Campbell-Ewald Co. v. Gomez (2016)

But see Campbell-Ewald Co. v. Gomez, 577 U.S. 153 , 178 n.1 (2016) (Roberts, C.J., dis- senting) (“Gomez’s interest … in obtaining a class incentive award does not create Article III standing.”) (citing Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 107 (1998)).

But under its TCPA rulemaking authority, the FCC has applied the statute’s regulations of voice calls to text messages. 30 4 Case: 17-14077 Date Filed: 08/28/2019 Page: 5 of 22 FCC Rcd. 7961, 7964 n.3, 7978–79, 8016–22 (2015); 18 FCC Rcd. 14014, 14115 (2003); see also Campbell–Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”).

See Lewis v. Clarke, 581 U.S. 155 , 162–63 (2017); see also Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166 (2016) (“The United States and its agencies, it is undisputed, are not subject to the TCPA’s prohibitions because no statute lifts their immunity.”) But the plaintiff has also sued Congresswoman Speier in her individual capacity.

See Cranor v. 5 Star Nutrition, L.L.C., 988 F.3d 686 , 690–91 (5th Cir. 2021); see also, e.g., Camp- bell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (“A text message to a cellular phone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”).

See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 167 (2016) (“Qualified immunity reduces the risk that contractors will shy away from government work.”).

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166 (2016) (“The United States and its agencies . . . are not subject to the TCPA’s prohibitions because no statute lifts their immunity.”).

The Act prohibits using any “automatic telephone dialing system” to make any call “to any telephone number assigned to a … cellular telephone service.” 47 U.S.C. § 227 (b)(1)(A)(iii); see Campbell‐Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016) (“A text message to a cellular telephone, it is undisputed, quali‐ fies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”).

The Act prohibits using any “automatic telephone dialing system” to make any call “to any telephone number assigned to a … cellular telephone service.” 47 U.S.C. § 227 (b)(1)(A)(iii); see Campbell‐Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016) (“A text message to a cellular telephone, it is undisputed, quali‐ fies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”).

The Act prohibits using any “automatic telephone dialing system” to make any call “to any telephone number assigned to a … cellular telephone service.” 47 U.S.C. § 227 (b)(1)(A)(iii); see Campbell‐Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016) (“A text message to a cellular telephone, it is undisputed, quali‐ fies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”).

See Campbell-Ewald Co., 136 S. Ct. at 672 (“We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”). -9- CHAMBERS V.

See Campbell-Ewald Co., 136 S. Ct. at 672 (“We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”). -9- CHAMBERS V.

See Campbell–Ewald, 136 S.Ct. at 672 ( “While a class lacks independent status until certified, a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.”).

Chapman v. First Index, Inc., 796 F.3d 783 , 787–88 (7th Cir. 2015) (overruling prior cases that held “that a defendant’s offer of full compensation moots the litigation”); Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 165 (2016) (“[A]n unaccepted . . . offer of judgment does not moot a plaintiff’s [class action] case . . . .”).

In re DISH Network, LLC, 28 FCC Rcd. 6574, 6582 (2013); see also Campbell- Ewald Co. v. Gomez, 577 U.S. 153, 168 (2016) (“[w]e have no cause to question [the FCC’s ruling in DISH Network]”); In re Dialing Servs., LLC, 29 FCC Rcd. 5537, 5543 (2014) (“The same logic that DISH Network applied to robocalls to landline phones with respect to ‘initiation’ of calls (Section 227(b)(1)(B) of the Act) likewise applies to robocalls to wireless phones with respect to ‘making’ calls (Sec…

Campbell-Ewald, 577 U.S. at 166 (“When a contractor violates both federal law and the Government’s explicit instructions, as here alleged, no ‘derivative immunity’ shields the contractor from suit by persons adversely affected by the violation.”).° D.

Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 674 (2016) (citing In Re Joint Petition filed by Dish Network, LLC, et al., 28 F.C.C.R. 6574, 2013 WL 1934349 (F.C.C.

See Campbell-Ewald Co., 136 S. Ct. at 670-71 (“Having rejected Campbell’s settlement bid, and given Campbell’s continuing denial of liability,” and “with no settlement offer still operative,” the parties “retained the same stake in the litigation they had at the outset.”).

See Six Star Holdings, LLC, 821 F.3d at 803 (explaining that, because the plaintiff had “already suffered an injury from the unconstitutional ordinances” by refraining from protected speech, it had standing to seek damages); Parvati Corp., 630 F.3d at 514 (noting that damages claims did not depend on the plaintiff’s “continued ownership of the property”); see also Campbell-Ewald, 136 S. Ct. at 677 (“[W]hether a claim for prospective relief is moot is different from the issue…

If they are, Fiesta Nissan argues that at the very least Plaintiff lacks the Article III standing necessary to seek injunctive relief. 3 See, e.g., Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”); Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686, 688 (5th Cir. 2021) (“Robocalls and robotexts are nuisances.

See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160-61 (2016) (“If an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.”).

