone-
call recipient, from “mak[ing] any call . . . using any auto-
matic telephone dialing system . . . to any telephone num-
ber assigned to a paging service [or] cellular telephone
service.” A text message to a cellular telephone, it is
undisputed, qualifies as a “call” within the compass of
§227(b)(1)(A)(iii). 768 F.3d 871, 874 (CA9 2014). For
damages occasioned by conduct violating the TCPA,
§227(b)(3) authorizes a private right of action. A plaintiff
successful in such an action may recover her “actual
monetary loss” or $500 for each violation, “whichever is
greater.” Damages may be trebled if “the defendant will-
fully or knowingly violated” the Act.
Petitioner Campbell-Ewald Company (Campbell) is a
nationwide advertising and marketing communications
agency. Beginning in 2000, the United States Navy en-
gaged Campbell to develop and execute a multimedia
recruiting campaign. In 2005 and 2006, Campbell pro-
posed to the Navy a campaign involving text messages
sent to young adults, the Navy’s target audience, encour-
aging them to learn more about the Navy. The Navy
approved Campbell’s proposal, conditioned on sending the
messages only to individuals who had “opted in” to receipt
of marketing solicitations on topics that included service
in the Navy. App. 42. In final form, the message read:
“Destined for something big? Do it in the Navy. Get a
career. An education. And a chance to serve a greater
cause. For a FREE Navy video call [ phone number].”
768 F.3d, at 873.
Campbell then contracted with Mindmatics LLC, which
Cite as: 577 U. S. ____ (2016) 3
Opinion of the Court
generated a list of cellular phone numbers geared to the
Navy’s target audience—namely, cellular phone users
between the ages of 18 and 24 who had consented to re-
ceiving solicitations by text message. In May 2006,
Mindmatics transmitted the Navy’s message to over
100,000 recipients.
Respondent Jose Gomez was a recipient of the Navy’s
recruiting message. Alleging that he had never consented
to receiving the message, that his age was nearly 40, and
that Campbell had violated the TCPA by sending the
message (and perhaps others like it), Gomez filed a class-
action complaint in the District Court for the Central
District of California in 2010. On behalf of a nationwide
class of individuals who had received, but had not con-
sented to receipt of, the text message, Gomez sought treble
statutory damages, costs, and attorney’s fees, also an
injunction against Campbell’s involvement in unsolicited
messaging. App. 16–24.
Prior to the agreed-upon deadline for Gomez to file a
motion for class certification, Campbell proposed to settle
Gomez’s individual claim and filed an offer of judgment
pursuant to Federal Rule of Civil Procedure 68. App. to
Pet. for Cert. 52a–61a.1 Campbell offered to pay Gomez
——————
1 Federal Rule of Civil Procedure 68 provides, in relevant part:
“(a) Making an Offer; Judgment on an Accepted Offer. At least
14 days before the date set for trial, 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.
“(b) Unaccepted Offer. An unaccepted offer is considered with-
drawn, but it does not preclude a later offer. Evidence of an unaccepted
offer is not admissible except in a proceeding to determine costs.
. . . . .
“(d) Paying Costs After an Unaccepted Offer. If the judgment
that the offeree finally obtains is not more favorable than the un-
4 CAMPBELL-EWALD CO. v. GOMEZ
Opinion of the Court
his costs, excluding attorney’s fees, and $1,503 per mes-
sage for the May 2006 text message and any other text
message Gomez could show he had received, thereby
satisfying his personal treble-damages claim. Id., at 53a.
Campbell also proposed a stipulated injunction in which it
agreed to be barred from sending text messages in viola-
tion of the TCPA. The proposed injunction, however,
denied liability and the allegations made in the complaint,
and disclaimed the existence of grounds for the imposition
of an injunction. Id., at 56a. The settlement offer did not
include attorney’s fees, Campbell observed, because the
TCPA does not provide for an attorney’s-fee award. Id., at
53a. Gomez did not accept the settlement offer and al-
lowed Campbell’s Rule 68 submission to lapse after the
time, 14 days, specified in the Rule.
Campbell thereafter moved to dismiss the case pursuant
to Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction. No Article III case or contro-
versy remained, Campbell urged, because its offer mooted
Gomez’s individual claim by providing him with complete
relief. Gomez had not moved for class certification before
his claim became moot, Campbell added, so the putative
class claims also became moot. The District Court denied
Campbell’s motion. 805 F. Supp. 2d 923 (CD Cal. 2011).2
Gomez was not dilatory in filing his certification request,
the District Court determined; consequently, the court
noted, the class claims would “relat[e] back” to the date
Gomez filed the complaint. Id., at 930–931.
After limited discovery, Campbell moved for summary
judgment on a discrete ground. The U. S. Navy enjoys the
sovereign’s immunity from suit under the TCPA, Camp-
——————
accepted offer, the offeree must pay the costs incurred after the offer
was made.”
2 Because Campbell had already answered the complaint, the District
Court construed Campbell’s motion as a request for summary judg-
ment. 805 F. Supp. 2d, at 927, n. 2.
Cite as: 577 U. S. ____ (2016) 5
Opinion of the Court
bell argued. The District Court granted the motion.
Relying on our decision in Yearsley v. W. A. Ross Constr.
Co., 309 U.S. 18 (1940), the court held that, as a contrac-
tor acting on the Navy’s behalf, Campbell acquired the
Navy’s immunity. No. CV 10–02007DMG (CD Cal., Feb.
22, 2013), App. to Pet. for Cert. 22a–34a, 2013 WL 655237.
The Court of Appeals for the Ninth Circuit reversed the
summary judgment entered for Campbell. 768 F.3d 871.
The appeals court disagreed with the District Court’s
ruling on the immunity issue, but agreed that Gomez’s
case remained live. Concerning Gomez’s individual claim,
the Court of Appeals relied on its then-recent decision in
Diaz v. First American Home Buyers Protection Corp., 732
F.3d 948 (2013). Diaz held that “an unaccepted Rule 68
offer that would fully satisfy a plaintiff ’s [individual]
claim is insufficient to render th[at] claim moot.” Id., at
950. As to the class relief Gomez sought, the Ninth Cir-
cuit held that “an unaccepted Rule 68 offer of judgment—
for the full amount of the named plaintiff ’s individual
claim and made before the named plaintiff files a motion
for class certification—does not moot a class action.” 768
F.3d, at 875 (quoting Pitts v. Terrible Herbst, Inc., 653
F.3d 1081, 1091–1092 (CA9 2011)).
Next, the Court of Appeals held that Campbell was not
entitled to “derivative sovereign immunity” under this
Court’s decision in Yearsley or on any other basis. 768 F.
3d, at 879–881. Vacating the District Court’s judg-
ment, the Ninth Circuit remanded the case for further
proceedings.3
We granted certiorari to resolve a disagreement among
the Courts of Appeals over whether an unaccepted offer
can moot a plaintiff ’s claim, thereby depriving federal
courts of Article III jurisdiction. Compare Bais Yaakov v.
——————
3 The Court of Appeals stayed its mandate pending proceedings in
this Court. App. to Pet. for Cert. 62a–63a.
6 CAMPBELL-EWALD CO. v. GOMEZ
Opinion of the Court
Act, Inc., 798 F.3d 46, 52 (CA1 2015); Hooks v. Landmark
Industries, Inc., 797 F.3d 309, 315 (CA5 2015); Chapman
v. First Index, Inc., 796 F.3d 783, 787 (CA7 2015); Tanasi
v. New Alliance Bank, 786 F.3d 195, 200 (CA2 2015);
Stein v. Buccaneers Limited Partnership, 772 F.3d 698,
703 (CA11 2014); Diaz, 732 F.3d, at 954–955 (holding that
an unaccepted offer does not render a plaintiff ’s claim
moot), with Warren v. Sessoms & Rogers, P. A., 676 F.3d
365, 371 (CA4 2012); O’Brien v. Ed Donnelly Enterprises,
Inc., 575 F.3d 567, 574–575 (CA6 2009); Weiss v. Regal
Collections, 385 F.3d 337, 340 (CA3 2004) (holding that
an unaccepted offer can moot a plaintiff ’s claim). We
granted review as well to resolve the federal contractor
immunity question Campbell’s petition raised. 575 U. S.
