# Amicus Curiae Brief — Campbell-Ewald Co. v. Gomez, 135 S. Ct. 2311 (2015) (No. 14-857) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0321%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2015 ## Text No. 14-857 —siprsna oat US. | e.7C AUG 3 | ih : | OFFICE =f THES pth A pd In the Supreme Court of the United States CAMPBELL-EWALD COMPANY, PETITIONER v. JOSE GOMEZ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENT DONALD B. VERRILLI, JR. Solicitor General Counsel of Record BENJAMIN C. MIZER Principal Deputy Assistant eneral MALCOLM L. STEWART Deputy Solicitor General ANTHONY A. YANG Assistant to the Solicitor General MARK B. STERN WILLIAM E. HAVEMANN Attorneys Department of Justice Washington, .C. 20530-0001 SupremeCtBriefa@ nsdoj.gov (202) 514-2217 QUESTIONS PRESENTED 1. Whether respondent’s individual claim for dam- ages became+ moot when petitioner offered to pay respondent an amount greater than the maximum damages that respondent could have obtained by liti- gating that individual claim to judgment, and respon- dent did not accept the offer. 2. Whether respondent’s assertion of a class claim under Federal Rule of Civil Procedure 23 alters the proper mootness analysis. 3. Whether petitioner was entitled to “derivative sovereign immunity” from respondent’s suit because respondent’s claims arose out of petitioner’s perfor- mance of a contract with the federal government. (I) TABLE OF CONTENTS Page a ee Te 1 ITs clack aieseemnbarnpnineiaiinnnienineiatenndabeaaenenecennietiy 2 PITTI. csciinaienceninhiesouninmennsinceciielineinanmnsetnianmestntnainn 7 Argument: I. Petitioner’s offer of judgment did not render a sircccntenteseasceeestteninaintiinintsiitinanteninanimnnacen 10 A. Petitioner’s unaccepted settlement offer did not render moot respondent’s individual _——__NESREEESSSEESEIE Reeredv reer Stent oan na Teo 10 B. Under Roper, respondent would retain a sufficient interest to pursue class certification even if his individual claim were moot.................. 19 II. Petitioner is not entitled to “derivative sovereign ID ciciiscusietiintianiecninsiiiniaseiincinsiiiniindanenitiaiiaenininncinmnti 23 ee iiiradateiccrinsisaiecteasictnticapisictidaennaamrnnaenicainatteniasmminieiatesinnnisiagl 32 TABLE OF AUTHORITIES Cases: Alabama v. North Carolina, 560 U.S. 330 (2010)............... 22. Bais Yaakov v. ACT, Inc., No. 14-1789, 2015 WL 4979406 (1st Cir. Aug. 21, 2015) ............. cece ee eee 11 Bobby v. Bies, 556 U.S. 825 (2009)..............cceceseseeeeeeseeees 18 Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .................. 21 Boyle v. United Techs. Corp., 487 U.S. 500 (1988)........ 29, 30 Brady v. Roosevelt Steamship Co., 317 U.S. 575 (Siri ssichiecinssisiciniieesiaeniiinseitiniaeiaiitisaniataiaaniitantiaiiianationmaniees 26, 29 California v. San Pablo & Tulare R.R., 149 U.S. 308 Eiri scarcssineuionniuiatindniidenssnahinbinisianiattaiediinbianiniiaitabesieienticnennainnnen 15, 16 Camreta v. Greene, 131 S. Ct. 2020 (2011)... cccccccesceeeees 25 Chafin v. Chafin, 133 S. Ct. Wi'T (2013)... eeccceceeeseseeeeees 10 (IIT) Cases—Continued: Page Chapman v. First Index, Inc., Nos. 14-2773, 14-2775, 2015 WL 4652878 (7th Cir. Aug. 6, ITT derectreneeiceensenibanannienaubatdiiebatemnmiiadiniiteiapaicntianaNes 11,13 Decker v. Northwest Envtl. Def. Ctr., 133 8. Ct. 1326 Te 10 Deposit Guar. Natl Bank v. Roper, 445 U.S. 326 (1980) suiseniensemetetaesenimenmeniemneitnil 9, 19, 20, 21, 22 Diaz v. First Am. Home Sugere Prot. Corp., ig.) ee 6, 12 Eliason v. Henshaw, 17 U.S. (4 Wheat.) 225 (1819) ..... 11 FDIC v. Meyer, 510 U.S. 471 (1994) 2.0.........ccccccceceseseneesereees 25 Filarsky v. Delia, 132 S. Ct. 1657 (2012) ipianeninmatel 27 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ......ccecccceeseseeeereeees 10, 12, 22 Genesis HealthCare Corp. v. Symczyk, 133 S. Ct. ET passim Greenlaw v. United States, 554 U.S. 237 (2008)............ 18 Hooks v. Landmark Indus., Inc., No. 14-20496, 2015 WL 4760253 (5th Cir. Aug. 12, 2015) .................. 11 Illinois Cent. R.R. v. Adams, 180 U.S. 28 (1901)................ 14 KBR, Inc. v. Metzgar, 135 S. Ct. 1153 (2015) ...................... 30 Knowles v. Towa, 525 U.S. 118 (1998) ............0ecececeesereseeeneees 14 Knox v. Service Emps. Int'l Union, 132 S. Ct. 2277 EES eRe. ee ee 10 Lewis v. Continental Bank Corp., 494 U.S 472 ESSE ee Cee ok A ey ee 22 Little v. Bowers, 134 U.S. 547 (1890) .........ccccccccesseseeeeeenees oa Marek v. Chesny, 473 U.S. 1 (1985)..........cccccscceeccesseeeeees 4 McCardle, Ex parte, 74 U.S (7 Wall.) 506 (1869) ................ 14 Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 Cases—Continued: Page Minneapolis & St. Louis Ry. v. Columbus Rolling es Be Cs I icceciincininnctieniniininitniinatunceeninennisinenenes ll Mitchell v. Forsyth, 472 U.S. 511 (1985) ...........cccccsccceseeeeseee 25 Nardone v. United States, 302 U.S. 379 (1937)............. 24 O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567 es I iceniteisiennnasinnctnncenenncinicenestnarenmnmnitipnitensmnnmueten 18 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (19965) ........ 14 Richardson v. McKnight, 521 U.S. 399 (1997) ..........c000000+ 24 Russell v. United States, 661 F.3d 1371 (Fed. Cir. SIT aicicedhianiieeedeiicannsieainsata lila aati iipataetaeaaaiaaaaae 12 San Mateo Cnty. v. Southern Pac. R.R., 116 U.S. 138 EE 16 Sloan Shipyards Corp. v. United States Shipping Bd. Emergency Fleet Corp., 258 U.S. 549 (1922)............. 