F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S E G O M E Z , individually and on behalf of a class of similarly situated individuals, Plaintiff-Appellant
,

v

.

C A M P B E L L -E W

A L D C O M P A

N Y , Defendant-Appellee

. N o. 13-55486

D.C. No. 2:10-cv-02007- D MG-CW

OPI NI ON

A ppeal from the United States District Court for the Central District of California Dolly M. Gee, District J udg e, Presiding

Arg ued and Submitted J uly 11, 2014—Pasadena, California

F iled September 19, 2014

B efore: F ortunato P. B enavides, * Kim McL ane W ardlaw,

a nd Richard R. Clifton, Circuit J udg es.
Opinion by

J udg e B enavides

* T h e Ho n o rab l e F o r t u n a to P

. B en av id es, Sen io r Circu it J u d g e f o r th e U.S. Co u rt o f

A p peals f o r th e Fif th Circu it, sittin g b y

d esig n atio n

.G O M E Z V

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SUMMARY * *

Telephone Consum er P r o t ection Act

The p anel v acated the d istrict c ourt’s summary judg ment in favor o f the defendant on p ersonal and putative class claims under the Telephone Consumer Protection Act.

The plaintiff alleg ed that the defendant company instructed o r a llowed a third-party vendor to send unsolicited
tex t messag es o n b ehalf o f the U nited States Navy
, with which the defendant had a marketing contract.

The panel held that pursua n t t o Diaz v. First Am. Home Buyers Prot. Corp.
, 732 F .3d 948 (9 t h Cir. 2 013), the plaintiff’s individual claim was not mooted by his refusal to

a c c ept a settlement offer under F ederal Rule of Civi l Procedure 68. Pursuant to Pitts v

. Terrible Herbst, Inc.
, 653 F .3d 1081 (9th Cir. 2011), the putative c lass claims were not mooted where the plaintiff rejected the settlement o ffer before he moved for class c ertification. The p anel concluded th a t Pitts and Diaz w ere not clearly irreconcilable with Genesis Healthcare Corp. v. S ymczyk
, 133 S. Ct. 1523 (2013) (addressing collective action broug ht pursuant to F air L abor Standards Act).

The panel held that 47 U.S.C. § 227(b)(1)(A)(iii), which restricts unsolicited tex t messag ing
, does not violate the F irst Amendment.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G O M E Z V

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The p an el held that a defendant may be held vicariously liable for TCPA violations where the p laintiff establishes an
ag ency relationship, as defined by federal c ommon law, between the defendant and a third-party caller.

F inally
, the panel held that the defendant was not entitled
to derivative sover e ig n immunity

. I t remanded the case for further proceeding s consistent with this opinion.

COUNSEL

Evan M. Mey ers (arg

ued), McGuire L aw, P.C., Chicag o, I llinois; Michael J

. McMorrow, McM orrow L aw, P.C., Chicag o, I llinois; and D avid C. Parisi, Parisi & H a vens L L P, Sherman Oaks, California, for Plaintiff-Appellant.

L aura A. W y

tsma ( arg ued), Michael L

. Mallow, Christine M. Reilly
, and Meredith J

. Siller, L oeb & L oeb L L P, L os Ang eles, California, for Defendant-Appellee.

OP INION

B ENAVI DES, Circuit J udg e:

Plaintiff J ose Gomez appeals adverse summary judg ment

on personal and putative class c laims b roug ht pursuant to the Telephone C o nsumer Protection Act (“TCPA”), 47 U .S.C. § 227(b)(1)(A)(iii) ( 2012). Gomez alleg es that the CampbellEwald Company instructed or allowed a third-party v endor to send unsolicited tex t messag es on behalf of the United States Navy
, with whom Campbell-Ewald had a marketing c ontract.G O M E Z V

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B ecause we c onclude that Campbell-Ewald is not entitled to immunity
, and because we find no alternate basis upon which
to g rant its motion f

or summary judg ment, we vacate the judg ment and remand to the district court.

I

.

T he facts with respect to Gomez ’s personal cla i m a r e larg e ly undisputed. O n May 11, 2006, Gomez rec e i v e d an unsolicited tex t messag e stating :

Destined for something big ? Do it in the N av y

. Get a career. A n e d ucation. And a chance to serve a g re ater cause. F or a F REE Navy video call [ number]

.

The messag e was the result of c o llaboration between the Navy and t he Campbell-Ewald Company
, 1 a marketing

c o n s u l tant hired by the Navy to develop a nd ex ecute a multimedia recruiting c ampaig n

. The Navy and C ampbellEwald ag reed to “targ et” y oung adult s a ge d 18 to 24, and to send messag es only to cellular users t h a t had consented to solicitation. The messag e itself was sent by Mindmatics, to whom the dialing had been outsourced. Mindmat i c s was responsible f

or g enerating a list of phone numbers that fit the stated conditions, and f or phy sically tran s m i t ting the
messag es. Neither the Navy nor Mindmatics is party to this suit.

