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Supreme Court Refuses to Moot TCPA Class Action, Leaving Business Open to More Suits

By Sheila Millar & Tracy Marshall on January 21, 2016
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The Supreme Court yesterday denied an attempt by a defendant to moot a class action under the Telephone Consumer Protection Act (TCPA), 48 Stat. 1064, Pub. L. 102–243 (Dec. 20, 1991) (codified at 47 U.S.C. § 227), on the basis of an unaccepted settlement offer to the named plaintiff. The case, Campbell-Ewald Co. v. Gomez, No. 14–857, was decided on a 6–3 vote, with Justice Ginsburg writing for the majority, joined by a concurrence from Justice Thomas.

Campbell-Ewald Co. was working under a contract for the U.S. Navy to provide marketing services in connection with recruiting. The company proposed to send a text message to young adults aged 18 to 24 encouraging them to learn more about the Navy. The Navy approved the campaign, conditioned on sending solicitations only to persons who had opted in to receiving messages. The text of the message was:

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 [phone number].

Jose Gomez received the message, and alleges that he never consented to receiving messages, and that he was outside the relevant age range at the time (he was nearly 40). He sued in federal court in California and sought class certification. Campbell-Ewald offered to pay him the maximum for his personal damages, excluding attorney’s fees, and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. He rejected the settlement, and after the district court dismissed the case and the Ninth Circuit Court of Appeals reversed the dismissal, the Supreme Court granted certiorari.

There, Campbell-Ewald argued that the unaccepted settlement offer rendered the named plaintiff’s complaint moot, because the offer would have fully satisfied his personal claims. The Court held that Campbell-Edward’s settlement bid and Federal Rule of Civil Procedure 68 offer of judgment, once rejected, had no continuing efficacy, based on basic principles of contract law. With no settlement offer continuing to operate, the parties remained adverse – each retained the same stake in the litigation they had at the outset. The district court thus retained jurisdiction to decide the case.

Separately, Campbell-Edward, as a contractor for the U.S. Navy, sought derivative sovereign immunity, but the Court rejected this claim. The Court acknowledged that the U.S. and its agencies are not subject to the TCPA. Because sovereign immunity must be lifted by statute, however, and because neither the TCPA nor any other statute does so with respect to TCPA claims, the federal government is not subject to TCPA claims. This governmental immunity does not transfer in whole to contractors; they obtain some immunity, but “[t]hat immunity, … unlike the sovereign’s, is not absolute.” Where a contractor violates both federal law and the contracting authority’s instructions, no derivative immunity shields the contractor from suits based on the violation.

Justice Thomas’s concurrence was based on the common-law history of tenders, arguing that “a mere offer of relief was insufficient to deprive a court of jurisdiction” at the time of the founding. Chief Justice Roberts, writing the lead dissent, argued that the offer of full satisfaction of Gomez’s claims mooted the case, eliminating a federal court’s jurisdictional minimum requirement of an actual case or controversy; this, he argued, deprived the district court of jurisdiction. Justice Alito, who joined the principal dissent, wrote separately to emphasize that his vote was premised on the absence of any dispute that the company would make good on its promise to pay plaintiff the money offered (“Absent this fact, I would be compelled to find that the case is not moot.”).

The decision not to moot the claims is not just a boost to TCPA plaintiffs, it is a boost to class action plaintiffs generally. TCPA plaintiffs, and those similarly situated, are not out of the woods yet, however. An important case with somewhat similar arguments, but under the Fair Credit Reporting Act (FCRA), 84 Stat. 1127, Pub. L. 91–508 (Oct. 26, 1970) rather than the TCPA, has already been heard at the Court: Spokeo, Inc. v. Robins, No. 13–1339. (We wrote about that case previously here, after the Court granted certiorari.) In that case, the Court will address whether Congress can confer Article III standing on a plaintiff who suffers no independent, concrete harm, by making a bare violation of a statute liable in a suit brought by a private plaintiff. If the Court decides that case against the plaintiff, then consumer claims under a range of federal statutes could be restricted, including under the TCPA.

Consumer class actions, a subject of several important Court cases in recent years, continue to be in the legal spotlight, and thus feature among the top concerns of in-house counsel everywhere.

Photo of Sheila Millar Sheila Millar

Sheila A. Millar is a partner at Keller and Heckman LLP, where she represents businesses and trade associations on a variety of public policy and regulatory issues, including privacy, data security, cybersecurity and advertising matters, as well as product safety issues. She has…

Sheila A. Millar is a partner at Keller and Heckman LLP, where she represents businesses and trade associations on a variety of public policy and regulatory issues, including privacy, data security, cybersecurity and advertising matters, as well as product safety issues. She has been involved in a variety of audit and compliance projects, including, among other issues, privacy and data security audits, and is experienced in providing crisis management legal support to a variety of national and international companies and associations.

Ms. Millar is a frequent speaker on regulatory and public policy matters, and has authored many articles. Ms. Millar is one of the vice chairs of the International Chamber of Commerce (ICC) Marketing and Advertising Commission, and chair of its Working Group on Sustainability, where she spearheaded the development of the ICC Framework Guides on Environmental Marketing Claims.

Ms. Millar is AV® PreeminentTM Rated by Martindale-Hubbell and for the eigth consecutive year was selected by her peers for inclusion in The Best Lawyers in America® 2018 for her work in practicing Advertising Law. She has also received the distinguished honor of Advertising Law “Lawyer of the Year” 2014 in Washington, DC by Best Lawyers®, and was awarded Advertising and Marketing Lawyer of the Year USA by Finance Monthly for their Finance Monthly Global Awards 2017.

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Photo of Tracy Marshall Tracy Marshall

Tracy Marshall counsels international and domestic for-profit and non-profit clients on a range of privacy, data security, advertising, promotions, and intellectual property matters. She also advises on general corporate and transactional matters.

Tracy assists clients with compliance and advocates on their behalf. She …

Tracy Marshall counsels international and domestic for-profit and non-profit clients on a range of privacy, data security, advertising, promotions, and intellectual property matters. She also advises on general corporate and transactional matters.

Tracy assists clients with compliance and advocates on their behalf. She is a Certified Information Privacy Professional (CIPP/US) through the International Association of Privacy Professionals (IAPP) and helps clients implement privacy, data security, and security breach response programs, develop internal and public-facing privacy policies to comply with applicable laws, respond to cyber and data security incidents, and manage relationships with service providers and third parties. Tracy advises on structuring and conducting email and text messaging campaigns, sweepstakes, contests, and other promotions, and she helps clients protect and enforce their intellectual property rights.

In addition, Tracy counsels clients on corporate matters and assists with structuring and negotiating a variety of transactions, including licensing, marketing, and outsourcing arrangements.

Tracy is frequently invited to speak at privacy, data security, telecommunications, and advertising conferences and is a contributor to Keller and Heckman’s Consumer Protection Connection blog and Beyond Telecom Law Blog.


To learn more about Tracy’s practice areas, click here.
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  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Consumer Protection Connection
  • Organization:
    Keller Heckman
  • Article: View Original Source

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