Advertising agency Campbell-Ewald Co. began sending text messages through its subcontractor, MindMatic LLC, in 2006 as part of a Navy-approved effort to tap new technologies in recruitment campaigns, the company says.  Among the recipients of the message, which began with “Destined for something big? Do it in the Navy,” was the plaintiff who said he never consented to receive the messages.

In March 2010 he filed a putative class action accusing Campbell-Ewald of violations of the Telephone Consumer Protection Act.  The challenged text messages were sent out to more than 100,000 individuals.

In an effort to moot the putative class action, the defendant offered to have judgment entered against it under Rule 68 by the named plaintiff in the amount of $1,503 for each unsolicited text message he received, more than three times the statutory amount of $500 per violation, before the case was certified as a class action.  The case was dismissed at the district court level, but it was remanded by the Ninth Circuit.

Campbell-Ewald said the circuit courts are split on a key issue in the TCPA case: whether an adequate offer of settlement moots the complaint.  It its petition, Campbell-Ewald stated that the Supreme Court should take the case to “finally eliminate the conflict and confusion on this important and recurring jurisdictional issue.”

The Ninth Circuit’s decision has only added to the growing split of authority as to whether complete Rule 68 offers of judgment can moot the claims of a putative class representative.  Troutman Sanders LLP will continue to monitor the developments in this important line of cases.