United States Ninth Circuit

In this class action, in which plaintiff alleged that defendant company instructed or allowed a third-party vendor to send unsolicited text messages on behalf of the US Navy, with which the defendant had a marketing contract, summary judgment in favor of the defendant on claims brought under the Telephone Consumer Protection Act (TCPA), is vacated and remanded, where: 1) pursuant to Diaz v. First Am. Home Buyers Prot. Corp, plaintiff’s individual and putative class claims were not mooted by his refusal to accept a settlement offer before he moved fro class certification; 2) 47 U.S.C. section 227(b)(1)(A)(iii), which restricts unsolicited text messaging, does not violate the First Amendment; 3) a defendant may be held vicariously liable for TCPA violations where the plaintiff establishes an agency relationship between defendant and a third-party caller; and 4) defendant was not entitled to derivative sovereign immunity.

Appellate Information

• Decided 09/19/2014
• Published 09/19/2014

Judges

• Benavides

Court

• United States Ninth Circuit

Counsel