26 Sosna v. Towa, 419 U.S. 393 (1975) ...........cc-sccsesecerersesssseeerers 20 Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 ee 14, 22 Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698 Ee 12 Tanasi v. New Alliance Bank, 786 F.3d 195 (2d Cir. 2015), petition for cert. pending, No. 15-84 (filed July 17, 2015) 0.0.0... ceceecceeeeeeeee 12, 18 Vermont Agency of Nat. Res. v. United States ex rel. Stevens, S29 U.S. TE5 (2000) .....2.0cecececscscsvsecerecsessseresersssereres 23 Williamson Cnty. Reg Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) .........cccccccececsseeseeeeeees 28 Wood v. Milyard, 132 S. Ct. 1826 (2012) 00.0... ccceeceeeees 14, 18 Wyatt v. Cole, 504 U.S. 158 (1992)...........c.cecececesssesseseseeeeeseees 24 Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 VI Constitution, statutes and rules: Page ili 10, 22 Suits in Admiralty Act, 46 U.S.C. 741 et seq. (1940)........... 26 Telephone Consumer Protection Act of 1991, EEN IE REED ee a l ER ee 2 Tenn ee 2 eee eee: 2 en aE 2 calli 23 a nC a 24 EE ne eT 30 TR eo Se RON h 2 I ical cede dest iiitiaaiailammtioati 23 Fed. R. Civ. P.: FREE eae en Rea nae OTT Ne 14 tiated ahaa teiehnaeanismtcmmtertastiainiisinasanel 8,17, 19 I aaah tenia neice aid taaaalacinas 17 SN ae 4, 5, 6, 7, 8, 11 sie aiaes lalitaletianeinniadiaieaialesaabiiial 4, 7,13 TE 5, 7,11, 16 EEE een ee aN EE 4,11 I Osa caiomniaiiinniiinanaieibiaiies 12 Miscellaneous: FCC: Public Notice, 29 FCC Red. 11,268 (2014).........00.0000.....31 Public Notice, 29 FCC Red. 13,916 (2014)..................... 31 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, In re, 18 FCC Red. 14,014 (2008) ..0.......ceccsseceseseseneneee 2 Vil Miscellaneous—Continued: Page Restatement (Second) of Agency (1958): WH © crneennnicomusnniiotinndiaitneiamedaeneial 24, 25, 29 WAIEs 5B ccessvsenensitsoccasnnecssnmenegsunenieitesontsiieeaiiaanennieiapiiiiaiaal 24, 25, 29 2 Restatement (Third) of Agency (2006)...............:0.:c008 29 2 Restatement (First) of Contracts (1982) ............ccceeeees 13 Restatement (Second) of Contracts (1981): WUD Ft sceussrencusonctsnssiniascssinteibadanunitaitesaiavaeiesastenindiemadiiiaiaa 16 Fie Bb cncerasssnresssnesennienecsnssantasmnncitaiantcentaattinéinineipaiinidaaemuadaiia 13 In the Supreme Court of the United States No. 14-857 CAMPBELL-EWALD COMPANY, PETITIONER v. JOSE GOMEZ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENT INTEREST OF THE UNITED STATES This case presents the question whether a defend- ant can moot a putative class action by offering to pay the named plaintiff the full amount of damages that the plaintiff could obtain by successfully litigating his individual! claim to judgment. The United States has a significant interest in the resolution of that question. The United States is charged with enforcing numer- ous laws establishing private rights of action through which individuals may seek redress in individual or class actions. The United States is also a potential defendant in such suits. This case presents the further question whether a federal contractor may be held liable for violating the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. 227, if the contractor’s allegedly unlawful (1) 2 actions were taken while executing a contract with the federal government. The United States has a sub- stantial interest in that question, both because the Federal Communications Commission (FCC) adminis- ters the TCPA and because the liability of numerous federal contractors could be affected by the Court’s decision. ' STATEMENT 1. As relevant here, the TCPA prohibits “any per- son” in the United States from “mak[{ing] any call * * * using any automatic telephone dialing system” to “any telephone number assigned to a * * * cellular telephone service,” unless the call is made “for emer- gency purposes” or with the “prior express consent of the called party.” 47 U.S.C. 227(b)(1)(A)(iii). The FCC has authority to adopt regulations implementing Section 227(b) and to issue “rules{s] or order{s]” ad- dressing questions arising under the Act. 47 U.S.C. 227(b)(2); see 47 U.S.C. 154(i). The FCC has con- strued the TCPA prohibition described above as ap- plying to both “voice calls and text calls to wireless numbers.” Jn re Rules and Regulations Implement- ing the Telephone Consumer Protection Act of 1991, 18 FCC Red. 14,014, 14,115 (2003). Neither party disputes that interpretation. Pet. App. 3a. Congress created a private right of action to re- dress violations of Section 227(b) through damages or injunctive relief. 47 U.S.C. 227(b)(3); see Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 745 (2012). In such an action, the plaintiff is entitled “to recover for actual monetary loss from such a violation, or to re- ceive $500 in damages for each such violation, which- ever is greater.” 47 U.S.C. 227(b)(3). A court may 3 treble the ddmages award if it finds that the defend- ant violated the TCPA “willfully or knowingly.” /bid. 2. In performing a marketing contract with the United States Navy, petitioner caused to be sent ap- proximately 100,000 text messages. Pet. App. 2a; Pet. 5. Under that contract, petitioner was responsible for developing and implementing a Navy recruiting cam- paign targeting young adults. Pet. App. 2a. Although the Navy approved the content of a text message, ibid., it “intended the messages to be sent only to indi- viduals who had consented or ‘opted in’ to receive messages like the recruiting text,” id. at 4a. Con- strued in the light most favorable to respondent (the non-moving party), the summary-judgment evidence indicated that “[petitioner] was not authorized to send texts to individuals who had not opted in,” ibid., and that petitioner had agreed “to send [the] messages only to cellular users that had consented to solicita- tion,” id. at 2a. Petitioner hired a subcontractor, MindMatics, to generate a list of opt-in recipients and send the text message to them. Pet. App. 2a. Respondent contends that he received a text message without his consent. Id. at 2a-3a; J.A. 20. 