Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. Well, Your Honor, I think the accepted principle is that a settlement mutes the case and requires the Court to dispose of the case. I mean, I think that's the accepted principle. But you didn't pursue that. You didn't apply under the rules for a judgment. And if you want us to write an opinion saying, oh, well, the settlement offer is the same as a judgment, that just doesn't accord with Federal rules of civil procedure or with our cases like the Coconut case. Well, Your Honor, I think this case is consistent with the Coconut case, with the Coconut case recognizes that once the case has come to an end, the Court has ancillary jurisdiction to dispose of it. And that case had dealt with the enforcement of consent decree. Here, our fundamental- The Federal rule of employment is to go out and it says, rule, 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 It is deemed withdrawn and it cannot be used for any purpose other than to saddle the plaintiff with course if she doesn't get more than the offer. So we have a Federal rule directly in point. And that instructs lilyance what an offer of judgment means. Why do we look any further than that? Well, first, Your Honor, this case there was not only the rule 68 offer of judgment, but a free standing settlement offer. So we think that the mechanics of rule 68 don't apply. Well, isn't that rather an end run around the offer of judgment? Well, 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 could secure through a federal judgment. The plaintiff asked for class action didn't get that because they weren't far along enough with the plaintiff even to move their certification. And the plaintiff in Genesis Healthcare asked for a collective action, the court found that that allegation was not. But a collective action is simply a device for permissive jointer. It's quite different as Genesis recognized. Class action, I don't remember, Justice Thomas is exact words, but it's a whole different kind of thing. Well, 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 3. And here, Justice Thomas. The only is it's an invitation to people to join you. That's all that. It's a permissive jointer. Well, it was still pretty 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 potential that a class could be certified? One is that potential. The other is, it's not that I would be entitled to attorney fees from the loser, but if there's a class, then there are a lot of other people who will share in the attorney fees and I'll have to pay less. And that's the cost sharing 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 appeal from the denial of certification when the mooding 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 been come moot in the first place. Here the mooding event takes place before certification, there's nothing to really back issue

. But if I could go back a little bit, Mr. Gart, 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 attorney fees, but he's not entitled to attorney 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 so the case is moot seems to me to be a non-sequitor. 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 attorney's fees, but that has to be adjudicated. You can't, a Court can't just 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. 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. Of course, it can absolutely make that determination, but the question is, does the Court make that determination in the guise of a mootness motion? Well, I think it absolutely does, just like it would in the voluntary cessation context. I want to be clear, because I think we have a little bit of that. So I can't do that in the context of a summary judgment motion. And why doesn't 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 can see the facts that make you liable? And then you fight about the legal questions. The reason is, when one party throws in the towel, the match is over, here the question is whether there's an article three 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 Sao Pablo case. That's an article three determination. But what's an article three determination is whether he or it or she is entitled to the relief that they ask for. May well be they're not. And, in fact, the title to have the Court say it, not you. A court can certainly make the determination of whether or not they have provided complete relief. In a case like this, we're dealing with liquidated damages. That's easy. By the way, you call this a free standing offer, but I have it right here. And it the offer says offer of judgment pursuant to Federal Rule of Civil Procedure 68. This was your client's admission. No, well, you're right, Your Honor. That's the Rule 6-Date offer. If you go on page 57a of the petition appendix, there's the free standing settlement offer, which isn't a Rule 6-Date offer. The other thing about Rule 6-Date is it really not designed for the situation of complete relief. It's designed for the situation of the defendant and plaintiff have to gamble essentially over whether or not an offer for less than complete relief is the sufficient they want to settle on that basis. In this case, you had a free standing settlement offer. It provided for complete relief. And so the question is whether or not the plaintiff had a personal stake in the case, sufficient, in the outcome of the case, sufficient to keep this case alive. Just as 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 is determined that it is indeed for complete relief, then the case has to come to an end. Now, whether you say 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 that when the defendant has offered everything, the courts can't go ahead and expound on the law. I mean, 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. Defended has offered everything in the plaintiff. Suppose one day after the offer, the defendant defaulted. Would the case is now with one's moot now become non-moot? Well, I mean, that would be an unusual situation. If it did, you're on the, I think, coconut. We had a case on it here in the court. And, you know, Roepers, in other case, where there was an offer that the court never didn't really question 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 Roepers 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, the plaintiff went to- Sotomayor, how about a procedural right to litigate entitlement to class status? Dr. Schumann, the plaintiff's question is, how about a procedural right to litigate entitlement to class status? That there's no separate legal status for the class until the class is certified. And the Jacobs- The why is it that we permit relation back at all? Well, 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. Okay. Well, first of all- The mootness is mootness. Mootness is mootness, right? 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 events happens while the 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 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 so-called 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 exception at all. What the defendant- What if the- Did you finish your answer to- Yes, sir. What if the defendant has very shaky finances, maybe on the verge of buying it? So, you have a history of reneging on promises. But the offer to provide full relief mutes the case even in that situation. A couple of answers to that, Your Honor. First, that's not an issue in this case. They've never disputed campally, while the ability to pay. Second of all, I think a court can determine that the plaintiff, the defendant, is ready to pay. And third of all, in the situation where the case is dismissed for mutinous 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'd, you'd dismiss the case on an erroneous factual premise. That's like the Judge Friendly decision that we cite in our reply brief

. So, that situation's not going to happen. And all of these practical concerns are going to go away. At this court recognizes, in this case, that a defendant's offer of complete relief ends any case or controversy over the individual claim that case goes away. The plaintiffs are going to accept the offer. And the offer of complete relief from a solvent defendant where it looks like the relief will be forthcoming if you lose this case. And so the case is not moved. Still be considered as a factor in the court decision whether or not to certify the class. I don't think it certainly wouldn't be a classic certification decision factor, your honor. And I think, and one of the reasons why the court insists on an article three case or controversy is it wants to insist that it doesn't expound in the law. The word to the class certification goes along without reference to whether the lead plaintiff has any injury any longer. Well, it's certainly a very unusual situation where the personal representative has been made whole. Now, there's some claims of it. If I asked if the trial judge could in his discretion consider that as a factor in certifying or not. Well, I suppose he could in terms of personal representative. But the real question is, why would you want a court to expound in the law? Difficult questions about certifications. 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 interest to put it in Judge Friendly's terms? What interest does a plaintiff has effect in a pattern? Multiple times in your breathing now, twice. But in the case that Judge Friendly dealt with, the class claims had already been dispensed with distinguished, distinguished. 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. 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 interest in the case, he has no right to litigate a class action because it might benefit others. He also pointed out that the offer of complete relief in this case, and in this kind of situation, puts the plaintiff in a better position than a default judgment. The plaintiff has everything that he asked 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. And so that- But you took conduct, not directed to the conduct, the direct conduct issue here. You can't under the past conduct. You know, I looked at the three railroad cases 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. And the railroad cases, what they found was that an offer was made and the other side by taking money accepted the offer. But if you found any case in the common law that where there was an offer that was unacceptable, was entered by the Court? Well, three responses to that. First, in the SOMPublic case, for example, the Court's decision specifically makes clear that the plaintiff refused that offer. Second of all, we- But you had to deposit the money in an account in the name of the plaintiff. And some Pablo turned on a provision of the California Civil Code that sent 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

. 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 a response to Justice Sotomayor's question is, we cited a long footnote in our opening brief that has many cases, recognizes as principle. And then, 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. In all the situation where the 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 defendant had offered everything that the plaintiff had seen. And this is very much along the same lines. You know, you have an old English case. You have these three cases in the 90s, 1890s, which were really about long liabilities 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 offers have existed for a long, long time. There's no history at all 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 was their purpose, and that was their effect, was to incentivize parties to do something. But 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. So I think first, I just quibble. I do think there's a longstanding practice of recognizing that when the defendant has been offered everything he gets secure, the case goes away. Second of all, and I think, you know, maybe more important. I mean, I would say that your descent in Genesis' health care 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 or often see a 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. Well, but I said that mootness is not the appropriate remedy in that case. The appropriate remedy in the case where it's absolutely clear 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. And I think here, and you once were at the point where we realized this case can't go on any further because he's been offered everything as the case comes to this court. 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, it's just decided. There's been adjudication at that point. No, there hasn't been 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 has simply recognized the fact that the defendant has offered everything in such a standard. 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 an 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. They solely on an unaccepted offer of judgment. Well, first of all, a judgment is just technically in order to dispose of the case. I mean, we went back and looked, and you yourself as a district court judge issued judgments in cases where you dismiss 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 a six-circuit position here, which is 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 loser at 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 an appropriate way of disposing of this case. And no one can argue that there's an article in three interests in proceeding with the litigation once they have a judgment disposing of the case. And we're back to the- But you do it with the pleading rules that say payment and accord and satisfaction are affirmative defenses. Your Honor, those are accord and satisfaction, for example, as a contract based doctrine. And it happens where payment is made before the case gets to litigation. There's no principle. Once the litigation begins, the principle that controls is Article 3. Article 3's case and controversy requirement requires that the plaintiff 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. What about the personal stake that would be class representative, high, in getting a bonus or anything? Just as was true in Genesis' health care, the would-be class representative is in the same exact position he was before this case goes away because he could still file his own claim. He could settle that claim. He can provide- he can file his own class action. And you know, here what we're arguing about is policy arguments about whether or not the court ought to find some basis to keep the class action alive. But that's not an appropriate determination of the Court to file a class action on your theory. That's what he wanted to do. And he would stop very early on by this offer of judgment. Well, this gets to the concern of these sorts of class actions are going to go away. First of all, it's hard to feel too sorry about the plaintiffs who have everything that they could possibly ask for. What 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 his policy concerns. I had to have these class action policy arguments, but it's important not to let those drive this pretty technical mood-ness question. So if we could just take the class action arguments out of it, just let's say that there's a plaintiff and he claims $10,000- he wants $10,000 plus attorney's face, okay? And the defendant says, I'll give you $10,000