I n 2010, Gomez filed the present action a ga inst Campbell-Ewald, alleg ing a sing le violation of 4 7 U .S.C. § 227(b)(1)(A)(iii), which states:

1 T h e co m

p an y is n o w k n ow n as L o w e Cam

p b ell Ew ald

.G O M E Z V

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I t shall be unlawful for any person within the United States, or any person out s i de the United States if the recipient i s within the United States—

( A ) t o make any call (other than a ca l l made for eme rg ency purposes or made with the prior ex press consent o f the

c al l e d party

) u s i n g a n y a u t o m a t i c telephone dialing sy stem or an artificial o r prerecorded voice— . . .

(iii) to any telephone number assig n ed
to a pag ing service [ or] cellular telephone service . . . .

Gomez contends that he d id n ot consent to receipt of the tex t messag e. H e also notes that he w as 40 y ears old at t h e t ime he received the messag e, w ell o utside o f the Navy ’ s targ et market. I t is undisputed that a tex t messag e constitutes a c all for the purposes of this section. S ee S a t t erfield v. Simon & Schuster, Inc
., 569 F .3d 9 46, 952 ( 9th Cir. 2009) (“[ W] e hold that a tex t messag e is a ‘call’ within the m e a n i n g o f the TCPA.”). I n addition to seeking compensation for the alleg ed violation o f the T C P A, Gomez also soug h t to r epresent a putative c lass o f other unconsenting recipients of the Navy ’s recruitingtex t messag es.

After a 12(b)(6) motion to d ismiss was denied, CampbellEwald tried to settle the case. Campbell- E w a l d offered Gomez $1503.00 per v iolation, p lus reasonable costs, but Gomez rejected the offer by a llowing it to lapse in accordance with its own terms.G O M E Z V

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Campbell-Ewald then moved to d ismiss the cas e u n d er R u l e 12(b)(1), arg uing that Gomez ’s rejection of the o f f e r mooted the personal an d putative c lass claims. After the
court denied the motion, Campbell-Ewald mov ed for
summary judg ment, seeking derivative immunity under Y e a rsley v

. W

.A. Ross Construction Co.
, 309 U.S. 18 (1940). I n opposition to the summary judg ment motion, Gomez presented evidence that the Navy intended the messag es to be
sent o nly to i n d i v i duals who had c onsented or “ opted in” to

re ceive messag es like the recruiting tex t. A Navy representative testified th a t Campbell-Ewald was not authoriz ed to send tex ts to individuals who had not opted in. The district court ultimately g ranted the motion, holding that Campbell-Ewald is “immune from liability under the doctrine of derivative sover e i gn immunity .” Gomez v. CampbellEwald Co.
, No. CV 10-2007 DMG CW X, 2013 W L 655237,
at *6 (C.D. Cal. F eb. 22, 2013). Gomez f iled a timely appeal,
arg uing that the Y

earsley doctrine is inapplicable.

T h i s C ourt reviews summary judg ment de novo , affirming only where there ex ists no g e nuine di s p u t e of material fact. Satterfield
, 569 F .3d at 9 50; see a l s o F E D

. R. C I V

. P. 56(a). W e are f ree to affirm “on any basis supported by the record.” Gordon v. Virtumundo, Inc
., 575 F .3d 1040, 1047 (9th Cir. 2009).

I I

.

W e b e g in with jurisdi c t ion. Upon G omez ’s timely appeal, Campbell-Ewald filed a motion to dismiss for lack o f jurisdiction, arg uing that t h e personal and putative class claims were mooted by Gomez ’s refusal t o a c c e p t the

s e t t l ement offer. W e denied that motion without p rejudice, and now reject Campbell-Ewald’s arg ument on the merits.G O M E Z V

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Gomez ’s individual claim is not moot. Campbell-Ewald
arg ues that “whether or not the class action here is moot,” the individual claim was mooted by Gomez ’s rejection of the offer. The company is m i s taken. Althoug h this issue was unsettled until recently , we have now ex pressly resolved the
q uestion. “[ A] n unaccepted Rule 68 offer that would f u l l y satisfy a plainti f

f ’ s claim is insufficient to render the claim moot.” Diaz v. First Am. Home B uyers Prot. Corp
., 732 F .3d 948, 950 (9th Cir. 2013). B ecause the unaccepted offer alone is “ insufficient” to moot Gom ez ’s claim, and as CampbellEwald identifies n o alternate or additional basis for mootness, the claim is still a live controversy

. Similarly
, t h e putative class claims are not moot. W e have already ex plained that “ a n unaccepted Rule 68 offer of judg ment—for the full amoun t of the named plaintiff’s individual claim and made before the named plaintiff files a motion f or class certification—does not moot a class action.” Pitts v. Terrible Herbst, Inc
., 653 F .3d 1081, 1091–92 (9th Cir. 2011). L ike the Pitts plaintiff, G omez rejected the offer before he moved for class certificat i o n

. Gomez ’s rejection therefore does not affect any class claims.

