Campbell-ewald Co. v. Gomez

Oral argument transcript · No. 14-857 · October Term 2015 · argued October 14, 2015 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Gregory G. Garre, Bethesda, Md., for the petitioner
• Jonathan F. Mitchell, Stanford, Cal., for the respondent
• Anthony A. Yang, Assistant to the Solicitor General, amicus curiae supporting the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 14­857, Campbell­Ewald Company v. Gomez. Mr. Garre. ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONER

Gregory G. Garre: Thank you, Mr. Chief Justice, and may it please the Court: To affirm the Ninth Circuit on the first two questions presented, this Court must accept the following two propositions: First, a plaintiff can force a court to adjudicate the merits of his claim simply by refusing the defendant's offer of capitulation and complete relief. And, second, that a plaintiff has what amounts to a substantive right to class litigation that applies as soon as the complaint is filed and that entitles the case to proceed even if his individual claim drops out before ­­

Justice Scalia: Is there any controversy over whether the ­­ the ­­ the offer is complete relief?

Gregory G. Garre: I don't think so, Your Honor. Alderson Reporting Company Official 1 The district court found that it was at page 40 of the Petition Appendix. The Ninth Circuit decided this case based on that premise. That's at page 5a of the Petition Appendix. So I think as the case comes ­­

Justice Scalia: Do we take it on that assumption, too?

Gregory G. Garre: I think you should, Your Honor. Now ­­ now, they have argued below that the only reason that it wasn't for complete relief was that ­­ because it didn't provide for attorneys' fees. But the TCPA, the underlying statute here, does not provide for attorneys' fees.

Justice Kagan: But that's a merits question as to whether they're entitled to attorneys' fees. If the question is complete ­­ you know, "complete relief" means what the plaintiff has asked for. The plaintiff has asked for attorneys' fees here.

Gregory G. Garre: I don't think that's what "complete relief" means, Your Honor. I think it means that the plaintiff has received everything that he could ­­ that he could if he received a judgment in this ­­ in his favor ­­

Justice Sotomayor: Well, he would ­­ he would receive a finding of liability, which you didn't Alderson Reporting Company Official 1 admit in your offer.

Gregory G. Garre: He ­­ I ­­

Justice Sotomayor: He would ­­ he would be entitled to an injunction against that activity, the activity that caused this particular situation, and if others were shown, to an injunction in other ways. So I don't see how this could be ­­ putting aside the class action, putting aside the attorneys' fees, those appear to me to be fairly critical liability determinations that were not made by the court below.

Gregory G. Garre: Okay. First, as the case comes to the Court, I think it is accepted that the offer was for complete relief. Now let me try to answer the points that you raise. First, he's not entitled to a finding of liability. If a litigant was always entitled to a finding of liability, then essentially no case could become moot. If you take the voluntary cessation context, a litigant could always insist that he's still entitled to the finding of liability.

Justice Kennedy: It ­­ it seems that you want us to write an ­­ an opinion saying that a settlement offer is equivalent to a judgment. And we've had cases, like the Kokkonen case, in which there was a Alderson Reporting Company Official 1 settlement approved by the court, case dismissed, then the settlement was not performed. They went to court seeking an injunction. The court said, no, no. You have a contract. You have to file again. You have to go into a different court. You have to start all over again. A settlement offer and a settlement contract and a settlement agreement are different from a judgment, and you do not have a judgment.

Gregory G. Garre: Well, Your Honor, I think that the accepted principle is that a settlement moots the case and requires the court to dispose of the case. I mean, I think that's the accepted principle. And ­­

Justice Kennedy: But you didn't pursue that. You didn't apply under the rules for a judgment.

Gregory G. Garre: Well ­­

Justice Kennedy: And ­­ and ­­ and if you want us to write an opinion and say, oh, well, a settlement offer is the same as a judgment, that just doesn't accord with the Federal Rules of Civil Procedure or with our cases like the Kokkonen case.

Gregory G. Garre: Well, Your Honor, I think ­­ I think this case is consistent with the Kokkonen case. What the Kokkonen case recognized is that, once a case has come to an end, the Court has ancillary jurisdiction Alderson Reporting Company Official 1 to dispose of it. In that case it dealt with the enforcement of a consent decree. Here our fundamental ­­

Justice Ginsburg: But the Federal rule in point, Mr. Garre ­­ and it says ­­ Rule 68 says an offer of judgment expires automatically after 14 days if it's not accepted. It is deemed withdrawn, and it cannot be used for any purpose other than to saddle the plaintiff with costs if she doesn't get more than the offer. So we have a Federal rule directly in point, and that instructs litigants what an offer of judgment means. Why do we look any further than that?

Gregory G. Garre: Well, first, Your Honor, this case, there was not only the Rule 68 offer of judgment, but a freestanding settlement offer. So we think that the mechanics of Rule 68 don't apply here. It's ­­

Justice Ginsburg: Well, isn't that rather an end run around the offer of judgment?

Gregory G. Garre: Well, I don't ­­ I don't think so. I mean, it still presents the question of whether the controversy still exists given that the defendant has offered the plaintiff everything that he ­­ he could secure through a Federal judgment.

Justice Ginsburg: The plaintiff ­­ the plaintiff asks for class action, didn't get that because Alderson Reporting Company Official 1 they weren't far ­­ far along enough for the plaintiff even to move for certification.

Gregory G. Garre: And the plaintiff in Genesis Healthcare asked for a collective action. The Court found that that allegation did not ­­

Justice Ginsburg: But the collective action is simply a device for permissive joinder. It's quite different, as Genesis recognized. Class action ­­ I don't remember Justice Thomas' exact words, but it's a whole different kettle of fish.

Gregory G. Garre: Well, I mean, here's how I think it's different, Your Honor. You're right. It is different. But it's different in that this Court has repeatedly said that the class has no independent legal status until it's certified. And it's different in that, in Genesis Healthcare, you had a statutory right to a collective action, but the Court said that that didn't trump Article III. And here you just ­­

Justice Ginsburg: All it ­­ all it is ­­ it's an invitation to people to join you. That's all ­­ all that ­­ it's a permissive joinder.

Gregory G. Garre: Well, it was still pretty Alderson Reporting Company Official 1 important to the plaintiff in that case, and it was a statutory right. And here the question is: When the individual claim drops out, is there any basis for the action to proceed simply so that, on the ­­ on the potential that a class could be certified?

Justice Ginsburg: One ­­ one is ­­ is that potential. The other is, it's not that I would be entitled to attorneys' fees from the loser, but if there's a class, then there are a lot of other people who will share in the attorneys' fees and I'll have to pay less.

Gregory G. Garre: And that ­­ that's the cost­sharing argument that was made in Roper. And if I could say a couple things about that. First, the plaintiff in this case, unlike the plaintiff in Roper, never made that argument below. He never argued in favor of cost sharing. In fact, the complaint, if you look on page 21 of the Joint Appendix, touts that he has all the financial resources necessary to bring this action. Second of all, in Roper the Court relied on that interest solely for the purpose of allowing the Alderson Reporting Company Official 1 appeal from the denial of certification when the mooting event occurred after the denial of certification. So there you had a real relation back issue. If the Court had been wrong in denying certification, then the case never would have become moot in the first place. Here, the mooting event takes place before certification. There's nothing to relate back to.

Justice Kagan: But if I could go back a little bit, Mr. Garre. And this is, I think, the question that Justice Scalia started with. There are a number of things that you've said, well, he asked for it, but he's not entitled to it. He asked for attorneys' fees, but he's not entitled to attorneys' fees. And he asked for an injunction or declaratory relief, and he's not entitled to that. And he asked for class certification, but he's not entitled to that, and so the case is moot. And the "so the case is moot" seems to me to be a non sequitur. In other words, he's asked for these things, you haven't offered these things, and there's a dispute about whether he's entitled to these things. Now, you might be completely right as to that, "He's not entitled to attorneys' fees." But that has to be adjudicated. You can't ­­ a court can't just Alderson Reporting Company Official 1 say, oh, you've offered complete relief, because in his view you haven't offered complete relief, and that's what the litigation is all about.

Gregory G. Garre: And a court can make that determination, just like a court can determine whether or not a defendant who says he's going to stop his action has truly voluntarily ceased his action.

Justice Kagan: A court can absolutely make that determination. But the question is: Does the court make that determination in the guise of a mootness motion?

Gregory G. Garre: Well, I think it absolutely does, just like it would in the voluntary cessation context. I ­­ I want to be clear because I think we have a little bit of a ­­

Justice Sotomayor: Why can't it ­­ why can't it do that in the context of a summary judgment motion? I mean, why does it have to moot the case? Wouldn't the appropriate vehicle be a summary judgment motion in which you admit the facts that make you liable, or you concede the facts that make you liable, and then you fight about the legal questions?