. And the plaintiff says, no, I really want attorney's face too. And the defendant says, no, you're not entitled to attorney's face. The plaintiff says, no, I think I am. I think 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? There's a contested question as to what one person owes another. 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. It's just like the voluntary cessation context, Your Honor. And that case is- I suppose he could ask for the key to Fort Knox. And then no settlement offer would suffice, right? He could ask for a unicorn, Your Honor. He could ask for a unicorn. Well, then you just make a case on the press. Don't you think the court- This is a very easy response to this, which is if it's frivolous, if it's trivial, you dismiss the case on the merits. The court can make that determination, and you'd want it to make that determination before it went ahead and adjudged the claim on the merits. Whether it's deciding difficult questions on certification, whether it's going ahead and making law on TCPA, whether it's going ahead and making law on an immutable- If it's a frivolous claim, I don't see why the court can't dispose of that initially. The court can make that determination. It doesn't- every other context in which the court wants the court to make that determination before the court goes on and expounds on the law. If I could reserve the remainder of my time. Thank you, Council. Mr. Mitchell. Mr. Chief Justice, and may it please the court. Campbell E. Walts' Mutantist 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. If there's a- Even though if you're getting everything you want, what is the case or controversy? What is the live dispute in which you have a personal stake, which are the terms we use under Article 3? The live dispute is in obtaining a court judgment that incorporates that relief that's been offered. So, what is it you're worried about that they won't make good on the offer or? 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. So, suppose Mr. Gar right now were to take a big stack of cash out of this briefcase or a certified check and present that to you. Would there be any case left then? There might be a defense on the merits if Mr. Gar's client can say we've paid the debt, but that's not something to go whether the court is. That would be a case or controversy. If this were an individual action and the plaintiff had received from and the damages or the amount of potential damages are undisputed and the plaintiff has received that amount from the defendant and no dispute about it, there would be a live case or controversy. The defendant would have a defense on the merits. He could plead a court in satisfaction

. He could plead rest due to the contract. I is there a live case or controversy. What is the controversy? There's a past injury that's been alleged caused by the defendant that could be addressed in theory with judicial relief. Which would give the defendant, which would give the plaintiff what in addition to the money under my husband? He shouldn't get anything in addition to what he's already received, but that goes to the merits not to whether an article of the three case or controversy exists. You're saying the defendant has an interest, pardon me, that the plaintiff has an interest in the judgment. Yes. Quite separate from obtaining all the relief that he requests. Well, he hasn't again, again, why? Well, let's assume the case in which they asked for $10,000 and $10,000 to deposit in the bank with irrevocable instructions to pay it. What is the concrete injury, as the Chief Justice said, that results in adversity? The concrete injury is the past injury that he's already suffered. That the injury has already been remedied. It's a defense that goes to the merits. It doesn't go to Article 3. Everyone agrees, Justice Kennedy, that under your hypothetical the case should be thrown out a court. The only dispute is whether it's thrown out a court on jurisdictional grounds under Article 3, or whether it's bounced on the merits because the defendant has an affirmative defense. Voluntary cessation can move to case, whether the plaintiff likes it or not. If it's certain that the conduct won't re-occur. Well, if it's certain that they're going to give you the money that you ask for, why isn't the same result applied? In other words, why is it not simply what the plaintiff wants? It 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. When you're dealing with past injury, Mr. Chief Justice, there's always a past injury that remains. But there has to be adversity, as the Chief Justice mentioned in his first question. And if $10,000 is in the bank and if the injury in the sum of $10,000, there's no adversity? There is adversity if the plaintiff comes in court. Other than the stigma of a judgment. 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 3 inquiry. Redressability under Article 3 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 3 question. Article 3 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 already has. We put a lot of weight on what the plaintiff's, but there's another interest here, which is 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 in the Court's time. And not only that, under Article 3, we're entitled to get a legal ruling, even though there's nothing more that they can give you. Just to be clear, you won't take yes for an answer

. Mr. Chief Justice, we have not been offered everything we've demanded. That's the factual question that we've been asked to have. The District Court said you were. No, no, I'm sorry. The District Court did not say that. There's no finding. 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, sorry, sorry, Councillor, that's not what it says. It's not what we assume for the sake of argument. The parties do not dispute that defendants rule 68 offer would have fully satisfied the individual claims asserted. Or they claim that they would have been asserted by plain if in this action. Only the individual claims and the District Court was wrong to say that we did not dispute that. If you look at Docket entry, did the Ninth Circuit proceed to decide the case on the basis of the referendum? No, it didn't. We disputed in the Ninth Circuit. 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, Reverend Reckert. The Ninth Circuit proceeded to decide the case on the basis of the assumption that the District Court factual determination was correct. No. The Ninth Circuit assumed for the sake of argument. Is the same as proceed to decide? No, I don't agree, Mr. Chief Justice. There was binding precedent in the Ninth Circuit already before we got there in Diaz and Pets that said, even an offer of complete relief from the defendant does not move 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. Gar cannot get around, because Campbell Ewald insists in this case. That the District Court, 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. So those are mutually exclusive. If the case is moot, a court cannot enter a judgment ever under any circumstance. The only proper response in that situation is to dismiss for lack of subject matter jurisdiction under Rule 12B1. There can never be a judgment. I think when there has been a settlement and the parties have agreed to a settlement, the court can enter a judgment. It can. And that's exactly why settlement- Even though the case is moot, the case is not moot. No, the case is not- 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 if a Campbell Ewald to come into this Court and say that the District Court retained the prerogative to enter judgment on the merits, after the offer of complete relief has been tendered, is a confession that the offer of complete relief is a judgment on the merits. It's a judgment affirming the settlement. Affirming what the parties themselves have agreed to. That's still a judgment of the court. It doesn't go to the merits of the claim. 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 court-order belief and a court cannot do that in a case when it lacks subject matter jurisdiction. Mootness and forced entry of judgment are mutually exclusive. So just to be clear on the facts without getting into dispute, let's say that the offer is for the real-all relief that you've asked for. Yeah, on a question of what you think you're entitled to or what they think. Everything you've asked for, including all attorneys fees, so there's no question of cost shifting or anything like that. All in junk of relief, they come to you and say, you write the injunction, you say there's still a case or controversy that could proceed to litigation. There is a case or controversy that might lead to a forced entry of judgment. If the plaintiff for obscenity or other types of reasons wants to decline this offer. What is the charge of adversy? In the case of hypothesis. What is the controversy? Controversy is the plaintiff wants a judgment of the court that incorporates that relief. A mere offer from the defendant is a legal melody. He's not getting the money. You said if the plaintiffs being obstreparous or whatever, you know, just refusing to take it for spite or some reason. In that case, and to a judgment, not dismiss for mootness. So what would the judgment say? 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 is. But I thought that that's what the defendant said. Judge R is arguing. He said you need a judgment. 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 time. I take this to 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 now the thing is just. And now it's backed 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. And the judgment, if the case is dead 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 may have to enforce the judgment. You don't actually have anything of value. You have a piece of paper. You still have, you may still have to enforce the judgment, but that's much easier than enforcing an offense. That's better. 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. We don't have the money in our hand. It's been offered. But if you did, that was my first hypothetical. If you did, if you actually had the money in hand. If we actually had the money 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 mood. It wouldn't be about jurisdictional. Sorry, go ahead. So every case has to be tried, even when you've been paid. I try, because I want a judgment. No. And you say it's not mood. The court can say we're terminating the litigation and entering judgment for you, Mr. Planoff, 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 plaintiff home empty handed 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. So if I contract, not by any remedy? If Mr. Gare is you're leaving the courtroom today, says here we will accept an entry of judgment. One will make sure you get whatever attorneys fees you want, and we will accept an entry of judgment. Then the case would be over. Well, it certainly would not be mood. Would it be over? If he wants to accept an entry of judgment on everything that we've asked for, which includes the attorneys fees and a real injunction, not a vague obey the law injunction that's in his offer and class certification and class relief? Well, that's the whole thing, right? This is all about class certification. But one does not get to class certification until the Court first concludes that the individual claims have become mood. And there is no way that claims can be mooted out simply by an offer. So the case comes down to, once we put away hypothesized 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. But the question presented asked whether the offer of complete relief moods the case. And you're saying that it's not because of the possibility that you could get a class certified. Well, that's why hypothesis is you get everything else, okay? Yes. The only thing they don't say, they enter a judgment

