WASHINGTON (CN) – A marketing consultant that worked on a Navy recruitment campaign does not have immunity from a class action over unsolicited text messages, the Supreme Court ruled Wednesday.
Jose Gomez filed the class action after receiving a text message on May 11, 2006, stating: “Destined for something big? Do it in the Navy. Get a career. An education. And a chance to serve a greater cause. For a FREE Navy video call [number].”
The text message came from Mindmatics, which marketing consultant Campbell-Ewald Co. hired to develop a multimedia recruiting campaign for the Navy that would target people between the ages of 18 and 24 who had consented to solicitation.
Though a Navy representative testified that the Navy did not authorize messages to be sent to people who had not opted in, Gomez was nearly 40 years old when he received the message and said he never consented to receiving such marketing.
In a federal class action, Gomez accused Campbell-of violating the Telephone Consumer Protection Act. U.S. District Judge Dolly Gee rejected the case at summary judgment, however, finding that Campbell-Ewald enjoyed derivative sovereign immunity because of its government contract.
The 9th Circuit vacated that decision in 2014, and the Supreme Court affirmed 6-3 Wednesday.
Before getting to the immunity issue, the justices looked at whether Campbell-Ewald had mooted the class action by offering to satisfy only Gomez’s claims as lead plaintiff.
Gomez rejected the offer, however, and “an unaccepted settlement offer has no force,” today’s ruling states.
“Like other unaccepted contract offers, it creates no lasting right or obligation,” Justice Ruth Bader Ginsburg wrote for the court. “With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.”
The ruling made quick work of Campbell-Ewald’s immunity argument.
“The United States and its agencies, it is undisputed, are not subject to the TCPA’s prohibitions because no statute lifts their immunity,” Ginsburg wrote. “Do federal contractors share the Government’s unqualified immunity from liability and litigation? We hold they do not.”
Though Campbell did subcont the recruiting message to Mindmatics, Ginsburg cited Federal Communications Commission precedent “that, under federal common-law principles of agency, there is vicarious liability for TCPA violations.”
Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined the majority, but Justice Clarence Thomas concurred in judgment only.
He wrote separately that the court misarticulated why “an offer of complete relief on a claim does not render that claim moot.”
“I would rest instead on the common-law history of tenders,” Thomas wrote. “That history – which led to Rule 68 [of Federal Civil Procedure] – demonstrates that a mere offer of the sum owed is insufficient to eliminate a court’s jurisdiction to decide the case to which the offer related.”
Justices Samuel Alito and Antonin Scalia meanwhile joined a dissent by Chief Justice John Roberts, who said the court should have rejected the case as moot.
“Based on Gomez’s allegations, the maximum that he could recover under the [Telephone Consumer Protection] Act is $1500 per text message, plus the costs of filing suit,” Roberts wrote. “Campbell has offered to pay Gomez that amount, but it turns out he wants more. He wants a federal court to say he is right.
“The problem for Gomez is that the federal courts exist to resolve real disputes, not to rule on a plaintiff’s entitlement to relief already there for the taking.”
Roberts said Gomez’s mere desire to continue litigating is not enough to advance the case when Campbell offered Gomez full relief.
“The court today takes that important responsibility away from the federal courts and hands it to the plaintiff,” he wrote.
“The good news is that this case is limited to its facts,” the dissent continues. “The majority holds that an offer of complete relief is insufficient to moot a case. The majority does not say that payment of complete relief leads to the same result. For aught that appears, the majority’s analysis may have come out differently if Campbell had deposited the offered funds with the District Court. This court leaves that question for another day – assuming there are other plaintiffs out there who, like Gomez, won’t take ‘yes’ for an answer.”
Alito also wrote his own dissent, saying he would see the case as moot but for the “linchpin” that Campbell would “make good on [its] promise” to pay Gomez what it promised for dismissal of his claims.
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