3. In 2010, respondent filed this suit in federal dis- trict court. Pet. App. 2a. His class-action complaint (J.A. 16-24) alleged that petitioner had violated the TCPA by sending text messages to respondent’s and others’ cellular phones without consent. J.A. 20, 23. The complaint asked the district court to certify a class of all persons who had received one or more “unauthorized text message advertisements” from petitioner. /bid. The complaint also requested injunc- 4 tive relief, trebled actual and statutory damages, and reasonable attorney’s fees and costs. J.A. 23. Before petitioner responded to the complaint, the parties stipulated that the class-certification-motion deadline should be extended until after petitioner had filed its response and respondent had received an op- portunity to conduct precertification discovery. Pet. App. 37a. Petitioner agreed that it would be “ineffi- cient for the Court and the parties to expend re- sources on class certification-related activities before [petitioner] ha[d] responded to the Complaint and before any threshold motions [had been] resolved.” Ibid. Before discovery commenced, petitioner tendered to respondent an offer of judgment (Pet. App. 52a- 56a) under Federal Rule of Civil Procedure 68. See Pet. App. 48a. A valid Rule 68 settlement offer must, inter alia, propose entry of judgment for the plaintiff on specified terms, Fed. R. Civ. P. 68(a), and may “not implicitly or explicitly provide that the judgment not include costs.” Marek v. Chesny, 473 U.S. 1, 6 (1985). If the plaintiff accepts a valid Rule 68 offer within 14 days and a party “file[s] the offer and notice of ac- ceptance” with proof of service, the district court clerk must enter judgment accordingly. Fed. R. Civ. P 68(a). If the plaintiff does not accept the offer and ultimately obtains a judgment no more favorable than the offer, the plaintiff must pay the “costs” incurred after the offer was made, including any attorney's fees properly treated as “costs.” Fed. R. Civ. P. 68(d); see Marek, 473 U.S. at 10-11. Rule 68 further provides that “[aJ]n unaccepted offer is considered withdrawn,” and that “[elvidence ofan unaccepted offer is not 5 admissible except in a proceeding to determine costs.” Fed. R. Civ. P. 68(b). Petitioner’s Rule 68 offer proposed the entry of a district court judgment against petitioner that would have awarded respondent (a) permanent injunctive relief, (b) $1503 in damages for each unauthorized text message that respondent had received, and (c) “rea- sonable costs allowable under law.” Pet. App. 53a; see id. at 55a-56a (proposed injunction). Petitioner’s con- temporaneous settlement letter (id. at 57a-59a) ex- plained that its “offer d{id] not include attorneys’ fees” requested in respondent’s complaint. /d. at 58a. Consistent with Rule 68, the offer stated that it “shall be deemed withdrawn unless written notice of ac- ceptance is received within fourteen days of service.” Id. at 54a. Because respondent failed to respond within 14 days, the offer “lapse[d] in accordance with its own terms.” /d. at 3a. Petitioner then moved to dismiss the action for want of jurisdiction, arguing that the unaccepted Rule 68 offer had rendered respondent’s claim moot. On the same day, respondent moved for class certifica- tion. J.A. 7-8. The district court denied petitioner’s motion to dismiss, Pet. App. 40a-49a, and struck from the record the offer of judgment (id. at 52a-56a) that petitioner had filed, explaining that “Rule 68 does not allow a party to file a Rule 68 offer unless it has been accepted,” id. at 49a. The court deferred ruling on class certification “until after the parties have had an opportunity to engage in class discovery.” Jd. at 50a. After limited discovery, petitioner moved for sum- mary judgment, arguing that its status as a federal contractor entitled it to “derivative sovereign immuni- ty.” Pet. App. 30a; J.A. 11. Cf. Dist. Ct. Doc. 129 6 (10/31/2011) (discovery status report). The district court granted petitioner’s motion. Pet. App. 22a-34a. The court concluded that, “[iJnasmuch as [petitioner] acted on behalf of the Navy, it is also immune under the doctrine of derivative sovereign immunity estab- lished by the Supreme Court in Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21-22 [1940].” Jd. at 30a; see id. at 30a-34a. The district court entered final judg- ment (J.A. 14) without separately denying respond- ent’s pending motion for class certification. 4. The court of appeals vacated and remanded. Pet. App. la-21la. As relevant here, the court held that petitioner’s unaccepted offer of judgment did not moot respondent’s action, id. at 4a-7a, and that petitioner was not entitled to “derivative sovereign immunity,” id. at 14a-20a.' a. The court of appeals rejected petitioner’s mootness argument, relying on its then-recent holding that “[aJn unaccepted Rule 68 offer that would fully satisfy a plaintiff's claim is insufficient to render the claim moot.” Pet. App. 5a (quoting Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 950 (9th Cir. 2013)). The court further held that an unaccepted ' The court rejected petitioner’s remaining contentions, includ- ing petitioner’s argument that it could not be held vicariously lia- ble for the actions of its subcontractor. Pet. App. 10a-14a. * In Diaz, the court of appeals noted that a majority of the Court in Genesis HealthCare Corp. v. Symezyk, 133 S. Ct. 1523 (2013), had reserved the question, but that four dissenting Justices and the Solicitor General had concluded that an unaccepted offer of judgment could not moot a plaintiff's underlying claim. 732 F.3d at 952-953. Diaz concluded that “Justice Kagan[’s dissenting opin- ion in Genesis HealthCare] has articulated the correct approach.” Td. at 954; see id. at 953-955. 