. You have a piece of paper. You still have, you may still have to enforce the judgment, but that's much easier than enforcing an offense. That's better. 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. We don't have the money in our hand. It's been offered. But if you did, that was my first hypothetical. If you did, if you actually had the money in hand. If we actually had the money 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 mood. It wouldn't be about jurisdictional. Sorry, go ahead. So every case has to be tried, even when you've been paid. I try, because I want a judgment. No. And you say it's not mood. The court can say we're terminating the litigation and entering judgment for you, Mr. Planoff, 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 plaintiff home empty handed 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. So if I contract, not by any remedy? If Mr. Gare is you're leaving the courtroom today, says here we will accept an entry of judgment. One will make sure you get whatever attorneys fees you want, and we will accept an entry of judgment. Then the case would be over. Well, it certainly would not be mood. Would it be over? If he wants to accept an entry of judgment on everything that we've asked for, which includes the attorneys fees and a real injunction, not a vague obey the law injunction that's in his offer and class certification and class relief? Well, that's the whole thing, right? This is all about class certification. But one does not get to class certification until the Court first concludes that the individual claims have become mood. And there is no way that claims can be mooted out simply by an offer. So the case comes down to, once we put away hypothesized 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. But the question presented asked whether the offer of complete relief moods the case. And you're saying that it's not because of the possibility that you could get a class certified. Well, that's why hypothesis is you get everything else, okay? Yes. 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. That's one of many reasons why it's not. I don't see why that was. This would be a good, the thing I thought was interesting here, and I wanted to know your position, is the AFL CIO brief. Yes. Which is on your assault. Yes. You agree with it. I wouldn't say that we agree with it. I want to know, do you agree with it? No, we don't. But what why not? What they say is that the right way to go about this is, and they cite cases and so forth, and the 19th century, is that the defendant should not. They're, 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 tender's 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 the 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. If it isn't right, why isn't it? It may be over, but it's not moved. Why? It says nothing about the moodness. 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. Right. The judge at that point should say the defendant has all he wants. The case is over. Good bye. And of course, if that person now has all he wants, he can't certify this as a class, because he isn't harmed. He gets judgment on the merits in those situations. And you can give him judgment on the merits. Who cares? It's a, it's actually very important to say that. Why? Because many reasons. Well, give me one. All right, I'll start with one. The question presented, the question presented asks whether an offer of complete relief renders the case. I'm not interested in the moment in the question asked

. 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. That's one of many reasons why it's not. I don't see why that was. This would be a good, the thing I thought was interesting here, and I wanted to know your position, is the AFL CIO brief. Yes. Which is on your assault. Yes. You agree with it. I wouldn't say that we agree with it. I want to know, do you agree with it? No, we don't. But what why not? What they say is that the right way to go about this is, and they cite cases and so forth, and the 19th century, is that the defendant should not. They're, 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 tender's 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 the 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. If it isn't right, why isn't it? It may be over, but it's not moved. Why? It says nothing about the moodness. 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. Right. The judge at that point should say the defendant has all he wants. The case is over. Good bye. And of course, if that person now has all he wants, he can't certify this as a class, because he isn't harmed. He gets judgment on the merits in those situations. And you can give him judgment on the merits. Who cares? It's a, it's actually very important to say that. Why? Because many reasons. Well, give me one. All right, I'll start with one. The question presented, the question presented asks whether an offer of complete relief renders the case. I'm not interested in the moment in the question asked. I am interested in the question. I am asking. Right. It may very well be that if the defendant in that case comes into court 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 double debt. That goes to the merits. But Campbell E. Walden never asked the district court for judgment. That is what I said. You now sound as if you were agreeing with the AFL's CEO. I don't agree with it because they're implying that that would moot the case. No, they don't say what the effect of it would be. What I want to look at. I'm being practical. And the practical thing is that the defendant wants to pay off the plaintiff by giving him everything he wants. We agree. 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 judge then enters a judgment in favor of the plaintiff, who has gotten everything he asked for. If he's gotten everything he's asked for, that goes... Not the class certification. There's nothing in there that's... Apart from class action, which is a more complicated question. No, it's not a more complicated question. It is but 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. 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. Even though there's been a certified check, tender to the plaintiff, and a judgment has been entered, giving the saying the case is over because he's got everything he wants. 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. What is the financial stake? There are two of them. One is the cost-sharing of the lawyer. So then that's fully satisfied if the offer covers attorneys. Yes, of course. This is not the spot. Yes, right

. I am interested in the question. I am asking. Right. It may very well be that if the defendant in that case comes into court 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 double debt. That goes to the merits. But Campbell E. Walden never asked the district court for judgment. That is what I said. You now sound as if you were agreeing with the AFL's CEO. I don't agree with it because they're implying that that would moot the case. No, they don't say what the effect of it would be. What I want to look at. I'm being practical. And the practical thing is that the defendant wants to pay off the plaintiff by giving him everything he wants. We agree. 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 judge then enters a judgment in favor of the plaintiff, who has gotten everything he asked for. If he's gotten everything he's asked for, that goes... Not the class certification. There's nothing in there that's... Apart from class action, which is a more complicated question. No, it's not a more complicated question. It is but 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. 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. Even though there's been a certified check, tender to the plaintiff, and a judgment has been entered, giving the saying the case is over because he's got everything he wants. 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. What is the financial stake? There are two of them. One is the cost-sharing of the lawyer. So then that's fully satisfied if the offer covers attorneys. Yes, of course. This is not the spot. Yes, right. What was the other one? One would be the incentive award that he would recover if the class is certified and the case proceeds either to settlement or to victory. And that is another one. The incentive award? The incentive award. Normally a representative plaintiff after a class gets certified in the settlement. 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? 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's 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 key Tam litigation where the argument is that an individual plaintiff who's gotten everything that he has asked for and I realize you argue that isn't the case here. Not even close, yes. Is entitled to proceed with the litigation because he might get a bonus from a class action that he would like to lead? That's correct. Okay. But again, that's only one of many reasons why we went on the Mootness question. And there's still the problem of the mutual exclusivity between a Mootness finding and a forced entry of judgment. Can I ask you just a practical question? Is Mr. Gard right that this is the case? If you were to proceed, if 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. You would have to prove that to establish damages, would you not that the members of the class did not consent to receive these messages, right? That's correct. How would you do that? How would you be able to, how can you prove that 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? There are opt-in lists that are maintained by companies like Mydmatix and Campbell Leibold that can be discovered and that's how we would go about proving it. What do you think the class members would get? They're entitled to individual class members. It's a practical matter. Under the say, get it. What would they get in the settlement? I would imagine they would probably get a settlement. If it settles, what if it's not? They're entitled to $500 a piece in statutory damages that could be trebled to $1,500 if we can show there was a new violation. The term and who did not prove that certain people did not consent. It would be based on whether they appeared on the opt-in list, whether they had appeared on some type of opt-in list from which... What do you want to do to get on that opt-in list? 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 Campbell Leibold 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. We haven't talked about the second issue that you raised. One curiosity is the actor that did something wrong was what was it? Mike Maddox? Yes. I'm Maddox. But you didn't sue. What is the reason that you went after the contractor only? Campbell Leibold is vicariously liable and they were the ones that were students. You were lying on vicariously liable. Yes, the Ninth Circuit found that... May I answer? Thank you. The Ninth Circuit found that the TCPA incorporates vicariously liability and the Campbell Leibold is vicariously liable for mind-matics as actions

