Gomez Is Not The Slam-Dunk You Think It Is

It's rapidly becoming conventional wisdom that Campbell-Ewald Co. v. Gomez (argued yesterday) is going to be a win for the plaintiffs. Respected academics like Robert Klonoff have stated it, and respected reporters like Perry Cooper have quoted respected plaintiffs' counsel like Deepak Gupta to the same effect. But, dig a little deeper into the arguments they're all using to justify their predictions, and it's not quite as clear that Gomez will be decided in favor of the plaintiff. Those arguments are:
The Court has no way to counter Justice Kagan's dissent. In a blunt dissent in Genesis Healthcare v. Symczyk, Justice Kagan argued that the majority had gotten it wrong: a withdrawn Rule 68 offer would not moot a class action because a withdrawn offer can't moot anything. It was a good argument, but there are two reasons it won't apply in this case. First, it didn't convince five Justices last time. Second, Campbell-Ewald also made a non-Rule 68 settlement offer for