___ (2015).
II
Article III of the Constitution limits federal-court juris-
diction to “cases” and “controversies.” U. S. Const.,
Art. III, §2. We have interpreted this requirement to
demand that “an actual controversy . . . be extant at all
stages of review, not merely at the time the complaint is
filed.” Arizonans for Official English v. Arizona, 520 U.S.
43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395,
401 (1975)). “If an intervening circumstance deprives the
plaintiff of a ‘personal stake in the outcome of the lawsuit,’
at any point during litigation, the action can no longer
proceed and must be dismissed as moot.” Genesis
HealthCare Corp., 569 U. S., at ___ (slip op., at 4) (quoting
Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478
(1990)). A case becomes moot, however, “only when it is
impossible for a court to grant any effectual relief what-
ever to the prevailing party.” Knox v. Service Employees,
567 U. S. ___, ___ (2012) (slip op., at 7) (internal quotation
marks omitted). “As long as the parties have a concrete
interest, however small, in the outcome of the litigation,
Cite as: 577 U. S. ____ (2016) 7
Opinion of the Court
the case is not moot.” Chafin v. Chafin, 568 U. S. ___, ___
(2013) (slip op., at 6) (internal quotation marks omitted).
In Genesis HealthCare, the Court considered a collective
action brought by Laura Symczyk, a former employee of
Genesis HealthCare Corp. Symczyk sued on behalf of
herself and similarly situated employees for alleged viola-
tions of the Fair Labor Standards Act of 1938, 29 U.S. C.
§201 et seq. In that case, as here, the defendant served
the plaintiff with an offer of judgment pursuant to Rule 68
that would have satisfied the plaintiff ’s individual dam-
ages claim. 569 U. S., at ___ (slip op., at 2). Also as here, the
plaintiff allowed the offer to lapse by failing to respond
within the time specified in the Rule. Ibid. But unlike the
case Gomez mounted, Symczyk did not dispute in the
lower courts that Genesis HealthCare’s offer mooted her
individual claim. Id., at ___ (slip op., at 5). Because of
that failure, the Genesis HealthCare majority refused to
rule on the issue. Instead, the majority simply assumed,
without deciding, that an offer of complete relief pursuant
to Rule 68, even if unaccepted, moots a plaintiff ’s claim.
Ibid. Having made that assumption, the Court proceeded
to consider whether the action remained justiciable on the
basis of the collective-action allegations alone. Absent a
plaintiff with a live individual case, the Court concluded,
the suit could not be maintained. Id., at ___ (slip op., at 6).
JUSTICE KAGAN, writing in dissent, explained that she
would have reached the threshold question and would
have held that “an unaccepted offer of judgment cannot
moot a case.” Id., at ___ (slip op., at 3). She reasoned:
“When a plaintiff rejects such an offer—however good
the terms—her interest in the lawsuit remains just
what it was before. And so too does the court’s ability
to grant her relief. An unaccepted settlement offer—
like any unaccepted contract offer—is a legal nullity,
with no operative effect. As every first-year law stu-
8 CAMPBELL-EWALD CO. v. GOMEZ
Opinion of the Court
dent learns, the recipient’s rejection of an offer ‘leaves
the matter as if no offer had ever been made.’ Minne-
apolis & St. Louis R. Co. v. Columbus Rolling Mill,
119 U.S. 149, 151 (1886). Nothing in Rule 68 alters
that basic principle; to the contrary, that rule specifies
that ‘[a]n unaccepted offer is considered withdrawn.’
Fed. Rule Civ. Proc. 68(b). So assuming the case was
live before—because the plaintiff had a stake and the
court could grant relief—the litigation carries on, un-
mooted.” Ibid.
We now adopt JUSTICE KAGAN’s analysis, as has every
Court of Appeals ruling on the issue post Genesis
HealthCare.4 Accordingly, we hold that Gomez’s com-
plaint was not effaced by Campbell’s unaccepted offer to
satisfy his individual claim.
As earlier recounted, see supra, at 3–4, Gomez com-
menced an action against Campbell for violation of the
TCPA, suing on behalf of himself and others similarly
situated. Gomez sought treble statutory damages and an
injunction on behalf of a nationwide class, but Campbell’s
settlement offer proposed relief for Gomez alone, and it did
not admit liability. App. to Pet. for Cert. 58a. Gomez
rejected Campbell’s settlement terms and the offer of
judgment.
Under basic principles of contract law, Campbell’s set-
tlement bid and Rule 68 offer of judgment, once rejected,
had no continuing efficacy. See Genesis HealthCare, 569
U. S., at ___ (KAGAN, J., dissenting) (slip op., at 3). Absent
Gomez’s acceptance, Campbell’s settlement offer remained
——————
4 See Bais Yaakov v. Act, Inc., 798 F.3d 46, 51–52 (CA1 2015); Hooks
v. Landmark Industries, Inc., 797 F.3d 309, 314–315 (CA5 2015);
Chapman v. First Index, Inc., 796 F.3d 783, 786–787 (CA7 2015);
Tanasi v. New Alliance Bank, 786 F.3d 195, 199–200 (CA2 2015); Stein
v. Buccaneers Limited Partnership, 772 F.3d 698, 702–703 (CA11
2014); Diaz v. First American Home Buyers Corp., 732 F.3d 948, 953–
955 (CA9 2013).
Cite as: 577 U. S. ____ (2016) 9
Opinion of the Court
only a proposal, binding neither Campbell nor Gomez. See
App. to Pet. for Cert. 59a (“Please advise whether Mr.
Gomez will accept [Campbell’s] offer . . . .”). Having re-
jected Campbell’s settlement bid, and given Campbell’s
continuing denial of liability, Gomez gained no entitle-
ment to the relief Campbell previously offered. See Eli-
ason v. Henshaw, 4 Wheat. 225, 228 (1819) (“It is an un-
deniable principle of the law of contracts, that an offer of a
bargain by one person to another, imposes no obligation
upon the former, until it is accepted by the latter . . . .”).
In short, with no settlement offer still operative, the par-
ties remained adverse; both retained the same stake in the
litigation they had at the outset.
The Federal Rule in point, Rule 68, hardly supports the
argument that an unaccepted settlement offer can moot a
complaint. An offer of judgment, the Rule provides, “is
considered withdrawn” if not accepted within 14 days
of its service. Fed. Rule Civ. Proc. 68(a), (b). The sole
built-in sanction: “If the [ultimate] judgment . . . is not more
favorable than the unaccepted offer, the offeree must pay
the costs incurred after the offer was made.” Rule 68(d).
In urging that an offer of judgment can render a contro-
versy moot, Campbell features a trio of 19th-century
railroad tax cases: California v. San Pablo & Tulare R.
Co., 149 U.S. 308 (1893), Little v. Bowers, 134 U.S. 547
(1890), and San Mateo County v. Southern Pacific R. Co.,
116 U.S. 138 (1885). None of those decisions suggests
that an unaccepted settlement offer can put a plaintiff out
of court. In San Pablo, California had sued to recover
state and county taxes due from a railroad. In response,
the railroad had not merely offered to pay the taxes in
question. It had actually deposited the full amount de-
manded in a California bank in the State’s name, in accord
with a California statute that “extinguished” the railroad’s
tax obligations upon such payment. 149 U.S., at 313–314.
