Jose Gomez v. Campbell-Ewald Co.

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)(l)(A)(iii) (2012). Gomez alleges that the CampbellEwald 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:

The message was the result of collaboration between the Navy and the CampbellEwald Company, 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…