SMS spamming case before the U.S. Supreme Court [telecom]

Basically this is about whether a military contractor can enjoy immunity for violating the Telephone Consumer Protection Act (TCPA) by claiming it has the same immunity that the military does. I think not. So did the SCOTUS.






certiorari to the united states court of appeals for the ninth circuit

No. 14-857. Argued October 14, 2015 Decided January 20, 2016

The United States Navy contracted with petitioner Campbell-Ewald Company (Campbell) to develop a multimedia recruiting campaign that included the sending of text messages to young adults, but only if those individuals had "opted in" to receipt of marketing solicitations on topics that included Navy service. Campbell's subcontractor Mindmatics LLC generated a list of cellular phone numbers for consenting 18- to 24-year-old users and then transmitted the Navy's message to over 100,000 recipients, including respondent Jose Gomez, who alleges that he did not consent to receive text messages and, at age 40, was not in the Navy's targeted age group. Gomez filed a nationwide class action, alleging that Campbell violated the Telephone Consumer Protection Act (TCPA) (1), which prohibits "using any automatic dialing system" to send a text message to a cellular telephone, absent the recipient's prior express consent. He sought treble statutory damages for a willful and knowing TCPA violation and an injunction against Campbell's involvement in unsolicited messaging.

Before the deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez's individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. Gomez did not accept the offer and allowed the Rule 68 submission to lapse on expiration of the time (14 days) specified in the Rule. Campbell then moved to dismiss the case pursuant to Rule

12(b)(1) for lack of subject-matter jurisdiction. Campbell argued first that its offer mooted Gomez's individual claim by providing him with complete relief. Next, Campbell urged that Gomez's failure to move for class certification before his individual claim became moot caused the putative class claims to become moot as well. The District Court denied the motion. After limited discovery, the District Court granted Campbell's motion for summary judgment. Relying on /Yearsley/ v. /W. A. Ross Constr. Co./ (2), the court held that Campbell, as a contractor acting on the Navy's behalf, acquired the Navy's sovereign immunity from suit under the TCPA. The Ninth Circuit reversed. It agreed that Gomez's case remained live but concluded that Campbell was not entitled to "derivative sovereign immunity" under /Yearsley/ or on any other basis.


  1. An unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the District Court retained jurisdiction to adjudicate Gomez's complaint.

Article III's "cases" and "controversies" limitation requires that "an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is filed," (3) (internal quotation marks omitted), but a case does not become moot as "long as the parties have a concrete interest, however small," in the litigation's outcome. (4)

Gomez's complaint was not effaced by Campbell's unaccepted offer to satisfy his individual claim. Under basic principles of contract law, Campbell's settlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy. With no settlement offer operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset. Neither Rule 68 nor the

19th-century railroad tax cases (5) support the argument that an unaccepted settlement offer can moot a complaint. Pp. 6-12.

  1. Campbell's status as a federal contractor does not entitle it to immunity from suit for its violation of the TCPA. Unlike the United States and its agencies, federal contractors do not enjoy absolute immunity. A federal contractor who simply performs as directed by the Government may be shielded from liability for injuries caused by its conduct. See /Yearsley/,//309 U. S., at 20-21. But no "derivative immunity" exists when thee contractor has "exceeded [its] authority" or its authority "was not validly conferred." /Id./, at 21. The summary judgment record includes evidence that the Navy authorized Campbell to send text messages only to individuals who had "opted in" to receive solicitations, as required by the TCPA. When a contractor violates both federal law and the Government's explicit instructions, as alleged here, no immunity shields the contractor from suit. Pp. 12-14.

768 F. 3d 871, affirmed and remanded.

Ginsburg, J., delivered the opinion of the Court, in which Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Scalia and Alito, JJ., joined. Alito, J., filed a dissenting opinion.

  1. 47 U. S. C. 227(b)(1)(A)(iii)

  1. 309 U. S. 18

  2. /Arizonans for Official English/ v. /Arizona/, 520 U. S. 43

  1. /Chafin/ v. /Chafin/, 568 U. S. ___, ___ (internal quotation marks omitted).

  2. /California/ v. /San Pablo & TulareR. Co./, 149 U. S. 308 ,

/Little/ v. /Bowers/, 134 U. S. 547 , and

/San Mateo County/ v/. Southern Pacific R. Co./, 116 U. S. 138

***** Moderator's Note *****

I reformatted BernieS's submission to move the legal citations to footnotes. Any errors are my fault, not his.

Bill Horne Moderator

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