San Pablo thus rested on California’s substantive law,
10 CAMPBELL-EWALD CO. v. GOMEZ
Opinion of the Court
which required the State to accept a taxpayer’s full pay-
ment of the amount in controversy. San Mateo and Little
similarly involved actual payment of the taxes for which
suit was brought. In all three cases, the railroad’s pay-
ments had fully satisfied the asserted tax claims, and so
extinguished them. San Mateo, 116 U.S., at 141–142;
Little, 134 U.S., at 556.5
In contrast to the cases Campbell highlights, when the
——————
5 In addition to California v. San Pablo & Tulare R. Co., 149 U.S. 308
(1893), THE CHIEF JUSTICE maintains, two recent decisions of the Court
support its position: Alvarez v. Smith, 558 U.S. 87 (2009), and Already,
LLC v. Nike, Inc., 568 U. S. ___ (2013). See post, at 6–9 (dissenting
opinion). The Court’s reasoning in those opinions, however, is con-
sistent with our decision in this case. In Alvarez, the Court found moot
claims for injunctive and declaratory relief in relation to cars and cash
seized by the police. Through separate state-court proceedings, the
State had “returned all the cars that it seized,” and the plaintiff-
property owners had “either forfeited any relevant cash or ha[d] accepted
as final the State’s return of some of it.” 558 U.S., at 89, 95–96.
Alvarez thus resembles the railroad tax cases described above: The
Alvarez plaintiffs had in fact received all the relief they could claim, all
“underlying property disputes” had ended, id., at 89, and as the com-
plaint sought “only declaratory and injunctive relief, not damages,” id.,
at 92, no continuing controversy remained.
Already concerned a trademark owned by Nike. Already sought a
declaratory judgment invalidating the trademark. The injury Already
asserted was the ongoing threat that Nike would sue for trademark
infringement. In response to Already’s claim, Nike filed a “Covenant
Not to Sue,” in which it promised not to bring any trademark claims
based on Already’s existing or similar footwear designs. 568 U. S., at
___ (slip op., at 2). The Court found this covenant sufficient to over-
come the rule that “voluntary cessation” is generally inadequate to
moot a claim. Id., at ___ (slip op., at 6). True, Nike’s covenant was
unilateral, but it afforded Already blanket protection from future
trademark litigation. Id., at ___ (slip op., at 8). The risk that under-
pinned Already’s standing—the Damocles’ sword of a trademark
infringement suit—thus ceased to exist given Nike’s embracive promise
not to sue. In short, in both Alvarez and Already, the plaintiffs had
received full redress for the injuries asserted in their complaints. Here,
by contrast, Campbell’s revocable offer, far from providing Gomez the
relief sought in his complaint, gave him nary a penny.
Cite as: 577 U. S. ____ (2016) 11
Opinion of the Court
settlement offer Campbell extended to Gomez expired,
Gomez remained emptyhanded; his TCPA complaint,
which Campbell opposed on the merits, stood wholly un-
satisfied. Because Gomez’s individual claim was not made
moot by the expired settlement offer, that claim would
retain vitality during the time involved in determining
whether the case could proceed on behalf of a class. While
a class lacks independent status until certified, see Sosna
v. Iowa, 419 U.S. 393, 399 (1975), a would-be class repre-
sentative with a live claim of her own must be accorded a
fair opportunity to show that certification is warranted.
THE CHIEF JUSTICE’s dissent asserts that our decision
transfers authority from the federal courts and “hands it
to the plaintiff.” Post, at 10. Quite the contrary. The
dissent’s approach would place the defendant in the driv-
er’s seat. We encountered a kindred strategy in U. S.
Bancorp Mortgage Co. v. Bonner Mall Partnership, 513
U.S. 18 (1994). The parties in Bancorp had reached a
voluntary settlement while the case was pending before
this Court. Id., at 20. The petitioner then sought vacatur
of the Court of Appeals’ judgment, contending that it
should be relieved from the adverse decision on the ground
that the settlement made the dispute moot. The Court
rejected this gambit. Id., at 25. Similarly here, Campbell
sought to avoid a potential adverse decision, one that
could expose it to damages a thousand-fold larger than the
bid Gomez declined to accept.
In sum, an unaccepted settlement offer or offer of judg-
ment does not moot a plaintiff ’s case, so the District Court
retained jurisdiction to adjudicate Gomez’s complaint.
That ruling suffices to decide this case. We need not, and
do not, now decide 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. That question is appropriately reserved for a
12 CAMPBELL-EWALD CO. v. GOMEZ
Opinion of the Court
case in which it is not hypothetical.
III
The second question before us is whether Campbell’s
status as a federal contractor renders it immune from suit
for violating the TCPA by sending text messages to uncon-
senting recipients. The United States and its agencies, it
is undisputed, are not subject to the TCPA’s prohibitions
because no statute lifts their immunity. Brief for Peti-
tioner 2; Brief for Respondent 43. Do federal contractors
share the Government’s unqualified immunity from liabil-
ity and litigation? We hold they do not.
“[G]overnment contractors obtain certain immunity in
connection with work which they do pursuant to their
contractual undertakings with the United States.” Brady
v. Roosevelt S. S. Co., 317 U.S. 575, 583 (1943). That
immunity, however, unlike the sovereign’s, is not absolute.
See id., at 580–581. Campbell asserts “derivative sover-
eign immunity,” Brief for Petitioner 35, but can offer no
authority for the notion that private persons performing
Government work acquire the Government’s embracive
immunity. When a contractor violates both federal law
and the Government’s explicit instructions, as here al-
leged, no “derivative immunity” shields the contractor
from suit by persons adversely affected by the violation.
Campbell urges that two of our decisions support its
“derivative immunity” defense: Yearsley, 309 U.S. 18, and
Filarsky v. Delia, 566 U. S. ___ (2012). In Yearsley, a
landowner asserted a claim for damages against a private
company whose work building dikes on the Missouri River
pursuant to its contract with the Federal Government had
washed away part of the plaintiff ’s land. We held that the
contractor was not answerable to the landowner. “[T]he
work which the contractor had done in the river bed,” we
observed, “was all authorized and directed by the Gov-
ernment of the United States” and “performed pursuant to
Cite as: 577 U. S. ____ (2016) 13
Opinion of the Court
the Act of Congress.” 309 U.S., at 20 (internal quotation
marks omitted). Where the Government’s “authority to
carry out the project was validly conferred, that is, if what
was done was within the constitutional power of Con-
gress,” we explained, “there is no liability on the part of
the contractor” who simply performed as the Government
directed. Id., at 20–21.6 The Court contrasted with Years-
ley cases in which a Government agent had “exceeded his
authority” or the authority “was not validly conferred”; in
those circumstances, the Court said, the agent could be
held liable for conduct causing injury to another. Id., at
21.7
In Filarsky, we considered whether a private attorney
temporarily retained by a municipal government as an
investigator could claim qualified immunity in an action
brought under 42 U.S. C. §1983. Finding no distinction in
the common law “between public servants and private
individuals engaged in public service,” we held that the
investigator could assert “qualified immunity” in the
lawsuit. 566 U. S., at ___, ___ (slip op., at 8, 5). Qualified
immunity reduces the risk that contractors will shy away
from government work. But the doctrine is bounded in a
way that Campbell’s “derivative immunity” plea is not.
“Qualified immunity may be overcome . . . if the defendant
knew or should have known that his conduct violated a
right ‘clearly established’ at the time of the episode in
suit.” Id., at ___ (GINSBURG, J., concurring) (slip op., at 1)
——————
6 If there had been a taking of the plaintiff ’s property, the Court
noted, “a plain and adequate remedy” would be at hand, i.e., recovery
from the United States of “just compensation.” Yearsley, 309 U.S., at 21.
7 We disagree with the Court of Appeals to the extent that it de-
scribed Yearsley as “establish[ing] a narrow rule regarding claims
arising out of property damage caused by public works projects.” 768
F. 3d, at 879. Critical in Yearsley was not the involvement of public
works, but the contractor’s performance in compliance with all federal
directions.