Campbell-Ewald recog niz es that it is asking this panel to depart from t h e s e precedents. Yet it is well settled that we

are bound by our prior d ecisions. Miller v. Gammie
, 335 F .3d 889, 900 ( 9th Cir. 2003) (en banc). Althoug h there is an

ex c e ption for precedents that ha ve been overruled, that

ex c e ption a

pplies o nly w here “ the relevant court of last resort [ has] und e r c u t the theory or reasoning underly ing the prior circuit precedent in such a w a y t h a t the cases are clearly irreconcilable.” Ibid

. Campbell-Ewald arg ues that Pitts a nd Diaz are clearly irreconc i l a ble with the Supreme Court’s
recent d e cision in Genesis Healthcare Corp. v. Symczy k
, —G O M E Z V

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U.S. —, 133 S. Ct. 1 523 (2013). Campbell-Ewald overstates the relevance of that case, which involved a collective action broug ht pursuant to § 16(b) of the F air L abor Standards Act. Id. at 1 526–27. The d ef e n d a n t arg ued that the case was mooted by the plaintiff’s rejection of a settlement o ffer o f complete relief. Id

. at 1528. The Supreme Court ultimately
ag reed, first ac c e p t i ng the lower court’s conclusion that the
person a l c l aim was moot, and then holding that the named pl a i ntiff had “no p e r sonal interest in representing putative, unnamed claimants, nor any ot h er continuing interest that would preserve her suit from mootness.” Id . at 1532.

Campbell-Ewald correc t l y observes that Genesis undermined s o m e of the reasoning employ ed in Pitts a nd Diaz

. F or ex a mple, the Pitts opinion referred to the risk that

a defendant mig ht “ pick o ff” named plaintiffs in order to evade class litig ation. 653 F .3d a t 1091 (quoti n g W e i s s v

. Regal Collections
, 385 F .3d 337, 344 (3d C i r

. 2 0 04)). The Genesis Court distanced itself from such reasoning
, pointing
out that the arg ument had only been use d o n c e b y the hig h Court, and only “in d icta.” 133 S. Ct. a t 1532 (referring to Deposit G uar. Nat’l Bank, Jackson, Miss. v. Roper
, 445 U.S. 326, 3 39 (1980)). Nevertheless, courts have univer s ally concluded that the Genesis discussion d oes n o t apply to class actions. 2 I n fact, Genesis itself emphasiz es that “Rule 23

2 A t least t en co u rts h ad ex p ressly stated th at th e Gen esis an aly sis d oes

n o t b in d co u rts w ith resp ect to class actio n claim s. E.g
., Ep stein v. JPMo rg a n Ch a se & Co

. , No

. 1 3 Civ

. 4 7 4 4 (KP F), 2 0 1 4 W L 1 1 3 3 5 6 7
, at

* 9 (S.D.N.Y. Mar. 2 1 , 2 0 1 4 ) (“ T h e co u rt ag rees w ith P lain tif f th at th ese [p rio r class actio n ] cases w ere n o t af f ected b y th e Su

p rem e Co u rt’ s recen t d ecisio n in Gen esis

. . . .”); Kn utso n v. S c h w a n ’ s Ho me Serv., In c ., No

. 3 :1 2

- cv

- 0 9 6 4- G P C- DHB
, 20 1 3 W L 4 7 7 47 6 3, at * 1 1 (S.D. Cal. Sep t. 5
, 2 0 1 3 ) (co n clu d in g t

h at Pitts w as n o t af

f ected by Gen esis ). W e are n o t

aw are o f an y co u rt th at h as h eld o t

h erw ise.G O M E Z V

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[ class] actions are fundamentally dif f erent from collective actions under the F L SA” and, therefo r e , the precedents

e s t a b lished for one set of cases are “inapplicable” to t h e ot h e r

. 1 33 S. Ct. at 1529. According ly
, because Genesis is
not “clearly irreconcilab l e” w ith Pitts or Diaz
, this panel

r e mains bound by circuit precedent, a nd Campbell-Ewald’s
mootness arg uments must be r e jected. Miller
, 335 F .3d at 900.

I I I

. Campbell-Ewald’s constitutional c halle ng e is equally unavailing

. The company a rg ues that the statut e is unconstitutional either f

acially or as a

pplied, but its arg ument relies upon a flawed a p p lication o f F irst A mendment principles. Althoug h the district court did not u l t i m ately

r e a ch this issue, the record c onfirms that the c halleng e w a s properly raised below.

W e h ave a lready a ffirmed the constitutionality o f this section of the TCPA. Moser v. FCC
, 46 F .3d 970, 973

– 74 (9th Cir. 1995 ). The g overnment may impose reasonable restrictions on the time, place, o r manner of protected speech, provided that the restrictions “are justified without r e ference
to the content of the r estricted speech, that they are narrowly tailored to serve a sig nificant g overnmental interest, and that
t h e y l e a v e o p e n a m p l e a l t e r n a t i v e c h a n n e l s f o r communicat i o n o f the information.” W ard v

. Rock Against Racism
, 491 U.S. 781, 791 (1989) ( quoting Clark v. Cmty. for Creative Non-Vio l e nce , 468 U.S. 2 88, 293 (1984) (other citations omitted)). I n analy z ing the section, the Moser Court focused o n the content-neutral statutory lang uag e. “B ecause nothing in the statute requires the [ F ederal Communications Commission] to disting uish between commercial a ndG O M E Z V

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noncommercial speech
, we conclude that the statute should be analy z ed as a content-neutral time, place
, a n d manner restriction.” 3 W e then upheld the statute after finding that the protection of privacy is a s i gn ificant interest, the restriction of automated calling is n arrowly tailored to further that interest, a nd the law a llows for “many alternative channels o f communication.” Id. at 974–75.

