“It Ain’t Over ’til It’s Over” (… Or, is it?)
Lenny Kravitz (June 1991)
In my mediation practice, I have handled cases involving the Telephone Consumer Protection Act, 47 U. S. C. § 227 (“TCPA”) and class actions. The other day, I came across a case argued before the U. S. Supreme Court on October 14, 2015 involving both of these issues. It caught my interest because the questions presented to the U. S. Supreme Court are; (1) whether a case becomes moot when the plaintiff receives a settlement offer that provides full and complete relief on his claim; and (2) Does such an offer of complete relief on his claim moot his class claim where that class has not yet been certified? (Campbell-Ewald Company v Gomez, Petition for Certiorari, U. S. Supreme Court, Case No. 14-857 at page 2. (“Pet. For Cert.”))
The TCPA makes it unlawful for any person within the United States or from outside the United States if the recipient is located in the United States to make an unsolicited”… telephone call using any automatic telephone dialing system or an artificial or prerecorded voice…” In short, it prohibits those unwanted spam telephone calls and text messages that we sometimes get on our mobile telephones. The penalty for each violation is actual monetary loss or $500.00 whichever is greater. If the violation is knowing or willful, the damages are tripled.
Prior to 2006, the U. S. Navy contracted with an outside contractor – Campbell-Ewald – to create a mobile marketing campaign directed to those young adults aged 18-24 years of age. Campbell-Ewald outsourced this campaign and the actual dialing to Mindmatics with the direction that the message was to be sent only to those mobile telephone users consenting to the solicitation. Gomez v Campbell-Ewald, 786 F.3d 871, 874 (9th Cir. 2014). (“Ninth Circuit Opinion”)
In May 2006, Jose Gomez received a text message:
Destined for something big? Do it in
the Navy. Get a career. An education.
And a chance to serve a greater cause.
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