Gomez v. Campbell-Ewald Co., No. 13-55486 (9th Cir. 2014)
Annotate this CasePlaintiff filed suit on behalf of himself and a putative class, alleging claims under the Telephone Consumer Protection Act (TCPA), 42 U.S.C. 227(b)(1)(A)(iii), that Campbell-Ewald instructed or allowed a third-party vendor to send unsolicited text messages on behalf of the Navy, with whom Campbell-Ewald had a marketing contract. The district court granted summary judgment to Campbell-Ewald under the doctrine of derivative sovereign immunity. The court rejected Campbell-Ewald's claim that the personal and putative class claims were mooted by petitioner's refusal to accept the settlement offer; Campbell-Ewald's constitutional claims were unavailing where the company relied upon a flawed application of First Amendment principles; the TCPA imposes vicarious liability where an agency relationship, as defined by federal common law, is established between the defendant and a third-party caller; and the application of the doctrine of derivative sovereign immunity is inapplicable in this case. Because Campbell-Ewald failed to demonstrate that it was entitled to judgment as a matter of law, the court vacated and remanded for further proceedings.
Court Description: Telephone Consumer Protection Act. The panel vacated the district court’s summary judgment in favor of the defendant on personal and putative class claims under the Telephone Consumer Protection Act. The plaintiff alleged that the defendant company instructed or allowed a third-party vendor to send unsolicited text messages on behalf of the United States Navy, with which the defendant had a marketing contract. The panel held that pursuant to Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948 (9th Cir. 2013), the plaintiff’s individual claim was not mooted by his refusal to accept a settlement offer under Federal Rule of Civil Procedure 68. Pursuant to Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011), the putative class claims were not mooted where the plaintiff rejected the settlement offer before he moved for class certification. The panel concluded that Pitts and Diaz were not clearly irreconcilable with Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) (addressing collective action brought pursuant to Fair Labor Standards Act). The panel held that 47 U.S.C. § 227(b)(1)(A)(iii), which restricts unsolicited text messaging, does not violate the First Amendment. The panel held that a defendant may be held vicariously liable for TCPA violations where the plaintiff establishes an agency relationship, as defined by federal common law, between the defendant and a third-party caller. Finally, the panel held that the defendant was not entitled to derivative sovereign immunity. It remanded the case for further proceedings consistent with this opinion.
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