Campbell-Ewald does not contest our reasoning i n M o ser

. I nstead, Campbel l

- E wald arg ues that the g overnment’s interest only

ex tends to the protection of residential privacy
, an d t h at therefore the statute is n ot narrowly tailored to the

ex tent that it applies to cellular tex t messag es. The arg ument fails. F irst, this Court already a pplies th e TCPA to tex t messag es. Satterfield , 569 F .3d at 951–52. Second, there is

no evidence that the g o v ernment’s interest in p rivacy ends at home—the fact that the statute reaches fax machines sug g ests otherwise. See 47 U.S.C. § 2 2 7(b)(1)(C). Third, to whatever

ex tent the g overnment’s sig nificant interest lies e x cl u s i vely in residential privacy
, the n ature o f cell phon es renders the restric t i o n of unsolicited tex t messag ing all the more necessary to e nsure that privacy

. A f t e r all, it seems safe to assume that most cellular users have their phones with them when they are at home. Campbell-Ewald itself notes that in
many households a cell phone is the home pho ne. I n fact,
recent stati s t ics sug g est that o ver 40% of American households now rely ex c lusively on wireless telephone

3 4 6 F.3 d at 9 7 3

. Cam

p b ell- Ew ald d o es n o t arg u e th at th e statu te is n o lo n g er c o n ten t n eu tral in so f ar as s om e im

p lem en tin g reg u latio n s d istin g u ish betw een co m

m ercial an d n o n co m

m ercial calls. S

ee 4 7 C .F.R. § 6 4 .1 2 0 0 (a)(2 ) (2 0 1 4 ); cf. Destin a tio n Ven tu res, Ltd

. v. FCC
, 4 6 F.3 d 5 4
, 5 6 (9 th Cir. 1 9 95 ) (h old in g th at th e T CP A ’ s treatm en t o f co m m ercial f acsim ile tran sm iss i o n s, 42 U.S.C. § 22 7 (b )(1 )(C), is a co n stitu tio n ally
p erm i tted co n ten t- b ased

restrictio n ).G O M E Z V

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s e rvice. 4 A s a consequence, prohibiting automated c alls t o land lines alone would not ade quately safeg uard the stipulated interest in residential p rivacy

. F o r all these r e a sons, Campbell-Ewald’s arg

ument is without merit.

Nor d o e s the g overnment speech doctrine provide Campbell-Ewald with a meritorious constitutional challeng e

. Campbell-Ewald arg ues that military r ecruiting messag e s a re

a form o f g overnment speech a fforded g reater prot ection b y the F irst Amendment. Campbell-Ewald mischaracteriz es the doctrine. The g overnment speech doctrine is a jurisprudential theory by w hich the f

e d eral g overnment can reg ulate its o wn

c ommunication “without the constraint o f viewpo i n t neutrality .” D owns v. L.A. Unified Sch. Dist
., 2 28 F

. 3 d 1003, 1017 ( 9th Cir. 2000), cert. d enied
, 532 U .S. 994 (2001). F o r

ex a mple, the F irst Amendment d oes n o t r e quire the federal
g overnment to fund messag es both f or and ag ainst abortion. Cf. Rust v. Sullivan
, 500 U.S. 173, 203 (1991) (upholding
, under the g overnment speech doctrine, reg ulatio n s f orbidding certain publicly funded doctors from e n d o r sing abortion). Similarly
, in this contex t, the doctrine would preclude Campbell-Ewald f

rom demandin g t hat the Navy c reate an advertising campaig n that d iscourag es military participation. The g o vernment speech doctrine is simply immaterial to the present disp u t e , in which the plaintiff is not advocating for viewpoint neutrality
, but is instead challeng ing the reg ulation of a particular means of communication.

4 S ee Karen Kap l an , S till h a ve a la n d lin e? 1 2 8 millio n d o n ’t

. , L. A. T I ME S , J u ly

8 , 2 0 1 4 , h ttp ://w

w w .latim es.co m

/ scien ce/scien cen o w

/la- scisn

- w ireless- o n ly

- h o u seh o ld s- in

- am erica- 2 0 1 4 0 7 0 8

- sto ry .h tm l.G O M E Z V

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I V.