. What was the other one? One would be the incentive award that he would recover if the class is certified and the case proceeds either to settlement or to victory. And that is another one. The incentive award? The incentive award. Normally a representative plaintiff after a class gets certified in the settlement. 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? 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's 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 key Tam litigation where the argument is that an individual plaintiff who's gotten everything that he has asked for and I realize you argue that isn't the case here. Not even close, yes. Is entitled to proceed with the litigation because he might get a bonus from a class action that he would like to lead? That's correct. Okay. But again, that's only one of many reasons why we went on the Mootness question. And there's still the problem of the mutual exclusivity between a Mootness finding and a forced entry of judgment. Can I ask you just a practical question? Is Mr. Gard right that this is the case? If you were to proceed, if 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. You would have to prove that to establish damages, would you not that the members of the class did not consent to receive these messages, right? That's correct. How would you do that? How would you be able to, how can you prove that 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? There are opt-in lists that are maintained by companies like Mydmatix and Campbell Leibold that can be discovered and that's how we would go about proving it. What do you think the class members would get? They're entitled to individual class members. It's a practical matter. Under the say, get it. What would they get in the settlement? I would imagine they would probably get a settlement. If it settles, what if it's not? They're entitled to $500 a piece in statutory damages that could be trebled to $1,500 if we can show there was a new violation. The term and who did not prove that certain people did not consent. It would be based on whether they appeared on the opt-in list, whether they had appeared on some type of opt-in list from which... What do you want to do to get on that opt-in list? 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 Campbell Leibold 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. We haven't talked about the second issue that you raised. One curiosity is the actor that did something wrong was what was it? Mike Maddox? Yes. I'm Maddox. But you didn't sue. What is the reason that you went after the contractor only? Campbell Leibold is vicariously liable and they were the ones that were students. You were lying on vicariously liable. Yes, the Ninth Circuit found that... May I answer? Thank you. The Ninth Circuit found that the TCPA incorporates vicariously liability and the Campbell Leibold is vicariously liable for mind-matics as actions. And they did not appeal about that. That is the law of the case. Thank you, Mr. Mitchell. Mr. King? Mr. Chief Justice, 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 for controversy. And establish federal practice that I believe shows that an offer, an unaccepted offer in particular, cannot move the case. And if there's time I'd like to address the derivative, sovereign, and the Indian. First, there's a distinction that this Court has established between prospective relief and retrospective relief. When you seek prospective relief, 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 voluntary cessation doctrine or it's so long as you fit the show that it's not capable of repetition yet, or being a 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 retro-spective 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 that 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. I'm sorry. Those are the three requirements for Article III standing, but there's an additional requirement of adverseness. None of those three requirements that are set forth in our opinions deal with adverseness. That's a separate issue. Well, and that's what's being challenged here. I don't believe so. It's embedded in the requested relief. The plaintiff comes to the court and says, I want relief from the court. The defendant says, no, no. Now, don't grant the relief. Either the case is moved. I think that's what's going on here. There's a distinction between a- It has to be injury in fact, okay? It has to be attributable 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. I believe it's embedded in- If someone comes in and says, yes, you've been injured. The court could provide relief, but I agree with all of that, and here is the money. Well, then the case is not moved. The court can grant relief

. And they did not appeal about that. That is the law of the case. Thank you, Mr. Mitchell. Mr. King? Mr. Chief Justice, 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 for controversy. And establish federal practice that I believe shows that an offer, an unaccepted offer in particular, cannot move the case. And if there's time I'd like to address the derivative, sovereign, and the Indian. First, there's a distinction that this Court has established between prospective relief and retrospective relief. When you seek prospective relief, 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 voluntary cessation doctrine or it's so long as you fit the show that it's not capable of repetition yet, or being a 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 retro-spective 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 that 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. I'm sorry. Those are the three requirements for Article III standing, but there's an additional requirement of adverseness. None of those three requirements that are set forth in our opinions deal with adverseness. That's a separate issue. Well, and that's what's being challenged here. I don't believe so. It's embedded in the requested relief. The plaintiff comes to the court and says, I want relief from the court. The defendant says, no, no. Now, don't grant the relief. Either the case is moved. I think that's what's going on here. There's a distinction between a- It has to be injury in fact, okay? It has to be attributable 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. I believe it's embedded in- If someone comes in and says, yes, you've been injured. The court could provide relief, but I agree with all of that, and here is the money. Well, then the case is not moved. The court can grant relief. The court enters a judgment ordering relief, which is enforceable with all the court's powers, which is quite distinct from a judgment of dismissal for one of jurisdiction. That's- 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 vacature, which undoes a court judgment. So Mr. Garz, you know, attempt to kind of frame this, either as, you know, 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. Mr. Yeng, I do understand what you and Petitioner, and Respondent's Council are arguing, which is someone, a judge has to say, at some point, this is in fact complete relief. An enter a judgment for that complete relief. That's your argument. In part, I believe that's right. All right. Parties could stipulate if they accept an offer of settlement that's like a stipulation saying, this is complete relief for us. There's no adversity. The party- The party is when they agree. When they say, we've agreed and we give up. The case will normally be thought of as moot. But there's 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, Caconen. This is the great distinction between a settlement offer and a judgment. A court has authority to enter a consent decree even after the parties have settled. That's more than an offer. It's actual an settlement. Two courts can just- Excuse me, it has authority to enter that even though the case is moot, right? No. When there's a settlement offer which has been accepted, the court can nonetheless issue a judgment enforcing that settlement, no? The case is not moot because the parties are saying we are agreeing on the entry of a judgment. Not we are agreeing on the abstract to just settle the case. 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. It is the same. That's what the other thing to be adverseness is. We just want to be a remarkable proposition. Court's all the time- I think it's remarkable. All the time entered 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 resolution of the claim. Three, they enter judgment and a rule 68 offer. Also, you look at the affirmative defenses which are all wavable in rule 8c, a court in satisfaction, payment, residue decada

. The court enters a judgment ordering relief, which is enforceable with all the court's powers, which is quite distinct from a judgment of dismissal for one of jurisdiction. That's- 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 vacature, which undoes a court judgment. So Mr. Garz, you know, attempt to kind of frame this, either as, you know, 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. Mr. Yeng, I do understand what you and Petitioner, and Respondent's Council are arguing, which is someone, a judge has to say, at some point, this is in fact complete relief. An enter a judgment for that complete relief. That's your argument. In part, I believe that's right. All right. Parties could stipulate if they accept an offer of settlement that's like a stipulation saying, this is complete relief for us. There's no adversity. The party- The party is when they agree. When they say, we've agreed and we give up. The case will normally be thought of as moot. But there's 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, Caconen. This is the great distinction between a settlement offer and a judgment. A court has authority to enter a consent decree even after the parties have settled. That's more than an offer. It's actual an settlement. Two courts can just- Excuse me, it has authority to enter that even though the case is moot, right? No. When there's a settlement offer which has been accepted, the court can nonetheless issue a judgment enforcing that settlement, no? The case is not moot because the parties are saying we are agreeing on the entry of a judgment. Not we are agreeing on the abstract to just settle the case. 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. It is the same. That's what the other thing to be adverseness is. We just want to be a remarkable proposition. Court's all the time- I think it's remarkable. All the time entered 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 resolution of the claim. Three, they enter judgment and a rule 68 offer. Also, you look at the affirmative defenses which are all wavable in rule 8c, a court in satisfaction, payment, residue decada. What happens on other grounds of lack of jurisdiction? What if plaintiff has no injury? There is no injury. In other words, the requirements for Article III jurisdiction that you rehearsed. What happens in that case? No jurisdiction for another reason besides mootness. The court would dismiss the case for one of jurisdiction saying that there is no injury. Well, what if the plaintiff comes in and says, well, I want a judgment or because what other bases or what I want, whatever reason. I mean, we're insisting on a judgment even though arguably depending upon the scope of the offered relief, the case is moving. Are point other cases, you say they dismiss it as, why doesn't that go to trial or you get the benefit of the court determination? 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 for the defendant. I think you're wrong. I think if there is 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. 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. Indeed. So, the fact that the court issues judgment has nothing to do with whether there's article free standing, whether there's mootness or not. You can enter the judgment even though there's no article free standing. There is a difference between a judgment for want of jurisdiction that the court is just, I don't have the power to address this, and a judgment where the court says, I have power to enter relief that is enforceable through collateral proceedings, through all the great power of a federal court. That is a big difference. A court requires article three 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, according to satisfaction, can all be waived. So, at the end of the case, if the defendant hasn't actually raised these, and then, laterally, just forgot, I paid the guy. And the claim is for a thousand dollars. The court says, sorry, forfeited judgment for another thousand dollars. So, 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. I can't say that controversy, because they still have a 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 can get. 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 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 residue to caught it, 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, you could get relief twice. So it is a plaintiff who has been given all the relief that he's requested in the view of the United States and adequate class representative? This is, again, not an article three question, but a rule 23 question. I think that could be considered by the court in exercising its discretion under rule 23. Oh, of course it can. I want to know what the position is. I think that's hard, and let me tell you why. To be an adequate representative of the class, you can't simply be looking out for it

