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Though it is the majority opinion of a U.S. Supreme Court decision that creates precedent, the dissent, if done correctly, can still potentially have influence on lower court decisions in similar cases. Also, what is not said can often lead to even more legal headaches down the road.

As is typically the case of a U.S. Supreme Court decision with a narrow ruling, several issues were left in limbo by the majority opinion in Campbell-Ewald Co. v. Gomez, 2016 BL 14352 (2016). For one, how much credence should the lower federal courts give Chief Justice John Roberts’ dissent regarding the methods outlined that could potentially moot the Article III issue described in my last blog posting?


Bloomberg BNA: How likely are the federal courts to adopt the Campbell-Ewald dissent’s Article III argument in situations where the defendant employer takes the step of placing the monetary amount in an account payable to the plaintiff (or some similar vehicle)? 

Boudreau: So far, district courts are seemingly suspicious of defendants’ renewed efforts to moot claims post-Campbell-Ewald. Some themes are emerging, however, and defendants who want to maximize their chance of mooting claims would be well advised to tender cashier’s checks, move for the entry of judgment in favor of plaintiff (over the plaintiff’s objection), and avoid trying to deposit the funds into court.

In three instances since the Supreme Court issued its ruling, district courts have addressed a defendant’s attempt to moot a claim by depositing (or at least trying to deposit) the funds into a court for dispersal to the plaintiff. In each instance, the district court rejected the idea and declined to dismiss the complaint. 

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