Campbell-Ewald nevertheless arg ues that it c annot be held liable f

or TCPA vi o l a tions because it outsourced the dialing and did not actually make any c alls on behalf of i ts

c l i e n t

. See 47 U .S.C. § 227(b)(1)(A)(iii) (rendering it unlawful “ to make an y c all” u sing an automated dialing
sy stem). Gomez
, in f act, concedes that a third party transmitted the disputed message s

. Even so, CampbellEwald’s arg

ument is not persuasive.

Although Campbell-Ewald did not send a ny tex t messag es, it mig h t be vicariously liable for the messag es sent by Mindmatic s

. The statute itself is silent as to vicarious liability

. W e therefore assume th a t Cong ress intended to incorporate “ordinary tort-r elated vicarious liability rules.” Meyer v. Holley
, 537 U.S. 280, 2 8 5 (2 0 0 3). A c cording ly
, “[ a] bsent a clear ex pression of Cong ressional intent to a pply another standard, the Court must presume that C o n gr ess intended to apply the traditional standard s of vicarious liability

. . . .” Thomas v

. Taco Bell Corp

. , 8 7 9 F

. Supp. 2d 1079, 1084 (C.D. Cal. 2 012), aff’d
, — F

. App’x —, 2 014 W L 2959160 (9th Cir. J uly 2, 2 014) (pe r cu riam). A lthoug h we have never ex pressly reached this q u e stion, several of our district courts have already concluded that the TCPA imposes vicarious liability w here a n ag ency relationship, as defined b y federal common law, is established between the defendant and a third-party

caller. 5

5 Ib id

. S

ee a lso Kristen sen v. Cred it Pa ymen t S ervs ., No

. 2 :1 2

– CV– 0 0 5 2 8- A P G, — F

. Su p p

. 2 d

— , 2 0 1 4 W L 1 2 5 60 3 5 (D. Nev

. Mar. 2 6, 2 0 14 ); In re Jiffy Lu b e In t’l In c ., 8 4 7 F. Su p p

. 2 d 1 2 5 3 (S.D. Cal. 2 0 1 2 ); Kra mer v. Au to b

ytel, In c ., 75 9 F. Su

p p

. 2 d 1 1 6 5 (N.D. C al. 2 0 1 0 ).G O M E Z V

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This interpretation is consistent with that of the statute’s implementing ag ency , which has repea t e dly acknowledg ed the ex istence of vicar i o us liability under the TCPA. The F ederal Communications Co m m i ssion is ex pressly imbued with authority to “presc r i b e reg ulations to implement the requirements” of the TCPA. 47 U.S.C. § 227(b)(2). As e arly

as 1995, the F CC stated that “[ c ] alls placed by an ag ent of the telemarketer a

re treated as if the telemarketer itself placed the call.” In re Rules and Regulations Implementing the TCPA of 1991
, 10 F CC Rcd. 12391, 12397 ( 1995). More recently
, the F CC has clarified that vica r i o us liability is imposed “ under federal common law principles o f ag ency for violations o f either section 227(b) or section 227(c) that are committed b y third-party telemarketers.” In re Joint Petition Filed by Dish Network, LLC
, 28 FC C Rcd. 6574, 6574 (2013). B ecause Cong r ess has not spoken directly to this issue and because the F CC’s interpretation was included i n a fully adjudicated declaratory ruling
, the interpretatio n m u st be afforded Chevron deference. M

etrophones Telecomms., Inc. v. Global Crossing Telecomms, Inc
., 423 F .3d 1056, 1065 (9 t h C ir. 2 0 0 5) ( citing Nat’l Cable & Telecomms. A ss’n v. Bran d X Internet Servs.
, 545 U.S. 9 67, 980–85 ( 2005)) (other citations omitted), aff’d
, 550 U.S. 45 (2007); see also Chevron, U.S.A., Inc. v. Natural Res. Def. C o u n c i l
, 467 U.S. 837, 843 (1984) (“I f, however, the court determines Cong ress has not directly addressed the precise q u e stion at issue, the court does not simply impose its o w n construction on the statute, a s would be n ecessary in the absence of an administrative interpretation.” (footnote omitted)).

Cam p bell-Ewald concedes that the F CC already
recog niz es vicarious liability in this contex t, but arg ue s that vicarious liability only ex tends to the merchant whose g oods

or services are being p romoted b y the telemarketingG O M E Z V

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campaig n. Yet the statutory lang uag e sug g ests otherwise, a s § 227(b) sim p ly imposes liability upon “any person”—not “any merchant.” See Ali v

. Fed. Bureau of Prisons
, 552 U.S. 214, 221 (2008) (inter

p r e t i n g the use of “ any ” as “allencompassing ”); 47 C.F .R. § 64.1200 (interpreting the phrase “any person” to reach individuals and entities). And althoug h the F CC’s 2013 ruling may emphasiz e vicarious liabi l i t y on the p art of merchants, the F CC has never stated that vicarious liability is only applica b l e to these e ntities. 6 I ndeed, such a constructi o n would contradict “ordinary ” rules of vicarious liability
, Meyer
, 537 U.S. at 285, w hich requir e c ourts to consider the interaction b etween the parties rather than their respective identities. See R E S T A T E M E N T (T H I R

D ) O F A G E

N C Y (2006) §§ 2.01, 2.03, 4.01 (ex pla i n i n g that ag ency may be established by ex pres s authoriz ation, implicit authoriz ation, or ratification).