. What happens on other grounds of lack of jurisdiction? What if plaintiff has no injury? There is no injury. In other words, the requirements for Article III jurisdiction that you rehearsed. What happens in that case? No jurisdiction for another reason besides mootness. The court would dismiss the case for one of jurisdiction saying that there is no injury. Well, what if the plaintiff comes in and says, well, I want a judgment or because what other bases or what I want, whatever reason. I mean, we're insisting on a judgment even though arguably depending upon the scope of the offered relief, the case is moving. Are point other cases, you say they dismiss it as, why doesn't that go to trial or you get the benefit of the court determination? 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 for the defendant. I think you're wrong. I think if there is 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. 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. Indeed. So, the fact that the court issues judgment has nothing to do with whether there's article free standing, whether there's mootness or not. You can enter the judgment even though there's no article free standing. There is a difference between a judgment for want of jurisdiction that the court is just, I don't have the power to address this, and a judgment where the court says, I have power to enter relief that is enforceable through collateral proceedings, through all the great power of a federal court. That is a big difference. A court requires article three 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, according to satisfaction, can all be waived. So, at the end of the case, if the defendant hasn't actually raised these, and then, laterally, just forgot, I paid the guy. And the claim is for a thousand dollars. The court says, sorry, forfeited judgment for another thousand dollars. So, 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. I can't say that controversy, because they still have a 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 can get. 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 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 residue to caught it, 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, you could get relief twice. So it is a plaintiff who has been given all the relief that he's requested in the view of the United States and adequate class representative? This is, again, not an article three question, but a rule 23 question. I think that could be considered by the court in exercising its discretion under rule 23. Oh, of course it can. I want to know what the position is. I think that's hard, and let me tell you why. To be an adequate representative of the class, you can't simply be looking out for it. 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 actually a good, adequate representative. Rule 23, and again, we're now we're stepping away from the article three question. We're getting into questions of discretion. Thank you, counsel. Mr. Gar, you have four minutes remaining. Thank you, Mr. Chief Justice. First, the article three principle that should control the resolution of this case was stated in the Sao Pao Board case on page 314. The court said the court is not empowered to decide new questions or declare rules of law which cannot affect the result as to the thing in issue in the case before. And that's exactly what's it issued before the case, the court today. We're not in a revolution of the California civil code, which is quite different from the state. I'm not talking about the technical distinction of the cases I'm talking about the article three principle that controls here. 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 fees. You, without any judicial interpretation intervention, get to move the case on your terms. What happens if you hadn't done that? Let's assume that he was entitled to attorney's fees. Who's, when does that decision get made and by whom? That a complete offer has been made. A court makes the determination that the offer is complete just as it would make a determination that the defendant had in fact voluntary fees. That is, that's all I needed for you to say. Okay. Thank you. Okay, let's stop there. And the court gets involved. So a court gets involved no matter what, right? As it always would for a witness determination, of course. All right. So you offered and they wanted an injunction. The court can answer that injunction. I'm putting aside the class action. Yes. All right. But it can't just say that the case is moved 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? You're on, I think, just as clear ahead exactly the right answer on this, which is that there's decades of not centuries of practice dealing with a 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 to disclose That's just a court decision. Words, Councillor

. 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 actually a good, adequate representative. Rule 23, and again, we're now we're stepping away from the article three question. We're getting into questions of discretion. Thank you, counsel. Mr. Gar, you have four minutes remaining. Thank you, Mr. Chief Justice. First, the article three principle that should control the resolution of this case was stated in the Sao Pao Board case on page 314. The court said the court is not empowered to decide new questions or declare rules of law which cannot affect the result as to the thing in issue in the case before. And that's exactly what's it issued before the case, the court today. We're not in a revolution of the California civil code, which is quite different from the state. I'm not talking about the technical distinction of the cases I'm talking about the article three principle that controls here. 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 fees. You, without any judicial interpretation intervention, get to move the case on your terms. What happens if you hadn't done that? Let's assume that he was entitled to attorney's fees. Who's, when does that decision get made and by whom? That a complete offer has been made. A court makes the determination that the offer is complete just as it would make a determination that the defendant had in fact voluntary fees. That is, that's all I needed for you to say. Okay. Thank you. Okay, let's stop there. And the court gets involved. So a court gets involved no matter what, right? As it always would for a witness determination, of course. All right. So you offered and they wanted an injunction. The court can answer that injunction. I'm putting aside the class action. Yes. All right. But it can't just say that the case is moved 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? You're on, I think, just as clear ahead exactly the right answer on this, which is that there's decades of not centuries of practice dealing with a 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 to disclose That's just a court decision. Words, Councillor. You can't enter a judgment. Well, I don't think there is jurisdiction. I think we're in a little bit of a chicken and egg situation here. Your honor, this court has repeatedly said settlements, moot cases, and yet courts have authority to enter the case. Accepted settlement. Accepted settlements. 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 friends presentation. No, not the law. Just as the so-and-mire I suggest, it moves from a defensive payment summary judgment. 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. And almost any case can the defendant, can always, and plenty of noise say, I want a judgment. 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 of the courts below hell, the case has to come to an end. 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 set 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 common sense fashion. It prevents court from going, courts from going ahead and expounding on the law in cases in which they have no business doing so. If I can make one point on the immunity issue, Justice Ginsburg, you're exactly right. They sued the wrong party. Minematics did everything in this case and were at least entitled to immunity from vicarious liability. Thank you, counsel. The case is submitted.