7 offer of judgment likewise does not render a class action moot. 7d. at 5a-7a. b. The court of appeals held that the district court had erred by granting petitioner derivative sovereign immunity. Pet. App. 14a-20a. The court stated that this Court’s decision in Yearsley, which involved a contractor whose damage-causing actions were re- quired by its contract with the United States, was “not applicable” because Yearsley had “established a nar- row rule regarding claims arising out of property damage caused by public works projects.” /d. at 15a. SUMMARY OF ARGUMENT I. Neither petitioner’s offer to settle this case by paying respondent the full value of his individual claim, nor respondent’s failure to accept that offer, rendered this case moot. A. Petitioner’s settlement offer did not moot re- spondent’s individual claim. If the mere communica- tion of a Rule 68 offer of judgment could moot a case, the offer would foreclose the court from performing the action—entry of judgment for the plaintiff in ac- cordance with the offer—that Rule 68(a) mandates if the offer is accepted. And if the mere communication of an offer to pay the plaintiff’s individual claim in full does not moot the case, the plaintiff’s refusal to accept the offer cannot have that effect. Under Rule 68(b), “(ajn unaccepted offer is considered withdrawn,” and the plaintiff is left as before with an unsatisfied claim that a court can redress if the claim is found to have merit. Although petitioner argues that respondent’s indi- vidual claim is moot, petitioner also contends that the district court may enter judgment in respondent’s favor on that claim in accordance with petitioner’s 8 prior Rule 68 offer. That combination of arguments is self-contradictory, because a district court that has been divested of jurisdiction can do nothing more than dismiss the case. Although entry of judgment in the plaintiff’s favor is sometimes the appropriate course of action when the defendant offers to capitulate, the propriety of that disposition depends on the under- standing that the offer does not render the case moot. The nineteenth-century decisions of this Court on which petitioner relies do not support its cause. Those decisions address the effect of a plaintiff’s acceptance of full payment, not the effect of an unaccepted set- tlement offer. If a defendant offers to surrender by agreeing to all of the relief the plaintiff could realistically have obtained, and if further litigation would serve no other legitimate purpose, the court should enter judgment for the plaintiff in accordance with the defendant’s offer, even if the plaintiff objects. Entry of judgment for the plaintiff, rather than dismissal of the action as moot, is the appropriate course of action in the (pre- sumably rare) case where the plaintiff's obstinacy or vindictiveness prompts him to reject the defendant’s capitulation. Entry of judgment in accordance with petitioner’s Rule 68 offer would have been inappropri- ate, however, under the circumstances of this case. Petitioner’s offer to pay the full value of respondent’s individual claim did not give respondent all that he might have achieved by litigating the case, since entry of judgment on those terms would have prevented respondent from invoking the cost-sharing mecha- nisms of Rule 23. B. Even if the Court concludes that petitioner’s unaccepted settlement offer mooted respondent’s indi- 9 vidual claim, respondent retained a litigable stake in the question whether class certification was appropri- ate, since certification of a class would have allowed respondent to shift litigation costs to other class mem- bers. That conclusion follows logically from this Court’s decision in Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980), which petitioner has not asked the Court to overrule. II. Petitioner is not entitled to “derivative sover- eign immunity” from respondent’s suit. This Court has consistently held that private companies perform- ing work for the federal government do not acquire the government’s own immunity from suit. Those decisions are consistent with the common-law rule that immunities are not delegable but rather are per- sonal to those who possess them. Individuals who perform governmental functions may assert qualified immunity from liability for wrongs they commit in that capacity. But the question of qualified immunity is not before this Court, and petitioner cites no deci- sion in which this Court has held that a corporate entity (as distinct from an individual) was entitled to such immunity, let alone demonstrate that it meets the distinct requirements of a qualified-immunity claim. Because the United States and its agencies are not subject to the substantive prohibitions imposed by the TCPA, federal agencies have a “privilege” to engage in conduct that private actors could not lawfully un- dertake. The Navy therefore could lawfully have sent automated recruiting text messages to unconsenting recipients like respondent. Unlike immunities, privi- leges have traditionally been delegable, and the Navy might have been able to delegate to petitioner its privilege of making such calls. The Navy did not do 10 so, however, but instead authorized petitioner to send recruiting texts only to individuals who had opted in. ARGUMENT I. PETITIONER’S OFFER OF JUDGMENT DID NOT REN- DER THIS CASE MOOT A. Petitioner’s Unaccepted Settlement Offer Did Not Ren- der Moot Respondent's Individual Claim The court of appeals correctly held that respond- ent’s individual TCPA claim is not moot. Neither petitioner’s communication of a settlement offer, nor respondent’s failure to accept that proposal, deprived the district court of jurisdiction over that claim. 1. To establish an Article III “case” or “controversy,” a plaintiff must show that he possessed Article ITI stand- ing when “the action commence[d].” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191 (2000) (Laidlaw). “[AJn actual controversy must [also] be extant at all stages of review, not merely at the time the complaint is filed.” Genesis HealthCare Corp. v. Symezyk, 133 S. Ct. 1523, 1528 (2013) (citation omitted). “A case becomes moot,” however, “only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Decker v. Northwest Envtl. Def. Ctr., 133 S. Ct. 1326, 1335 (2013) (quoting Knox v. Service Emps. Int'l Union, 132 S. Ct. 2277, 2287 (2012)); accord Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (same). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Chafin, 133 S. Ct. at 1023 (citation omitted). A defendant’s unaccepted offer to settle a plaintiff's claim does not render the claim moot because it does not prevent the court from granting the plaintiff relief. This 11 Court has long recognized that, because “an offer * * * imposes no obligation until it is accepted,” the offeree’s rejection of a settlement proposal “leaves the matter as if no offer had ever been made.” Minneapolis & St. Louis Ry. v. Columbus Rolling Mill, 119 U.S. 149, 151 (1886); see Eliason v. Henshaw, 17 U.S. (4 Wheat.) 225, 228 (1819). Rule 68 incorporates that longstand- ing principle. Rule 68(b) provides that “[ajJn unac- cepted offer is considered withdrawn,” and that “[e}vi- dence of an unaccepted offer is not admissible, except in a proceeding to determine costs” under Rule 68(d). The Court in Genesis HealthCare reserved the ques- tion whether an unaccepted offer of judgment can moot an individual plaintiff's claim. 133 S. Ct. at 1528-1529. The government argued (id. at 1528), however, and Jus- tice Kagan’s opinion for four dissenting Justices con- cluded, that “an unaccepted offer of judgment cannot moot a case.” /d. at 1533 (Kagan, J., dissenting). The dissenting Justices explained that, if the plaintiff de- clines such an offer, both “her interest in the lawsuit” and “the court’s ability to grant her relief” remain as they were before. Jbid.; see id. at 1535 (concluding that an unaccepted settlement offer “is a legal nullity” having no effect on a dispute’s justiciability). Since Genesis HealthCare was decided, every court of appeals that has resolved the issue—including the Seventh Circuit, which overruled its earlier precedents on the ques- tion—has held that an unaccepted offer of judgment cannot moot a «laintiff’s claim. See Bais Yaakov v. ACT, Inc., No. 14-1789, 2015 WL 4979406, at *5-*6 (ist Cir. Aug. 21, 2015); Hooks v. Landmark Indus., Inc., No. 14-20496, 2015 WL 4760253, at *3 (5th Cir. Aug. 12, 2015); Chapman v. First Index, Inc., Nos. 14- 2773, 14-2775, 2015 WL 4652878, at *3 (7th Cir. Aug. 12 6, 2015) (overruling earlier Seventh Circuit decisions by using the court’s mini-en-banc process, see 7th Cir. R. 40(e)); Tanasi v. New Alliance Bank, 786 F.3d 195, 200 (2d Cir. 2015), petition for cert. pending, No. 15-84 (filed July 17, 2015); Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698, 702-704 (11th Cir. 2014); Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 954-955 (9th Cir. 2013).* 2. The certiorari petition frames the question pre- sented as whether a case becomes moot “when the plaintiff receives an offer of complete relief on his claim.” Pet. i (emphasis added). That formulation, as well as similar language in petitioner’s brief on the * In Russell v. United States, 661 F.3d 1371, 1374-1375, 1377 (2011), the Federal Circuit accepted the government’s argument as appellee that the damages claim of the named plaintiff was ren- dered moot by the government’s tender of a check that—like its payments to thousands of others in the putative class—covered the full amount claimed by the plaintiff (who declined to cash the check). The government relied on Federal Circuit precedent, which the government has since concluded is incorrect. See U.S. Amicus Br. at 13 n.1, Genesis HealthCare, supra (No. 11-1059). When a plaintiff timely seeks retrospective relief for a past wrong, the wrong has been completed by the time the claim is filed. Any damages liability therefore is fixed and will continue until the claim is resolved by a judgment or a settlement agree- ment grounded, like any contract, on mutual assent. Different considerations apply when a plaintiff seeks prospec- tive relief for an ongoing or imminent injury caused by the defend- ant’s challenged actions. If the defendant ceases those actions after the suit is filed, it can terminate the underlying injury and associated liability for prospective relief, regardless of the plain- tiff’s consent. Yet even in that “voluntary cessation” context, the claim for prospective relief becomes moot only if the defendant shows that it is “absolutely clear” that the “allegedly wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528 USS. at 189-190. 13 merits (see; e.g., Br. 13, 16, 20, 21), suggests that this case became moot as soon as petitioner communicated its settlement offer. That cannot be right. If a settle- ment offer alone could moot a claim, the district court would lack authority to do the very thing that Rule 68(a) requires if the plaintiff accepts the offer: enter judgment for the plaintiff based on the parties’ agreement. See Chapman, 2015 WL 4652878, at *3. “[N]o one thinks (or should think) that a defendant’s offer to have the court enter a consent decree [or judgment] renders the litigation moot and thus prevents the injunction’ S [or judgment’s] entry.” /bid. In the district court, petitioner moved to dismiss this suit on mootness grounds immediately after the expiration of Rule 68(a)’s 14-day period for acceptance of a defendant’s settlement offer. That timing sug- gests that petitioner viewed respondent’s failure to accept the settlement offer within the prescribed period, rather than the initial communication of the