14 CAMPBELL-EWALD CO. v. GOMEZ
Opinion of the Court
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Campbell does not here contend that the TCPA’s require-
ments or the Navy’s instructions failed to qualify as “clearly
established.”
At the pretrial stage of litigation, we construe the record
in a light favorable to the party seeking to avoid summary
disposition, here, Gomez. Matsushita Elec. Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In oppo-
sition to summary judgment, Gomez presented evidence
that the Navy authorized Campbell to send text messages
only to individuals who had “opted in” to receive solicita-
tions. App. 42–44; 768 F. 3d, at 874. A Navy representa-
tive noted the importance of ensuring that the message
recipient list be “kosher” (i.e., that all recipients had con-
sented to receiving messages like the recruiting text), and
made clear that the Navy relied on Campbell’s representa-
tion that the list was in compliance. App. 43. See also
ibid. (noting that Campbell itself encouraged the Navy to
use only an opt-in list in order to meet national and local
law requirements). In short, the current record reveals no
basis for arguing that Gomez’s right to remain message-
free was in doubt or that Campbell complied with the
Navy’s instructions.
We do not overlook that subcontractor Mindmatics, not
Campbell, dispatched the Navy’s recruiting message to
unconsenting recipients. But the Federal Communica-
tions Commission has ruled that, under federal common-
law principles of agency, there is vicarious liability for
TCPA violations. In re Joint Petition Filed by Dish Net-
work, LLC, 28 FCC Rcd. 6574 (2013). The Ninth Circuit
deferred to that ruling, 768 F. 3d, at 878, and we have no
cause to question it. Campbell’s vicarious liability for
Mindmatics’ conduct, however, in no way advances Camp-
bell’s contention that it acquired the sovereign’s immunity
from suit based on its contract with the Navy.
Cite as: 577 U. S. ____ (2016) 15
Opinion of the Court
* * *
For the reasons stated, the judgment of the Court of
Appeals for the Ninth Circuit is affirmed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 577 U. S. ____ (2016) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–857
_________________
CAMPBELL-EWALD COMPANY, PETITIONER
v. JOSE GOMEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 20, 2016]
JUSTICE THOMAS, concurring in the judgment.
The Court correctly concludes that an offer of complete
relief on a claim does not render that claim moot. But, in
my view, the Court does not advance a sound basis for this
conclusion. The Court rests its conclusion on modern
contract law principles and a recent dissent concerning
Federal Rule of Civil Procedure 68. See ante, at 6–9. I
would rest instead on the common-law history of tenders.
That history—which led to Rule 68—demonstrates that a
mere offer of the sum owed is insufficient to eliminate a
court’s jurisdiction to decide the case to which the offer
related. I therefore concur only in the judgment.
I
The text of Article III’s case-or-controversy requirement,
that requirement’s drafting history, and our precedents do
not appear to provide sufficiently specific principles to
resolve this case. When faced with such uncertainty, it
seems particularly important for us to look to how courts
traditionally have viewed a defendant’s offer to pay the
plaintiff’s alleged damages. That history—which stretches
from the common law directly to Rule 68 and modern
settlement offers—reveals one unbroken practice that
should resolve this case: A defendant’s offer to pay the
plaintiff—without more—would not have deprived a court
2 CAMPBELL-EWALD CO. v. GOMEZ
THOMAS, J., concurring in judgment
of jurisdiction. Campbell-Ewald’s offers thus do not bar
federal courts from continuing to hear this case.
A
Modern settlement procedure has its origins in the law
of tenders, as refined in the 18th and 19th centuries. As
with much of the early common law, the law of tenders
had many rigid formalities. These formalities make clear
that, around the time of the framing, a mere offer of relief
was insufficient to deprive a court of jurisdiction.
At common law, a prospective defendant could prevent a
case from proceeding, but he needed to provide substan-
tially more than a bare offer. A “mere proposal or proposi-
tion” to pay a claim was inadequate to end a case. A.
Hunt, A Treatise on the Law of Tender, and Bringing
Money Into Court §§1–2, 3–4 (1903) (Hunt) (citing cases
from the 1800’s). Nor would a defendant’s “readiness and
an ability to pay the money” suffice to end a case. Holmes
v. Holmes, 12 Barb. 137, 144 (N. Y. 1851). Rather, a pro-
spective defendant needed to provide a “tender”—an offer
to pay the entire claim before a suit was filed, accompa-
nied by “actually produc[ing]” the sum “at the time of
tender” in an “unconditional” manner. M. Bacon, A New
Abridgment of the Law, 314–315, 321 (1856) (citing cases
from the early 1800’s).
Furthermore, in state and federal courts, a tender of the
amount due was deemed “an admission of a liability” on
the cause of action to which the tender related, so any
would-be defendant who tried to deny liability could not
effectuate a tender. Hunt §400, at 448; see Cottier v.
Stimpson, 18 F. 689, 691 (Ore. 1883) (explaining that a
tender constitutes “an admission of the cause of action”);
The Rossend Castle Dillenback v. The Rossend Castle, 30
F. 462, 464 (SDNY 1887) (same). As one treatise ex-
plained, “[a] tender must be of a specific sum which the
tenderor admits to be due”—“[t]here must be no denial of
Cite as: 577 U. S. ____ (2016) 3
THOMAS, J., concurring in judgment
the debt.” Hunt §242, at 253 (emphasis added). The
tender had to offer and actually deliver complete relief.
See id., §2, at 4; Sheredine v. Gaul, 2 Dall. 190, 191 (Pa.
1792) (defendant must “brin[g] the money into Court”).
And an offer to pay less than what was demanded was not
a valid tender. See, e.g., Elderkin v. Fellows, 60 Wis. 339,
340–341, 19 N.W. 101, 102 (1884).
Even when a potential defendant properly effectuated a
tender, the case would not necessarily end. At common
law, a plaintiff was entitled to “deny that [the tender was]
sufficient to satisfy his demand” and accordingly “go on to
trial.” Raiford v. Governor, 29 Ala. 382, 384 (1856); see
also Hunt §511, at 595.*
This history demonstrates that, at common law, a de-
fendant or prospective defendant had to furnish far more
than a mere offer of settlement to end a case. This history
also demonstrates that courts at common law would not
have understood a mere offer to strip them of jurisdiction.
B
Although 19th-century state statutes expanded the
common-law-tender regime, the law retained its essential
features. See Bone, “To Encourage Settlement”: Rule 68,
Offers of Judgment, and the History of the Federal Rules
of Civil Procedure, 102 Nw. U. L. Rev. 1561, 1585 (2008)
(Bone). These changes, for example, allowed defendants to
offer a tender “during the pendency of an action,” as well
as before it commenced. Taylor v. Brooklyn Elevated
——————
* Nevertheless, the common law strongly encouraged a plaintiff to
accept a tender by penalizing plaintiffs who improperly rejected them.
A plaintiff would not be able to recover any damages that accrued after
the tender, nor could he receive the costs of the suit if the jury returned
a verdict for either the amount offered or less. See Hunt §§363–364, at
403–404. This rule remains today. See Fed. Rule Civ. Proc. 68(d)
(taxing costs to plaintiff who fails to recover more than the offer of
judgment).
4 CAMPBELL-EWALD CO. v. GOMEZ
THOMAS, J., concurring in judgment
R. Co., 119 N.Y. 561, 564, 23 N.E. 1106, 1107 (1890); cf.
Colby v. Reed, 99 U.S. 560, 566 (1879) (at common law,
generally no “right of tender after action brought”). Stat-
utes also expanded the right of tender to cover types of
actions in which damages were not certain. Compare
Dedekam v. Vose, 7 F. Cas. 337, 338 (SDNY 1853)
(“[T]ender could not be maintained, according to the strict
principles of the common law” in cases where damages
were not easily ascertainable), with Patrick v. Illawaco
Oyster Co., 189 Wash. 152, 155, 63 P.2d 520, 521 (1937)
(state statute “extend[ed] the common-law rule” to tort
actions).
