The U.S. Supreme Court announced Monday it will take on Campbell-Ewald Co. v. Gomez, where it will be presented with two key issues involving offers of judgment made pursuant to the Federal Rules of Civil Procedure

In the case, plaintiff Jose Gomez asserted a class claim under the TCPA against the Campbell-Ewald Company. Gomez alleged that the company hired a third-party vendor to send unsolicited text messages on behalf of the U.S. Navy. The company had a marketing contract with the Navy. 

The court likely will decide whether a plaintiff lacks standing to assert a claim after receiving an offer of judgment providing complete relief. Specifically, does an unaccepted offer that would fully satisfy a plaintiff’s claim renter a class-action claim moot?  The court also will review whether a consultant can be held “vicariously liable” for Telephone Consumer Protection Act violations made by a third-party vendor even if the call’s content was not on the hiring company’s behalf and the company did not place the call.

In the case, the text from the third-party vendor stated: "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 Navy and Campbell-Ewald had agreed to target young adults between 18- and 24-years-old and to send messages only to cell users who had consented to solicitation.

Gomez filed a federal case against Campbell-Ewald in the U.S. District Court for the Central District of California, alleging a TCPA violation, specifically pointing to a section that prohibits making a call to a cell phone without the "prior express consent" of the recipient. Gomez argued that he didn't consent to receiving the text message and it was undisputed that a text message constituted a “call" for the purposes of the statute. 

Gomez sought to represent a putative class action of other unconsenting recipients of the Navy’s recruiting text messages.

The TCPA allows a plaintiff to recover $500 for a violation and $1,500 if the plaintiff can establish that the violation was “willful." 

Campbell-Ewald sought to settle the case by offering Gomez $1,503.00 per violation, plus reasonable costs. He rejected the offer by allowing it to lapse, which led Campbell-Ewald to move to dismiss the case, arguing that Gomez’s rejection mooted the personal and putative class claims. 

The district court denied that motion and Campbell-Ewald moved for summary judgment, which was granted. However, the Ninth Circuit Court of Appeals reversed that dismissal, ruling that a settlement offer - even if made before the plaintiff moves for class certification - doesn’t render the class claims moot. The appellate court also disagreed with the defendant’s argument that vicarious liability should not extend to a marketing consultant that serves a middleman role. 

The Ninth Circuit court stated that Congress intended to apply the traditional standards of vicarious liability under the TCPA and concluded that the defendant could be held vicariously liable for its third-party subcontractor’s conduct because of the agency relationship between the parties.  

With the notable exception of the Ninth Circuit's decision, the majority of federal appellate courts have held that an offer that fully satisfies a plaintiff’s individual claim moots the claim. 

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