offer, as the event that rendered this case moot. But if tendering the offer did not divest the court of juris- diction, respondent’s subsequent failure to accept it could not have that effect. “After the offer lapsed, just as before, [respondent] possessed an unsatisfied claim, which the court could redress by awarding h{im] damag- es.” Genesis HealthCare, 133 S. Ct. at 1534 (Kagan, J dissenting). * Even when a plaintiff actually enters a settlement agreement that the defendant fulfills, if the plaintiff continues to assert a settled claim, that claim should be adjudicated against the plaintiff, not dismissed as moot. Such a settlement gives rise to the defense of “accord and satisfaction.” See 2 Restatement (Second) of Con- tracts § 281 & cmt. a, at 381-382 (1981); 2 Restatement (First) of Contracts § 417 & cmt. a, at 785-786 (1932). Entry of a consent 14 3. The argument that respondent’s action became moot (either when petitioner made its settlement offer or when respondent failed to accept it) logically implies that the district court should have dismissed the suit, leaving respondent -handed. “When [jurisdiction] ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause,” bé- cause “{wlithout jurisdiction the court cannot proceed at all.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 614 (1869)). That disposition, which would produce the same practical outcome as a judgment in petitioner’s favor, obviously could not be said to “afford the plaintiff complete relief.” Pet. Br. 20. To avoid the strange result that would logically follow from a finding of mootness, petitioner contends (Br. 10, 21) that a “case should be dismissed as moot” when a defendant offers to provide complete relief, but that the “court also has authority to dispose of the case by enter- ing judgment according to the defendant’s offer.” That combination of arguments is self-contradictory. Because an event that moots a case thereby divests the district court of jurisdiction, “entering judgment according to the defendant’s offer of complete relief” (id. at 10)—i.e., entering judgment in favor of the plaintiff—is permis- sible only if the defendant’s settlement offer does not moot the controversy. Although entry of judgment in judgment likewise supports a res-judicata defense. Those affirma- tive defenses, see Fed. R. Civ. P. &c)(1), are not jurisdictional, however, and may be forfeited if not timely asserted. See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012); Knowles v. Iowa, 525 U.S. 113, 116 n.2 (1998); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 231 (1995); [Ulinois Cent. R.R. v. Adams, 180 U.S. 28, 32 (1901) (holding that “res judicata * * * [iJs not a question affecting the jurisdiction of th{e] court”) (citation omitted). 15 the plaintiff's favor is sometimes the appropriate course of action when a defendant offers to capitulate (see pp. 17-18, infra), that is not the disposition that petitioner requested in the courts below. Nor is peti- tioner’s current advocacy of that disposition fairly encompassed within the first question presented in the certiorari petition, which asks “[wJhether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.” Pet. i (emphasis add-, ed). 4. Petitioner relies (Br. 16-18) on three nineteenth- century decisions of this Court. None suggests that an unaccepted settlement offer of complete relief moots the underlying claim. In California v. San Pablo & Tulare Railroad, 149 U.S. 308, 308-309 (1893), California brought suit to re- cover state and county taxes from a railroad. The State asserted that it had not “accepted” the railroad’s offer of a sum that was “equal to the [unpaid] taxes, penalties, interest, and attorney’s fees * * * and costs” that the State sought. Jd. at 311-312. The railroad had already paid that sum to the State, however, under a California statute that effectively accepted the railroad’s payment * Petitioner indicates that, even if respondent’s suit is dismissed as moot, petitioner intends to pay respondent in accordance with petitioner’s prior settlement offer. Pet. Br. 22 n.6. We do not question the sincerity of that representation. If the suit is dis- missed as moot, however, any such payment would be legally gratuitous, since (a) the legal effect of a mootness dismissal is that the plaintiff is entitled to nothing, and (b) petitioner’s settlement offer was “withdrawn” by its own terms when respondent did not accept it within 14 days, see Pet. App. 54a. Petitioner’s stated intent to make a legally gratuitous payment if the suit is dismissed cannot divest respondent of his practical stake in the litigation. 16 on the State’s behalf. See id. at 312. Pursuant to state law, the railroad had deposited that payment into a Cali- fornia bank in the State’s name and had provided notice thereof to the State. /bid. In dismissing the writ of error, the Court explained that any obligation of the railroad to pay the State had been “extinguished” by the railroad’s deposit, which under state law “ha[d] the same effect as actual payment and receipt of the money” by the State. San Pablo, 149 U.S. at 313-314. The Court concluded that the State’s “cause of action ha[d] ceased to exist,” id. at 313, because the State had “obtained everything that it could recover in th{e] case,” id. at 314. That disposition reflects that a State may be required by its own governing law to ac- cept a proffered payment settling a claim. A similar principle might apply more broadly if the normal con- tract-law principle of mutual assent, 1 Restatement (Second) of Contracts § 18, at 53 (1981), were dis- placed by a statute requiring a private plaintiff to accept a defendant’s full payment of a disputed sum. Such a principle would be inapplicable here, however, because Rule 68 specifies that “an unaccepted