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Campbell-Ewald Co. v. Gomez

Supreme Court of the United States

October 14, 2015, Argued; January 20, 2016, Decided

No. 14-857


Justice Ginsburg delivered the opinion of the Court.

Is an unaccepted offer to satisfy the named plaintiff’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals [***5]  have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U.S. ___, ___, ___, n. 4, 133 S. Ct. 1523, 185 L. Ed. 2d 636, 644 (2013). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.

This case presents a second question. The claim in suit concerns performance of the petitioner’s contract with the Federal Government. Does the sovereign’s immunity from suit shield the petitioner, a private enterprise, as well? We hold that the petitioner’s status as a Government contractor does not entitle it to “derivative sovereign immunity,” i.e., the blanket immunity enjoyed by the sovereign.

The Telephone Consumer Protection Act (TCPA or Act) 48 Stat. 1064, 47 U.S.C. §227(b)(1)(A)(iii), prohibits any  [*667]  person, absent the prior express consent of a telephone-call recipient, from “mak[ing] any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a paging service [or] cellular telephone service.” A text message to a cellular telephone, it is  [**577]  undisputed, qualifies as a “call” within the compass of §227(b)(1)(A)(iii). 768 F. 3d 871, 874 (CA9 2014). For damages occasioned by conduct violating the TCPA, §227(b)(3) authorizes a private right [***6]  of action. A plaintiff successful in such an action may recover her “actual monetary loss” or $500 for each violation, “whichever is greater.” Damages may be trebled if “the defendant willfully or knowingly violated” the Act.

Petitioner Campbell-Ewald Company (Campbell) is a nationwide advertising and marketing communications agency. Beginning in 2000, the United States Navy engaged Campbell to develop and execute a multimedia recruiting campaign. In 2005 and 2006, Campbell proposed to the Navy a campaign involving text messages sent to young adults, the Navy’s target audience, encouraging them to learn more about the Navy. The Navy approved Campbell’s proposal, conditioned on sending the messages only to individuals who had “opted in” to receipt of marketing solicitations on topics that included service in the Navy. App. 42. In final form, the message read:

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136 S. Ct. 663 *; 193 L. Ed. 2d 571 **; 2016 U.S. LEXIS 846 ***; 84 U.S.L.W. 4051; 166 Lab. Cas. (CCH) P36,411; 93 Fed. R. Serv. 3d (Callaghan) 884; 25 Fla. L. Weekly Fed. S 585; 64 Comm. Reg. (P & F) 9


Notice: The LEXIS pagination of this document is subject to change pending release of the final published version.

Subsequent History: As Amended February 9, 2016.


Gomez v. Campbell-Ewald Co., 768 F.3d 871, 2014 U.S. App. LEXIS 18019 (9th Cir. Cal., 2014)

Disposition: 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.


moot, cases, unaccepted offer, complete relief, federal court, immunity, settlement offer, district court, text message, damages, lawsuit, case or controversy, common law, trademark, contractor, settlement, unaccepted, covenant, offer to pay, parties, costs, individual claim, personal stake, common-law, message, court of appeals, civil procedure, principles, railroad, courts

Civil Procedure, Settlements, Offers of Judgment, Rejection, Antitrust & Trade Law, Consumer Protection, Telemarketing, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Making of Offers, Time Limitations, Withdrawal of Offers, Justiciability, Mootness, Real Controversy Requirement, Constitutional Law, The Judiciary, Case or Controversy, Mootness, Jurisdiction, Subject Matter Jurisdiction, Jurisdiction Over Actions, Special Proceedings, Class Actions, Certification of Classes, Preliminary Considerations, Governments, Federal Government, Claims By & Against, Public Contracts Law, Governmental Immunities, Sovereign Immunity, Torts, Public Entity Liability, Immunities, Qualified Immunity, Appeals, Summary Judgment Review, Standards of Review