Marketing Consultant Liable for Unsolicted Text Messages, Ninth Circuit Rules

Telemarketing companies that send unsolicited text messages on behalf of a third party are legally liable for violating the Telephone Consumer Protection Act, the U.S. Appeals Court for the Ninth Circuit has ruled.

The Sept. 19 decision, which reversed a lower court ruling, states that “vicarious liability” extends to third parties who have been contracted to send the messages on another’s behalf.

The U.S. Navy hired marketing firm Campbell-Ewald Co. to develop a multimedia recruiting campaign. Campbell-Ewald then hired a third party, Mindmatics, to text thousands of cellphones whose users were between the ages of 18 and 24. While the Navy and Campbell-Ewald agreed only for texts to be sent to people who had consented to solicitation, Mindmatics unwittingly also sent text messages to people had not given permission to receive them.

In 2006, lead plaintiff Jose Gomez filed a class action lawsuit after receiving the following text message: “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].”

Gomez argued in the TCPA class action lawsuit that he did not consent to receiving the text message. Additionally, at the time he received the message, Gomez was 40 years old.

The Ninth Circuit held that vicarious liability under the Telephone Consumer Protection Act extends even to those who merely contract for messaging services. In the Gomez case, Mindmatics was not named as a defendant.

Each violation of the TCPA, enacted in 1991, can carry up to a $500 fine per violation, while each cell phone user who proves an intentional violation can sue for up to $1,500 for each unlawful message.

Provisions of the law prohibit solicitations to residences before 8 a.m. or after 9 p.m. Solicitors are required to provide their name as well as the name of the company they are calling for in addition to a telephone number or address where the company can be contacted. Solicitors must also maintain a company-specific do-not-call list which is to be honored for five years.

Under TCPA guidelines, using autodialing equipment to send calls to wireless phones without the prior consent of the cellphone user is prohibited. Text messages are considered under the law as the equivalent of telephone calls.

Banks, restaurants and debt collection agencies are notorious for engaging in TCPA violations for which the courts have awarded consumers millions of dollars stemming from class action lawsuits.

Campbell-Ewald, named as a defendant along with the Navy, unsuccessfully argued that it should be entitled to immunity since the calls were made on behalf of the Navy.

The case will return to the U.S. District Court for further proceedings.

The TCPA Class Action Lawsuit is Gomez v. Campbell-Ewald Co., Case No. 13-55486

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If you received an unwanted phone call or text message on your cell phone, you may have a legal claim.