Nevertheless, state statutes generally retained the core
of the common-law tender rules. Most critically for this
case, a mere offer remained insufficient to end a lawsuit.
See, e.g., Kilts v. Seeber, 10 How. Pr. 270, 271 (N. Y. 1854)
(under New York law, a mere offer was insufficient to
preclude litigation). Like the common-law tender rules,
state statutes recognized that plaintiffs could continue to
pursue litigation by rejecting an offer. See Bone 1586.
C
The offer-of-judgment procedure in Rule 68 was modeled
after a provision in the New York Field Code that was
enacted in the mid-19th century. See id., at 1583–1584.
That code abrogated many of the common-law formalities
governing civil procedure. Among its innovations, the
code allowed defendants in any cause of action to make an
offer in writing to the plaintiff proposing to accept judg-
ment against the defendant for a specified sum. See The
Code of Procedure of the State of New York From 1848 to
1871: Comprising the Act as Originally Enacted and the
Various Amendments Made Thereto, to the Close of the
Session of 1870 §385, p. 274 (1870). The plaintiff could
accept the offer, which would end the litigation, or reject
the offer, in which case the offer was considered with-
Cite as: 577 U. S. ____ (2016) 5
THOMAS, J., concurring in judgment
drawn without any admission of liability by the defendant.
Ibid.
In 1938, Rule 68 was adopted as part of the Federal
Rules of Civil Procedure, and has subsisted throughout
the years without material changes. See Bone 1564. As it
did in 1938, Rule 68 now authorizes “a party defending
against a claim” to “serve on an opposing party an offer to
allow judgment on specified terms.” Rule 68(a). Rule 68
also provides a plaintiff the option to accept or reject an
offer. If the plaintiff accepts the offer, the “clerk must
then enter judgment,” but “[a]n unaccepted offer is consid-
ered withdrawn.” Rules 68(a)–(b). Withdrawn offers
(unlike common-law tenders) cannot be used in court as an
admission against defendants. Rule 68(b).
D
In light of the history discussed above, a rejected offer
does not end the case. And this consistent historical prac-
tice demonstrates why Campbell-Ewald’s offers do not
divest a federal court of jurisdiction to entertain Gomez’s
suit. Campbell-Ewald made two settlement offers after
Gomez sued—one filed with the District Court under Rule
68 and one freestanding settlement offer. But with nei-
ther of these offers did the company make payment; it only
declared its intent to pay. Because Campbell-Ewald only
offered to pay Gomez’s claim but took no further steps, the
court was not deprived of jurisdiction.
II
Although the Court reaches the right result, I cannot
adopt its reasoning. Building on the dissent in Genesis
HealthCare Corp. v. Symczyk, 569 U. S. ___ (2013), the
Court relies on principles of contract law that an unac-
cepted offer is a legal nullity. But the question here is not
whether Campbell-Ewald’s offer formed an enforceable
contract. The question is whether its continuing offer of
6 CAMPBELL-EWALD CO. v. GOMEZ
THOMAS, J., concurring in judgment
complete relief eliminated the case or controversy required
by Article III. By looking only to contract law and one
recent Rule 68 opinion, the Court fails to confront this
broader issue. Instead, I believe that we must resolve the
meaning of “case” and “controversy” in Article III by look-
ing to “the traditional, fundamental limitations upon the
powers of common-law courts” because “cases” and “con-
troversies” “have virtually no meaning except by reference
to that tradition.” Honig v. Doe, 484 U.S. 305, 340 (1988)
(SCALIA, J., dissenting).
THE CHIEF JUSTICE’s dissent argues that examining
whether the requirements of common-law tenders have
been met does not answer “whether there is a case or
controversy for purposes of Article III.” Post, at 9, n. 3. As
explained above, however, courts have historically refused
to dismiss cases when an offer did not conform to the strict
tender rules. The logical implications of THE CHIEF
JUSTICE’s reasoning are that the common-law-tender rules
conflict with Article III and that the Constitution bars
Article III courts from following those principles. But see
Colby, supra, at 566 (stating that, to stop litigation, a
party “must adopt the measure prescribed by the common
law, except in jurisdictions where a different mode of
proceeding is prescribed by statute”). That reasoning,
therefore, calls into question the history and tradition that
the case-or-controversy requirement embodies.
THE CHIEF JUSTICE also contends that our precedents
“plainly establish that an admission of liability is not
required for a case to be moot under Article III.” Post, at
10, n. 3. But we need not decide today whether compli-
ance with every common-law formality would be necessary
to end a case. The dispositive point is that state and
federal courts have not considered a mere offer, without
more, sufficient to moot the case. None of the cases cited
by THE CHIEF JUSTICE hold that a retrospective claim for
money damages can become moot based on a mere offer.
Cite as: 577 U. S. ____ (2016) 7
THOMAS, J., concurring in judgment
California v. San Pablo & Tulare R. Co., 149 U.S. 308
(1893), is inapposite because that decision involved a fully
tendered offer that extinguished the tax debt under Cali-
fornia law. Id., at 313–314. Alvarez v. Smith, 558 U.S. 87
(2009), and Already, LLC v. Nike, Inc., 568 U. S. ___
(2013), are also not on point. Both involved claims for
injunctive or declaratory relief that became moot when the
defendants ceased causing actual or threatened injury.
But whether a claim for prospective relief is moot is differ-
ent from the issue in this case, which involves claims for
damages to remedy past harms. See, e.g., Parents In-
volved in Community Schools v. Seattle School Dist. No. 1,
551 U.S. 701, 720 (2007) (plaintiff “sought damages in her
complaint, which is sufficient to preserve our ability to
consider the question”); Alvarez, supra, at 92 (suggesting
that a “continuing controversy over damages” would mean
that the case was not moot).
As explained above, I would follow history and tradition
in construing Article III, and so I find that Campbell-
Ewald’s mere offers did not deprive the District Court of
jurisdiction. Accordingly, I concur in the judgment only.
Cite as: 577 U. S. ____ (2016) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–857
_________________
CAMPBELL-EWALD COMPANY, PETITIONER
v. JOSE GOMEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 20, 2016]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA
and JUSTICE ALITO join, dissenting.
This case is straightforward. Jose Gomez alleges that
the marketing firm Campbell-Ewald (Campbell) sent him
text messages without his permission, and he requests
relief under the Telephone Consumer Protection Act. That
Act permits consumers to recover statutory damages for
unauthorized text messages. Based on Gomez’s allega-
tions, the maximum that he could recover under the Act is
$1500 per text message, plus the costs of filing suit.
Campbell has offered to pay Gomez that amount, 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 entitle-
ment to relief already there for the taking. As this Court
has said, “[n]o principle is more fundamental to the judici-
ary’s proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to
actual cases or controversies.” Raines v. Byrd, 521 U.S.
811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare
Rights Organization, 426 U.S. 26, 37 (1976)). If there is
no actual case or controversy, the lawsuit is moot, and the
power of the federal courts to declare the law has come to
an end. Here, the District Court found that Campbell
2 CAMPBELL-EWALD CO. v. GOMEZ
ROBERTS, C. J., dissenting
agreed to fully satisfy Gomez’s claims. That makes the
case moot, and Gomez is not entitled to a ruling on the
merits of a moot case.
I respectfully dissent.
I
A
In 1793, President George Washington sent a letter to
Chief Justice John Jay and the Associate Justices of the
Supreme Court, asking for the opinion of the Court on the
rights and obligations of the United States with respect to
the war between Great Britain and France. The Supreme
Court politely—but firmly—refused the request, conclud-
ing that “the lines of separation drawn by the Constitution
between the three departments of the government” pro-
hibit the federal courts from issuing such advisory opin-
ions. 3 Correspondence and Public Papers of John Jay
486–489 (H. Johnston ed. 1890–1893).
That prohibition has remained “the oldest and most
consistent thread in the federal law of justiciability.”
