Academic journal article William and Mary Law Review

Campbell-Ewald Co. V. Gomez: Diminishing the Derivative Sovereign Immunity Doctrine and the Social Costs of Increasing Liability to Government Contractors

Academic journal article William and Mary Law Review

Campbell-Ewald Co. V. Gomez: Diminishing the Derivative Sovereign Immunity Doctrine and the Social Costs of Increasing Liability to Government Contractors

Article excerpt

TABLE OF CONTENTS

INTRODUCTION                       1492
I. HISTORY OF DERIVATIVE           1495
SOVEREIGN IMMUNITY
   A. Derivative Sovereign
   Immunity's Foundations in
                                   1496
   B. Derivative Sovereign
   Immunity's Development Through
   Products Liability              1498
   C. Derivative Sovereign
   Immunity's Expansion to
   [section] 1983
   Cases                           1503
II. CAMPBELL-EWALD Co.
v. GOMEZ AND DERIVATIVE
   SOVEREIGN
   IMMUNITY'S IMPORTANCE           1506
   III. THE EXTERNAL COSTS
   OF CAMPBELL-EWALD CO. V.
   GOMEZ                           1512
A. The Increased Costs             1513
   of Independent Contractors
   B. The Diminished Quality
   of the Independent Contractor
   Market                          1514
IV. POTENTIAL PITFALL OF
   DIMINISHED DERIVATIVE
   SOVEREIGN
   IMMUNITY: INEFFICIENT
   VERTICAL GOVERNMENT
   INTEGRATION                     1516
CONCLUSION                         1518

INTRODUCTION

"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 1-800-510-2074." (1) This text message, received May 10, 2006, formed the basis of Jose Gomez's claim against Campbell-Ewald Company, an advertising and marketing communications agency contracted in 2000 by the Navy to handle all of its advertising. (2) Notably, Campbell-Ewald did not send the text message or even identify Gomez as a potential Navy recruit. (3) Instead, Mind-Matics, a subcontractor specializing in mobile marketing, "handled the deployment, transmission and delivery of the text messages, including the use of its own SMS short code." (4)

In 2006, Navy Recruiting Command (NRC), the recruitment division of the Navy, in coordination with Campbell-Ewald, adopted a wireless recruiting strategy aimed at recruiting nearly 38,000 active duty Navy sailors by primarily targeting males between the ages of seventeen-and-a-half and twenty-four. (5) To implement the plan, Campbell-Ewald requested bid proposals from subcontractors with expertise in mobile marketing. (6) MindMatics responded, suggesting a direct text message program targeting "cell phones of 150,000 Adults 18-24 from an opt-in list of over 3 million [individuals]." (7)

Before proceeding, Campbell-Ewald sought and obtained the Navy's approval. (8) The NRC provided oversight and approval of Campbell-Ewald's text message recruiting campaign on behalf of the Navy. (9) Lee Buchschacher, Deputy Director of the Marketing and Advertising Plans Division for the NRC, and "Cornell Galloway, an Enlisted Program Advertising Manager, 'authorized and approved the text message campaign proposed by MindMatics."' (10) Moreover, Buchschacher "reviewed, revised, and approved" the Navy's text message. (11)

MindMatics sent the text messages approved by the Navy between May 10 and May 24, 2006. (12) Gomez, who alleged that he had not opted-in to receive text messages but had erroneously received a message, (13) brought a class action lawsuit pursuant to the Telephone Consumer Protection Act (TCPA) (14) on behalf of himself and "all persons in the United States and its Territories who received one or more unauthorized text message advertisements." (15)

The TCPA was passed originally in 1991 as an amendment to the Communications Act of 1934. (16) The idea was to place restrictions on telephone solicitations and to set limitations on the use of automated telephone equipment in telemarketing. (17) The TCPA prohibits anyone from making an automated call, without first obtaining express consent, to the cellular phones of individuals within the United States. (18) Notably, a text message constitutes a call for the purposes of the TCPA. (19) Moreover, Gomez was able to sue Campbell-Ewald instead of MindMatics because of the doctrine of vicarious liability. (20) Although the TCPA does not speak to whether vicarious liability applies, courts ordinarily interpret silence from Congress to imply that "Congress intended to apply the traditional standards of vicarious liability. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.