We will hear argument first this morning in case 14-857, Campbell E. Wold Company versus Gomez. Mr. Gar. 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 the Court to adjudicate the merits of his claim simply by refusing to defend its 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 a complaint is filed, and that entitles the case to proceed even if his individual claim drops out before it. Is there any controversy over what the offer is complete relief? I don't think so, Your Honor. 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, yes, the case comes to- I think you should, Your Honor. Now, they have argued below that the only reason that it wasn't for complete relief was that because it didn't provide for attorney's fees. But the TCPA, the underlying statute here, does not provide for attorney's fees. But that's a merits question as to whether they're entitled to attorney's fees. If the question is complete, you know, complete relief means what the plaintiff has asked for, the plaintiff has asked for attorney's fees here. 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- Well, he would receive a finding of liability, which you didn't admit in your offer. 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 attorney's fees. Those appear to be to be fairly critical liability determinations that were not made by the Court below. 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 raised. First, he's not entitled to a finding of liability. If litigant was always entitled to a finding of liability, then essentially no case could become moved. If you take the voluntary cessation context litigant could always insist that he's still entitled to the finding of liability- It seems he is- I want us to write an opinion saying that a settlement offer is equivalent to a judgment. And we've had cases like the Coconut case in which there was a settlement approved by the Court case dismissed. Then the settlement was not performed. They went to court seeking 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. Well, Your Honor, I think the accepted principle is that a settlement mutes the case and requires the Court to dispose of the case. I mean, I think that's the accepted principle. But you didn't pursue that. You didn't apply under the rules for a judgment. And if you want us to write an opinion saying, oh, well, the settlement offer is the same as a judgment, that just doesn't accord with Federal rules of civil procedure or with our cases like the Coconut case. Well, Your Honor, I think this case is consistent with the Coconut case, with the Coconut case recognizes that once the case has come to an end, the Court has ancillary jurisdiction to dispose of it. And that case had dealt with the enforcement of consent decree. Here, our fundamental- The Federal rule of employment is to go out and it says, rule, 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 course if she doesn't get more than the offer. So we have a Federal rule directly in point. And that instructs lilyance what an offer of judgment means. Why do we look any further than that? Well, first, Your Honor, this case there was not only the rule 68 offer of judgment, but a free standing settlement offer. So we think that the mechanics of rule 68 don't apply. Well, isn't that rather an end run around the offer of judgment? Well, 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 could secure through a federal judgment. The plaintiff asked for class action didn't get that because they weren't far along enough with the plaintiff even to move their certification. And the plaintiff in Genesis Healthcare asked for a collective action, the court found that that allegation was not. But a collective action is simply a device for permissive jointer. It's quite different as Genesis recognized. Class action, I don't remember, Justice Thomas is exact words, but it's a whole different kind of thing. Well, 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 3. And here, Justice Thomas. The only is it's an invitation to people to join you. That's all that. It's a permissive jointer. Well, it was still pretty 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 potential that a class could be certified? One is that potential. The other is, it's not that I would be entitled to attorney fees from the loser, but if there's a class, then there are a lot of other people who will share in the attorney fees and I'll have to pay less. And that's the cost sharing 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 appeal from the denial of certification when the mooding 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 been come moot in the first place. Here the mooding event takes place before certification, there's nothing to really back issue. But if I could go back a little bit, Mr. Gart, 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 attorney fees, but he's not entitled to attorney 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 so the case is moot seems to me to be a non-sequitor. 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 attorney's fees, but that has to be adjudicated. You can't, a Court can't just 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. 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. Of course, it can absolutely make that determination, but the question is, does the Court make that determination in the guise of a mootness motion? Well, I think it absolutely does, just like it would in the voluntary cessation context. I want to be clear, because I think we have a little bit of that. So I can't do that in the context of a summary judgment motion. And why doesn't 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 can see the facts that make you liable? And then you fight about the legal questions. The reason is, when one party throws in the towel, the match is over, here the question is whether there's an article three 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 Sao Pablo case. That's an article three determination. But what's an article three determination is whether he or it or she is entitled to the relief that they ask for. May well be they're not. And, in fact, the title to have the Court say it, not you. A court can certainly make the determination of whether or not they have provided complete relief. In a case like this, we're dealing with liquidated damages. That's easy. By the way, you call this a free standing offer, but I have it right here. And it the offer says offer of judgment pursuant to Federal Rule of Civil Procedure 68. This was your client's admission. No, well, you're right, Your Honor. That's the Rule 6-Date offer. If you go on page 57a of the petition appendix, there's the free standing settlement offer, which isn't a Rule 6-Date offer. The other thing about Rule 6-Date is it really not designed for the situation of complete relief. It's designed for the situation of the defendant and plaintiff have to gamble essentially over whether or not an offer for less than complete relief is the sufficient they want to settle on that basis. In this case, you had a free standing settlement offer. It provided for complete relief. And so the question is whether or not the plaintiff had a personal stake in the case, sufficient, in the outcome of the case, sufficient to keep this case alive. Just as 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 is determined that it is indeed for complete relief, then the case has to come to an end. Now, whether you say 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 that when the defendant has offered everything, the courts can't go ahead and expound on the law. I mean, 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. Defended has offered everything in the plaintiff. Suppose one day after the offer, the defendant defaulted. Would the case is now with one's moot now become non-moot? Well, I mean, that would be an unusual situation. If it did, you're on the, I think, coconut. We had a case on it here in the court. And, you know, Roepers, in other case, where there was an offer that the court never didn't really question 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 Roepers 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, the plaintiff went to- Sotomayor, how about a procedural right to litigate entitlement to class status? Dr. Schumann, the plaintiff's question is, how about a procedural right to litigate entitlement to class status? That there's no separate legal status for the class until the class is certified. And the Jacobs- The why is it that we permit relation back at all? Well, 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. Okay. Well, first of all- The mootness is mootness. Mootness is mootness, right? 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 events happens while the 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 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 so-called 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 exception at all. What the defendant- What if the- Did you finish your answer to- Yes, sir. What if the defendant has very shaky finances, maybe on the verge of buying it? So, you have a history of reneging on promises. But the offer to provide full relief mutes the case even in that situation. A couple of answers to that, Your Honor. First, that's not an issue in this case. They've never disputed campally, while the ability to pay. Second of all, I think a court can determine that the plaintiff, the defendant, is ready to pay. And third of all, in the situation where the case is dismissed for mutinous 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'd, you'd dismiss the case on an erroneous factual premise. That's like the Judge Friendly decision that we cite in our reply brief. So, that situation's not going to happen. And all of these practical concerns are going to go away. At this court recognizes, in this case, that a defendant's offer of complete relief ends any case or controversy over the individual claim that case goes away. The plaintiffs are going to accept the offer. And the offer of complete relief from a solvent defendant where it looks like the relief will be forthcoming if you lose this case. And so the case is not moved. Still be considered as a factor in the court decision whether or not to certify the class. I don't think it certainly wouldn't be a classic certification decision factor, your honor. And I think, and one of the reasons why the court insists on an article three case or controversy is it wants to insist that it doesn't expound in the law. The word to the class certification goes along without reference to whether the lead plaintiff has any injury any longer. Well, it's certainly a very unusual situation where the personal representative has been made whole. Now, there's some claims of it. If I asked if the trial judge could in his discretion consider that as a factor in certifying or not. Well, I suppose he could in terms of personal representative. But the real question is, why would you want a court to expound in the law? Difficult questions about certifications. 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 interest to put it in Judge Friendly's terms? What interest does a plaintiff has effect in a pattern? Multiple times in your breathing now, twice. But in the case that Judge Friendly dealt with, the class claims had already been dispensed with distinguished, distinguished. 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. 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 interest in the case, he has no right to litigate a class action because it might benefit others. He also pointed out that the offer of complete relief in this case, and in this kind of situation, puts the plaintiff in a better position than a default judgment. The plaintiff has everything that he asked 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. And so that- But you took conduct, not directed to the conduct, the direct conduct issue here. You can't under the past conduct. You know, I looked at the three railroad cases 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. And the railroad cases, what they found was that an offer was made and the other side by taking money accepted the offer. But if you found any case in the common law that where there was an offer that was unacceptable, was entered by the Court? Well, three responses to that. First, in the SOMPublic case, for example, the Court's decision specifically makes clear that the plaintiff refused that offer. Second of all, we- But you had to deposit the money in an account in the name of the plaintiff. And some Pablo turned on a provision of the California Civil Code that sent 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. 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 a response to Justice Sotomayor's question is, we cited a long footnote in our opening brief that has many cases, recognizes as principle. And then, 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. In all the situation where the 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 defendant had offered everything that the plaintiff had seen. And this is very much along the same lines. You know, you have an old English case. You have these three cases in the 90s, 1890s, which were really about long liabilities 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 offers have existed for a long, long time. There's no history at all 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 was their purpose, and that was their effect, was to incentivize parties to do something. But 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. So I think first, I just quibble. I do think there's a longstanding practice of recognizing that when the defendant has been offered everything he gets secure, the case goes away. Second of all, and I think, you know, maybe more important. I mean, I would say that your descent in Genesis' health care 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 or often see a 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. Well, but I said that mootness is not the appropriate remedy in that case. The appropriate remedy in the case where it's absolutely clear 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. And I think here, and you once were at the point where we realized this case can't go on any further because he's been offered everything as the case comes to this court. 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, it's just decided. There's been adjudication at that point. No, there hasn't been 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 has simply recognized the fact that the defendant has offered everything in such a standard. 