Banks and financial services companies continued to face an onslaught of civil and regulatory litigation during 2015 and there is no indication that this trend is likely to slow in 2016. The U.S. Supreme Court is considering a number of cases that have the potential to expand or limit so-called “no injury” class actions and the extent to which statistical averages may be used to prove class-wide injury. Class action plaintiffs continue to devise new theories or liability and update old ones. Here we discuss a few of the issues that are likely to impact consumer finance class action litigation over the coming year.
Important Supreme Court Decisions
The Supreme Court is considering four cases this term that may significantly impact consumer finance class action litigation. As of this writing, two have been decided and two are still under consideration.
Campbell-Ewald Co. v. Gomez.
The Supreme Court recently issued its much-anticipated decision in Campbell-Ewald Co. v. Gomez, 577 U.S. ___(2016), which deals with the practice of “picking-off” named plaintiffs in putative class action suits by extending offers of judgment that provide complete relief to the named plaintiff. In a 6-3 opinion, Justice Ginsburg, writing for the majority, held that an unaccepted Rule 68 offers of judgment does not “moot” a claim because “[u]nder basic principles of contract law,” an offer without acceptance is a legal nullity.” If a plaintiff does not accept a defendant’s offer, the court reasoned, “the parties remain[] adverse; both retain[] the same stake in the litigation they had at the outset.”
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