Campbell-Ewald Company v. Gomez

PETITIONER: Campbell-Ewald Company
LOCATION: United States District Court for the Central District of California, Western Division

DOCKET NO.: 14-857
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 577 US (2016)
GRANTED: May 18, 2015
ARGUED: Oct 14, 2015
DECIDED: Jan 20, 2016

Anthony A. Yang - Assistant Solicitor General, for the United States as amicus curiae for the respondent
Gregory G. Garre - for the petitioner
Jonathan F. Mitchell - for the respondent

Facts of the case

On May 11, 2006, Jose Gomez received an unsolicited text message advertising the U.S. Navy. The text message was the result of a partnership between the Navy and the Campbell-Ewald Company, a marketing consultant that the Navy hired to help with a recruiting campaign. The compilation of the list of targeted phone numbers and the actual sending of the message was outsourced to a company called Mindmatics.

Gomez sued and argued that that Campbell-Ewald violated the Telephone Consumer Protection Act by instructing or allowing a third-party vendor to send unsolicited text messages on the behalf of a client. After Campbell-Ewald’s motion to dismiss was denied, the company offered Gomez a settlement, which Gomez rejected. Campbell-Ewald again moved to dismiss the case and argued that Gomez’s rejection of the settlement offer made the claim moot. The district court denied the motion, and Campbell-Ewald moved for summary judgment based on the argument that the company had derivative sovereign immunity because it was acting on behalf of the government. The district court granted the motion for summary judgment. The U.S. Court of Appeals for the Ninth Circuit reversed and held that Campbell-Ewald was not entitled to the derivative sovereign immunity defense because the defense had only ever been applied in the context of property damage resulting from public works projects.


(1) Does a case become moot when a plaintiff receives an offer of complete relief for his claim? If so, is the answer different when the plaintiff has asserted a class action claim but receives the offer of complete relief before any class is certified?
(2) Is the doctrine of derivative sovereign immunity limited to claims arising out of property damage caused by public works projects?

Media for Campbell-Ewald Company v. Gomez

Audio Transcription for Oral Argument - October 14, 2015 in Campbell-Ewald Company v. Gomez

Audio Transcription for Opinion Announcement - January 20, 2016 in Campbell-Ewald Company v. Gomez

John G. Roberts, Jr.:

Justice Ginsberg has the opinion of the Court this morning in case 14-857, Campbell-Ewald versus Gomez.

Ruth Bader Ginsburg:

This case presents two questions.

First, does an unaccepted offer to pay the monetary amount of a plaintiff's individual claim render a case moot when the plaintiff seeks relief on behalf of himself and others similarly situated.

Second, does the Federal Government's immunity from suit automatically shield one who contracts to perform work for the government?

We answer both questions no.

The Telephone Consumer Protection Act provides that no person may use an automatic telephone dialing system to send a text message to a cellular telephone absent the recipient's prior expressed consent.

A person who receives such a message may recover statutory damages of $500 for violation; damages may be trebled to $1500 if the violation is willful.

The United States Navy hired petitioner Campbell to develop and carry out a recruiting campaign.

As part of the campaign, Campbell proposed to send test messages.

The Navy approved this idea conditioned on sending the messages only to individuals who had opted in to receive marketing solicitations.

The Navy's message was transmitted to over 100,000 recipients.

Petitioner Jose Gomez was a recipient of the Navy's text message, alleging that he never consented to receipt of recruiting messages, Gomez filed a class-action complaint on behalf of himself and others who had received the text message but had not consented to its receipt.

Prior to the deadline for filing a class certification motion, Campbell proposed to settle Gomez's individual claim by paying him treble statutory damages and filed an offer of judgment in accord with Federal Rule of Civil Procedure 68.

Gomez did not accept the offer.

Urging that its offer provided complete relief to Gomez, Campbell moved to dismiss the case as moot.

The District Court denied the motion.

Campbell later moved for summary judgment on a discrete ground, the US Navy is immune from suit under the act, Campbell observed, as contractor acting on the Navy's behalf, Campbell urged that it too was cloaked with the Navy's immunity.

The District Court agreed and granted Campbell's summary judgment motion.

The Court of Appeals for the Ninth Circuit disagreed with the District Court's immunity ruling but agreed that Gomez's case remained live despite Campbell's settlement offer.

We granted review to resolve a disagreement among Court of Appeals over whether an unaccepted offer can moot a plaintiff's claim.

We agree to take up as well the federal contractor immunity question, Campbell's petition raised.

We hold today that an unaccepted settlement offer like other unaccepted contract offers creates no lasting right or obligation.

Once unaccepted, the offer is off the table giving Campbell's continuing denial of liability, the parties remain adverse, both retain the same stake in the litigation they had at the onset.

We also hold that Campbell's status as a federal contractor does not entitle it to immunity from Gomez's suit.

A federal contractor who simply does what the government directs it to do may be shielded from liability for performing as instructed.

But when a contractor violates both Federal Law and the government's explicit instructions as he alleged, no derivative immunity protects the contractor from suit by a persons adversely affected by the violation.

Justice Thomas has filed an opinion concurring in the judgment.

The Chief Justice has filed the dissenting opinion in which Justices Scalia and Alito join.

Justice Alito has also filed a dissenting opinion.