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 an 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. They solely on an unaccepted offer of judgment. Well, first of all, a judgment is just technically in order to dispose of the case. I mean, we went back and looked, and you yourself as a district court judge issued judgments in cases where you dismiss 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 a six-circuit position here, which is 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 loser at 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 an appropriate way of disposing of this case. And no one can argue that there's an article in three interests in proceeding with the litigation once they have a judgment disposing of the case. And we're back to the- But you do it with the pleading rules that say payment and accord and satisfaction are affirmative defenses. Your Honor, those are accord and satisfaction, for example, as a contract based doctrine. And it happens where payment is made before the case gets to litigation. There's no principle. Once the litigation begins, the principle that controls is Article 3. Article 3's case and controversy requirement requires that the plaintiff 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. What about the personal stake that would be class representative, high, in getting a bonus or anything? Just as was true in Genesis' health care, the would-be class representative is in the same exact position he was before this case goes away because he could still file his own claim. He could settle that claim. He can provide- he can file his own class action. And you know, here what we're arguing about is policy arguments about whether or not the court ought to find some basis to keep the class action alive. But that's not an appropriate determination of the Court to file a class action on your theory. That's what he wanted to do. And he would stop very early on by this offer of judgment. Well, this gets to the concern of these sorts of class actions are going to go away. First of all, it's hard to feel too sorry about the plaintiffs who have everything that they could possibly ask for. What 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 his policy concerns. I had to have these class action policy arguments, but it's important not to let those drive this pretty technical mood-ness question. So if we could just take the class action arguments out of it, just let's say that there's a plaintiff and he claims $10,000- he wants $10,000 plus attorney's face, okay? And the defendant says, I'll give you $10,000. And the plaintiff says, no, I really want attorney's face too. And the defendant says, no, you're not entitled to attorney's face. The plaintiff says, no, I think I am. I think 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? There's a contested question as to what one person owes another. 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. It's just like the voluntary cessation context, Your Honor. And that case is- I suppose he could ask for the key to Fort Knox. And then no settlement offer would suffice, right? He could ask for a unicorn, Your Honor. He could ask for a unicorn. Well, then you just make a case on the press. Don't you think the court- This is a very easy response to this, which is if it's frivolous, if it's trivial, you dismiss the case on the merits. The court can make that determination, and you'd want it to make that determination before it went ahead and adjudged the claim on the merits. Whether it's deciding difficult questions on certification, whether it's going ahead and making law on TCPA, whether it's going ahead and making law on an immutable- If it's a frivolous claim, I don't see why the court can't dispose of that initially. The court can make that determination. It doesn't- every other context in which the court wants the court to make that determination before the court goes on and expounds on the law. If I could reserve the remainder of my time. Thank you, Council. Mr. Mitchell. Mr. Chief Justice, and may it please the court. Campbell E. Walts' Mutantist 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. If there's a- Even though if you're getting everything you want, what is the case or controversy? What is the live dispute in which you have a personal stake, which are the terms we use under Article 3? The live dispute is in obtaining a court judgment that incorporates that relief that's been offered. So, what is it you're worried about that they won't make good on the offer or? 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. So, suppose Mr. Gar right now were to take a big stack of cash out of this briefcase or a certified check and present that to you. Would there be any case left then? There might be a defense on the merits if Mr. Gar's client can say we've paid the debt, but that's not something to go whether the court is. That would be a case or controversy. If this were an individual action and the plaintiff had received from and the damages or the amount of potential damages are undisputed and the plaintiff has received that amount from the defendant and no dispute about it, there would be a live case or controversy. The defendant would have a defense on the merits. He could plead a court in satisfaction. He could plead rest due to the contract. I is there a live case or controversy. What is the controversy? There's a past injury that's been alleged caused by the defendant that could be addressed in theory with judicial relief. Which would give the defendant, which would give the plaintiff what in addition to the money under my husband? He shouldn't get anything in addition to what he's already received, but that goes to the merits not to whether an article of the three case or controversy exists. You're saying the defendant has an interest, pardon me, that the plaintiff has an interest in the judgment. Yes. Quite separate from obtaining all the relief that he requests. Well, he hasn't again, again, why? Well, let's assume the case in which they asked for $10,000 and $10,000 to deposit in the bank with irrevocable instructions to pay it. What is the concrete injury, as the Chief Justice said, that results in adversity? The concrete injury is the past injury that he's already suffered. That the injury has already been remedied. It's a defense that goes to the merits. It doesn't go to Article 3. Everyone agrees, Justice Kennedy, that under your hypothetical the case should be thrown out a court. The only dispute is whether it's thrown out a court on jurisdictional grounds under Article 3, or whether it's bounced on the merits because the defendant has an affirmative defense. Voluntary cessation can move to case, whether the plaintiff likes it or not. If it's certain that the conduct won't re-occur. Well, if it's certain that they're going to give you the money that you ask for, why isn't the same result applied? In other words, why is it not simply what the plaintiff wants? It 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. When you're dealing with past injury, Mr. Chief Justice, there's always a past injury that remains. But there has to be adversity, as the Chief Justice mentioned in his first question. And if $10,000 is in the bank and if the injury in the sum of $10,000, there's no adversity? There is adversity if the plaintiff comes in court. Other than the stigma of a judgment. 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 3 inquiry. Redressability under Article 3 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 3 question. Article 3 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 already has. We put a lot of weight on what the plaintiff's, but there's another interest here, which is 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 in the Court's time. And not only that, under Article 3, we're entitled to get a legal ruling, even though there's nothing more that they can give you. Just to be clear, you won't take yes for an answer. Mr. Chief Justice, we have not been offered everything we've demanded. That's the factual question that we've been asked to have. The District Court said you were. No, no, I'm sorry. The District Court did not say that. There's no finding. 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, sorry, sorry, Councillor, that's not what it says. It's not what we assume for the sake of argument. The parties do not dispute that defendants rule 68 offer would have fully satisfied the individual claims asserted. Or they claim that they would have been asserted by plain if in this action. Only the individual claims and the District Court was wrong to say that we did not dispute that. If you look at Docket entry, did the Ninth Circuit proceed to decide the case on the basis of the referendum? No, it didn't. We disputed in the Ninth Circuit. 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, Reverend Reckert. The Ninth Circuit proceeded to decide the case on the basis of the assumption that the District Court factual determination was correct. No. The Ninth Circuit assumed for the sake of argument. Is the same as proceed to decide? No, I don't agree, Mr. Chief Justice. There was binding precedent in the Ninth Circuit already before we got there in Diaz and Pets that said, even an offer of complete relief from the defendant does not move 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. Gar cannot get around, because Campbell Ewald insists in this case. That the District Court, 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. So those are mutually exclusive. If the case is moot, a court cannot enter a judgment ever under any circumstance. The only proper response in that situation is to dismiss for lack of subject matter jurisdiction under Rule 12B1. There can never be a judgment. I think when there has been a settlement and the parties have agreed to a settlement, the court can enter a judgment. It can. And that's exactly why settlement- Even though the case is moot, the case is not moot. No, the case is not- 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 if a Campbell Ewald to come into this Court and say that the District Court retained the prerogative to enter judgment on the merits, after the offer of complete relief has been tendered, is a confession that the offer of complete relief is a judgment on the merits. It's a judgment affirming the settlement. Affirming what the parties themselves have agreed to. That's still a judgment of the court. It doesn't go to the merits of the claim. 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 court-order belief and a court cannot do that in a case when it lacks subject matter jurisdiction. Mootness and forced entry of judgment are mutually exclusive. So just to be clear on the facts without getting into dispute, let's say that the offer is for the real-all relief that you've asked for. Yeah, on a question of what you think you're entitled to or what they think. Everything you've asked for, including all attorneys fees, so there's no question of cost shifting or anything like that. All in junk of relief, they come to you and say, you write the injunction, you say there's still a case or controversy that could proceed to litigation. There is a case or controversy that might lead to a forced entry of judgment. If the plaintiff for obscenity or other types of reasons wants to decline this offer. What is the charge of adversy? In the case of hypothesis. What is the controversy? Controversy is the plaintiff wants a judgment of the court that incorporates that relief. A mere offer from the defendant is a legal melody. He's not getting the money. You said if the plaintiffs being obstreparous or whatever, you know, just refusing to take it for spite or some reason. In that case, and to a judgment, not dismiss for mootness. So what would the judgment say? 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 is. But I thought that that's what the defendant said. Judge R is arguing. He said you need a judgment. 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 time. I take this to 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 now the thing is just. And now it's backed 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. And the judgment, if the case is dead 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 may have to enforce the judgment. You don't actually have anything of value. You have a piece of paper. You still have, you may still have to enforce the judgment, but that's much easier than enforcing an offense. That's better. 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. We don't have the money in our hand. It's been offered. But if you did, that was my first hypothetical. If you did, if you actually had the money in hand. If we actually had the money 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 mood. It wouldn't be about jurisdictional. Sorry, go ahead. So every case has to be tried, even when you've been paid. I try, because I want a judgment. No. And you say it's not mood. The court can say we're terminating the litigation and entering judgment for you, Mr. Planoff, 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 plaintiff home empty handed 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. So if I contract, not by any remedy? If Mr. Gare is you're leaving the courtroom today, says here we will accept an entry of judgment. One will make sure you get whatever attorneys fees you want, and we will accept an entry of judgment. Then the case would be over. Well, it certainly would not be mood. Would it be over? If he wants to accept an entry of judgment on everything that we've asked for, which includes the attorneys fees and a real injunction, not a vague obey the law injunction that's in his offer and class certification and class relief? Well, that's the whole thing, right? This is all about class certification. But one does not get to class certification until the Court first concludes that the individual claims have become mood. And there is no way that claims can be mooted out simply by an offer. So the case comes down to, once we put away hypothesized 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. But the question presented asked whether the offer of complete relief moods the case. And you're saying that it's not because of the possibility that you could get a class certified. Well, that's why hypothesis is you get everything else, okay? Yes. 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. That's one of many reasons why it's not. I don't see why that was. This would be a good, the thing I thought was interesting here, and I wanted to know your position, is the AFL CIO brief. Yes. Which is on your assault. Yes. You agree with it. I wouldn't say that we agree with it. I want to know, do you agree with it? No, we don't. But what why not? What they say is that the right way to go about this is, and they cite cases and so forth, and the 19th century, is that the defendant should not. They're, 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 tender's 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 the 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. If it isn't right, why isn't it? It may be over, but it's not moved. Why? It says nothing about the moodness. 