Flast v. Cohen, 392 U.S. 83, 96 (1968) (internal quotation
marks omitted). And for good reason. It is derived from
Article III of the Constitution, which limits the authority
of the federal courts to the adjudication of “Cases” or
“Controversies.” U. S. Const., Art. III, §2. The case or
controversy requirement is at once an important check on
the powers of the Federal Judiciary and the source of
those powers. In Marbury v. Madison, 1 Cranch 137, 177
(1803), Chief Justice Marshall established that it is “the
province and duty of the judicial department to say what
the law is.” Not because there is a provision in the Consti-
tution that says so—there isn’t. Instead, the federal
courts wield that power because they have to decide cases
and controversies, and “[t]hose who apply [a] rule to par-
ticular cases, must of necessity expound and interpret that
rule.” Ibid. Federal courts may exercise their authority
Cite as: 577 U. S. ____ (2016) 3
ROBERTS, C. J., dissenting
“only in the last resort, and as a necessity in the determi-
nation of real, earnest and vital controversy between
individuals.” Chicago & Grand Trunk R. Co. v. Wellman,
143 U.S. 339, 345 (1892); see also Allen v. Wright, 468
U.S. 737, 752 (1984). “If a dispute is not a proper case
or controversy, the courts have no business deciding
it, or expounding the law in the course of doing so.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).
A case or controversy exists when both the plaintiff and
the defendant have a “personal stake” in the lawsuit.
Camreta v. Greene, 563 U.S. 692, 701 (2011). A plaintiff
demonstrates a personal stake by establishing standing to
sue, which requires a “personal injury fairly traceable to
the defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.” Allen, 468 U.S., at
751. A defendant demonstrates a personal stake through
“an ongoing interest in the dispute.” Camreta, 563 U.S.,
at 701.
The personal stake requirement persists through every
stage of the lawsuit. It “is not enough that a dispute was
very much alive when suit was filed”; the “parties must
continue to have a personal stake in the outcome of the
lawsuit” to prevent the case from becoming moot. Lewis v.
Continental Bank Corp., 494 U.S. 472, 477–478 (1990)
(internal quotation marks omitted). If either the plaintiff
or the defendant ceases to have a concrete interest in the
outcome of the litigation, there is no longer a live case
or controversy. A federal court that decides the merits
of such a case runs afoul of the prohibition on advisory
opinions.
B
Applying those basic principles to this case, it is clear
that the lawsuit is moot. All agree that at the time Gomez
filed suit, he had a personal stake in the litigation. In his
complaint, Gomez alleged that he suffered an injury in
4 CAMPBELL-EWALD CO. v. GOMEZ
ROBERTS, C. J., dissenting
fact when he received unauthorized text messages from
Campbell. To remedy that injury, he requested $1500 in
statutory damages for each unauthorized text message.
(It was later determined that he received only one text
message.)
What happened next, however, is critical: After Gomez’s
initial legal volley, Campbell did not return fire. Instead,
Campbell responded to the complaint with a freestanding
offer to pay Gomez the maximum amount that he could
recover under the statute: $1500 per unauthorized text
message, plus court costs. Campbell also made an offer of
judgment on the same terms under Rule 68 of the Federal
Rules of Civil Procedure, which permits a defendant to
recover certain attorney’s fees if the Rule 68 offer is unac-
cepted and the plaintiff later recovers no more than the
amount of the offer. Crucially, the District Court found
that the “parties do not dispute” that Campbell’s Rule 68
offer—reflecting the same terms as the freestanding of-
fer—“would have fully satisfied the individual claims
asserted, or that could have been asserted,” by Gomez.
805 F. Supp. 2d 923, 927 (CD Cal. 2011).
When a plaintiff files 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 pur-
poses of Article III. After all, if the defendant is willing to
remedy the plaintiff ’s injury without forcing him to liti-
gate, the plaintiff cannot demonstrate an injury in need of
redress by the court, and the defendant’s interests are not
adverse to the plaintiff. At that point, there is no longer
any “necessity” to “expound and interpret” the law, Mar-
bury, 1 Cranch, at 177, and the federal courts lack author-
ity to hear the case. That is exactly what happened here:
Once Campbell offered to fully remedy Gomez’s injury,
there was no longer any “necessity” for the District Court
Cite as: 577 U. S. ____ (2016) 5
ROBERTS, C. J., dissenting
to hear the merits of his case, rendering the lawsuit moot.1
It is true that although Campbell has offered Gomez full
relief, Campbell has not yet paid up. That does not affect
the mootness inquiry under the facts of this case. Camp-
bell is a multimillion dollar company, and the settlement
offer here is for a few thousand dollars. The settlement
offer promises “prompt payment,” App. to Pet. for Cert.
59a, and it would be mere pettifoggery to argue that
Campbell might not make good on that promise. In any
event, to the extent there is a question whether Campbell
is willing and able to pay, there is an easy answer: have
the firm deposit a certified check with the trial court.
II
The Court today holds that Gomez’s lawsuit is not moot.
According to the Court, “An unaccepted settlement offer—
like any unaccepted contract offer—is a legal nullity, with
no operative effect.” Ante, at 7–8 (quoting Genesis
HealthCare Corp. v. Symczyk, 569 U. S. ___, ___ (2013)
(KAGAN, J., dissenting) (slip op., at 3)). And so, the Court
concludes, if a plaintiff does not feel like accepting the
——————
1 The Court does not reach the question whether Gomez’s claim for
class relief prevents this case from becoming moot. The majority nev-
ertheless suggests that Campbell “sought to avoid a potential ad-
verse decision, one that could expose it to damages a thousand-fold
larger than the bid Gomez declined to accept.” Ante, at 11. But under
this Court’s precedents Gomez does not have standing to seek relief
based solely on the alleged injuries of others, and Gomez’s interest in
sharing attorney’s fees among class members or in obtaining a class
incentive award does not create Article III standing. See Lewis v.
Continental Bank Corp., 494 U.S. 472, 480 (1990) (An “interest in
attorney’s fees is, of course, insufficient to create an Article III case or
controversy where none exists on the merits of the underlying claim.”);
Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 107 (1998)
(“Obviously, however, a plaintiff cannot achieve standing to litigate a
substantive issue by bringing suit for the cost of bringing suit. The
litigation must give the plaintiff some other benefit besides reimburse-
ment of costs that are a byproduct of the litigation itself.”).
6 CAMPBELL-EWALD CO. v. GOMEZ
ROBERTS, C. J., dissenting
defendant’s complete offer of relief, the lawsuit cannot be
moot because it is as if no offer had ever been made.
But a plaintiff is not the judge of whether federal litiga-
tion is necessary, and a mere desire that there be federal
litigation—for whatever reason—does not make it neces-
sary. When a lawsuit is filed, it is up to the federal court
to determine whether a concrete case or controversy exists
between the parties. That remains true throughout the
litigation. Article III does not require the parties to af-
firmatively agree on a settlement before a case becomes
moot. This Court has long held that when a defendant
unilaterally remedies the injuries of the plaintiff, the case
is moot—even if the plaintiff disagrees and refuses to
settle the dispute, and even if the defendant continues to
deny liability.
In California v. San Pablo & Tulare R. Co., 149 U.S.
308 (1893), the State of California brought suit against a
railroad company for back taxes. Before oral argument in
this Court, the railroad offered to pay California the entire
sum at issue, “together with interest, penalties and costs.”
Id., at 313. Although California continued to litigate the
case despite the railroad’s offer of complete relief, the
Court concluded that the offer to pay the full sum,
in addition to “the deposit of the money in a bank, which
by a statute of the State ha[s] the same effect as actual
payment and receipt of the money,” mooted the case. Id.,
at 314.
The Court grounded its decision in San Pablo on the
prohibition against advisory opinions, explaining that “the
court is not empowered to decide moot questions or ab-
stract propositions, or to declare, for the government of
future cases, principles or rules of law which cannot affect
the result as to the thing in issue in the case.” Ibid.