offer is considered withdrawn.” Fed. R. Civ. P. 68(b). San Mateo County v. Southern Pacific Railroad, 116 U.S. 138 (1885), is even further afield. In San Mateo, the County accepted two payments from the defendant railroad. /d. at 138-139, 141. Because the two payments taken together exceeded the “entire sum estimated by the [County] to be due,” id. at 141, this Court held that “the debt for which the suit was brought ha[d] been unconditionally paid and satisfied,” so that the plaintiff county “no longer [had] an existing cause of action.” Jd. at 141-142. Although San Mateo reflects that a plain- tiffs actual acceptance of full payment can extinguish a 17 claim, the decision does not address the effect of a cde- clined settlement offer. Little v. Bowers, 134 U.S. 547 (1890), similarly in- volved a railroad’s challenge to municipal property taxes on a writ of error to this Court, which the city moved to dismiss on the ground that the plaintiff railroad had “paid and satisfied [its tax obligation] in full” and had paid the city its “costs in the case.” /d. at 548-549. The Court concluded that the railroad’s payment “was in the nature of a compromise, by which the city agreed to take, and the [railroad] agreed to pay, a less sum than was originally assessed.” /d. at 556; see id. at 549-550. Dismissal was warranted, the Court concluded, because “(tJhe effect of (that compromise] was to extinguish the controversy between the parties.” Jd. at 556. As in San Mateo, the Court did not address the effect of a rejected settlement proposal. 5. Although an unaccepted offer of complete relief cannot moot a plaintiff's claim, courts should be reluc- tant to expend judicial and litigation resources adjucicat- ing the merits of a demand for relief that the defendant informs the court it will fully satisfy. That legitimate impulse, however, suggests that the court should enter judgment for the plaintiff, not against him. That is the proper course for a court to follow if the plaintiff identi- fies no additional relief that he could realistically obtain, cf. Fed. R. Civ. P. 54(c), and if further litigation would serve no other legitimate purpose. In the present cir- cumstances, however, it would have been inappropriate for the district court to terminate this suit by entering judgment in respondent’s favor on his individual! claim, even if petitioner had requested that disposition below. Because that disposition would have prevented respond- ent from invoking the cost-sharing mechanisms of Rule 18 23, it would not have provided respondent complete relief on the (individual and class) claims asserted in his complaint. “[T)he principle of party presentation [is] basic to our adversary system,” Wood v. Milyard, 132 S. Ct. 1826, 1833 (2012), which rests on the “premise that the parties know what is best for them” and “rel[ies] on the parties to frame the issues for decision,” Greenlaw v. United States, 554 U.S. 237, 243-244 (2008). A de- fendant therefore may elect not to contest liability and to litigate only the scope of relief. Or a defendant may decide not even to contest relief. If a defendant know- ingly accepts an adverse judgment for the full relief sought rather than litigating the merits, a court may rely on that choice by exercising its discretion to enter judgment upon it. See Genesis HeathCare, 133 S. Ct. at 1536 (Kagan, J., dissenting); see also, e.g., Tanasi, 786 F.3d at 200; O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 575 (6th Cir. 2009).° * Although a court’s entry of judgment pursuant to the defend- ant’s surrender is sometimes described as “moot({ing)” the claim, e.g., Tanasi, 786 F.3d at 200, that characterization is imprecise. While a defendant's capitulation may obviate the need fur the court to make an insiependent assessment of the merits, the court never- theless adjudicates the claim when it renders judgment pursuant to the defendant’s consent. Unlike most judgments, however, a judgment hased on the defemdant’s consent ordinarily will have no future issue-prechusive effect, beeause the merits of the case are not “actually litigated and determined” and because the judgment does not rest on a resolution of the merits. Bobby v. Bies, 566 U.S. 825, 834 (2009) (citation omitted); see 1 Restatement (Second) of Judgments § 27 cmt. e, at 257 (1982) (Absent an agreement that does not apply “in the case of a judgment entered by confession, consent, or default.”). 19 When a plaintiff has asserted a colorable class-wide claim, however, a court would abuse its discretion by entering judgment for the plaintiff on his individual claim before resolving the question of class certification. If the plaintiff has asserted a class claim, an offer of full relief for his individual claim alone fails to “offer{} all that has been requested in the complaint (i.¢., relief for the class).” Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 341 (1980) (Rehnquist, J., concurring). As a result, “{ajeceptance [of such a less-than-complete offer] need not be mandated,” ibid., when the question of clase certi- fication remains outstanding. Rule 23 confers upon plaintiffs a “procedural right” to “assert their own claims in the framework of a class action.” Roper, 445 U.S. at 332. Allowing a plaintiff to proceed on his individual claim within a class action serves important policy interests. A plaintiff may utilize the class-action mechanism to distribute the costs of litigation across the class. /d. at 338 & n.9. A defendant can reduce the litigation expenses that multiple lawsuits might entail, since a judgment favorable to the defendant will bind all class members. Consolidation of claims likewise can conserve limited judicial resources. By contrast, “(rjequiring multiple plaintiffs to bring sepa- rate actions, which effectively could be ‘picked off’ by a defendant’s tender of judgment before an affirmative ruling on class certification could be obtained,” would “frustrate the objectives of class actions,” would be “con- trary to sound judicial administration,” and would “invite waste of judicial resources by stimulating successive suits brought by others.” Jd. at 339 (dictum). 