Given Campbell-Ewald’s c oncession that a merchant can be held liable for outsourced telemarketing
, it is unclear why

a third-party marketing consultant shouldn’t be subject to that

same liability

. As a matter of policy it seems more important
to subject the consultant to t he c onsequences of TCPA infraction. After all, a merchant presumably hires a consultant in part due to its ex pertise in marketing norms. I t

6 Dish Netwo rk
, 2 8 FCC Rcd

. at 6 5 7 4

. T h e FCC u ses th e w o rd “ seller,”

w h ich Cam

pb ell- Ew ald co n stru es as th e m erch an t w h o s e g o o d s or

serv i ces are f

eatu red in th e telem ark etin g cam p aig n

. T h e FCC actu ally d ef in es seller as an “ en tity o n w h ose b eh alf a t e l e p h on e call o r m essag e is in i t i a t e d f

o r th e p u rp o se o f en co u

rag in g th e p u rch ase o r ren t al of
, or in v estm en t in
, p ro p erty , g o o d s , o r serv i c e s

. ” S ee 4 7 C.F.R § 6 4 .1 2 0 0 (f

)(9 ). We n e e d n o t d eterm in e w h eth er Cam

p b ell- Ew ald

c o n s t i tu tes a seller u n d er th is d ef in itio n , as w e co n clu d e th at v icario u s liab ility tu rn s o n t

h e s a tisf actio n o f relev an t stan d ard s o f ag en cy , irresp ectiv e o f

a d ef en d an t’ s n o m in al d esig n atio n

.G O M E Z V

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makes little sense to hold the merchant vicariously liable for

a campaig n he entrusts to an advertising professional, unless that professional is equally accountable for any resulting TCPA violation. I n fact, Campbell-Ewald identifies n o case in which a defendant was e x empt from liability due to the outsourced transmission of the prohibited calls.

Moreover, our own precedent belies any arg umen t that liability is not possible. I n o u r seminal case reg arding tex t messag es a n d the TCPA, we allowed a case to proceed
ag ainst a n a nalog ous marketing consultant who was not “responsible for the actu a l transmission of the tex t messag es.” See Satterfield
, 5 69 F .3d at 951. I n Satterfield
, a pu b l i sher had instructed a marketing consultant to create a tex t messag e campaig n advertising a new Stephen K ing novel. Id. a t 949. The consultant in turn outsourced the recipient selection a nd
messag e transmission to two other su b c o ntractors. Id

. A recipient s u e d b oth the publisher and the marketing c onsultant f o r alleg ed violations of the TCPA. I d. at 950. The district
court entered summary judg ment in favor of both d e fendants, holding that the cellular user had consented to rece i ve advertisements w hen it sig ned it s cellular service c ontract. Id. W e ultimately reversed and rem anded the case, holding ( inter alia ) that the c e llular service ag reement did n o t constitute “ex pre s s consent” to receive the advertisement in dispute. Id. a t 955. So althoug h we did not ex plain the basis of the defendants’ p o t ential liability
, we implicitly acknowledg ed th e e x i s tence of that basis. T he present case affords an opportunity to clarify that a defendant may be h eld vicariously liable for TCPA v i o lations where the p laintiff establishes a

n ag ency r elationship, as defined by federal

common law, b etween the defendant and a third-party caller.G O M E Z V

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B e fore moving on, we should note that Gomez asks us to endorse a nother potential source of liability by ho l d i n g that direct liability applies where a third party is “closely involved” in the placing of the calls

. Be c a use the facts a re not y et developed, the pr e s e n t case does not r equire such a determination. W e therefore leave that question for another day

. See United States v. M a n n i n g , 5 27 F .3d 828, 837 n.8 (9th Cir. 2008) (“[ W ] e simply ex press no v i e w o n issues
unnecessary

to this [ decision] .” (citation omitted)).

V.

F inally
, we turn to the leg al theory underly ing the district court’s decision. The c ourt entered summary judg ment a fter concluding that Campbe ll-Ewald is ex empt from liability under Y earsley
, 309 U.S. 18. Gomez contends that Y earsley is outdated and inapposite, and that the district court should have applied the standard articulate d i n B oyle v. United Technologies Corp.
, 487 U.S. 500 ( 1988). The availability o f these defenses is a question of law tha t w e review de n ovo

. In re Hanford Nuclear Reservation Litig.
, 534 F .3d 986, 1000 (9th Cir. 2008).