Gregory G. Garre: The ­­ the reason is, when ­­ when one party throws in the towel, the match is over. Alderson Reporting Company Official 1 Here, the question is whether there's an Article III case or controversy when the defendant is no longer fighting over the result as to the thing at issue. That's ­­ those are the words that the Court used in the San Pablo case. That's an Article III determination.

Justice Sotomayor: But I ­­ but what's an Article III determination is whether he or it or she is entitled to the relief that they asked for. May well be they're not.

Gregory G. Garre: And functionally ­­

Justice Sotomayor: But they're entitled to have the court say it, not you.

Gregory G. Garre: A ­­ a court can certainly make the determination of whether or not they have provided complete relief. In a case like this where you're dealing with liquidated damages, that's easy. It's just ­­

Justice Sotomayor: By the way, you called this a "freestanding offer," but I have it right here, and the ­­ offer says, "Offer of judgment pursuant to Federal Rule of Civil Procedure 68." This was your client's submission.

Gregory G. Garre: No ­­ well, you're right, Your Honor. That's the Rule 68 offer. If you go on page 57a Alderson Reporting Company Official 1 of the Petition Appendix, there's the freestanding settlement offer, which isn't a Rule 68 offer. The other thing about Rule 68 is it's really not designed for the situation of complete relief. It's designed for the situation where the defendant and plaintiff have to gamble, essentially, over whether or not an offer for less than complete relief is a sufficient ­­ they ­­ they want to settle on that basis. In this case you had a freestanding settlement offer. It provided for complete relief, and so the question is whether or not the ­­ the plaintiff had a personal stake in the case sufficient ­­ in the outcome of the case sufficient to keep this case alive. Justice Kennedy, to get back to your point about settlement ­­ and I think what's important to recognize here is ­­ here's our position: When the offer of complete relief is made and when a court has determined that it is, indeed, for complete relief, then the case has to come to an end. Now, whether you say it's ­­ it's moot at that precise moment or whether you say it starts the ball rolling down the hill towards a dismissal or entry of judgment for the plaintiff based on the terms of the offer, the point is ­­ is that when the defendant has offered everything, the courts can't go ahead and expound on the law. Alderson Reporting Company Official 1 Now, this Court has repeatedly said, when it's not necessary to decide, it's necessary not to decide. And that's the fundamental principle at stake here. Defendant has offered everything, and the plaintiff ­­

Justice Kennedy: Suppose one day after the offer the defendant defaulted. Would a case that's now ­­ was once moot now become non­moot?

Gregory G. Garre: Well, and that would be an unusual situation if it did, Your Honor. I think ­­

Justice Kennedy: It happened in Kokkonen. We had a case on it here in the Court.

Gregory G. Garre: And ­­ and ­­ you know, Roper's another case where there was an offer that the Court never ­­ it didn't really question in that case whether the offer mooted the claim on the merits. The only question was whether they could appeal the denial of certification. Here the plaintiff's position is asking this Court to go far beyond what the Court recognized in Roper and really to recognize a substantive right to class adjudication. At the end of the day, that's what they're insisting on. As soon as they filed their class complaint ­­

Justice Ginsburg: A substantive ­­ how about a procedural right to litigate entitlement to Alderson Reporting Company Official 1 class status?

Gregory G. Garre: I ­­ I don't think you can describe it as a procedural right. This Court has said that Rule 23 is a procedural mechanism. When the requirements are met, it said that there's no separate legal status for the class until the class is certified. In the Jacobs ­­

Justice Sotomayor: So why is it that we permit relation back at all ­­

Gregory G. Garre: Well.

Justice Sotomayor: ­­ if ­­ if we have cases that say when a case has become moot in the middle of the litigation, it can relate back to the beginning?

Gregory G. Garre: Okay. Well, first of all ­­

Justice Sotomayor: If mootness is mootness, mootness is mootness, right?

Gregory G. Garre: Yes. First of all, the Court has recognized two narrow exceptions, Your Honor. First is an appeal from the denial of class certification when the mooting event happens while a case is on appeal. That's the Roper case. And the second is the inherently transitory exception. Now, it's not even clear that the Respondents are asking for either exception, because I don't see "relation back" or "inherently transitory" in Alderson Reporting Company Official 1 their red brief. But it's clear that the first exception doesn't apply because this case doesn't involve an appeal from the denial of class certification, and it's clear that the second case exception doesn't apply, "inherently transitory," because in Genesis, this Court made clear that the concern of the so­called picking off wasn't a sufficient basis to say that a claim was inherently transitory. That exception doesn't deal with the defendant's litigation conduct; it deals with whether the claimant's conduct is going to recur, like a pretrial temporary detention situation. This case doesn't fit into this ­­ that exception at all. What ­­

Justice Alito: What if the ­­ what if the defendant ­­ I ­­ did you finish your answer?

Gregory G. Garre: Yes, Your Honor.

Justice Alito: What if the defendant has very shaky finances, maybe on the verge of bankruptcy, or has a history of reneging on promises, and ­­ but the ­­ the offer to provide full relief moots the case, even in that situation?

Gregory G. Garre: So a ­­ a couple answers to that, Your Honor. First, that's not an issue in this case. They've never disputed Campbell­Ewald's ability to pay. Second of all, I think a court can determine Alderson Reporting Company Official 1 that the plaintiff ­­ the defendant is ready and able to pay. And third of all, in the situation where the case is dismissed for mootness based on the terms of the offer and then it turns out that they can't execute the offer ­­ I mean, that's a situation where the court ­­ the plaintiff can go back to the court and say, you based ­­ you ­­ you dismissed the case on an erroneous factual premise. That's like the Judge Friendly decision that we cite in our reply brief. So that situation is not going to happen. And all of these practical concerns are going to go away if this Court recognizes in this case that a defendant's offer of complete relief ends any case or controversy over the individual claim. The case goes away. The plaintiffs are going to accept the offer.

Justice Kennedy: Can the offer of complete relief from a solvent defendant where it looks like the relief will be forthcoming, if ­­ if you lose this case and so the case is not moot, could still be considered as a factor in the court's decision whether or not to certify the class?

Gregory G. Garre: I don't think ­­ it certainly wouldn't be a classic certification decision factor, Your Honor. And I think ­­­ I mean, one of the reasons Alderson Reporting Company Official 1 why the court insists on an Article III case or controversy is that it wants to insist that it doesn't expound on the law, but ­­

Justice Kennedy: In other words, the class certification goes along without reference to whether the lead plaintiff has any injury any longer?

Gregory G. Garre: Well, it's a ­­ it's certainly a very unusual situation where the personal representative has been made whole. Now ­­ now, there's some claims ­­

Justice Kennedy: That's why I asked if the trial judge could, in his discretion, consider that as a factor in certifying or not certifying ­­

Gregory G. Garre: Well, I suppose that he could in terms of the person represented, but the real question is: Why would you want a court to expound on the law difficult questions about certification, as this Court knows as well as anyone, when there's no case or controversy to begin with, when the defendant has offered the plaintiff everything? And then the question is: If his individual claim drops out, what interests ­­ to put it in Judge Friendly's terms, what interest does a ­­ does a plaintiff have ­­

Justice Ginsburg: You keep referring, but you ­­ multiple times in your brief and now twice ­­ but in the case that Judge Friendly dealt with, the class Alderson Reporting Company Official 1 claims had already been done and dispensed with, distinguished, extinguished. So it wasn't a case of a class certification not yet ruled on; it was ruled on. The class action was out of the case. It was only the individual.

Gregory G. Garre: Well, you're right, Your Honor, about that distinction, but I think what Judge Friendly said applies equally here, which is that when a plaintiff loses his individual interests in the case, he has no ­­ no right to ­­ to litigate on a class action because it might benefit others. He also pointed out that the offer of complete relief in this case, in this kind of situation, puts the plaintiff in a better position than a default judgment. The plaintiff has everything that he asks for. He's walking away with the money. And to your point earlier, Justice Sotomayor, just to be clear, the offer in this case included a stipulation to an injunction as well. So that ­­

Justice Sotomayor: But that's for future conduct, not ­­ not directed to the conduct ­­ the direct conduct at issue here. But I ­­

Gregory G. Garre: Well if ­­ you can't undo past conduct. Alderson Reporting Company Official

Justice Sotomayor: I ­­ I ­­ you know, I looked at the three railroad cases that you cited as proof that this has always been the case, but do you have anything besides those things? In the common law, I can't find any situation in which a court accepted a offer that wasn't accepted by the party. In the railroad cases, what they found was that an offer was made and the other side, by taking money, accepted the offer.