Although the majority here places great weight on
Gomez’s rejection of Campbell’s offer of complete relief,
San Pablo did not consider the agreement of the parties to
Cite as: 577 U. S. ____ (2016) 7
ROBERTS, C. J., dissenting
be relevant to the question of mootness. As the Court said
then, “[n]o stipulation of parties or counsel, whether in the
case before the court or in any other case, can enlarge the
power, or affect the duty, of the court.” Ibid.
More recently, in Alvarez v. Smith, 558 U.S. 87 (2009),
the Court found that a plaintiff ’s refusal to settle a case
did not prevent it from becoming moot. In Alvarez, Chi-
cago police officers had seized vehicles and cash from six
individuals. The individuals filed suit against the city and
two officials, claiming that they were entitled to a timely
post-seizure hearing to seek the return of their property.
The Court of Appeals ruled for the plaintiffs, and this
Court granted certiorari.
At oral argument, the parties informed the Court that
the cars and some of the cash had been returned, and that
the plaintiffs no longer sought the return of the remainder
of the cash. Id., at 92. Nevertheless, the plaintiffs—much
like Gomez—“continue[d] to dispute the lawfulness of the
State’s hearing procedures.” Id., at 93. Although the
plaintiffs refused to settle the case, and the defendants
would not concede that the hearing procedures were un-
lawful, the Court held that the case was moot. As the
Court explained, the “dispute is no longer embedded in
any actual controversy about the plaintiffs’ particular
legal rights,” and “a dispute solely about the meaning of a
law, abstracted from any concrete actual or threatened
harm, falls outside the scope of the constitutional words
‘Cases’ and ‘Controversies.’ ” Ibid.
The Court reached a similar conclusion in Already, LLC
v. Nike, Inc., 568 U. S. ___ (2013). In that case, Nike filed
suit alleging that two of Already’s athletic shoes violated
Nike’s Air Force 1 trademark. In response, Already filed a
counterclaim alleging that Nike’s trademark was invalid.
Instead of litigating the counterclaim, Nike issued a uni-
lateral covenant not to sue Already. In that covenant,
Nike “unconditionally and irrevocably” promised not to
8 CAMPBELL-EWALD CO. v. GOMEZ
ROBERTS, C. J., dissenting
raise any trademark or unfair competition claims against
Already based on its current shoe designs or any future
“colorable imitations” of those designs. Id., at ___ (slip op.,
at 6). Nike did not, however, admit that its trademark
was invalid. After issuing the covenant, Nike asked the
District Court to dismiss the counterclaim as moot. Id., at
___ (slip op., at 2).
Already did not agree to Nike’s covenant, and it did not
view the covenant as sufficient to protect it from future
trademark litigation. Already argued that without judi-
cial resolution of the dispute, “Nike’s trademarks [would]
hang over Already’s operations like a Damoclean sword.”
Id., at ___ (slip op., at 9). This Court disagreed and dis-
missed the suit. It found that because Nike had demon-
strated “that the covenant encompasses all of [Nike’s]
allegedly unlawful conduct,” and that the “challenged
conduct cannot reasonably be expected to recur,” the
counterclaim was moot. Id., at ___ (slip op., at 7–8).
These precedents reflect an important constitutional
principle: The agreement of the plaintiff is not required to
moot a case. In San Pablo, California did not accept the
railroad’s money in exchange for settling the State’s legal
claims; in Alvarez, the plaintiffs did not receive their cars
and cash in return for an agreement to stop litigating the
case; and in Already, the eponymous shoe company never
agreed to Nike’s covenant not to sue. In each of those
cases, despite the plaintiff ’s desire not to settle, the Court
held that the lawsuit was moot.
The majority attempts to distinguish these precedents
by emphasizing that the plaintiffs in all three cases re-
ceived complete relief, but that is not the point. I had
thought that the theory of the Court’s opinion was that
acceptance is required before complete relief will moot a
case. But consider the majority’s discussion of Already:
What did Nike’s covenant do? It “afforded Already blanket
protection from future trademark litigation.” Ante, at 10,
Cite as: 577 U. S. ____ (2016) 9
ROBERTS, C. J., dissenting
n. 5. What happened as a result of this complete relief?
“The risk that underpinned Already’s standing” thus
“ceased to exist.” Ibid. Even though what? Even though
“Nike’s covenant was unilateral,” and not accepted by
Already. Ibid.
The majority is correct that because Gomez did not
accept Campbell’s settlement, it is a “legal nullity” as a
matter of contract law. The question, however, is not
whether there is a contract; it is whether there is a case or
controversy under Article III.2 If the defendant is willing
to give the plaintiff everything he asks for, there is no case
or controversy to adjudicate, and the lawsuit is moot.3
——————
2 The majority suggests that this case is analogous to U. S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), where
the Court declined to vacate a lower court decision that became moot on
certiorari when the parties voluntarily settled the case. Bancorp is
inapposite—it involves the equitable powers of the courts to vacate
judgments in moot cases, not the Article III question whether a case is
moot in the first place. The premise of Bancorp is that it is up to the
federal courts—and not the parties—to decide what to do once a case
becomes moot. The majority’s position, in contrast, would leave it to
the plaintiff to decide whether a case is moot.
3 To further support its Article III-by-contract theory of the case, the
Court looks to Federal Rule of Civil Procedure 68, which states that an
unaccepted offer of judgment “is considered withdrawn.” Rule 68(b).
But Campbell made Gomez both a Rule 68 offer and a freestanding
settlement offer. By its terms, Rule 68 does not apply to the latter.
The majority’s only argument with respect to the freestanding settle-
ment offer is that under the rules of contract law, an unaccepted offer is
a “legal nullity.” Ante, at 7. As explained, however, under the princi-
ples of Article III, an unaccepted offer of complete relief moots a case.
JUSTICE THOMAS, concurring in the judgment, would decide the case
based on whether there was a formal tender under the common law.
This suffers from the same flaw as the majority opinion. The question
is not whether the requirements of the common law of tender have been
met, but whether there is a case or controversy for purposes of Article
III. The Supreme Court cases we have discussed make clear that the
two questions are not the same. To cite just one example, JUSTICE
THOMAS argues that a tender under the common law must include an
admission of liability. Ante, at 2–3. Our precedents, however, plainly
10 CAMPBELL-EWALD CO. v. GOMEZ
ROBERTS, C. J., dissenting
* * *
The case or controversy requirement serves an essential
purpose: It ensures that the federal courts expound the
law “only in the last resort, and as a necessity.” Allen, 468
U.S., at 752 (internal quotation marks omitted). It is the
necessity of resolving a live dispute that reconciles the
exercise of profound power by unelected judges with the
principles of self-governance, ensuring adherence to “the
proper—and properly limited—role of the courts in a
democratic society.” Id., at 750 (internal quotation marks
omitted).
There is no such necessity here. As the District Court
found, Campbell offered Gomez full relief. Although
Gomez nonetheless wants to continue litigating, the issue
is not what the plaintiff wants, but what the federal courts
may do. It is up to those courts to decide whether each
party continues to have the requisite personal stake in the
lawsuit, and if not, to dismiss the case as moot. The Court
today takes that important responsibility away from the
federal courts and hands it to the plaintiff.
The good news is that this case is limited to its facts.
The majority holds that an offer of complete relief is insuf-
ficient to moot a case. The majority does not say that
payment of complete relief leads to the same result. For
aught that appears, the majority’s analysis may have
come out differently if Campbell had deposited the offered
funds with the District Court. See ante, at 11–12. This
Court leaves that question for another day—assuming
there are other plaintiffs out there who, like Gomez, won’t
take “yes” for an answer.
——————
establish that an admission of liability is not required for a case to be
moot under Article III. See supra, at 7–8. We are not at liberty to
proceed as if those Article III precedents do not exist.