After reviewing the relevant law, w e ag ree wit h Gomez that Y earsley is not applicable. Y e a rsley established a narrow rule reg arding claims arising out of p roperty damag e c aused by public w orks projects. T h e dispute involved e rosion caused by efforts to render the Missou r i R i v er more navig able. Y

earsley
, 309 U.S. a t 19. The Court reasoned that if—as alleg ed—the contractor’s work was in accordance with

ex p ress Cong ressi o nal directive and r esulted in an unconstitutional takin g o f property , “the Government has im p liedly promised to compensate the plaintiffs and has afforded a r emedy for its recove r y b y a s uit in the Court o fG O M E Z V

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Claims.” Id. at 21–22 (citing 28 U.S.C. § 250 (1940)) (other citations omitted). As a consequence, there was an adequate remedy a vailable and no need fo r action ag ainst the private
contractor. Id. at 22.

I t seems clear that the reas o n i n g employ ed by the Y e a rsley Court is n o t r elevant here. Gomez ’s claims do not implicate a constitutional “promise to compensate” i n j ured plaintiffs such that an alternate remedy ex ists. Nor does the

case belong in some other venue. Cf. Myers v. United States
, 323 F

. 2d 5 80, 583 ( 9th Cir. 1963) ( r emanding under Y earsley for transfer to Co u rt of Claims). I nstead, Cong r ess has

e x pressly c reated a federal cause of action affording individuals like Gomez standing to seek c ompensation for violations of the TCPA. I n the seventy -y ear history o f the Y e a rsley doctrine, it has apparently never b e e n invoked to preclude litig ation o f a d i s pute like the one before us. This Court, in p articular, h a s r arely allowed use of the defense, a nd only in the contex t of property damag e r esulting from public works projects.

I n its brief discussion, the district court did not ex plain its decision to apply Y

earsley to the facts and issues a t bar. The

cases cited by the court do not support such an interpretation. 7 At oral arg u ment, w e asked Campbell-Ewald to name any authority that mig ht justify the application of Y earsley to the facts of this c ase. Campbell-Ewald responded by pointing to

a recent F ifth Circuit decision dismissing a class action under

7 S ee Ackerso n v. Bea n Dred g i n g L LC
, 5 8 9 F.3 d 1 9 6
, 2 0 4

– 0 7 (5 th Cir. 2 0 0 9 ) (ap p l y in g Y

ea rsley in trad itio n al p u

b lic w o rk s co n tex t); Bu tters v. Va n ce In t ’l In c. , 2 2 5 F.3 d 46 2
, 4 6 6 (4 th Cir. 2 0 00 ) (ad j u d icatin g im

m u n ity

u n d er t h e Fo reig n So v ereig n Im m u n i ty A ct); Myer

s , 3 23 F.2 d at 5 8 3 (ap p ly in g Yea rsley to p ro p erty lo ss resu ltin g f ro m h ig h w ay co n stru ctio n ).G O M E Z V

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Y e a r s ley

. See Ackerson
, 589 F .3d 196. Yet that case—lik e Y e a rsley its elf—involved alleg ations of property damag e resulting f

rom dredg ing w ork undertaken to improve the nation’s waterway s. Id

. at 202–03 (listing alleg ations that the United States and its co n t r actors had irreparably d amag ed L ouisiana’s coastline a n d w etlands in the 1960s, ultimately contributing to t h e widespread loss of property during Hurricane Katrina). So while the F ifth Circuit’s decision may rebut Gomez ’s a r gument that Y earsley is stale precedent, it does not w ar r a n t application of the doctrine to the present dispute.

Nor does the B o

y le pre-emption doctrine provide Campbell- E w a l d w ith a relevant d efense. The doctrine precludes state claims where the imposition of liability would undermine or frustrate federal inte r ests. See Nielsen v

. George Diamond V

ogel Paint Co.
, 892 F .2d 1450, 1 454 (9th Cir. 1990) (ex plaining that the Boyle s t a n d ard is used to determine w hen “federal law should disp l a c e state law”). Boyle involved a wrongf u l death a ction broug ht under Virg inia law ag ains t a g overnment contractor that h ad supplied a helicopter to the United State s m i l i tary

. See 487 U.S. at 502. After a j u r y r et u r n ed a verdict in f avor o f the plaintiffs, the F ourth Circuit reversed
, holding that liability was precluded in part by the federal interest inherent in military d ecisions

. I

d. at 503, 510. The Supreme Court
ag reed, ex plaining that w hen “an area of uniqu e ly federal interest” is im p l i c ated by a federal p urchase, state law is displaced where “a sig nificant conflict ex ists b e t ween an identifiable federal p olicy or interest and the oper a t i o n o f
state law, o r the applicati o n of state law would f rustrate specific objectives of federal leg islation

. . . .” Id. at 507 (internal b rackets, q

uotation marks, and citations omitted). The Court then remanded after e stablishing a rule b y whichG O M E Z V

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courts should determine whether a specifi c c ontractor is acting pursuant to a military contract such that the defense is available. Id. at 512.

