Marketer on the hook for other party’s unauthorized texts

On Friday, the Ninth Circuit held that a marketing company could be liable under the Telephone Consumer Protection Act (TCPA) for unauthorized texts sent by a third party.  (Texts count as  “calls” under the TCPA.)

In Gomez v. Campbell-Ewald Co., the U. S. Navy contracted with Campbell-Ewald, a marketing consultant, on a multimedia recruiting campaign.  Part of the campaign was supposed to consist of texts to 18-24 year old men who had consented to receive such texts.

Campbell-Ewald hired another company, Mindmatics, to send the texts, at least one of which went to Mr. Gomez.  The text read,

Destined for something big? Do it in the
Navy.  Get a career. An education. And a
chance to serve a greater cause. For a FREE
Navy video call [number].

Unfortunately for Campbell-Ewald, not only was Mr. Gomez 40 years old, but he had not consented to receive unsolicited texts.  A plaintiff’s attorney sensed an opportunity, and a class action was born.  The defendant tried an old method of getting rid of the case by offering Mr. Gomez everything he could recover if he won the case, but the lawyer didn’t fall for that.

Campbell-Ewald also argued that it should not be liable under the TCPA because the texts were not sent by it, but instead were sent by the third party.  The Ninth Circuit had not previously decided whether a defendant in a TCPA case could be “vicariously” liable for another company’s actions.  Interpreting the statute for the first time on this issue, the court held that Campbell-Ewald could be liable, if the other company was acting as its agent when it sent the texts.  Several lower courts had already interpreted the TCPA this way, the court pointed out, and so does the Federal Communications Commission.

The ruling is not particularly surprising.  Unless a statute suggests otherwise, courts often apply agency principles in weighing a business’s liability, including various FTC claims.