On July 21, 2015, Dentons filed an amicus brief with the Supreme Court of the United States on behalf of its clients, DRI – The Voice of the Defense Bar and the Professional Services Council (PSC), inCampbell-Ewald Company v. Gomez, No 14-857.  To be decided are issues of class-action mootness and derivative sovereign immunity.  The legal issues in the case stem from an inadvertent and innocuous, one-time US Navy recruitment text message allegedly sent to Jose Gomez by Campbell-Ewald, a consulting firm engaged by the Navy.

The US Navy awarded a contract to Campbell-Ewald Company to develop and conduct a mobile marketing campaign that included sending out a recruitment-related text message to about 150,000 individuals between the ages of 18-24.  The plaintiff alleges that at the age of 40, he received the text message without his consent.  He filed suit against Campbell-Ewald on behalf of himself and a putative class of 100,000 individuals seeking damages for violation of the federal Telephone Consumer Protection Act (TCPA).

The TCPA enables an individual claimant to obtain up to $500 in “damages” for an unintentional violation of the act without having to prove that the violation caused any actual harm.  This can result in substantial monetary liability (and lucrative attorney fees for plaintiff class counsel) when an alleged violation involves tens of thousands of individuals.

Before the plaintiff sought class certification, Campbell-Ewald offered the sole named plaintiff complete monetary relief, but the plaintiff declined.  Campbell-Ewald contends that its offers of complete relief mooted both the plaintiff’s individual and class claims, but the Ninth Circuit disagreed.  The Ninth Circuit also rejected Campbell-Ewald’s argument that it is entitled to derivative sovereign immunity, because if the Navy had sent out the text message itself, sovereign immunity would bar a TCPA suit against the United States.

The amicus brief argues that the Supreme Court should hold that a putative class action is moot, and must be dismissed, where the sole named plaintiff’s claim is mooted prior to class certification.  Allowing such litigation to proceed would violate the Article III case-or-controversy requirement since the plaintiff no longer has a “personal stake” in his own suit.  It also would conflict with Rule 23 class-certification requirements, including the requirement that the named plaintiff be able to fairly and adequately represent the interests of the class.

In addition, the brief argues that Campbell-Ewald is entitled to derivative sovereign immunity under a line of cases going back to Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940).  It urges the Court, insofar as it addresses derivative sovereign immunity, to hold that derivative sovereign immunity would apply if a similar claim, filed against the United States, would be barred by sovereign immunity, and the contractor was acting within the scope of its contractual relationship with the federal government when the claim arose.  If the Court reaches the derivative sovereign immunity issue, it will be its first head-on consideration of the issue in 75 years.

Read the amicus brief here.