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. Right. The judge at that point should say the defendant has all he wants. The case is over. Good bye. And of course, if that person now has all he wants, he can't certify this as a class, because he isn't harmed. He gets judgment on the merits in those situations. And you can give him judgment on the merits. Who cares? It's a, it's actually very important to say that. Why? Because many reasons. Well, give me one. All right, I'll start with one. The question presented, the question presented asks whether an offer of complete relief renders the case. I'm not interested in the moment in the question asked. I am interested in the question. I am asking. Right. It may very well be that if the defendant in that case comes into court 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 double debt. That goes to the merits. But Campbell E. Walden never asked the district court for judgment. That is what I said. You now sound as if you were agreeing with the AFL's CEO. I don't agree with it because they're implying that that would moot the case. No, they don't say what the effect of it would be. What I want to look at. I'm being practical. And the practical thing is that the defendant wants to pay off the plaintiff by giving him everything he wants. We agree. 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 judge then enters a judgment in favor of the plaintiff, who has gotten everything he asked for. If he's gotten everything he's asked for, that goes... Not the class certification. There's nothing in there that's... Apart from class action, which is a more complicated question. No, it's not a more complicated question. It is but 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. 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. Even though there's been a certified check, tender to the plaintiff, and a judgment has been entered, giving the saying the case is over because he's got everything he wants. 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. What is the financial stake? There are two of them. One is the cost-sharing of the lawyer. So then that's fully satisfied if the offer covers attorneys. Yes, of course. This is not the spot. Yes, right. What was the other one? One would be the incentive award that he would recover if the class is certified and the case proceeds either to settlement or to victory. And that is another one. The incentive award? The incentive award. Normally a representative plaintiff after a class gets certified in the settlement. 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? 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's 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 key Tam litigation where the argument is that an individual plaintiff who's gotten everything that he has asked for and I realize you argue that isn't the case here. Not even close, yes. Is entitled to proceed with the litigation because he might get a bonus from a class action that he would like to lead? That's correct. Okay. But again, that's only one of many reasons why we went on the Mootness question. And there's still the problem of the mutual exclusivity between a Mootness finding and a forced entry of judgment. Can I ask you just a practical question? Is Mr. Gard right that this is the case? If you were to proceed, if 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. You would have to prove that to establish damages, would you not that the members of the class did not consent to receive these messages, right? That's correct. How would you do that? How would you be able to, how can you prove that 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? There are opt-in lists that are maintained by companies like Mydmatix and Campbell Leibold that can be discovered and that's how we would go about proving it. What do you think the class members would get? They're entitled to individual class members. It's a practical matter. Under the say, get it. What would they get in the settlement? I would imagine they would probably get a settlement. If it settles, what if it's not? They're entitled to $500 a piece in statutory damages that could be trebled to $1,500 if we can show there was a new violation. The term and who did not prove that certain people did not consent. It would be based on whether they appeared on the opt-in list, whether they had appeared on some type of opt-in list from which... What do you want to do to get on that opt-in list? 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 Campbell Leibold 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. We haven't talked about the second issue that you raised. One curiosity is the actor that did something wrong was what was it? Mike Maddox? Yes. I'm Maddox. But you didn't sue. What is the reason that you went after the contractor only? Campbell Leibold is vicariously liable and they were the ones that were students. You were lying on vicariously liable. Yes, the Ninth Circuit found that... May I answer? Thank you. The Ninth Circuit found that the TCPA incorporates vicariously liability and the Campbell Leibold is vicariously liable for mind-matics as actions. And they did not appeal about that. That is the law of the case. Thank you, Mr. Mitchell. Mr. King? Mr. Chief Justice, 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 for controversy. And establish federal practice that I believe shows that an offer, an unaccepted offer in particular, cannot move the case. And if there's time I'd like to address the derivative, sovereign, and the Indian. First, there's a distinction that this Court has established between prospective relief and retrospective relief. When you seek prospective relief, 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 voluntary cessation doctrine or it's so long as you fit the show that it's not capable of repetition yet, or being a 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 retro-spective 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 that 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. I'm sorry. Those are the three requirements for Article III standing, but there's an additional requirement of adverseness. None of those three requirements that are set forth in our opinions deal with adverseness. That's a separate issue. Well, and that's what's being challenged here. I don't believe so. It's embedded in the requested relief. The plaintiff comes to the court and says, I want relief from the court. The defendant says, no, no. Now, don't grant the relief. Either the case is moved. I think that's what's going on here. There's a distinction between a- It has to be injury in fact, okay? It has to be attributable 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. I believe it's embedded in- If someone comes in and says, yes, you've been injured. The court could provide relief, but I agree with all of that, and here is the money. Well, then the case is not moved. The court can grant relief. The court enters a judgment ordering relief, which is enforceable with all the court's powers, which is quite distinct from a judgment of dismissal for one of jurisdiction. That's- 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 vacature, which undoes a court judgment. So Mr. Garz, you know, attempt to kind of frame this, either as, you know, 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. Mr. Yeng, I do understand what you and Petitioner, and Respondent's Council are arguing, which is someone, a judge has to say, at some point, this is in fact complete relief. An enter a judgment for that complete relief. That's your argument. In part, I believe that's right. All right. Parties could stipulate if they accept an offer of settlement that's like a stipulation saying, this is complete relief for us. There's no adversity. The party- The party is when they agree. When they say, we've agreed and we give up. The case will normally be thought of as moot. But there's 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, Caconen. This is the great distinction between a settlement offer and a judgment. A court has authority to enter a consent decree even after the parties have settled. That's more than an offer. It's actual an settlement. Two courts can just- Excuse me, it has authority to enter that even though the case is moot, right? No. When there's a settlement offer which has been accepted, the court can nonetheless issue a judgment enforcing that settlement, no? The case is not moot because the parties are saying we are agreeing on the entry of a judgment. Not we are agreeing on the abstract to just settle the case. 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. It is the same. That's what the other thing to be adverseness is. We just want to be a remarkable proposition. Court's all the time- I think it's remarkable. All the time entered 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 resolution of the claim. Three, they enter judgment and a rule 68 offer. Also, you look at the affirmative defenses which are all wavable in rule 8c, a court in satisfaction, payment, residue decada. What happens on other grounds of lack of jurisdiction? What if plaintiff has no injury? There is no injury. In other words, the requirements for Article III jurisdiction that you rehearsed. What happens in that case? No jurisdiction for another reason besides mootness. The court would dismiss the case for one of jurisdiction saying that there is no injury. Well, what if the plaintiff comes in and says, well, I want a judgment or because what other bases or what I want, whatever reason. I mean, we're insisting on a judgment even though arguably depending upon the scope of the offered relief, the case is moving. Are point other cases, you say they dismiss it as, why doesn't that go to trial or you get the benefit of the court determination? 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 for the defendant. I think you're wrong. I think if there is 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. 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. Indeed. So, the fact that the court issues judgment has nothing to do with whether there's article free standing, whether there's mootness or not. You can enter the judgment even though there's no article free standing. There is a difference between a judgment for want of jurisdiction that the court is just, I don't have the power to address this, and a judgment where the court says, I have power to enter relief that is enforceable through collateral proceedings, through all the great power of a federal court. That is a big difference. A court requires article three 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, according to satisfaction, can all be waived. So, at the end of the case, if the defendant hasn't actually raised these, and then, laterally, just forgot, I paid the guy. And the claim is for a thousand dollars. The court says, sorry, forfeited judgment for another thousand dollars. So, 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. I can't say that controversy, because they still have a 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 can get. 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 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 residue to caught it, 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, you could get relief twice. So it is a plaintiff who has been given all the relief that he's requested in the view of the United States and adequate class representative? This is, again, not an article three question, but a rule 23 question. I think that could be considered by the court in exercising its discretion under rule 23. Oh, of course it can. I want to know what the position is. I think that's hard, and let me tell you why. To be an adequate representative of the class, you can't simply be looking out for it. 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 actually a good, adequate representative. Rule 23, and again, we're now we're stepping away from the article three question. We're getting into questions of discretion. Thank you, counsel. Mr. Gar, you have four minutes remaining. Thank you, Mr. Chief Justice. First, the article three principle that should control the resolution of this case was stated in the Sao Pao Board case on page 314. The court said the court is not empowered to decide new questions or declare rules of law which cannot affect the result as to the thing in issue in the case before. And that's exactly what's it issued before the case, the court today. We're not in a revolution of the California civil code, which is quite different from the state. I'm not talking about the technical distinction of the cases I'm talking about the article three principle that controls here. 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 fees. You, without any judicial interpretation intervention, get to move the case on your terms. What happens if you hadn't done that? Let's assume that he was entitled to attorney's fees. Who's, when does that decision get made and by whom? That a complete offer has been made. A court makes the determination that the offer is complete just as it would make a determination that the defendant had in fact voluntary fees. That is, that's all I needed for you to say. Okay. Thank you. Okay, let's stop there. And the court gets involved. So a court gets involved no matter what, right? As it always would for a witness determination, of course. All right. So you offered and they wanted an injunction. The court can answer that injunction. I'm putting aside the class action. Yes. All right. But it can't just say that the case is moved 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? You're on, I think, just as clear ahead exactly the right answer on this, which is that there's decades of not centuries of practice dealing with a 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 to disclose That's just a court decision. Words, Councillor. You can't enter a judgment. Well, I don't think there is jurisdiction. I think we're in a little bit of a chicken and egg situation here. Your honor, this court has repeatedly said settlements, moot cases, and yet courts have authority to enter the case. Accepted settlement. Accepted settlements. 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 friends presentation. No, not the law. Just as the so-and-mire I suggest, it moves from a defensive payment summary judgment. 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. And almost any case can the defendant, can always, and plenty of noise say, I want a judgment. 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 of the courts below hell, the case has to come to an end. 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 set 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 common sense fashion. It prevents court from going, courts from going ahead and expounding on the law in cases in which they have no business doing so. If I can make one point on the immunity issue, Justice Ginsburg, you're exactly right. They sued the wrong party. Minematics did everything in this case and were at least entitled to immunity from vicarious liability. Thank you, counsel. The case is submitted

Legal Case Summary

Campbell-Ewald Co. v. Gomez

Date Argued: Wed Oct 14 2015

Case Number: 1-11-0415

Docket Number: 2988760

Judges:Not available

Duration: 62 minutes

Court Name: Supreme Court

Case Summary

Campbell-Ewald Co. v. Gomez

Oral Audio Transcript(Beta version)