Gregory G. Garre: No, but ­­

Justice Sotomayor: Have you found any case in the common law that ­­ where there was an offer that was unaccepted, was entered by the court?

Gregory G. Garre: Well, three responses to that. First, in the San Pablo case, for example, the court's decision specifically makes clear that the plaintiff refused that offer. Second of all ­­

Justice Ginsburg: But you've had to ­­ you had to deposit the money in an account in the name of the plaintiff. And San Pablo turned on a provision of the California Civil Code that said an obligation for payment is extinguished, is extinguished by an offer of payment, if the money is immediately deposited in a reputable bank in the name of a creditor. Alderson Reporting Company Official

Gregory G. Garre: That's ­­ that's, of course, right, Your Honor. But, of course, if acceptance was the rule, then it's a little bit odd that the court didn't mention the fact that he didn't accept it at all. The other point I wanted to make in response to Justice Sotomayor's question is: We cited a long footnote in our opening brief that has many cases recognizing this principle, and in our reply brief, we cite the holding case out of the English courts. It's an 1840 case, and that case is exactly on point. It involved a situation where a claim was brought for a debt, the defendant came in and said, here's your money, and the court in that case ­­ the plaintiff refused to accept it. And the court in that case said it had a beholden duty to end the case, given that the ­­ the defendant had offered everything that the ­­

Justice Kagan: But Mr. Garre ­­

Gregory G. Garre: ­­ plaintiff was seeking.

Justice Kagan: ­­ and this is very much along the same lines ­­ you know, you ­­ you have an old English case. You have these three cases in the '90s, 1890s, which were really about liabilities had ­­ that had already been satisfied, and the court said, it's already been satisfied, payment has already been made. But there's really no history at all ­­ and tender Alderson Reporting Company Official 1 offers have existed for a long, long time. There's no history at all of ­­ of saying that a tender offer moots a case, as opposed to the classic understanding, the common law understanding, of tender offers was that it created an incentive for parties, and that that was their purpose and that was their effect, was to incentivize parties to do something, but not to ­­ for ­­ not to provide a mechanism for a court just to throw out a case when a party decided that, for whatever reason, he thought that the tender offer was not good enough.

Gregory G. Garre: So I think first ­­ just a quibble ­­ I do think there's a longstanding practice of recognizing that when the defendant has been offered everything he could secure, the case goes away. Second of all, and I think, you know, maybe more important: I mean, I would say that your dissent in Genesis Healthcare itself ­­ itself recognizes that acceptance can't be the rule in all cases. I mean, you recognize in the situation where the plaintiff doesn't accept for obstinacy or madness, but once you're there, you recognize that acceptance can't be the rule. And that's got to be right, because in the voluntary cessation context, we don't require the plaintiff to accept that. Alderson Reporting Company Official

Justice Kagan: Well, but I ­­ I said that mootness is not the appropriate remedy in that case. The appropriate remedy in a case where it's absolutely clear that ­­ that the ­­ that the defendant has given ­­ has offered the plaintiff everything the plaintiff has asked for, which it's not in this case, but where it's absolutely clear, where the defendant has offered everything that the plaintiff himself has asked for, the appropriate thing to do, in order to prevent wasteful litigation, is not to dismiss the case for mootness, but to grant judgment in favor of the plaintiff.

Gregory G. Garre: And ­­ and I think here ­­ I mean, once we're at the point where we realize this case can't ­­ can't go on any further because he's been offered everything as the case comes to this Court, then the ­­ then the question for the Court is, well, how do we dispose of it? Do we tell the lower court to dismiss it as moot, or do we tell the lower court to enter judgment for plaintiff based on the terms of the offer, at which point it clearly becomes moot? I mean, this Court ­­

Justice Kagan: Well, it doesn't become moot. It's just been decided. It's ­­ there's been an adjudication at that point. Alderson Reporting Company Official

Gregory G. Garre: No, there hasn't been ­­

Justice Kagan: There's nothing to dismiss.

Gregory G. Garre: There hasn't been an adjudication, Your Honor. It's judgment entered based on the terms of the offer. It's not a judgment adjudicating the claim on the merits. It's not a judgment where the Court is picking a winner or loser. The Court is simply recognizing the fact that the defendant has offered everything and a judgment is entered ­­

Justice Sotomayor: Mr. Garre, the only way that I see a court entering judgment in the Federal Rules of Civil Procedure is a Rule 56 judgment. Someone moves and says, you got everything you're entitled to. The other side comes back and says, no, I'm entitled to attorneys' fees, I'm entitled to whatever. And the court says, no, you're not; this is a full satisfaction; I enter judgment. I don't know why we have to make a merits determination based solely on an unaccepted offer of judgment.

Gregory G. Garre: Well, first of all, a judgment is just technically an order disposing of the case. I mean, we went back and looked, and you yourself as a district court judge issued judgments in cases where you Alderson Reporting Company Official 1 dismissed it as moot. It just reflects that the case has come to an end. Second of all, what we've recognized as an alternative position is the Sixth Circuit position here, which is that ­­ that in this situation you can dispose of the case by entering judgment for plaintiff based on the terms of the offer. That's not a judgment on the merits because it's not adjudicating the claim on the merits. It's not picking a winner, not involving the court picking a winner ­­ a loser or winner, and it resolves all of the hypothetical concerns that they've raised about eliminating the case before they actually have the check in hand. And that's ­­ that's an appropriate way of disposing of this case. And no one can argue that there's an Article III interest in ­­ in proceeding with the litigation once they have a judgment disposing of the case. And we're back to ­­

Justice Ginsburg: What do you do with the pleading rules that say payment and accord and satisfaction are affirmative defenses?

Gregory G. Garre: Your Honor, those are ­­ those are ­­ accord and satisfaction, for example, is a contract­based doctrine. It happens where ­­ where Alderson Reporting Company Official 1 payment is made before the case gets to litigation. There's ­­ there's no principle. Once the ­­ once the litigation begins, the principle that controls is Article III. Article III's case and controversy requirement requires that the plaintiff had a ­­ have a personal stake, a live personal stake in the outcome of the case at all stages of the proceeding. And on the first question, our point is that once you've been offered everything you could receive ­­ and again, that's how the case comes here, and he has been offered everything that he could get through a favorable judgment on his individual claim ­­ there's no longer a personal stake in litigating that case to the outcome ­­

Justice Ginsburg: What about the personal stake that a would­be class representative has in getting a bonus or an ­­

Gregory G. Garre: Just as was true in Genesis Healthcare, the would­be class representative is in the same exact position he was before this case goes away, because he can still file his own claim. He can settle that claim. He can provide ­­ he can file his own class action. And you know, here, what we're arguing about Alderson Reporting Company Official 1 is policy arguments about whether or not the Court ought to find some basis to keep the class action alive.

Justice Ginsburg: That's ­­

Gregory G. Garre: That's not an appropriate determination of Article III.

Justice Ginsburg: How could he file a class action on your theory? That's what he wanted to do, and he was stopped very early on by this offer of judgment.

Gregory G. Garre: Well, this ­­ this gets to the concern of, these sorts of class actions are going to go away. First of all, it's ­­ it's hard to feel too sorry about the plaintiffs who have everything that they could possibly ask for when we're talking about absent people. As a practical matter in these sorts of class actions, what they get is pennies on the dollars of their claim. The big money goes to the class action lawyers here. All of this can be addressed if Congress wants to address it by addressing these policy concerns.

Justice Kagan: Mr. Garre, both sides have these class action policy arguments, but it's important not to let those drive this pretty technical mootness question. So if we could just take the class action arguments out of it. Alderson Reporting Company Official 1 Just let's say that there's a plaintiff, and he claims 10,000 ­­ he wants $10,000 plus attorneys' fees, okay? And the defendant says, I'll give you $10,000. And the plaintiff says, no, I really want attorneys' fees, too. And the defendant says, no, you're not entitled to attorneys' fees. Plaintiff says, no, I think I am. I'll ­­ I think I ­­ I'm going to reject your settlement offer. So you say at that point the court can come in and say, oh, the case is moot. Now, how is that possible?

Gregory G. Garre: Well, in the same ­­

Justice Kagan: There's a ­­ there's a contested question as to what one person owes another. The ­­ the defendant has said he doesn't want to accept this offer because he doesn't think it gives him everything that's entitled ­­ he's entitled to. And the measure of complete relief has to be, at this stage, about what his complaint asks for.

Gregory G. Garre: It's just like the voluntary cessation context, Your Honor. In that case ­­

Justice Scalia: Well, I suppose he could ask for the key to Fort Knox, right? Alderson Reporting Company Official

Gregory G. Garre: He ­­

Justice Scalia: And then ­­ and then no ­­ no settlement offer would ­­ would suffice, right?

