Jose Gomez v. Campbell-Ewald Co.
768 F.3d 871
| 9th Cir. | 2014Background
- Gomez (age 40) received an unsolicited Navy recruiting text in 2006; the Navy retained Campbell‑Ewald to run the campaign and outsourced message transmission to Mindmatics.
- Gomez sued Campbell‑Ewald under the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), alleging he had not consented and seeking class certification for other nonconsenting recipients.
- Campbell‑Ewald attempted to moot the case with a Rule 68 settlement offer (rejected by Gomez) and later moved for summary judgment asserting derivative sovereign immunity under Yearsley.
- The district court granted summary judgment based on Yearsley; Gomez appealed. The Ninth Circuit reviewed jurisdiction, constitutional and liability defenses, and the applicability of Yearsley/Boyle/Filarsky.
- The Ninth Circuit held the case was not moot, rejected Campbell‑Ewald’s constitutional and immunity defenses, recognized potential vicarious liability under federal agency principles and FCC precedent, vacated summary judgment, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of individual claim and class claims | Rejection of Rule 68 offer does not moot individual or class claims | Offer of full relief moots claims | Offer did not moot either claim; precedent (Diaz, Pitts) controls; Genesis not clearly irreconcilable |
| TCPA constitutional challenge (First Amendment/time/place/manner; government speech) | TCPA is content‑neutral and constitutional as applied to texts | Statute overbroad for cellular texts; recruiting is government speech | TCPA upheld as content‑neutral; government speech doctrine inapplicable |
| Liability for outsourced calls (vicarious/direct) | Campbell‑Ewald can be vicariously liable if agency established | Outsourcing transmission insulates Campbell‑Ewald from liability | Vicarious liability may attach under ordinary federal common‑law agency rules and FCC interpretation; issue of fact remains |
| Yearsley/Boyle/Filarsky immunity/defense | Yearsley is inapplicable; no broad contractor immunity; Boyle and Filarsky don’t create defense here | Yearsley/Boyle/Filarsky support derivative immunity for contractor | Yearsley inapplicable; Boyle (pre‑emption) and Filarsky (§1983 qualified immunity) do not justify immunity; no new immunity recognized |
Key Cases Cited
- Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940) (narrow doctrine applied in public‑works/property damage context)
- Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (preemption/contractor liability standard tied to federal interests)
- Meyer v. Holley, 537 U.S. 280 (2003) (federal common law incorporates ordinary vicarious liability rules)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (text messages are "calls" under the TCPA; consultant liability implicated)
- Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) (upholding TCPA as a content‑neutral time/place/manner restriction)
- Filarsky v. Delia, 566 U.S. 377 (2012) (qualified immunity for government contractors in §1983 context; limited scope)
- Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) (Supreme Court discussion on mootness in FLSA collective actions; court distinguished class actions)