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What happens when a company in a class action lawsuit offers the named plaintiff complete relief before a class is certified? If the plaintiff’s claim is mooted by such an offer – regardless of whether the offer is accepted — can the class action proceed?

In a 6-3 ruling today by Justice Ruth Bader Ginsburg, the high court held in Campbell-Ewald Company v. Gomez that companies could not pick off plaintiffs in an effort to defeat the class.

In the case, the company – sued for sending unsolicited text messages to nearly 100,000 people – attempted to eliminate the named plaintiff, Jose Gomez, by offering him full settlement before the court certified the class and allowed it move forward with the lawsuit. Gomez refused the offer, but the company claimed that with their offer he had no injury to complain about and the case was thus mooted.

Trying to get the first-named plaintiffs in a class action to settle early has long been a defense tactic. For that reason, attorneys bringing such a case often try to name several individuals as plaintiffs, but even that doesn’t ensure that the case can proceed in the face of settlement offers.

Advocates of class actions say such cases provide necessary avenues of relief for large numbers of consumers for whom individual lawsuits would be cost prohibitive. Allowing the defendant companies to pick off plaintiffs and short cut these cases would severely limit their viability as a tool for consumer relief.

The court’s decision, in which Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito dissented, is here.

News

The U.S. Supreme Court took a second look at admissions at the University of Texas Wednesday morning and by most accounts, the prognosis for its affirmative action policy is not good.  

The case before the justices, Fisher v. University of Texas, had already been heard in 2012 after a white student denied admission to the school lost at the Fifth Circuit, but the high court sent it back for further findings.

The university had set up admissions so that it automatically accepted Texas high schoolers in the top ten percent of their class. UT then evaluated the remainder of applicants based upon a number of factors and gave them two scores: one based on essays, leadership activities, and background, including race, and one based on grades and test scores.

Abigail Fisher, the student challenging that policy, had just average academic qualifications and the university argued that she wouldn’t have been admitted even if she had received a boost because of race.

(For a more detailed explainer from Vox, read here.)

A similar challenge to admissions at the University of North Carolina at Chapel Hill is pending in federal court in Winston-Salem, but has been stayed until the Supreme Court hands down its decision in Fisher.

Questioning at the argument confirmed that the justices were leaning along party lines.

Justice Antonin Scalia shared his own peculiar take on affirmative action, as shared here at Talking Point Memo:

Referencing an unidentified amicus brief, Scalia said that there were people who would contend that “it does not benefit African-Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well.”

He argued that “most of the black scientists in this country don’t come from schools like the University of Texas.”

“They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them,” Scalia said.

The court’s swingman, Justice Anthony Kennedy — already no fan of affirmative action — hinted near the end of argument that the time may have come to put the Texas policy out to pasture.

Because Justice Elena Kagan is not participating in the case, a Kennedy vote for the university would leave the Fifth Circuit decision upholding the program in place.

Here’s Adam Liptak from the New York Times:

Justice Anthony M. Kennedy devoted almost all of his questions to exploring whether the case should be returned to the trial court to allow the university to submit more evidence to justify its use of race in deciding which students to admit.

By the end of the unusually long and tense argument, Justice Kennedy indicated that the Supreme Court might have all the evidence needed to decide the case. That could mean that the Texas admissions plan is in peril and that affirmative action at colleges and universities around the nation may be in trouble as well.

For additional coverage of Wednesday’s argument, see the Washington Post here and the Los Angeles Times here.

The full transcript of the argument is available here.

News

Supreme courtIn record speed, the U.S. Supreme Court has ruled in the first of four redistricting cases currently on its October 2015 docket, holding in Shapiro v. McManus that, unless a single federal district court judge finds the complaint at issue “constitutionally insubstantial,” a redistricting lawsuit should be handled by a three-judge panel, as required under the Three-Judge Court Act.

“‘Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ and ‘obviously without merit,’”  Justice Antonin Scalia wrote for the court.

“And the adverbs were no mere throwaways;  the limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. Without expressing any view on the merits of petitioners’ claim, we believe it easily clears [this] low bar.”

Attorneys argued the case before the high court on November 4.

The full opinion is here.

For more on the background of  the McManus case, read this post by Bloomberg’s Kimberly Robinson.

For more on the redistricting cases at the high court, read here.

Commentary

As Ian Millhiser of the Center for American Progress writes in a new post, there is good reason to be very, very worried.

Less than a year from now, Roe v. Wade could be all-but-dead. Employers, health providers, and pharmacists could gain sweeping new power to impose their religious views on women who use birth control. And elected lawmakers could even be stripped of their power to correct Supreme Court decisions that read religious objectors’ rights too expansively. Simply put, the Supreme Court term that begins next month is likely to do more to determine how much control women have over their own bodies than any term since the justices decided Roe v. Wade.
(Emphasis supplied).

Click here to read the entire disturbing story.

News

Gay marriage 3In a one-sentence order and without dissent, the U.S. Supreme Court late yesterday denied a request by a Kentucky county clerk for a stay of orders requiring her to perform marriages as part of her job duties, pending her appeal on the merits to the 6th U.S. Circuit Court of Appeals.

The Rowan County Clerk, Kim Davis, stopped issuing any marriage licenses shortly after the high court’s decision in Obergfell v. Hodges in order to avoid doing so for same-sex couples — which she said would violate her religious beliefs.

A federal district court judge in Kentucky, David L. Bunning, ruled that Davis either had to start issuing marriage licenses to all couples or resign, and the Sixth Circuit refused to block that order while it considered the underlying merits of her appeal, saying that it found “little or no likelihood that the clerk in her official capacity [would] prevail” on those merits.

As SCOTUSblog’s Lyle Denniston noted yesterday, the request “mark[ed] the first time that the Court has been asked to take any action on the spreading resistance, based on religious opposition, to the June 26 ruling opening marriage rights to same-sex couples.”

State lawmakers here codified that right to refuse based upon religious objection this session when it enacted the magistrate’s refusal bill, Senate Bill 2 — over a veto by Gov. Pat McCrory.

Justice Elena Kagan, who handles emergency filings from the Sixth Circuit. referred the request to the full court, which then issued the order.

Read the Kentucky clerk’s full application in Davis v. Miller here.