In my writing here and elsewhere, I have argued that much of what is labeled as subject-matter jurisdiction, sovereign immunity, and standing are all better understood as being about the merits of a claim rather than Article III adjudicative thresholds. (I discuss standing in a forthcoming essay on next month’s arguments
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The “mootness” argument advanced by Campbell-Ewald is utterly nonsensical. But for the fact that the case tangentially involves class actions* and thus triggers inchoate rage in the corporate-lawyer reptilian brains of the conservative majority, it would have been laughed out of court years ago.
Mootness is a “jurisdictional” issue (I acknowledge the force of the OP’s observation that “jurisdiction” is an incoherent category, but let’s leave that to one side for the time being). The Court has repeatedly held that as soon as a court concludes that it lacks jurisdiction, it must enter a decree announcing the fact and dismiss the case. Over, done, end of story.
Campbell-Ewald’s theory is that as soon as a defendant offers to take an adverse judgment against it for the full amount, the case becomes “moot.” Taking this at face value, if A sues B for $10,000, and B then says “okay, I offer to pay you $10,000,” the case has become “moot” and must therefore be dismissed forthwith, without entry of any judgment other than “case dismissed, no jurisdiction”– whereupon A no longer has any way of actually compelling B to pay him $10,000. To call such a result absurd is an insult to your average absurdity. And let’s not even get started on how silly this theory gets when the case, like this one, seeks injunctive relief.
So from a civil-procedure standpoint, this issue is a no-brainer– the offer should lead to entry of a final judgment, whereupon the case will bar relitigation. ‘Nuff said.
There might be a different story if a case was purely for money damages and the defendant actually transferred title of $10,000 to the plaintiff (or lodged the sum with the court or an escrow agent in the plaintiff’s name, to prevent shenanigans where a plaintiff refuses to cash a check). But this case isn’t a pure money-damages case and Campbell-Ewald hasn’t surrendered title to anything, so that hypo remains a hypo.
*Restriction of class actions is, of course, the prize that the conservatives are after here. What they WANT is to hold that once a lead plaintiff is bought off, the class-action claim vanishes. Such a holding doesn’t have thing one to do with mootness– one could equally well say that buying off the lead plaintiff through entry of a full merits judgment makes associated class claims vanish (perhaps through some contorted interpretation of the requirement that the lead plaintiff “adequately represent” the class). That would be a brazen power grab, but certainly no more so than many of the current Court’s recent cases. And one could also say the exact opposite– that a full offer of individual relief “moots” an individual claim but not class claims. Indeed, IIRC, that’s what the Third Circuit said in Genesis Health v. Symczyk (can never remember the spelling of that name).
So all of this talk about mootness is just a remarkably disingenuous attempt to wrap the aforementioned power grab in a thin curtain of legality. Unfortunately, it looks (judging from the oral argument) like the majority prefers to make word salad out of mootness law rather than own up to what it’s doing.
Posted by: Paul Thomas | Oct 20, 2015 11:01:30 PM