Gregory G. Garre: He could ask for a unicorn, Your Honor. The point ­­

Justice Scalia: He could ask for a unicorn.

Justice Kagan: Well, then you would reject the case ­­

Justice Scalia: Certainly ­­

Justice Kagan: ­­ on the merits.

Justice Scalia: Don't you ­­ don't you think the court ­­

Justice Kagan: There's a very ­­ there's a very easy response to this, which is: If it's frivolous, if it's trivial, you dismiss the case on the merits.

Gregory G. Garre: The court can make that determination. And you'd want it to make that determination before it went ahead and adjuted the claim on the merits, whether it's ­­ it's deciding difficult questions on certification, whether it's going ahead and making law in TCPA, whether it's going ahead and making law in an immunity ­­

Justice Scalia: If it's a frivolous claim, I don't see why the Court can't dispose of that Alderson Reporting Company Official 1 initially ­­

Gregory G. Garre: They can dispose of it ­­

Justice Scalia: ­­ in connection with the mootness ­­

Gregory G. Garre: The court can make that mootness determination. It does in every other context in which mootness arise. And Article III wants the court to make that determination before the court goes on and expounds on the law. If I could return ­­ reserve the remainder of my time.

Chief Justice Roberts: Thank you, counsel. Mr. Mitchell. ORAL ARGUMENT OF JONATHAN F. MITCHELL ON BEHALF OF THE RESPONDENT

Jonathan F. Mitchell: Mr. Chief Justice, and may it please the Court: Campbell­Ewald's mootness argument fails because an offer of complete relief cannot render a case moot. At most, the offer might justify a forced entry of judgment, but not a jurisdictional dismissal. Even though ­­

Chief Justice Roberts: If there's no ­­ if you're getting everything you want, what is the case or controversy? What is the live dispute in which you have Alderson Reporting Company Official 1 a personal stake toward the terms we use under Article III?

Jonathan F. Mitchell: The live dispute is in obtaining a court judgment that incorporates that relief that's been offered.

Chief Justice Roberts: So ­­ well, what is it you're worried about, that they won't make good on the offer, or ­­

Jonathan F. Mitchell: The mere offer of complete relief does not have anything to do with mootness. Even if the plaintiff and the defendant agree on what the proper judicial relief should be, the only question in that situation is whether the court should enter judgment for the plaintiff, not dismiss the case for lack of jurisdiction.

Justice Alito: Suppose Mr. Garre right now were to take a big stack of cash out of his briefcase, or a certified check, and present that to you. Would there be any case left then?

Jonathan F. Mitchell: There might be a defense on the merits if Mr. Garre's client can say, we've paid the debt. But that's not something that goes to whether the ­­

Justice Alito: That would be ­­ there would be a case or controversy? If this were an individual Alderson Reporting Company Official 1 action and the plaintiff had received from ­­ and ­­ and the damages are ­­ the ­­ the amount of potential damages are undisputed, and the ­­ the plaintiff has received that amount from the defendant, no dispute about it, there wouldn't be a live case or controversy.

Jonathan F. Mitchell: The defendant would have a defense on the merits. He could plead accord and satisfaction. He could plead res judicata. He ­­

Justice Alito: Well, why is there a live case or controvery? What is the controversy?

Jonathan F. Mitchell: Because there's ­­ there's a past injury that's been alleged caused by the defendant that could be redressed, in theory, with judicial relief. That ­­

Justice Alito: Which would give the ­­ the defendant ­­ which would give the plaintiff what in addition to the money, under my hypothetical?

Jonathan F. Mitchell: He shouldn't get anything in addition to what he's already received, but that goes to the merits, not to whether an Article III case or controversy exists. When a court ­­

Justice Kennedy: You're saying the defendant has ­­ has an interest ­­ pardon me ­­ that the plaintiff has an interest in the judgment ­­ Alderson Reporting Company Official

Jonathan F. Mitchell: Yes.

Justice Kennedy: ­­ quite separate from obtaining all the relief that he requests.

Jonathan F. Mitchell: Well, he hasn't obtained ­­

Justice Kennedy: Again ­­ again, why ­­ well, let ­­ let's assume the case in which they asked for $10,000 and $10,000 is deposited in a bank with irrevocable instructions to pay it.

Jonathan F. Mitchell: Right.

Justice Kennedy: What ­­ what ­­ what is ­­ is the concrete injury, as the Chief Justice said, that results in adversity?

Jonathan F. Mitchell: The concrete injury is the past injury that he's already suffered. That the injury has already been remedied is a defense that goes to the merits. It doesn't go to Article III. Everyone agrees ­­

Justice Kennedy: I'm sorry. Go ahead.

Jonathan F. Mitchell: Everyone agrees, Justice Kennedy, that under your hypothetical, the case should be thrown out of court. The only dispute is whether it's thrown out of court on jurisdictional grounds under Article III or whether it's bounced on the merits because the defendant has an affirmative defense.

Chief Justice Roberts: Voluntary cessation Alderson Reporting Company Official 1 can moot a case whether the plaintiff likes it or not, right?

Jonathan F. Mitchell: If ­­ if it's certain that the conduct won't reoccur.

Chief Justice Roberts: Well, if it's certain that they're going to give you the money that you asked for, why isn't the same result applied? In other words, why is it not simply what the plaintiff wants? He doesn't want the money he's asking for; he wants a judgment that will give him the money. As far as I can tell, that's your argument.

Jonathan F. Mitchell: When you're dealing with past injury, Mr. Chief Justice, there's always a past injury that remains ­­

Justice Kennedy: But there has to ­­

Jonathan F. Mitchell: ­­ even if ­­

Justice Kennedy: But there has to be adversity, as the Chief Justice mentioned in his first question. And if $10,000 is in the bank and he's been injured in the ­­ in the sum of $10,000, there's no adversity.

Jonathan F. Mitchell: There is adversity if the plaintiff comes into court ­­

Justice Kennedy: Other ­­ other than the ­­ the ­­ the stigma of a judgment. Alderson Reporting Company Official

Jonathan F. Mitchell: If the plaintiff comes into court demanding more and the defendant says, no, you're not entitled to that, there is adversity, Justice Kennedy. Now, the plaintiff is not legally entitled to additional damages on the merits if he's already been paid. But, again, that goes to the merits. That's not part of the Article III inquiry. Redressability under Article III does not ask whether the plaintiff is legally entitled to the relief he demands. He could be making an utterly meritless claim for relief. But that's not the Article III question. Article III assumes the plaintiff would have a legal entitlement to the relief demanded and asks whether that relief, if granted by the court, would redress the injury that he ­­

Chief Justice Roberts: You put a lot of weight on what the plaintiffs ­­ but there's another interest here, which is the ­­ the court's interest. You're being given everything you want. You say, well, we've had a past injury. Well, you asked for relief on that, and that is what you're being given. And yet you say, nonetheless, we're entitled to enlist the court and the court's time. And not only that, Alderson Reporting Company Official 1 under Article III, we're entitled to get a legal ruling, even though there's no ­­ there's nothing more that they can give you.

Jonathan F. Mitchell: Just ­­ just to be clear ­­

Chief Justice Roberts: You won't ­­ you won't take "yes" for an answer.

Jonathan F. Mitchell: Mr. Chief Justice, we have not been offered everything we've demanded. We have ­­ we have ­­

Chief Justice Roberts: Well, that's a ­­ that's a ­­ that's a factual question.

Jonathan F. Mitchell: That's a different question. Right.

Chief Justice Roberts: The district court said you were ­­

Jonathan F. Mitchell: No, no. I'm sorry. The district court did not say that. There's no finding ­­

Chief Justice Roberts: Page 40a?

Jonathan F. Mitchell: Page 40a in the Petition Appendix. The district court does not say, as a matter of law or as a finding of fact, that we were offered complete relief. What the district court said on page 40a is that it assumes, for the sake of argument, that the offer constituted complete relief only ­­ only ­­ Alderson Reporting Company Official

Chief Justice Roberts: No. Sorry. Sorry, counselor. That's not what it says. It's not "we assume for the sake of argument."

Jonathan F. Mitchell: Right. Not ­­ we say ­­

Chief Justice Roberts: "The parties do not dispute that defendant's Rule 68 offer would have fully satisfied the individual claims asserted" ­­

Jonathan F. Mitchell: The end ­­

Chief Justice Roberts: ­­ "or that could have been asserted by plaintiff in this action."

Jonathan F. Mitchell: Only the individual claims. And the district court was wrong to say that we did not dispute that. If you look at docket entry ­­

Chief Justice Roberts: Well, did the Ninth Circuit proceed to decide the case on the basis of that factual finding?