20 B. Under Roper, Respondent Would Retain A Sufficient Interest To Pursue Class Certification Even If His In- dividual Claim Were Moot Because petitioner’s unaccepted settlement offer did not moot respondent’s individual claim, the Court need not address the second question presented. But if the Court concludes that the unaccepted offer did moot the individual claim, respondent would retain a separate financial interest in class certification that would allow his action to remain live through the district court’s class-certification decision. That proposition follows from this Court’s decision in Roper, which petitioner has not asked the Court to overrule. Pet. Br. 33. If the court subsequently certifies a class, the class would “acquire[] a legal status separate from the interest asserted by the [named plaintiff],” Sosna v. Jowa, 419 U.S. 393, 399 (1975), that would itself be sufficient to allow a full adju- dication of the merits. In Roper, the plaintiffs brought a putative class action for damages. After the district court denied class certifi- cation, the court entered judgment for the plaintiffs (over their objection) and dismissed their suit based on the defendant’s offer to pay the plaintiffs’ individual claims in full. 445 U.S. at 329-330. The defendant then paid the judgment into the court registry. /d. at 330. This Court held that the entry of judgment for the named plaintiffs on their individual claims did not moot their “individual and private case or controversy,” because they retained an ongoing “economic interest in class certification” that allowed them to appeal! the adverse certification ruling. Roper, 445 U.S. at 332- 333. The Court held that the plaintiffs possessed an economic interest in class certification because certifi- cation would enable them to recover attorney’s fees 21 and costs by “allocating such costs among all members of the class who benefit from any recovery.” Jd. at 334 n.6, 336, 338 n.9. Cf. Boeing Co. v. Van Gemert, 444 U.S. 472, 478-479 (1980) (holding that named plaintiff may obtain common-fund fee award from a money judg- ment obtained by a class). The Court explained that the class-certification ruling was “collateral to the merits” of the litigation, and that the court of appeals could adjudicate the plaintiffs’ challenge to that ruling without “passing on the merits of the substantive controversy.” Roper, 445 U.S. at 336. Respondent possesses precisely the same economic interest as the Roper plaintiffs in shifting his litigation expenses to the class. To be sure, Roper involved an appeal from the denial of class certification, whereas the district court made no certification ruling in this case. But if a named plaintiff's “economic interest in class certification” (445 U.S. at 333) is sufficient to allow him to appeal an adverse certification ruling, notwithstanding the defendant’s full payment of the plaintiff's individual claim, the same interest is likewise sufficient to allow the plaintiff to litigate that collateral issue in district court either directly or on remand from an appeal. Petitioner argues (Br. 33) that Roper is “inapplicable” here because Genesis HealthCare “made clear that Rop- er is limited to its facts.” That is incorrect. Genesis HealthCare acknowledged Roper’s holding that “the named plaintiffs possessed an ongoing, personal econom- ic stake” in “shift{ing] a portion of attorney’s fees and expenses to successful class litigants.” 133 S. Ct. at 1532. The Court also noted that Roper contained dicta empha- sizing the importance of class-certification decisions and the undesirability of allowing defendants to “pick off” named plaintiffs, ibid., and it expressly declined to con- 22 sider whether Roper’s “continuing validity” had been eroded by subsequent decisions, id. at 1532 n.5. Peti- tioner has not asked this Court to overrule Roper. Cf., e.g., Alabama v. North Carolina, 560 U.S. 330, 355 n.6 (2010) (declining to overrule precedent sua sponte with- out the benefit of argument from the parties). Under that decision, respondent would retain a sufficient inter- est to pursue class certification in district court even if petitioner’s settlement offer had rendered his individual claim moot.’ ’ Although “a plaintiff cannot achieve standing to litigate a sub- stantive issue by bringing suit for the cost of bringing suit,” Steel Co., 523 U.S. at 107, respondent clearly had Article III standing when he filed his complaint. The determination whether the district court was divested of the Article III jurisdiction it initially possessed is governed by doctrinal rules different from, and somewhat less rigid than, those governing the initial standing inquiry. See Laidlaw, 528 U.S. at 189-192 (discussing exceptions to mootness that would not support Article III standing). It is particularly appropriate to distinguish between these two contexts because respondent, in making his initial decision to commence suit, could legitimately rely on the potential for cost-shifting provided by the Rule 23 mechanism. See Resp. Br. 32, 35, 41-43. In Lewis v. Continental Bank Corp., 494 U.S. 472 (1990), the Court held that, where an intervening statutory amendment had deprived the plaintiff of any continuing stake in the underlying merits issue, the plaintiff's interest in recovering its attorney's fees—which the plaintiff could have recovered only if it ultimately “‘prevailfed]’ by winning the relief it seeks” at the end of the case —