We reiterate that they are.”); see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009) (“a text message is a ‘call’ within the meaning of the TCPA”); Campbell- Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”).

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 136 (2016) (“[U]nder federal common-law 24 principles of agency, there is vicarious liability for TCPA violations.”).

Litig., 725 F.3d 65, 105 (2d Cir. 2013); see also Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161 (2016), as revised (Feb. 9, 2016) (“As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.”).

“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and ‘controversies.’” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (quoting U.S. CONST., art.

See id. at 162 (“An unaccepted settlement offer—like any 3 unaccepted contract offer—is a legal nullity, with no operative affect.”).

Thus, the attempted tender on September 30, 2022 was not large enough to 15 conclusively moot Plaintiff’s FLSA claim.3 See generally Campbell-Ewald Co. v. Gomez, 16 577 U.S. 153, 161 (2016) (“As long as the parties have a concrete interest, however small, 17 in the outcome of the litigation, the case is not moot.”). 18 Second, this case is also distinguishable from Orozco, Rueling, and Kouba in that 19 Plaintiff took immediate steps to decline to accept the tendered funds.

See Campbell-Ewald, 577 U.S. at 165 (“The dissent’s approach would place the defendant in the driver’s seat.”).

See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a 'call' within the compass of [the TCPA]”); Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir. 2019) (“[T]he FCC has applied the [TCPA’s] regulations of voice calls to text messages.”).

See Campbell-Ewald Co. v. 14 Gomez, 577 U.S. 153, 161 (2016) (“A case becomes moot . . . only when it is impossible for a 15 court to grant any effectual relief whatever to the prevailing party.”) (internal quotation and 16 citation omitted). 17 II.

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 168 (2016) (“[T]he Federal Communications Commission has ruled that, under federal common-law principles of agency, there is vicarious liability for TCPA violations.

(See generally doc. 22); see also Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”). ii.

With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156, 160 (2016) (“We granted certiorari to resolve a disagreement among the Courts of Appeals over whether an unaccepted offer can moot a plaintiff’s claim, thereby depriving federal courts of Article III jurisdiction”).

See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 165 (2016) (“In sum, an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case.”).

See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 165 (2016) (“While a class lacks independent status until certified, . . . a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.”).

See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 165 (2016) (“While a class lacks independent status until certified, . . . a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.”).

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 165 (2016) (“In sum, an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case . . . .”).

See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 165 (2016) ("[A]n unaccepted settlement offer or offer of judgment does not moot a plaintiff's case.").12 Additionally, Plaintiffs have demonstrated that alternative remediation efforts outside this litigation are far from established: The States have already firmly rejected a proposal from Defendants to this end, and Defendants have not provided any additional evidence that a widescale refund program has been approved, let alon…

Melito, 923 F.3d at 88–89 (citing 47 U.S.C. § 227 (b)(2); Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”).

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). 61 Miller v. City of Portland, 868 F.3d 846, 851 (9th Cir. 2017); see also Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 163 (2016) (applying principles of contract law to Rule 68 offer of judgment). 62 Lima v. Newark Police Dep’t, 658 F.3d 324, 330 (3d Cir. 2011) ( “ambiguities in Rule 68 offers are to be resolved against the offerors”) (citing Nordby v. Anchor Hocking Packaging Co., 199…

Rcd. at 6586–87 (quotation marks, citations, and alterations omitted); Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 168 (2016) (“The Ninth Circuit deferred to [the FCC ruling’s in In re Dish Network, LLC] and we have no cause to question it.”).

See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016), as revised (Feb. 9, 2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”).

Cal. 2018) (Exception to action capable of repetition yet evading review applies only to Article III mootness, not statutory mootness) (citing Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and ‘controversies.’”)).

Cal. 2018) (Exception to action capable of repetition yet evading review applies only to Article III mootness, not statutory mootness) (citing Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and ‘controversies.’”)).

Cal. 2018) (Exception to action capable of repetition yet evading review applies only to Article III mootness, not statutory mootness) (citing Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and ‘controversies.’”)).

Cal. 2018) (Exception to action capable of repetition yet evading review applies only to Article III mootness, not statutory mootness) (citing Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and ‘controversies.’”)).

Cal. 2018) (Exception to action capable of repetition yet evading review applies only to Article III mootness, not statutory mootness) (citing Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and ‘controversies.’”)).

Cal. 2018) (Exception to action capable of repetition yet evading review applies only to Article III mootness, not statutory mootness) (citing Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and ‘controversies.’”)).

The statute excludes all government entities from the definition of a “person.” See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166 (2016) (“The United States and its agencies ... are not subject to the TCPA's prohibitions because no statute lifts their immunity.”).

See McCall v. Chesapeake Energy Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), an accepted Rule 68 offer does.

See, e.g., Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016) (“A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of [47 U.S.C.] § 227(b)(1)(A)(iii).”). initiated, a text message that “includes or introduces an advertisement or constitutes telemarketing.” See 47 C.F.R. § 64.1200 (a)(2).