Jonathan F. Mitchell: No, it didn't ­­ we disputed in the Ninth. We said in the Ninth Circuit that the district court was wrong to say that on page 40a of the Petition Appendix. It's in Docket Entry 13 in the Ninth Circuit record on ­­

Chief Justice Roberts: Did the Ninth Circuit proceed to decide the case on the basis of the assumption that the district court factual determination Alderson Reporting Company Official 1 was correct?

Jonathan F. Mitchell: No. The Ninth Circuit assumed, for the sake of argument ­­

Chief Justice Roberts: I think that is the same as proceed to decide for ­­

Jonathan F. Mitchell: No. I don't ­­ I don't ­­ I don't agree, Mr. Chief Justice. There was binding precedent in the Ninth Circuit already before we got there, in Diaz and Pitts, that said even an offer of complete relief from the defendant does not moot the case. So if the defendant throws up his hands and unconditionally surrenders, whether it's a class action or not, that has nothing to do with mootness. It may justify a forced entry of judgment, but it does not moot the case. And that's the problem that Mr. Garre cannot get around, because Campbell­Ewald insists in this case that the district court ­­

Justice Scalia: Well, you're ­­ you're ­­ you're contrasting a forced entry of judgment on the one hand with mootness on the other. But a forced entry of judgment is one of the remedies for mootness.

Jonathan F. Mitchell: No. Those are mutually exclusive. If the case is moot, a court cannot enter a Alderson Reporting Company Official 1 judgment ever, under any circumstance.

Justice Scalia: No.

Jonathan F. Mitchell: The only proper response in that situation is to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).

Justice Scalia: I don't ­­

Jonathan F. Mitchell: There can never be a judgment.

Justice Scalia: I think ­­ I think when there has been a settlement and the parties have agreed to a settlement, the court can enter a judgment.

Jonathan F. Mitchell: It can. And that's exactly why settlement ­­

Justice Scalia: Even though the case is moot ­­

Jonathan F. Mitchell: No, the case is not ­­

Justice Scalia: ­­ because of the settlement.

Jonathan F. Mitchell: The case is not moot. If the court is entering a judgment, by definition the case is not moot. Mootness requires a jurisdictional dismissal. Mootness forbids the entry of any type of judgment. So for Campbell­Ewald to come into this Court and say that the district court retained the prerogative to enter a judgment on the merits after the Alderson Reporting Company Official 1 offer of complete relief has been tendered is a confession that the offer of complete relief on this case ­­

Justice Scalia: It isn't a judgment on the merits. It's ­­ it's ­­ it's a judgment affirming the settlement, affirming what the parties themselves have agreed to.

Jonathan F. Mitchell: That's still a judgment.

Justice Scalia: It doesn't go to the merits of the claim.

Jonathan F. Mitchell: It ­­ oh, it may not ­­ it may not resolve the merits for purposes of issue preclusion. That's correct, Justice Scalia, but it's still a judgment under Rule 58. It is court­ordered relief. And a court cannot do that in a case when it lacks subject­matter jurisdiction. Mootness and forced entry of judgment are mutually exclusive.

Chief Justice Roberts: ­­ so just to be clear on the facts without getting into a dispute, let's say that the offer is for the ­­ all relief that you have asked for.

Jonathan F. Mitchell: Yes.

Chief Justice Roberts: Not a question of what you think they're entitled to or what they think; Alderson Reporting Company Official 1 everything you've asked for, including all attorneys' fees, so there's no question of cost­shifting or anything like that. All injunctive relief. They come to you and say, you write the injunction. You say there is still a case or controversy that could proceed to litigation.

Jonathan F. Mitchell: There is a case or controversy that might lead to a forced entry of judgment if the plaintiff, for obstinacy or other types of reasons, wants to decline this offer. It's hard to imagine ­­

Chief Justice Roberts: What's ­­ what is the controversy? In the case I've hypothesized ­­

Jonathan F. Mitchell: The controversy is ­­

Chief Justice Roberts: ­­ what is the controversy?

Jonathan F. Mitchell: The controversy is the plaintiff wants a judgment of the court that incorporates that relief. A mere offer from the defendant is a legal nullity. He's not getting the money.

Chief Justice Roberts: Well, I thought you said if the plaintiff is being obstreperous or whatever, you know, the ­­ just refusing to take it for spite or some reason. In that case? Alderson Reporting Company Official

Jonathan F. Mitchell: Enter a judgment, not ­­ not dismiss for mootness.

Chief Justice Roberts: And what would the judgment say?

Jonathan F. Mitchell: The judgment would say: You asked for X. The defendant offered X. This case is over. Both sides agree on what the proper legal relief should be. And I think ­­

Justice Kennedy: But I thought that's what ­­

Jonathan F. Mitchell: ­­ and enter a judgment.

Justice Kennedy: ­­ Mr. Garre was arguing. He said he'd need a judgment.

Jonathan F. Mitchell: No. He's saying it's moot. Now, he's trying to say that mootness allows the court also to enter a judgment, but that's a contradiction in terms if it's moot.

Justice Kagan: And I take it that this judgment that you're talking about would be: He offered this. It's everything that you asked for. We are ordering that he pay it. And ­­

Jonathan F. Mitchell: Yes.

Justice Kagan: ­­ and ­­ and now the thing is dismissed.

Jonathan F. Mitchell: Right. And now it's backed Alderson Reporting Company Official 1 up with the force of the court. It can be enforced with contempt citations, which a mere offer of complete relief can't. In fact, an unaccepted offer has no legal effect at all on the judgment.

Justice Alito: If the case is dead when there's ­­ when the judgment is entered, it seems to me it's even more dead when you've actually got the case in hand. If you have the judgment, you're going to ­­ you may have to enforce the judgment. You don't actually have anything of value. You have a piece of paper.

Jonathan F. Mitchell: You still have ­­ you ­­ you may still have to enforce the judgment, but that's much easier than enforcing an ­­ an offer.

Justice Alito: That's better ­ it's better to be ­­ if somebody gave you the choice between a judgment that says you're entitled to a certain amount of money and the money itself in your hand, you would rather have the judgment?

Jonathan F. Mitchell: We don't have the money in our hand. It's been offered ­­

Justice Alito: But if you did. That was my first hypothetical. If you did, if you actually had the money in hand.

Jonathan F. Mitchell: If we actually had the money Alderson Reporting Company Official 1 in hand, we're not entitled to an additional judgment, because the defendant in that case would have a defense on the merits. It still doesn't justify throwing us out of court on mootness.

Justice Scalia: Okay. But it wouldn't be moot ­­

Jonathan F. Mitchell: It's not jurisdictional ­­ I'm sorry. Go ahead.

Justice Scalia: My goodness. So every case has to be tried even when you've ­­

Jonathan F. Mitchell: No.

Justice Scalia: ­­ been paid.

Jonathan F. Mitchell: Not tried.

Justice Scalia: He's ­­ I want a judgment.

Jonathan F. Mitchell: No.

Justice Scalia: And you say it's not moot.

Jonathan F. Mitchell: The court can say, we're terminating the litigation and entering judgment for you, Mr. Plaintiff, because you're not accepting an unconditional surrender from the defendant. You don't go to trial in that situation. You enter judgment for the plaintiff. It's not to be thrown out for lack of jurisdiction. A jurisdictional dismissal sends the Alderson Reporting Company Official 1 plaintiff home empty­handed, with nothing. No judicial relief at all. This unaccepted offer is just out there. It hasn't been accepted. It can't be enforced in any way.

Chief Justice Roberts: So if ­­

Jonathan F. Mitchell: Not by contract; not by any remedy.

Chief Justice Roberts: If, Mr. Garre, as you're leaving the courtroom today says, here, we will accept an entry of judgment; one, we'll make sure you get whatever attorneys' fees you want, and we will accept an entry of judgment, then the ­­ then the case would be over?

Jonathan F. Mitchell: Well, it certainly would not be moot.

Chief Justice Roberts: Would it be over?

Jonathan F. Mitchell: If he wants to accept an entry of judgment on everything that we've asked for, which includes: The attorneys' fees; a real injunction, not a vague, "obey the law" injunction that's in his offer; and class certification and class relief ­­

Chief Justice Roberts: Oh, well, that's the whole thing; right?

Jonathan F. Mitchell: Right. Right.

Chief Justice Roberts: This is all about Alderson Reporting Company Official 1 class certification.

Jonathan F. Mitchell: But we ­­ one does not get to class certification until the court first concludes that the individual claims have become moot. And there's no way the claims can be mooted out simply by an offer ­­

Chief Justice Roberts: So the case comes down to, once we put away ­­ hypothesize that you're getting everything you, as the plaintiff in this case, has asked for, it all comes down to whether or not you can get the class certified.