Althoug h Boyle in effect created a defense fo r s o me g overnment contractors, i t i s fundamentally a pre-emption

case. T he Boyle Co u r t e s tablished two related rules: (1) a g eneral rule whereby sta t e claims may be p re-empted b y federal law, and (2) a specific rule whereby certain military
contractors may be ex empt from state tort liability in furtherance of that pre-emption. 487 U.S. at 507–08, 512. I n arg uing that Boyle g o verns here
, Gomez overlooks the pree m p t i o n predicate, assuming that Boyle represents a g eneral
g rant of immunity for g o v e r n m e n t contractors. Y et Boyle itself includes foo tnotes emphasiz ing the displacement question and indicating that it should not be construed a s broad immunity precedent. I d. at 5 05 n.1, 508 n.3. W e have already clarified this p oint, ex plaining that Boyle “is directed toward deciding the ex tent to w hich federal law s h ould displace state law w ith r espect to the liability of a m i l i t ary contrac t o r

. ” Nielsen
, 892 F .2d at 1454. A c cording ly
, althoug h Boyle may apply more broadl y t h a n to the facts o f that case alone, that broa d e r applicability is rooted in preemption principles and not in any widely available immunity or defense.

Returning to the p resent c a se, Gomez bring s a claim under federal law, so pre-emption is simply not a n issue. The Boyle doctrine is thus rendered inapposite. Even CampbellEwald—notwithsta n d ing a vested interest in maintaining
every possible means of ex oneration—admits that a Boyle defense is not p ermissible here. B e c ause the defendant does

n o t assert a Boyle defense, we need not belabor the presentG O M E Z V

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discussion—we accept Campbell-Ewald’s c oncession that Boyle is not relevant.

Campbell-Ew ald contends that a new immunity for service contractors was espoused by the Supreme Court in Filarsky v. Delia
, — U .S. —, 132 S. Ct. 1657 (2012). Y et the Cou r t d i d not establish any n ew theory
, and althoug h the Filarsky discussion does include a broad r e a d i n g of the
qu al i fied immunity doctrine, id. at 1667–68, that d o ctrine is
not implicated by this case. Filarsky involved alle g ed

co n s t itutional violations broug ht pursuant to 42 U .S.C. § 1983. See id. at 1661. The Supreme Court g ranted certiorari to resolve a d ispute as to whether one of the d e f e n d a n t s

— a n a t t o r n e y c o n t r a c t e d b y m u n i c i p a l
g overnment—was e lig ible for the qualified immunity afforded to his city

- employ ed colleag ues. Id. at 1660–61. T o determine the scope of the doctrine, the Court ex amined “the

‘ g eneral p rinciples o f tort immunities and defenses’ applicable at common law.” Id. at 1662 (quoting Imbler v

. Pachtman
, 424 U.S. 409, 418 (1976)). W hen the ex amination revealed that part-time and lay offic i a l s h ad been g ranted immunity throug hout the nineteenth century , id. at 1665, the Court concluded that the co n tractor was properly entitled to the same qualified immunity enjoy ed b y his publicly employ e d counterparts.

Filarsky has little to offer Campbell-Ewald. The decision is applicable only in the c ontex t of § 1983 qualified immunity from personal tort liability

. See, e .g. , ibid

. (“[ I ] mmun i t y under § 1983 should not v ary depending on whether an individual working for the g o vernment does so as a full-time

e m ploy ee, or on some other basis.”). Moreover, the C o u r t afforded immunity only after tracing two hundred y ea r s o f precedent. Here, not only d o we lack decades or centuries o fG O M E Z V

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common l a w r e cog nition of the proffered defense, we a re

aware of no authority ex empting a marketing consultant from analog ous federal tort liability

.

Nor are we persuaded that we should establish the novel immunity asserted by defendants. As the Supreme Court has
recog niz ed, immunity “comes at a g reat cost.” W est f a l l v. Erwin
, 484 U.S. 292, 295 (1 9 8 8 )
, superseded by statute on other grounds
, Pub. L

. No. 100-694, 1 02 Stat. 456 3 (1988), codified at 28 U.S.C. § 2 679(d), a s recognized i n A dams v

. United States
, 420 F .3d 1049, 1052 (9th Cir. 20 05). W here immunity lies, “[ a] n injured party wit h an otherwise

m e r i torious tort c laim is denied compensation,” which “contrave nes the basic tenet that individuals be h eld accountable for their wrong ful conduct.” W estfall , 484 U.S.
at 295. According ly
, immunity m u s t b e ex tended w ith the
utmost care. The record contains sufficient evidence that the
tex t messag es were contrary to the N avy ’s policy permitting
tex ts only to persons who h ad opted in to r e ce i ve them. Consequently
, we decline the invitation to craft a new immunity doctrine or ex tend an ex isting one.

VI

.

As ex plained herein, Camp bell-Ewald’s four arg uments in support of summary judg ment each fail. And because the motion was b ased on pure questions of law, we were not briefed o n the f

actual predicates of liability

. Campbell-Ewald has therefore not carried its burden to demonstrate an absence of material fact or to show that it is otherwise “ entitled to jud g ment as a matter of law.” F E D

. R. C I V

. P. 56(a).G O M E Z V

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A c c o rding ly
, w e VACATE the d istrict court’s order a n d remand the c ase for further proceeding s consistent with this opinion.

VACATED and REMANDED.

The costs shall be tax ed ag ainst the Defendant-Appellee.