Cite as: 577 U. S. ____ (2016) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–857
_________________
CAMPBELL-EWALD COMPANY, PETITIONER
v. JOSE GOMEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 20, 2016]
JUSTICE ALITO, dissenting.
I join THE CHIEF JUSTICE’s dissent. I agree that a de-
fendant may extinguish a plaintiff ’s personal stake in
pursuing a claim by offering complete relief on the claim,
even if the plaintiff spurns the offer. Our Article III prec-
edents make clear that, for mootness purposes, there is
nothing talismanic about the plaintiff ’s acceptance. E.g.,
Already, LLC v. Nike, Inc., 568 U. S. ___ (2013) (holding
that Nike’s unilateral covenant not to sue mooted Al-
ready’s trademark invalidity claim). I write separately to
emphasize what I see as the linchpin for finding mootness
in this case: There is no real dispute that Campbell would
“make good on [its] promise” to pay Gomez the money it
offered him if the case were dismissed. Ante, at 5 (opinion
of ROBERTS, C. J.). Absent this fact, I would be compelled
to find that the case is not moot.
Our “voluntary cessation” cases provide useful guidance.
Those cases hold that, when a plaintiff seeks to enjoin a
defendant’s conduct, a defendant’s “voluntary cessation of
challenged conduct does not ordinarily render a case moot
because a dismissal for mootness would permit a resump-
tion of the challenged conduct as soon as the case is dis-
missed.” Knox v. Service Employees, 567 U. S. ___, ___–
___ (2012) (slip op., at 6–7). To obtain dismissal in such
circumstances, the defendant must “ ‘bea[r] the formidable
2 CAMPBELL-EWALD CO. v. GOMEZ
ALITO, J., dissenting
burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to
recur.’ ” Already, supra, at ___ (slip op., at 4) (quoting
Friends of the Earth, Inc. v. Laidlaw Environmental Ser-
vices (TOC), Inc., 528 U.S. 167, 190 (2000)). We have
typically applied that rule in cases involving claims for
prospective relief, see Knox, supra, at ___ (slip op., at 7),
but the basic principle easily translates to cases, like this
one, involving claims for damages: When a defendant
offers a plaintiff complete relief on a damages claim, the
case will be dismissed as moot if—but only if—it is “abso-
lutely clear” that the plaintiff will be able to receive the
offered relief. Already, supra, at ___ (slip op., at 8).1
Consider an offer of complete relief from a defendant
that has no intention of actually paying the promised
sums, or from a defendant whose finances are so shaky
that it cannot produce the necessary funds. In both in-
stances, there is a question whether the defendant will
back up its offer to pay with an actual payment. If those
cases were dismissed as moot, the defendant’s failure to
follow through on its promise to pay would leave the plain-
tiff forever emptyhanded. In the language of our mootness
cases, those cases would not be moot because a court could
still grant the plaintiff “effectual relief,” Knox, supra, at
___ (slip op., at 7) (internal quotation marks omitted)—
namely, the relief sought in the first place. The plaintiff
retains a “personal stake” in continuing the litigation.
Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___
(2013) (slip op., at 4) (internal quotation marks omitted).
An offer of complete relief thus will not always warrant
dismissal.
——————
1 I say it must be clear that the plaintiff “will be able to receive” the
relief, rather than that the plaintiff “will receive” the relief, to account
for the possibility of an obstinate plaintiff who refuses to take any relief
even if the case is dismissed. A plaintiff cannot thwart mootness by
refusing complete relief presented on a silver platter.
Cite as: 577 U. S. ____ (2016) 3
ALITO, J., dissenting
Campbell urges that a plaintiff could simply move to
reopen a dismissed case if a defendant fails to make good
on its offer. Reply Brief 10. I assume that is true. But
the prospect of having to reopen litigation is precisely why
our voluntary cessation cases require defendants to prove,
before dismissal, that the plaintiff ’s injury cannot reason-
ably be expected to recur. I see no reason not to impose a
similar burden when a defendant asserts that it has ren-
dered a damages claim moot.
How, then, can a defendant make “absolutely clear” that
it will pay the relief it has offered? The most straightfor-
ward way is simply to pay over the money. The defendant
might hand the plaintiff a certified check or deposit the
requisite funds in a bank account in the plaintiff ’s name.
See California v. San Pablo & Tulare R. Co., 149 U.S.
308, 313–314 (1893). Alternatively, a defendant might
deposit the money with the district court (or another
trusted intermediary) on the condition that the money be
released to the plaintiff when the court dismisses the case
as moot. See Fed. Rule Civ. Proc. 67; 28 U.S. C. §§2041,
2042. In these situations, there will rarely be any serious
doubt that the plaintiff can obtain the offered money.2
——————
2 Depositing funds with the district court or another intermediary
may be particularly attractive to defendants because it would ensure
that the plaintiff can obtain the money, yet allow the defendant to
reclaim the funds if the court refuses to dismiss the case (for example,
because it determines the offer is for less than full relief ). Contrary to
the views of Gomez’s amicus, there is no reason to force a defendant to
effect an “ ‘irrevocable transfer of title’ ” to the funds without regard to
whether doing so succeeds in mooting the case. Brief for American
Federation of Labor and Congress of Industrial Organizations 10.
Likewise, because I believe our precedents “provide sufficiently specific
principles to resolve this case,” I would not apply the “rigid formalities”
of common-law tender in this context. Ante, at 1, 2 (THOMAS, J., concur-
ring in judgment). Article III demands that a plaintiff always have a
personal stake in continuing the litigation, and that stake is extin-
guished if the plaintiff is freely able to obtain full relief in the event the
case is dismissed as moot.
4 CAMPBELL-EWALD CO. v. GOMEZ
ALITO, J., dissenting
While outright payment is the surest way for a defend-
ant to make the requisite mootness showing, I would not
foreclose other means of doing so. The question is whether
it is certain the defendant will pay, not whether the de-
fendant has already paid. I believe Campbell clears the
mark in this case. As THE CHIEF JUSTICE observes, there
is no dispute Campbell has the means to pay the few
thousand dollars it offered Gomez, and there is no basis
“to argue that Campbell might not make good on that
promise” if the case were dismissed. Ante, at 5. Thus, in
the circumstances of this case, Campbell’s offer of com-
plete relief should have rendered Gomez’s damages claim
moot. But the same would not necessarily be true for
other defendants, particularly those that face more sub-
stantial claims, possess less secure finances, or extend
offers of questionable sincerity. Cf. Already, 568 U. S., at
___–___ (KENNEDY, J., concurring) (slip op., at 3–4) (em-
phasizing the “formidable burden on the party asserting
mootness” and noting possible “doubts that Nike’s showing
[of mootness] would suffice in other circumstances”).
The Court does not dispute Campbell’s ability or will-
ingness to pay, but nonetheless concludes that its unac-
cepted offer did not moot Gomez’s claim. While I disagree
with that result on these facts, I am heartened that the
Court appears to endorse the proposition that a plaintiff ’s
claim is moot once he has “received full redress” from the
defendant for the injuries he has asserted. Ante, at 10,
n. 5 (discussing Already, supra, and Alvarez v. Smith, 558
U.S. 87 (2009)). Today’s decision thus does not prevent a
defendant who actually pays complete relief—either di-
rectly to the plaintiff or to a trusted intermediary—from
seeking dismissal on mootness grounds.3
——————
3 Although it does not resolve the issue, the majority raises the possi-
bility that a defendant must both pay the requisite funds and have “the
court . . . ente[r] judgment for the plaintiff in that amount.” Ante, at 11.
Cite as: 577 U. S. ____ (2016) 5
ALITO, J., dissenting
——————
I do not see how that can be reconciled with Already, which affirmed an
order of dismissal—not judgment for the plaintiff—where the plaintiff
had received full relief from the defendant. Already, LLC v. Nike, Inc.,
568 U. S. ___, ___–___, ___ (2013) (slip op., at 2–3, 15).