Jonathan F. Mitchell: But it comes ­­ the question presented asked whether the offer of complete relief moots the case.

Chief Justice Roberts: And you're saying ­­

Jonathan F. Mitchell: And the answer to that ­­

Chief Justice Roberts: And you're saying ­­

Jonathan F. Mitchell: ­­ question is no.

Chief Justice Roberts: Excuse me.

Jonathan F. Mitchell: I'm sorry.

Chief Justice Roberts: And you're saying that it's not because of the possibility that you could get a class certified.

Jonathan F. Mitchell: Well, that's one ­­

Chief Justice Roberts: My hypothesis is you get everything else. Okay? Alderson Reporting Company Official

Jonathan F. Mitchell: Yes.

Chief Justice Roberts: The only thing they don't say ­­ they enter a judgment. You want a judgment? Here's your judgment. You want all the attorneys' fees? Here's all your attorneys' fees. You want an injunction? You know, go ahead and write your injunction. But you say still not, because you might be able to be the representative plaintiff in a class action?

Jonathan F. Mitchell: That's ­­ that's one of the many reasons why it's not ­­

Justice Breyer: I don't see why that one ­­

Chief Justice Roberts: Of course not.

Justice Breyer: ­­ would be a good ­­ the thing I thought was interesting here, and I wanted to know your position, is the AFL­CIO brief ­­

Jonathan F. Mitchell: Yes.

Justice Breyer: ­­ which is on your side.

Jonathan F. Mitchell: Yes.

Justice Breyer: Do you agree with it?

Jonathan F. Mitchell: I wouldn't say that we agree with all ­­

Justice Breyer: I want to know: Do you agree with it? Alderson Reporting Company Official

Jonathan F. Mitchell: No, we don't.

Justice Breyer: Fine. But why not? What they say is that the right way to go about this is ­­ and they cite cases and so forth in the nineteenth century ­­ is that the defendant should not ­­ you're right. It's not an offer of relief. What they say is the defendant is supposed to tender the money. And when he tenders the money, if the plaintiff won't accept it, he goes to the court and he deposits the money in the court. And the court then issues a judgment saying, this case is over. That's what I read here in pages 9 to 11, and they have lots of authority, and that gets rid of the problem. And there's no ­­ it seems to me, well, if it isn't right, why isn't it?

Jonathan F. Mitchell: It may be over, but it's not moot.

Justice Breyer: Why ­­

Jonathan F. Mitchell: This has nothing to do with what moot is.

Justice Breyer: Who ­­ what the judge does is say, they want $10,000. What the defendant does is he says, they won't take my check, which should be certified. So he deposits it in court.

Jonathan F. Mitchell: Right. Alderson Reporting Company Official

Justice Breyer: The judge at that point should say, the defendant has all he wants. The case is over. Goodbye. And, of course, if that person now has all he wants, he can't certify this is a class because he isn't harmed.

Jonathan F. Mitchell: He gets judgment on the merits in that situation.

Justice Breyer: Fine. Give him judgment on the merits. Who cares?

Jonathan F. Mitchell: It's actually a very important distinction.

Justice Breyer: Why?

Jonathan F. Mitchell: Because many reasons.

Justice Breyer: Well, give me one. (Laughter.)

Jonathan F. Mitchell: All right. I'll start with one. The question presented ­­ the question presented asks whether an offer of complete relief renders the case ­­

Justice Breyer: I'm not interested at the moment in the question asked. I am interested in the question I am asking. (Laughter.)

Jonathan F. Mitchell: All right. It may very well be that if the defendant in that case comes into court Alderson Reporting Company Official 1 and says the case is over, the district court would have the prerogative to enter a judgment on the merits for the defendant because the plaintiff has already been paid, and the plaintiff can't double­dip. That goes to the merits. But Campbell­Ewald never asked the district court for judgment on the merits.

Justice Breyer: And that isn't what I said. You now sound as if you are agreeing with the AFL­CIO.

Jonathan F. Mitchell: I don't agree with it because they are implying that that would moot the case.

Justice Breyer: No, they don't say what the effect of it would be.

Jonathan F. Mitchell: Fine.

Justice Breyer: What I want ­­ I'm being practical.

Jonathan F. Mitchell: Okay.

Justice Breyer: And the practical thing is that the defendant wants to pay off the plaintiff by giving him everything he wants.

Jonathan F. Mitchell: Yes. We agree ­­

Justice Breyer: Is there a way to do it? What they say is, yes, the way to do it is you tender the money in a certified check, and if he won't take it, pay the money into court. And the ­­ the judge then Alderson Reporting Company Official 1 enters a judgment in favor of the plaintiff, who has gotten everything he asked for.

Jonathan F. Mitchell: If he's gotten everything he's asked for, that goes ­­

Justice Breyer: Not the class certification. There's nothing in there that says ­­

Jonathan F. Mitchell: Yes, apart from class action, which is a more complicated question. But ­­

Justice Breyer: No, it's not a more complicated question.

Jonathan F. Mitchell: Well, it is ­­

Justice Breyer: In my hypothetical, I'm saying, in those circumstances, do you agree ­­ do you or do you not agree, and if not, why not? The only thing that's left is, you'd like, says the plaintiff, class certification, or at least the lawyer would.

Jonathan F. Mitchell: The case is not over if you're talking about class certification, because Roper holds specifically that the representative plaintiff can continue litigating the class certification if there's ­­ even after ­­

Justice Breyer: Even though there's been a certified check tendered to the plaintiff and a judgment has been entered giving ­­ saying the case is over because he's got everything he wants. Alderson Reporting Company Official

Jonathan F. Mitchell: That was the situation in Roper. There was a forced entry of judgment imposed on the representative plaintiffs. And this Court allowed the representative to continue litigating the class certification issue because he had a financial stake in the class certification decision. And Mr. Gomez, likewise, has a financial stake. That's undisputed ­­

Chief Justice Roberts: What is ­­ what is the financial stake here?

Jonathan F. Mitchell: There are two of them. One is the cost sharing of the lawyers.

Chief Justice Roberts: Okay. Well, the cost ­­ so then that's fully satisfied if the offer covers attorneys' fees?

Jonathan F. Mitchell: Yes. Of course, this ­­ this offer does not.

Chief Justice Roberts: Okay. Now, if ­­

Jonathan F. Mitchell: Yes.

Chief Justice Roberts: Right.

Jonathan F. Mitchell: Right.

Chief Justice Roberts: What was the other one?

Jonathan F. Mitchell: The other one would be the incentive award that he would recover if the class is Alderson Reporting Company Official 1 certified and the case proceeds either to settlement or to victory. And that's another ­­

Chief Justice Roberts: The incentive award?

Jonathan F. Mitchell: The incentive award. Normally, a representative plaintiff after a class gets certified and the settlement gets ­­

Chief Justice Roberts: You ­­ is there any concern that a plaintiff who has received or has been offered all relief that he could receive is an appropriate representative plaintiff of parties who have not gotten all the relief?

Jonathan F. Mitchell: That ­­ that might be something for a court to consider under Rule 23, whether this person is an adequate representative. But we don't think there is much of a difference there because the incentive award still gives him incentives to press for the fellow class members. And this Court's upheld qui tam litigation, where ­­

Chief Justice Roberts: So the argument is that an individual plaintiff who has gotten everything that he has asked for ­­ and I realize you argue that isn't the case here.

Jonathan F. Mitchell: Yes, not even close, yes.

Chief Justice Roberts: ­­ is ­­ is entitled Alderson Reporting Company Official 1 to proceed with the litigation because he might get a bonus from a class action that he would like to lead?

Jonathan F. Mitchell: That's correct.

Chief Justice Roberts: Okay.

Jonathan F. Mitchell: But, again, that's only one of many reasons why we win on the mootness question. And, you know, there's still the problem of the mutual exclusivity between a mootness finding and a forced entry of judgment.

Justice Alito: Can I ask you just a practical question? Is Mr. Garre right that this is a case, if he were to proceed, if it were ­­ the class were certified and you get a judgment, this is a case where the class action attorneys are going to get a lot and the members of the class are going to get virtually nothing?

Jonathan F. Mitchell: No.

Justice Alito: You would have to ­­ you would have to prove that at the ­­ to establish damages, would you not, that the members of the class did not consent to receive these messages, right?

Jonathan F. Mitchell: That ­­ that's correct. And it went beyond ­­

Justice Alito: How would you do that? How would you be able to ­­ how can you prove that Alderson Reporting Company Official 1 somebody ­­ some member of the class at some point when they were agreeing to something on the internet didn't click a box that said, I agree to receive messages from all of, you know, a big class of senders?

