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Gomez v. Campbell-Ewald Co.

United States Court of Appeals, Ninth Circuit

September 19, 2014

JOSE GOMEZ, individually and on behalf of a class of similarly situated individuals, Plaintiff-Appellant,
v.
CAMPBELL-EWALD COMPANY, Defendant-Appellee

Argued and Submitted, Pasadena, California: July 11, 2014.

Page 872

Appeal from the United States District Court for the Central District of California. D.C. No. 2:10-cv-02007-DMG-CW. Dolly M. Gee, District Judge, Presiding.

SUMMARY[**]

Telephone Consumer Protection Act

The panel vacated the district court's summary judgment in favor of the defendant on personal and putative class claims under the Telephone Consumer Protection Act.

The plaintiff alleged that the defendant company instructed or allowed a third-party vendor to send unsolicited text messages on behalf of the United States Navy, with which the defendant had a marketing contract.

The panel held that pursuant to Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948 (9th Cir. 2013), the plaintiff's individual claim was not mooted by his refusal to accept a settlement offer under Federal Rule of Civil Procedure 68. Pursuant to Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011), the putative class claims were not mooted where the plaintiff rejected the settlement offer before he moved for class certification. The panel concluded that Pitts and Diaz were not clearly irreconcilable with Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013) (addressing collective action brought pursuant to Fair Labor Standards Act).

The panel held that 47 U.S.C. § 227(b)(1)(A)(iii), which restricts unsolicited text messaging, does not violate the First Amendment.

Evan M. Meyers (argued), McGuire Law, P.C., Chicago, Illinois; Michael J. McMorrow, McMorrow Law, P.C., Chicago, Illinois; and David C. Parisi, Parisi & Havens LLP, Sherman Oaks, California, for Plaintiff-Appellant.

Laura A. Wytsma (argued), Michael L. Mallow, Christine M. Reilly, and Meredith J. Siller, Loeb & Loeb LLP, Los Angeles, California, for Defendant-Appellee.

Before: Fortunato P. Benavides,[*] Kim McLane Wardlaw, and Richard R. Clifton, Circuit Judges. Opinion by Judge Benavides.

OPINION

Page 873

BENAVIDES, Circuit Judge:

Plaintiff Jose Gomez appeals adverse summary judgment on personal and putative class claims brought pursuant to the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227(b)(1)(A)(iii) (2012). Gomez alleges that the Campbell-Ewald Company instructed or allowed a third-party vendor to send unsolicited text messages on behalf of the United States Navy, with whom Campbell-Ewald had a marketing contract. Because we conclude that Campbell-Ewald is not entitled to immunity, and because we find no alternate basis upon which to grant its motion for summary judgment, we vacate the judgment and remand to the district court.

I.

The facts with respect to Gomez's personal claim are largely undisputed. On May 11, 2006, Gomez received an unsolicited text message 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 message was the result of collaboration between the Navy and the Campbell-Ewald Company,[1] a marketing consultant hired by the Navy to develop and execute a multimedia recruiting campaign. The Navy and Campbell-Ewald agreed to " target" young adults aged 18 to 24, and to send messages only to cellular users that had consented to solicitation. The message itself was sent by Mindmatics, to whom the dialing had been outsourced. Mindmatics was responsible for generating a list of phone numbers that fit the stated conditions, and for physically transmitting the messages. Neither the Navy nor Mindmatics is party to this suit.

Page 874

In 2010, Gomez filed the present action against Campbell-Ewald, alleging a single violation of 47 U.S.C. § 227(b)(1)(A)(iii), which states:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States--
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system ...

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