Jonathan F. Mitchell: There are opt­in lists that are maintained by companies like MindMatics and Campbell­Ewald that can be discovered, and that's how we would go about proving it.

Justice Alito: What do you think the class members would get?

Jonathan F. Mitchell: They're entitled to ­­

Justice Alito: Individual class members. As a practical matter, what would they get at the end of ­­

Jonathan F. Mitchell: What would they get in the settlement? I would imagine they would probably get ­­

Justice Alito: A settlement? You're ­­

Jonathan F. Mitchell: If it settles.

Justice Alito: What if it's not?

Jonathan F. Mitchell: They're entitled to $500 apiece in statutory damages that could be trebled to $1,500 if we can show there was a ­­ violation.

Justice Alito: And you're going to be able to determine who did not ­­ prove that certain people did not consent? Alderson Reporting Company Official

Jonathan F. Mitchell: It would be based on whether they appeared on the opt­in list, whether they had appeared on some type of opt­in list from which ­­

Justice Ginsburg: What do you ­­ what do you do to get on that opt­in list?

Jonathan F. Mitchell: You have to check a box or submit a form that says you're interested in receiving e­mails or text messages about certain topics. And in this case, the Navy instructed Campbell­Ewald to send text messages only to people who had opted in to receive information about money for college, travel and adventure, something related to the Navy. And this list was not assembled properly.

Justice Ginsburg: We ­­ we haven't talked about the second issue that you raise, and one curiosity is the ­­ the actor that did something wrong was ­­ what is it? MindMatics?

Jonathan F. Mitchell: Yes, MindMatics.

Justice Ginsburg: But you didn't sue. What is the reason that you went after the contractor only?

Jonathan F. Mitchell: Campbell­Ewald is vicariously liable, and they were the ones that were sued. But...

Justice Ginsburg: So you're relying on vicarious liability?

Jonathan F. Mitchell: Yes. The Ninth Circuit found Alderson Reporting Company Official 1 that ­­ may I answer?

Chief Justice Roberts: Sure.

Jonathan F. Mitchell: Thank you. The Ninth Circuit found that the TCPA incorporates vicarious liability and that Campbell­Ewald is vicariously liable for MindMatics' actions. And they did not appeal that. That is the law of the case.

Chief Justice Roberts: Thank you, Mr. Mitchell. Mr. Yang. ORAL ARGUMENT OF ANTHONY A. YANG ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING RESPONDENTS

Anthony A. Yang: Mr. Chief Justice, and may it please the Court: I'd like to take the opportunity to clarify the Article III question by addressing the elements of an Article III case or controversy, an established Federal practice that I believe shows that an offer ­­ an unaccepted offer, in particular, cannot moot a case. And if there's time, I'd like to address the derivative sovereign immunity argument. First, there is a distinction that this Court has established between prospective relief and retrospective relief. When you seek prospective relief, Alderson Reporting Company Official 1 you need to show an ongoing or imminent injury. In that context, a defendant can actually halt the injury that's necessary by stopping, so long as you meet the voluntary cessation doctrine or ­­ so long as you show that it's not capable of repetition you're going to be in review. So the injury with respect to prospective relief, that is, the injury that's occurring now or in the future, can end. When we're talking about retrospective relief, damages, the injury is in the past. It's not undone. An offer of money may be compensation for that injury, but the injury continues to exist. For purposes of Article III, the question is, there has to be an injury. It has to be fairly traceable. That's established by the past injury that ­­ caused by the defendant. And the requested judicial relief would likely redress the injury. Now, the requested relief, even when there's been an offer, is: I want money. Second ­­

Justice Scalia: I'm sorry. Those are ­­ those are the three requirements for Article III standing, but there's an additional requirement of adverseness. None of those three requirements that are ­­ that are set forth in our ­­ in our opinions deal Alderson Reporting Company Official 1 with adverseness. That's a separate ­­ separate issue.

Anthony A. Yang: Well ­­

Justice Scalia: And that's what's being challenged here.

Anthony A. Yang: I don't believe so. It's embedded in the request for relief. The plaintiff comes to the court and says, I want relief from the court. The defendant says, no, no, don't grant the relief. I've either ­­ the case is moot. I think that's what's going on here. There is a distinction between ­­

Justice Scalia: There has to be injury, in fact, okay? It has to be attributable to the ­­ to the defendant, okay. And the court must be able to remedy it. None of those three requirements, which are the classic requirements, deals with the quite separate point of adverseness.

Anthony A. Yang: I believe it's embedded in ­­

Justice Scalia: If somebody comes in and says, yes, you've been injured, the court could provide relief, but I ­­ I agree with all of that, and here is the money.

Anthony A. Yang: Well, then the case is not moot. The court can grant relief. The court enters a judgment ordering relief, which is enforceable with all the Alderson Reporting Company Official 1 court's powers, which is quite distinct from a judgment of dismissal for one of jurisdiction. That ­­ that's a ­­ you need to have ­­ a court needs Article III power to direct a remedy against the defendant. It's quite unlike a dismissal for one of jurisdiction. It's also quite unlike the remedy of vacatur, which undoes a court judgment. So Mr. Garre's, you know, attempt to kind of frame this either as, you know, a ­­ a prospective relief case or a case where you're getting a judgment, a judgment of dismissal for one of jurisdiction is not an enforceable judgment in the way that is relevant for purposes of Article III jurisdiction.

Justice Sotomayor: Mr. Yang, I ­­ I ­­ I do understand what you and Petitioner ­­ Respondent's counsel are arguing, which is someone, a judge, has to say, at some point, this is in fact complete relief and enter a judgment for that complete relief. That's your argument.

Anthony A. Yang: In part, I believe that's right.

Justice Sotomayor: All right. Parties could stipulate. If they ­­ if they accept an offer of settlement, that's like a stipulation saying, this is complete relief for us. There's no adversity. Alderson Reporting Company Official

Anthony A. Yang: The ­­ and the parties when they agree.

Justice Sotomayor: Right.

Anthony A. Yang: When they say, we've agreed and we ­­ we give up, the case will normally be thought of as moot. But there is ­­ there are several longstanding Federal practices, both in Federal courts, actually, as well as in State courts, that I think reflects this point. A party ­­ parties can agree to settle a case, but a court retains jurisdiction to enter a consent decree. This is an enforceable judgment. Justice Kennedy, you talked about Kokkonen. This is the great distinction between a settlement offer and a judgment. The court has authority to enter a consent decree even after the parties have settled. That's more than an offer. It's actual ­­ a settlement. Two, courts can ­­

Justice Scalia: Excuse me. It ­­ it has authority to enter that even though the case is moot; right.

Anthony A. Yang: No. It ­­

Justice Scalia: But when there's a Alderson Reporting Company Official 1 settlement offer which has been accepted, the court can nonetheless issue a judgment enforcing that settlement, no?

Anthony A. Yang: The case is not moot because the parties are ­­ are saying, we are agreeing on the entry of a judgment, not we're agreeing in the abstract to just ­­

Justice Scalia: Oh ­­

Anthony A. Yang: ­­ to settle the case.

Justice Scalia: So ­­ so even though the parties have no adverseness at all and they all agree on what the outcome should be, but we want a court to go into this matter which we've all agreed on because we want a judgment? Is ­­ is ­­ is that ­­

Anthony A. Yang: What ­­

Justice Scalia: ­­ the Article III adverseness requirement?

Anthony A. Yang: This is not a remarkable proposition. Courts all the time ­­

Justice Scalia: I think it's remarkable.

Anthony A. Yang: ­­ all the time enter consent decrees. These are enforceable with the power of the court. Two, they also dismiss with prejudice. That is not a dismissal for one of jurisdiction. It's a Alderson Reporting Company Official 1 resolution of the claim. Three, they enter judgment in a Rule 68 offer. Also, you look at the affirmative defenses, which are all waivable, in Rule 8(c), accord and satisfaction, payment, res judicata.

Chief Justice Roberts: What happens on other grounds of lack of jurisdiction? What if the plaintiff has no injury? There is no injury. The court ­­ in other words, the ­­ the requirements for Article III jurisdiction that you rehearsed. What happens in that case? No jurisdiction for another reason besides mootness?

Anthony A. Yang: Right. The court would dismiss the case for one of jurisdiction, saying that there is no injury.

Chief Justice Roberts: Well, what if the ­­ the plaintiff comes in and says, well, I want ­­ I want a judgment? Or because what other ­­

Anthony A. Yang: But ­­

Chief Justice Roberts: ­­ bases, or I want ­­ I want ­­ whatever reason. I mean, they're ­­ we're insisting on a judgment even though, arguably, depending upon the scope of the offered relief, the case Alderson Reporting Company Official 1 is moot.

Anthony A. Yang: Our point is that ­­

Chief Justice Roberts: Other cases, you say they dismiss it as ­­ why ­­ why doesn't that go to trial? Or ­­ or you get the benefit of the court determination?

Anthony A. Yang: The standing inquiry has to, of course, be addressed at the relevant stage of the case. So, for instance, at the pleading stage, if you failed to allege an injury sufficient ­­

Justice Scalia: I think you're wrong. I think if there's no standing, I don't think you get dismissed as moot. I think you get a judgment for the defendant because the plaintiff has no standing.

Anthony A. Yang: It's not a ­­ it's a judgment that there is lack of standing, that you have no injury. It's not a resolution of the claim itself.

Justice Scalia: Indeed. So ­­ so the fact that the court issues judgment has nothing to do with whether there's Article III standing, whether there's mootness or not. You can enter the judgment even though there's no Article III standing.

Anthony A. Yang: There is a ­­ there is a difference between a judgment for want of jurisdiction that the court is just ­­ I don't have the power to Alderson Reporting Company Official 1 address this. In a judgment where the court says, I have power to ­­ to enter relief that is enforceable through collateral proceedings through all the ­­ the ­­ the great power of a Federal court, that is a big difference. A court requires Article III jurisdiction to exercise that power over the litigants. And that's what normally happens with consent decrees, with dismissals with prejudice, with a judgment under Rule 68 offer. And it also, conversely, even when a party's been fully paid. The fact that the defense of payment ­­ accord and satisfaction can all be waived. So at the end of the case, if the defendant hasn't actually raised these and then belatedly says, I forgot. I paid the guy, and the claim was for a thousand dollars, the court says, sorry. Forfeited. Judgment for another $1,000.

Chief Justice Roberts: So even if a ­­ even if the plaintiff is given all the relief to which he is entitled, you say the plaintiff still has a right to involve the Federal court in that ­­

Anthony A. Yang: The ­­

Chief Justice Roberts: And I was ­­ I ­­ I can't say "that controversy," because you still have to Alderson Reporting Company Official 1 right to call ­­ go into Federal court and say, I know, Federal court, you're busy with a lot of things, but I still want you to hear my case even though I've gotten everything I could get.

Anthony A. Yang: And I don't want to mislead the Court into thinking that we're advocating protracted litigation on claims where there is a powerful defense like payment. That is a merits defense: We've paid the claim. You don't ­­ you can't get any more money from me. But for ­­ the question of the court's power to entertain that merits defense is what we're saying is ­­ like the fact that we have affirmative defenses that may be waived. Even a res judicata, the court has already adjudicated the very claim, and yet if the defendant does not raise it, this Court has held it doesn't go to the court's jurisdiction. And so the ­­ you could get relief twice.

Chief Justice Roberts: So is a ­­ is a plaintiff who has been given all the relief that he's requested, in the view of the United States, an adequate class representative?

Anthony A. Yang: This is, again, not an Article III question but a Rule 23 question. I think that could be considered by the Alderson Reporting Company Official 1 Court in exercising its discretion under Rule 23.

Chief Justice Roberts: Well, of course it can. I want to know what the position is.

Anthony A. Yang: I think if the ­­ I ­­ I think that's hard, and let me tell you why. To be an adequate represented ­­ representative of the class, you can't simply be looking out for your own interests. You have to be looking out for the interests of the class. And that's part of the requirement. A defendant who says, I'll just accept my money and drop the interests of the class, you know, it's not ­­ you wonder whether that defendant is ­­ or plaintiff is actually a good adequate representative. Rule 23 ­­ and, again, now we're stepping away from the Article III question. We're getting into questions of discretion.

Chief Justice Roberts: Thank you, counsel. Mr. Garre, you have four minutes remaining. REBUTTAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONER

Gregory G. Garre: Thank you, Mr. Chief Justice. First, the Article III principle that should control the resolution of this case was stated in the San Pablo case on page 314. The court said the court is not empowered to Alderson Reporting Company Official 1 decide moot questions or declare rules of law which cannot affect the result as to the thing in issue in the case before it. And that's exactly what's at issue before the case ­­ the Court today.

Justice Ginsburg: Relying on a provision of the California Civil Code, which was quite different from Rule 68.

Gregory G. Garre: I'm ­­ I'm not talking about the technical distinction of the cases. I'm talking about the Article III principle that controls here.

Justice Sotomayor: Mr. Garre, I am so confused by your argument. You get to say, on your own, unilaterally, I offered you complete relief, even though, right or wrong, the plaintiff is asking for a particular injunction and a particular attorney's fee. You, without any judicial interpretation, intervention, get to moot the case on your terms.

Gregory G. Garre: Your Honor ­­

Justice Sotomayor: What happens if you hadn't done that? Let's assume that he was entitled to attorneys' fees. Who's ­­ when does that decision get made and by whom?

Gregory G. Garre: Your Honor, a court ­­

Justice Sotomayor: That a complete offer Alderson Reporting Company Official 1 has been made?

Gregory G. Garre: A court makes the determination that the offer is complete, just as it would make a determination that the defendant had in fact voluntarily ceased his conduct.

Justice Sotomayor: That ­­ that is ­­ that's all I needed for you to say.

Gregory G. Garre: Okay. Thank you.

Justice Sotomayor: Okay? Let's stop there.

Gregory G. Garre: And ­­ and the Court did it in this case.

Justice Sotomayor: So a court gets involved ­­ a court gets involved no matter what. Right?

Gregory G. Garre: As it always would for a mootness determination. Of course.

Justice Sotomayor: All right. So you offered and they wanted an injunction. The court can enter that injunction. I'm putting aside the class action. I'm ­­

Gregory G. Garre: Yes.

Justice Sotomayor: The court can't ­­ all right.

Gregory G. Garre: Because it could ­­ in this ­­ the case is settled. Alderson Reporting Company Official

Justice Sotomayor: But it can't just say the case is moot and not enter the injunction. The terms of the settlement, the terms of the lawsuit, were that an injunction would be issued and you'd pay $1,500; correct?

Gregory G. Garre: Your Honor, I think Justice Scalia had exactly the right answer on this, which is that there's ­­ there's decades, if not centuries, of practice dealing with this situation, and it's a settlement context. Everyone agrees this Court has repeatedly said that the settlement moots the case. That doesn't mean that courts don't have authority ancillary jurisdiction ­­

Justice Sotomayor: That's just ­­

Gregory G. Garre: ­­ to dispose of the case.

Justice Sotomayor: ­­ poor usage of words, counselor. It can't enter a judgment ­­

Gregory G. Garre: Well, I don't think ­­

Justice Sotomayor: ­­ unless there is jurisdiction.

Gregory G. Garre: I ­­ I think we're in a ­­ a little bit of a chicken­and­the­egg situation here, Your Honor. This Court has repeatedly said settlements moot cases, and yet courts have authority to enter relief to Alderson Reporting Company Official 1 ­­

Justice Ginsburg: Accepted. Accept ­­ accepted settlements.

Gregory G. Garre: Well, we're back to whether or not the plaintiff can force the court to proceed ahead and expound on the law. And on that, I think my friend's presentation ­­

Justice Ginsburg: Not settlement of the law. Justice ­­

Gregory G. Garre: No.

Justice Ginsburg: ­­ Sotomayor suggested, move this affirmative defense of payment to summary judgment.

Gregory G. Garre: The case can go forward, in their view, and the courts will have to expound on the law. There's no independent interest in receiving a judgment. If that's the rule, then mootness is off the table. In almost any case can the defendant ­­ can always ­­ the plaintiff can always say, I want a judgment. We're ­­ we're down to the question, really, of: How do we get rid of this case? Because I think that even they recognize that the ­­ if the offer is for complete relief, then, the courts below held, the case has to come to an end. Alderson Reporting Company Official 1 There's two options for this Court. One, you hold that the case should be dismissed as moot, and two ­­ if you don't agree with that, then two, you hold that the case should be disposed of by entering judgment for the plaintiff based on the terms of the ­­ of the offer of complete relief. That's the Sixth Circuit rule. You can go and look, as we did. There are plenty of judgments where the courts have implemented that rule. There's no evidence of any difficulty in applying that, and what that does is it disposes of cases in a common­sense fashion. It prevents court from ­­ courts from going ahead and expounding on the law in cases in which they have no business doing so. If I could make one point on the immunity issue: Justice Ginsburg, you're exactly right. They sued the wrong party. MindMatics did everything in this case, and we're at least entitled to immunity from vicarious liability.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:05 a.m., the case in the above­entitled matter was submitted.)